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• Power of the court to hear an action or proceedings, and to render a judgment thereon which will bind the parties to such action/ proceeding. [Regalado] Judicial power includes the duty of the courts of justice: [Art 8, Sec. 1, Consti] 1) To settle actual controversies involving rights which are legally demandable and enforceable; 2) To determine WON there has been a GADALEJ on the part of any government branch/instrumentality.
REMEDIAL LAW II. SPECIFIC JURISDICTION
• The judicial power shall be vested in one SC and in such lower courts as may be established by law. [Art. 8, Sec. 1, Consti]
I. PRESCRIBED JURISDICTION
• • • • Jurisdiction over a particular subject matter. Conferred only by the Constitution or by law. Determined by the allegations in the complaint. An error in jurisdiction can be raised at any time and even for the first time on appeal. [David v. Cordova (2005)] Cannot be waived; Judgment without jurisdiction is void. • Exception: Jurisdiction by estoppel. [Soliven v. Fastforms (2004)] • Rationale: To prohibit parties from accepting judgments of court only if favorable to them. Cannot be the subject of compromise [Art. 2035, CC] Once attached to a court, cannot be ousted by subsequent statute. • Exception: The statute itself conferring new jurisdiction expressly provides for retroactive effect. [Southern Food v. Salas (1992)] The filing of the complaint or appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial court with jurisdiction over the subject matter or the nature of the action. • Exception: The court may allow payment of the fee within a reasonable time, but in no case beyond the applicable prescriptive period. [IBP v. Legasto (2006)]
SC’S POWERS [Art. 8, Sec. 5, Consti] 1) Have original jurisdiction over: a) Cases affecting ambassadors and other public ministers and consuls; b) Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. 2) Review/revise/reverse/modify/affirm on appeal or certiorari, final judgments/orders of lower courts on: a) Constitutionality/validity of any treaty, international or executive agreement, law, presidential decree/proclamation/order/ instruction, ordinance or regulation; b) Legality of any tax/impost/assessment/toll, or any penalty imposed in relation thereto; c) Any lower court’s jurisdiction; d) Criminal cases where the penalty imposed is reclusion perpetua or higher; e) Only errors/questions of law are involved. • Exception: [Josefa v. Zhandong (2003)] (1) The conclusion is grounded on speculations/surmises/conjectures; (2) The inference is manifestly mistaken/absurd/impossible; (3) There is GAD; (4) The judgment is based on a misapprehension of facts; (5) The findings of fact are conflicting; (6) There is no citation of specific evidence on which the factual findings are based; (7) The finding of absence of facts is contradicted by the presence of evidence on record; (8) The CA’s findings are contrary to those of the trial court; (9) The CA manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) The CA’s findings are beyond the issues of the case; (11) The CA’s findings are contrary to the admissions of both parties. 3) Temporarily assign judges of lower courts to other stations as public interest may require, which shall not 6 six months without the consent of the judge concerned. 4) Order a change of venue or place of trial to avoid a miscarriage of justice. 5) Promulgate rules on: a) Protection and enforcement of constitutional rights; b) Pleading/practice/procedure in all courts; c) Admission to the practice of law; d) The integrated bar; e) Legal assistance to the under-privileged. • Guidelines on the rules: (1) Simplified and inexpensive procedure for the speedy disposition of cases; (2) Uniform for all courts of the same grade;
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(3) Not diminish/increase/modify substantive rights. 6) Appoint all Judiciary officials/EEs in accordance with the Civil Service Law. CONSTITUTIONAL COMMISSSIONS • General rule: Decisions/orders/rulings of constitutional commissions (CSC, COMELEC and COA) may be brought to the SC on certiorari by the aggrieved party, within 30 days from receipt of copy. [Art. 9-A, Sec. 7, Consti] • Exception: If otherwise provided by the Constitution or by law. • CSC judgments/decisions/orders are within the exclusive appellate jurisdiction of the CA through Rule 43. [RA 7902] • CTA judgments/decisions are now appealable by petition for review on certiorari to the SC. [RA 9282]
EXCLUSIVE ORIGINAL JURISDICTION IN CIVIL CASES [Sec. 19, BP 129] 1) Incapable of pecuniary estimation; • 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)] • 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)] • If the thing sought to be deposited or consigned is a sum of money, the amount of the debt due is determinable and capable of pecuniary estimation. [Ascue v. CA (1991)] • Action for support is incapable of pecuniary estimation because the court is asked to determine first WON the plaintiff is indeed entitled to support. [Baito v. Sarmiento (1960)] • Action for specific performance is incapable of pecuniary estimation. [Manufacturer’s Distributor’s v. Yu Siu Liong (1966)] • The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose. The alternative prayer for specific performance is also of the same value, for the alternative prayers would not have been made in the complaint if one was more valuable than the other. [Cruz v. Tan (1950)] • Rescission is a counterpart of specific performance therefore also incapable of pecuniary estimation. [Lapitan v. Scandia (1968)] • Action for declaration of nullity of a deed of partition is incapable of pecuniary estimation. [Russel v. Vestil (1999)] • An action for expropriation is incapable of pecuniary estimation. [Bardillon v. Masili (2003)] 2) Title to, or possession of, real property (or any interest therein) where the property’s assessed value exceeds P20K or P50K (for civil actions in Metro Manila); • Exception: Forcible entry into and unlawful detainer of lands/buildings. 3) Admiralty and maritime jurisdiction where the demand/claim exceeds P300K or P400K (in Metro Manila); • Maritime and admiralty cases involve trade and transactions in the sea. Maritime jurisdiction includes maritime tort. [Negre v. Cabahug (1966)] 4) Probate (testate and intestate) where the gross value of the estate exceeds P300K or P400K (in Metro Manila); 5) Marriage contract and marital relations; 6) GENERAL ORIGINAL JURISDICTION - All cases not within the exclusive jurisdiction of any court/tribunal/person/body exercising judicial or quasi-judicial functions; 7) Within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations; 8) All other cases where the demand (exclusive of interest, damages of whatever kind, attorney's
COURT OF APPEALS [Sec. 9, BP 129]
ORIGINAL JURISDICTION • Mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs/processes, WON in aid of its appellate jurisdiction. EXCLUSIVE ORIGINAL JURISDICTION • Annulment of RTC judgments. EXCLUSIVE APPELLATE JURISDICTION • Final judgments/decisions/resolutions/orders/ awards of: 1) RTC; 2) Quasi-judicial agencies/instrumentalities/ boards/commissions including: a) SEC; b) Social Security Commission; c) ECC; d) CSC. • Exception: Those falling within the SC’s appellate jurisdiction of the Supreme Court in accordance with: (1) The Constitution; (2) Labor Code; (3) BP 129; (4) Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act of 1948. • Supposed appeals from the NLRC to the SC are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. All such petitions should henceforth be initially filed in the CA in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired. [St. Martin’s Funeral Home v. NLRC (1998)] POWERS 1) Try cases; 2) Conduct hearings; • Trials/hearings must be continuous and must be completed within 3 months, unless extended by the Chief Justice. 3) Receive evidence; 4) Any and all acts necessary to resolve factual issues raised, including the power to grant and conduct new trials or further proceedings.
REGIONAL TRIAL COURTS
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fees, litigation expenses and costs) or the value of the property in controversy exceeds P300K or P400K in Metro Manila. • 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] • Actions for damages based on quasidelicts are primarily and effectively actions for the recovery of a sum of money for the damages suffered because of the defendant’s alleged tortious acts. This money claim is the principal relief sought, and is not merely incidental thereto or a consequence thereof. [Iniego v. Purganan (2006)] ORIGINAL JURISDICTION [Sec. 21, BP 129] 1) Certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions; 2) Actions affecting ambassadors and other public ministers and consuls. APPELLATE JURISDICTION [Sec. 22, BP 129] • All cases decided by MeTCs/MTCs/MCTCs in their respective territorial jurisdictions.
therein) where the assessed value of the property (or interest therein) does not exceed P20K or P50K (in civil actions in Metro Manila). DELEGATED JURISDICTION IN CADASTRAL AND LAND REGISTRATION CASES [Sec. 34, BP 129] 1) Lots where there is no controversy/opposition; 2) Contested lots the value of which does not exceed P100K. • The value is to be ascertained: a) By the claimant’s affidavit; b) By agreement of the respective claimants, if there are more than one; c) From the corresponding tax declaration of the real property. • MTC decisions in cadastral and land registration cases are appealable in the same manner as RTC decisions.
• Purpose: To reduce the number of court litigations and prevent the deterioration of the quality of justice which has been brought about by the indiscriminate filing of cases in the courts. [Lumbuan v. Republic (2006)] General rule: Authority to bring together the parties actually residing in the same city or municipality for amicable settlement of all disputes. [Sec. 480, RA 7160] • Exception: 1) If one party is the government; 2) If one party is a public officer/EE and the dispute relates to the performance of his official functions; 3) Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5K; 4) Offenses with no private offended party; 5) Real properties located in different cities/municipalities; • Exception to exception: Parties agree to submit their differences to amicable settlement by an appropriate lupon. 6) Parties who actually reside in barangays of different cities/municipalities; • Exception to exception: If such barangay units adjoin each other and the parties agree to submit their differences to amicable settlement by an appropriate lupon. 7) Such disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice.
METROPOLITAN, MUNICIPAL AND MUNICIPAL CIRCUIT TRIAL COURTS
EXCLUSIVE ORIGINAL JURISDICTION [Sec. 33, BP 129] 1) Civil actions and probate proceedings (testate and intestate), including the grant of provisional remedies, where the value of the personal property, estate or amount of the demand does not exceed P300K or P400K (in Metro Manila); • Interest, damages of whatever kind, attorney's fees, litigation expenses and costs shall be included in the determination of the filing fees. • If there are several claims or causes of actions between the same/different parties in the same complaint, the amount of the demand shall be the totality of the claims in all the causes of action, WON the causes of action arose out of the same/different transactions. 2) Forcible entry and unlawful detainer; • If the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. • That the MeTC has jurisdiction even in cases where the issue of possession is closely intertwined with the issue of ownership is now a settled doctrine in ejectment proceedings. [Heirs of B. Hernandez v. Vergara (2006)] 3) All civil actions that involve title to, or possession of, real property (or any interest
VENUE [Sec. 409, RA 7160]
Disputes between persons actually residing in the same barangay Disputes between actual residents of different barangays within the same city/municipality Disputes on real property (or any interest therein) Their barangay
Barangay where the respondent (or any of the respondents) actually resides, at the complainant's election Barangay where the real property (or the larger portion thereof) is situated
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within 10 days from the date of the settlement. • Where there is sufficient basis for the issuance of the certification for filing a complaint. • The prescriptive periods shall resume upon receipt by the complainant of the complaint or the certificate of repudiation or of the certification to file action issued by the lupon or pangkat secretary. • The pangkat shall arrive at a settlement/resolution of the dispute within 15 days from the day it convenes. If the mediation effort fails within 15 days from the 1st meeting. b) Special. for them and their witnesses to appear before him for mediation. [Rule 1. [Rule 1. 417. RA 7160] • General rule: Same as a court’s final judgment. PRELIMINARIES PROCEDURE FOR AMICABLE SETTLEMENT [Sec. EFFECT [Sec. within 6 months from the date of the settlement. • While the dispute is under mediation. Sec. Action As to parties Involves 2 or more parties Special Proceeding Involves at least 1 party or 2 or more parties in proper cases May involve a right. by action in the appropriate city/municipal court. 3(b)] 2) CIVIL ACTION – One by which a party prosecutes another for the enforcement/protection of a right or the prevention/redress of a wrong. he shall set a date for the constitution of the pangkat. upon the expiration of 10 days from the date thereof. except in clearly meritorious cases. EXECUTION [Sec. RA 7160] • Any individual who has a cause of action against another individual may complain (orally or in writing) to the barangay’s lupon chairperson. the prescriptive periods for offenses and causes of action shall be interrupted upon filing the complaint with the punong barangay. IN GENERAL DEFINITION • ACTION – 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. A. extendible for another period which shall not exceed 15 days. RA 7160] • By the lupon. • After the lapse of the 6 months. • Within the next working day. 3(a)] a) Ordinary. • Exception: 1) If the settlement was repudiated: • By any party. KINDS OF ACTIONS 1) CRIMINAL ACTION – One by which the State prosecutes a person for an act/omission punishable by law. Such interruption shall not exceed 60 days from the filing of the complaint with the punong barangay. 2) If a petition to nullify the award was filed before the proper city/municipal court. 416. Sec. 410. • Where the consent is vitiated by fraud/violence/intimidation. the lupon chairperson shall summon the respondents. but there need not be a violation of this right As to cause of action As to formalities As to governing rules As to appeal from an interlocutory order Involves a right and a violation of such right by the defendant which causes some damage/prejudice upon the plaintiff Requires the application of legal remedies in accordance with the prescribed rules Ordinary rules of procedure Cannot be directly and immediately appealed to the appellate court until after final judgment on the merits Requires no such formalities.CIVIL PROCEDURE Disputes arising at the Barangay where the workplace or at the workplace or institution is institution where the parties located are enrolled REMEDIAL LAW PART 2: ORDINARY CIVIL ACTIONS I. with notice to the complainants. sworn to before him. as it may be granted upon application Special rules of procedure Can be immediately and directly appealed to the appellate court CLASSIFICATION OF ACTIONS • As to nature: Special civil action Also governed by ordinary rules but subject to specifically prescribed rules (Rules 62 to 71) Ordinary civil action Governed by ordinary rules • As to object: 100% UP LAW UP BAROPS 2008 Page 4 of 95 . • By filing with the lupon chairperson a statement to that effect. ACTIONS.
the plaintiff may be entitled to several reliefs. 3) Defendant’s act/omission in violation of plaintiff’s right. Nemo debet vexare pro una et eadem causa (No • • 100% UP LAW UP BAROPS 2008 Page 5 of 95 . 2) Defendant’s correlative obligation to respect plaintiff’s right. [Rule 2. 3] • Purpose: [City of Bacolod v. However. EFFECTS OF SPLITTING A CAUSE OF ACTION [Rule 2. SPLITTING OF CAUSE OF ACTION • Definition: The act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. quasi-contract. 2] man shall be twice vexed for one and the same cause). on the ground of litis pendentia. • A single act/omission can be violative of various rights at the same time. naturalization proceedings Judgment is binding only upon parties impleaded or their successors in interest Ex: Action for specific performance. or 2) A judgment upon the merits in any of the complaints is available as a bar in the others. there is but a single cause of action regardless of the number of rights that may have been violated belonging to one person. Bautista (1989)] For a single cause of action or violation of a right.CIVIL PROCEDURE As to cause: Real action Ownership or possession of real property is involved Personal action Personal property is sought to be recovered or damages for breach of contract are sought Founded on privity of contract Filed in the court where the plaintiff or any of the defendants resides. SM Brewery (1969)] ELEMENTS OF A CAUSE OF ACTION 1) Plaintiff’s legal right. 3) To avoid the costs and expenses incident to numerous suits. acts and omissions punishable by law and quasi-delict). CC (law. [Joseph v. as when the act constitutes juridically a violation of several separate and distinct legal obligations. Sec. Sec. action to recover money or property (real or personal) Ex: Action for partition. only 1 cause of action arises. 4] 1) Filing of the 1st complaint may be pleaded in abatement of the 2nd complaint. SM Brewery] 1) To prevent repeated litigation between the same parties in regard to the same subject or controversy. 1(e) or (f) may be filed in order that the complaint may be dismissed. A party may not institute more than one suit for a single cause of action. [Rule 2. 3 and 4. Sec. • • Every ordinary civil action must be based on a cause of action [Rule 2. annulment of marriage. on ground of bar by former judgment or res judicata. Sec. 1] A cause of action stems from the sources of obligations under Art. 3) A MTD under Rule 16 Sec. If only 1 injury resulted from several wrongful acts. 2) To protect the defendant from unnecessary vexation. 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. action to foreclose real estate mortgage B. 1156. [City of Bacolod v. where there is only one delict/wrong. at the plaintiff’s option Ex: Action for a sum of money Mixed action Both real and personal properties are involved Action in rem Directed against the thing itself Jurisdiction over the person of the defendant is not required REMEDIAL LAW Action in personam Directed against particular persons Jurisdiction over the person of the defendant is required Action quasi in rem Directed against particular persons Jurisdiction over the person of the defendant is not required as long as jurisdiction over the res is acquired A proceeding to subject the interest of a named defendant over a particular property to an obligation/lien burdening it Judgment is binding upon particular persons • Founded on privity of real estate Filed in the court where the property (or any portion thereof) is situated Ex: Accion reivindicatoria Founded on both The rules on venue of real actions govern A proceeding to determine the state/ condition of a thing An action to impose responsibility/ liability upon a person directly Ex: Accion publiciana with a claim for damages Judgment is binding on the whole world • As to place of filing: Local action One that could be instituted in one specific place Transitory action One that could be prosecuted in any one of several places Ex: Accion reivindicatoria. The singleness of a cause of action lies in the singleness of the delict/wrong violating the rights of a person. It is not allowed. contract. CAUSE OF ACTION DEFINITION • CAUSE OF ACTION – The act/omission by which a party violates a right of another.
Remember that in statutory construction. 2) The joinder shall not include special civil actions or actions governed by special rules. 1) PLAINTIFF – One having interest in the matter of the action or in obtaining the relief demanded. 3) If not engaged in business in the Philippines. although he is not obligated to do so. the amount of the demand shall be the totality of the claims in all causes of actions. it cannot sue. in case of conflict. where there are several claims or causes of actions between the same/different parties. 243.Where the claims in all the causes of action are principally for recovery of money. 2) He must have the legal capacity to sue. incompetence. He may be made a defendant and the reason therefore shall be stated in the complaint. 6] • Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may. 4) TOTALITY RULE . Cheng (2005)] An unlicensed foreign corporation is nonetheless permitted to bring suit in the Philippines if it is suing on an isolated transaction. A juridical person. substantive law prevails over procedural laws. [Rimbunan v. [Rule 3. Splitting of cause of action There is a single cause of action Prohibited It causes multiplicity of suits and double vexation on the part of the defendant Joinder of causes of action Contemplates several causes of action Encouraged It minimizes multiplicity of suits and inconvenience to the parties • • The rule is that only natural or juridical persons or entities authorized by law may be parties in a civil case. PD 442 (Labor Code)]. Thus. the joinder may be allowed in the RTC provided one of the causes of action are within the RTC’s jurisdiction and the venue lies therein. insanity. The Roman Catholic Church has legal capacity to sue. Sec. PARTIES TO A CIVIL ACTION C. it may sue or be sued in our courts. such as on account of minority. the aggregate amount claimed shall be the test of jurisdiction. irrespective of whether the causes of action arose out of the same/different transactions. A sole proprietorship does not possess a judicial personality separate and distinct from the personality of the owner of the enterprise. be severed and proceeded with separately. • Note: The Totality Rule under Rule 2. PARTIES REQUIREMENTS FOR A PERSON TO BE A PARTY TO A CIVIL ACTION 1) He a) b) c) must be either: A natural person. (1) The estate of a deceased person. the ascertainment of whether a foreign corporation is merely suing on an isolated transaction or is actually doing business in the Philippines requires the elicitation of at least a preponderant set of facts. Sec. 5 seems to be inconsistent with the Totality Rule under BP 129. [Barlin v. Ramirez] Lack of legal capacity to sue The plaintiff’s general disability to sue. or An entity authorized by law. [Berman v. Oriental (2005)] • Note: A foreign corporation may be party to an action in Philippine courts: 1) If licensed to engage in business in the Philippines. Under the latter. Sec. 10] 100% UP LAW UP BAROPS 2008 Page 6 of 95 . (3) A registered labor union [Sec. it may sue in courts on a single isolated transaction. 3) Where causes of action are between the same parties but pertain to different venues/jurisdictions. but it cannot be sued in our courts on such a transaction. REMEDIAL LAW (2) A political party incorporated under Act 1459 [now BP 68 (Corporation Code)]. • 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. 2) DEFENDANT – One claiming an interest in the controversy or the subject thereof adverse to the plaintiff. The joinder of causes of action is not compulsory but purely permissive as the plaintiff can always file separate actions for each cause of action. but it may be sued in our courts. 2) If not licensed. lack of juridical personality or any other general disqualifications It can be a ground for a MTD Lack of legal personality to sue The plaintiff is not the real party in interest MISJOINDER OF CAUSES OF ACTIONS [Rule 2. Sec. on motion or motu propio. There is no law authorizing sole proprietorship to file a suit. 3) He must be the real party in interest. A sole proprietorship is not vested with juridical personality and cannot sue or file or defend an action. • REQUISITES FOR JOINDER OF CAUSES OF ACTION [Rule 2. The term may also include: a) UNWILING CO-PLAINTIFF – A party who should be joined as plaintiff but whose consent cannot be obtained. 5] 1) The party joining the causes of action must comply with the rules on joinder of parties. with respect to its property. he may join them all in a single complaint. It can be used a ground for a MTD based on the fact that the complaint’s face states no cause of action. embodied in the same complaint.CIVIL PROCEDURE JOINDER OF CAUSES OF ACTION • If the plaintiff has several causes of action against the same defendant.
3 contemplates an exceptional situation where there are numerous persons all in the same plight and all together instituting a constituency whose presence in the litigation is absolutely indispensable to the administration of justice. If court finds the reason for the omission unmeritorious. [Rule 3. • • • Rule 3. [Rule 3. • Requisites: 1) Right to relief arises out of the same transaction or series of transactions. Sec. Sec. 13] PERMISSIVE JOINDER [Rule 3. 12] 5) Alternative defendants. [Rule 3. In fact. Necessary parties [Rule 3. without justifiable cause. 4] • A minor or a person alleged to be incompetent may sue or be sued. with the assistance of his father. Sec. but not necessarily by. Objections to misjoinder cannot be raised for the first time on appeal. • Exception: If the contract involves things belonging to the principal. • An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal. 8] Should be joined whenever possible. as plaintiffs or defendants. 3] • Those acting in fiduciary capacity.[Rule 3. 6] • Parties can be joined. the real party in interest. CLASSIFICATION OF PARTIES • 1) REAL PARTY IN INTEREST . 2) There is a question of law or fact common to all the plaintiffs or defendants. 6] 4) Class suit. 3) Such joinder is not otherwise proscribed by the rules on jurisdiction and venue. 100% UP LAW UP BAROPS 2008 Page 7 of 95 . Sec. [Rule 3. the pleading shall set forth his name (if known) and shall state reason why he is omitted. Bolanos] Neither misjoinder nor non-joinder of parties is ground for dismissal of the action. 7] 2) Permissive joinder of necessary parties. Sec. the practice is for an attorney-in-fact to bring an action. Sec. Sec. 8] 3) Permissive joinder of parties simple (on a common question of law or fact). Failure to comply with the order for inclusion. [Rule 3. Sec. the action can proceed even in their absence • KINDS OF JOINDERS OF PARTIES 1) Compulsory joinder of indispensable parties. mother. such as a trustee/guardian/executor/administrator or a party authorized by law or ROC. • SERIES OF TRANSACTIONS – Transactions connected with the same subject matter of the suit. Reasonable opportunity must be given for his inclusion by amendment of the complaint. If a necessary party is not joined. impracticable to bring them all before the court). b) The party entitled to the avails of the suit. 1 which provides that only natural or juridical persons may be parties in a civil action. • The beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. • Husband and wife shall sue and be sued jointly. except as provided by law [Rule 3. 7] Must be joined under any and all conditions. Sec. [Tuason v. [Rule 3. 12] • Requisites: 1) Subject matter of the controversy is one of common/general interest to many persons. 2 requires that an action must be brought in the name of. Sec. The strict application of the rule as to indispensable parties would require that each They are those with such an interest in the controversy that a final decree would necessarily affect their rights so that the court cannot proceed without their presence. the minors (represented by their parents) were held as real parties in interest under the principle of intergenerational responsibility. [Rule 3. Sec. is deemed a waiver of the claim against such party. 3) Parties brinqinq the class suit are sufficiently numerous and representative of the class and can fully protect the interests of all concerned. 2) The persons are so numerous that it is impracticable to join them all as parties (i. or if he has none. CC] KINDS OF PARTIES IN INTEREST Indispensable parties [Rule 3.e. Sec. Factoran. Sec. c) One necessary to a complete determination or settlement of the questions involved. it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained. • The party’s interest must be direct. his presence being a sine qua non for the exercise of judicial power No valid judgment if indispensable party is not joined. 2] a) The party who stands to be benefited/injured by the judgment in the suit. Sec. substantial and material. Sec. Sec. CLASS SUIT [Rule 3. Sec. • Rule 12. This doctrine is inconsistent with Rule 3. 1883. [Art. 11] Non-joinder of an indispensable party is not a ground for outright dismissal. 9] Note: In Oposa v. in one single complaint or may themselves maintain or be sued in separate suits. 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 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.CIVIL PROCEDURE b) The original plaintiff becoming a defendant to the original defendant’s counterclaim. [Rule 3. 5] 2) REPRESENTATIVE PARTY – [Rule 3. The moment such defect becomes apparent. • REMEDIAL LAW Objections to defects in parties should be made at the earliest opportunity. a motion to strike the names of the parties must be made. Sec. a guardian ad litem. guardian. 4) The representative sues/defends for the benefit of all.
• • • ALTERNATIVE DEFENDANTS [Rule 3. 14. d) The successor adopts/continues (or threatens to do so) his predecessor’s action. If a class suit is improperly brought. 2) They enter into a transaction. • The case will be dismissed if the plaintiff’s interest is transferred to defendant unless there are several plaintiffs. • The substitute defendant need not be summoned. Sec. within 30 days after the successor takes office. cases involving property and property rights). 3) Incompetency/incapacity. it is the counsel’s duty to: a) Inform court within 30 days after such death of the fact thereof. 15] • Requisites: 1) There are 2 or more persons not organized as a juridical entity. he either dies/resigns or otherwise ceases to hold office. but it is not indispensable to make each member of the class an actual party.g. Sec. Sec. 2) His identity or name is unknown. any party in interest shall have the right to intervene to protect his individual interest. The order of substitution shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party.CIVIL PROCEDURE one in the class be present. the action must be converted into an action in rem or quasi in rem by attaching the defendant's property in the Philippines. [Rule 3. [Rule 14. REMEDIAL LAW business maintained under such name. in which case the remaining plaintiffs can proceed with their own cause of action. • Failure to comply with this duty is a ground for disciplinary action. although subject to the other requisites of the corresponding governing law especially on the issue of locus standi. Sec. or upon the person in charge of the office or place of 100% UP LAW UP BAROPS 2008 Page 8 of 95 . the court will order the opposing party to procure the appointment of an executor or administrator for the estate. Class suit There is a single cause of action pertaining to numerous persons. 5) Pleading is amended when the identity or true name is discovered. b) Give the name and address of the legal representatives. Sec. e) The party or officer affected was given reasonable notice of the application therefore and accorded an opportunity to be heard. In the class suit. but they cannot sue under such name. [Regalado] In a class suit. However. [Rule 3. UNKNOWN IDENTITY OR NAME OF DEFENDANT [Rule 3. 2) Death or separation of a party who is a public officer. 17] • Requisites: a) Public officer is a party to an action in his official capacity. the action is subject to dismissal regardless of the cause of action. the court may appoint a guardian ad litem for them. as unknown owner/heir/devisee). he may join any or all of them in the alternative. • In case of minor heirs. 18] • If a party becomes incompetent/ incapacitated during the pendency of the action. Sec. the action survives and may be continued by/against the incompetent/ incapacitated assisted by his legal guardian or guardian ad litem. that there is a substantial need to continue/maintain the action. 13] • Where the plaintiff is uncertain against whom of several persons he is entitled to relief. not a mere additional defendant. Service of summons upon a defendant whose identity is unknown may be made by publication in a newspaper of general circulation in accordance with Rule 14. 16] • In this case. representation of class interest which will be affected by the judgment is indispensable. 8] SUBSTITUTION OF PARTIES 1) Death of a party. 18] • General rule: The rule does not consider the transferee an indispensable party. [Rule 3. the action may proceed without the need to implead him. Sec. c) It is satisfactorily shown to the court by any party. Permissive joinder of parties There are multiple causes of action separately belonging to several persons. 3) A wrong is committed against a 3rd person in the course of such transaction. The service of summons may be effected upon all the defendants by serving upon any of them. Hence. • When a party to a pending action dies and the claim is not extinguished. • Exception: When the substitution by or joinder of the transferee is ordered by court. where the claim is not extinguished by the death of the party (e. • ENTITY WITHOUT JURIDICAL PERSONALITY AS DEFENDANT [Rule 3. A taxpayer's suit or a stockholder's derivative suit is in the nature of a class suit. 4) Transfer of interest during the pendency of the action. 3) A fictitious name may be used because of ignorance of defendant's true name and said ignorance is alleged in the complaint. Sec. although a right to relief against one may be inconsistent with a right to relief against the other. the heirs will be substituted for the deceased or if no legal representative is named. 13] • Rules and requisites: 1) There is a defendant. Sec. • Persons associated in an entity without juridical personality may be sued under the name by which they are generally/commonly known. 4) An identifying description may be used (e. [Rule 3.g. 6) The unknown defendant is the defendant being sued. b) During the pendency of the action.
notwithstanding the alternative relief sought. 2) The claim arose from express/implied contract. The deceased shall be substituted by his legal representatives in the manner provided for in Rule 3. 21] • INDIGENT – One who has no money or property sufficient and available for food. . which is predicated upon a declaration of nullity of the title. PROPER VENUES 1) Real actions – Where the real property (or any portion thereof) is located.Where plaintiff resides. execution shall not issue in favor of the winning plaintiff. b) Non-resident not found in the Philippines – An action may be filed only when the case involves: (1) Personal status of plaintiff . The venue of an action for review of an administrative decision regarding real property is the court of the province where the officer who rendered the decision holds office. [Dacoycoy v. 3) Defendant dies before the entry of final judgment in the court in which the action was pending. 5. on the other hand refers to venue. [Art. Where several/alternative reliefs are prayed for in the complaint. (2) For real actions – Where the property is located. 1] • If the property is located at the boundaries of 2 places. Real/personal action. The amount of docket and other lawful fees is a lien on any judgment rendered in favor of indigent party. the nature of the action as real or personal is determined by the primary object of the suit or by the nature of the principal claim. • Actions in personam/in rem refers to the binding effect of the judgment. recovery of damages. shelter and basic necessities. and not the province where his real property is situated. the venue of the action is in the province where the property lies. where the purpose is to nullify the title to real property. Sec. He need not be a pauper to entitle him to litigate in forma pauperis. file the case in either place (at the plaintiff’s option). 21] • The court may require appearance of the OSG in actions involving validity of any treaty. PD. and the action will continue until the entry of final judgment. Consti] • • INDIGENT PARTY [Rule 3. the authority shall include an exemption from: 1) Payment of docket fees. Sec. rules or regulations. file it in any of the 2 places. Sec. The SC has the power to change the venue to prevent a miscarriage of justice. the venue cannot truly be Procedural May be changed by the written agreement of the parties 100% UP LAW UP BAROPS 2008 Page 9 of 95 .Where the property (or any portion thereof) is situated/found. b) Where the defendant or any of the principal defendants resides. Sec. Sec. law. 20] • Requisites: 1) The action must primarily be for recovery of money/debt or interest thereon. • D. • • • NOTICE TO THE SOLICITOR GENERAL [Rule 3. c) In case of a non-resident-defendant. However. ordinance. Thus. If one is authorized to litigate as an indigent. 3) Actions against non-residents – a) Non-resident found in the Philippines – (1) For personal actions – Where the plaintiff resides. • If they are the objects of 2 distinct transactions. where he may be found. Sec. VENUE OF ACTIONS DEFINITION • VENUE – Place of trial or geographical location in which an action/proceeding should be brought. 16. (2) Any property of said defendant located in the Phil. EO. 8. IAC] • Exception: In summary procedures. [Rule 4. unless court otherwise provides. 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 Cannot be the subject of the agreement of the parties • • Venue Place where the action is instituted May be waived • WAIVER OF VENUE • Until and unless the defendant objects to the venue in a motion to dismiss prior to a responsive pleading. separate actions should be filed in each place unless properly joined. The Court may not motu propio dismiss an action on the ground of improper venue. It should be filed as a claim against the decedent’s estate without need of proving the claim. The defendant’s death will not result in the dismissal of the action. 2) Personal actions – At the plaintiff’s election: [Rule 4. 2) Payment of TSN. it may be contested by the adverse party at any time before judgment is rendered.CIVIL PROCEDURE REMEDIAL LAW ACTION ON CONTRACTUAL MONEY CLAIMS [Rule 3. Sec. While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing. • If the case involves 2 properties located in 2 different places: • If the properties are the object of the same transaction. 2] a) Where the plaintiff or any of the principal plaintiffs resides.
v. 1] A MTD is not a pleading. Pleading Purpose: To submit a claim/defense for appropriate judgment May be initiatory Motion Purpose: To apply for an order not included in the judgment Cannot be initiatory as they are always made in a case already filed in court. DISCIPLINARY ACTION ON COUNSEL REGARDING PLEADINGS 1) Deliberately filing an unsigned pleading. However. Although venue is mandatory. information and belief there is good ground to support it. 2) Voluntary submission to the court where the case is filed. submitted to the court for appropriate judgment [Rule 6. 4) Laches.e. action for damages arising from libel). that is. 7) Reply. 9) Counter-crossclaim. 2) Counterclaim. [Polytrade Corp. PLEADINGS DEFINITION • They are the written statements of the respective claims and defenses of the parties. • In the absence of qualifying restrictive words (e. there are motions that actually seek judgment like a motion for judgment on pleadings (Rule 34) and motion for summary judgment (Rule 35).g. the stipulated venue is in addition to the venue provided for in the rules. 4] 1) If a specific rule/law provides otherwise (e. 3) Failure to object via MTD. • Specify relief sought. • An unsigned pleading produces no legal effect. venue stipulation is merely permissive. 4) 3rd-party Complaint. 5) Complaint-in-intervention. 2) BODY – Pleading’s designation." etc. • Every pleading shall be dated. the court may allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay. action’s title (i.g. PARTS OF A PLEADING [Rule 7] 1) CAPTION – Court’s name. Sec. Adiong] MEANS OF WAIVING VENUE 1) Affirmative relief sought in the court where the case is filed. • Counsel’s signature is a certification that: a) He has read the pleading. 3) Cross-claim. 100% UP LAW UP BAROPS 2008 Page 10 of 95 . However. State address (not PO box) in either case. May be filed even after judgment Many kinds of motion are allowed • INAPPLICABILITY OF THE RULE ON VENUE [Rule 4. it is waivable. [Diaz v. “only/solely/exclusively in such court”). 6) Answer. but it may add a general prayer for such further/other relief as may be deemed just/equitable. Sec. 2) Deliberately signing a pleading in violation of the Rules. Sec. • Paragraphs must be numbered. b) To the best of his knowledge. Blanco] Always filed before judgment Only 9 kinds of pleading are allowed by the ROC PLEADINGS ALLOWED [Rule 6. REMEDIAL LAW II. parties’ names) and docket number." 2nd cause of action. on the exclusive venue thereof. relief prayed for and pleading’s date.CIVIL PROCEDURE said to have been improperly laid since for all intents and purposes. 2) If the parties have validly agreed in writing. allegations of party's claims/defenses. and each paragraph number must contain a single set of circumstances • Headings: if more than one cause of action. 2] 1) Complaint. before the filing of the action. the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. 3) Pleading must be signed by the party/counsel. 8) Counter-counterclaim. use "1st cause of action. c) It is not interposed for delay.
and possible denial of substantial justice. conclusions or inferences of facts from facts not stated. unless otherwise provided. and sets forth the substance of the matters upon which he relies to support his denial. unless otherwise provided by the law/rules. 2. cross-claim etc. 4) Failing to promptly report a change of his address. statements of law. c) Specific denial for lack of knowledge/information sufficient to form as belief as to the truth of a 100% UP LAW UP BAROPS 2008 Page 11 of 95 . 3] TWO KINDS OF DEFENSES THAT MAY BE SET FORTH IN THE ANSWER: 1) AFFIRMATIVE DEFENSES – Allegations of new matters which. 2) Rights or causes of action. not evidentiary facts or legal conclusions. prescription. 3) Relief sought. not by the counsel. 2) Direct contempt and administrative sanctions. COMPLAINT [Rule 6. Republic (1991)] ULTIMATE FACTS – Essential facts constituting the plaintiff’s cause of action. It should inform the defendant of all material facts on which the plaintiff relies to support his demand. 4] • Pleadings need not be verified.CIVIL PROCEDURE 3) Alleging scandalous/Indecent matter in the pleading. without prejudice and upon motion and after hearing. • Conclusions of law alleged in the complaint are not binding on the court. while hypothetically admitting the material allegations in the claimant’s pleading. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause/s of action. It may also be the response to a counterclaim or a cross-claim. It includes fraud. • Not ultimate facts: 1) Evidentiary or immaterial facts. [Gerales v. would nevertheless prevent/bar recovery by him. Surla] Failure to comply is not curable by mere amendment of the pleading but shall be cause for the dismissal of the case. or incorrect inferences or conclusions from facts stated. 2) That the allegations therein are true and correct of his personal knowledge or based on authentic documents. CNFS is required only for complaints or initiatory pleadings (e. • EFFECT OF SUBMISSION OF FALSE CNFS OR NONSUBMISSION OF CNFS 1) Indirect contempt. It should state the theory of a cause of action which forms the bases of plaintiff’s claim of liability. CA (1993)] DIFFERENT PLEADINGS 1. • CNFS is not required in a compulsory counterclaim. concise and direct statement of ultimate facts on which the plaintiff relies for his claim. A counterclaim is not an initiatory pleading. 5] • Definition: The filing of multiple suits in different courts. Sec. • TEST TO DETERMINE WON THERE IS FORUM SHOPPING • WON in the 2 or more cases pending. 2) Legal conclusions. due to technicalities. Sec. [UST Hospital v. may be avoided. CERTIFICATION OF NON-FORUM SHOPPING (CNFS) [Rule 7. Sec. • • CNFS is to be executed by the petitioner. a valid judgment may be properly rendered. Sec.g.). to ask the courts to rule on the same/related causes and/or to grant the same or substantially the same relief. [Tantuico v. permissive counterclaim. 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. and deny the remainder. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. 4) TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT • WON upon the averment of facts. • REMEDIAL LAW Definition: The pleading alleging the plaintiff’s cause/s of action. 2) NEGATIVE DEFENSES – Specific denials of the material facts alleged in the pleading of the claimant essential to his cause of action. 2) Administrative and criminal actions. inferences and arguments. 4] • Definition: The pleading where the defendant sets forth his affirmative/negative defenses. simultaneously or successively. omitting statement of mere evidentiary facts. release. b) DENIAL WITH QUALIFICATION Specifes so much of it as is true and material. It shall contain in a methodical and logical form a plain. VERIFICATION [Rule 7. 3) The details of probative matter or particulars of evidence. there is identity of: 1) Parties. involving the same parties. • Kinds of denial: a) SPECIFIC DENIAL – Specifies each material allegation of fact the truth of which he does not admit. EFFECT OF WILFUL AND DELIBERATE FORUM SHOPPING 1) Ground for summary dismissal of the case with prejudice. • HOW A PLEADING IS VERIFIED • By an affidavit that: 1) That the affiant read the pleading. ANSWER [Rule 6. • Pleadings as well as remedial laws should be liberally construed in order that the litigant may have ample opportunity to prove their respective claims. payment and any other matter by way of confession and avoidance.
the counterclaim may be considered compulsory regardless of the amount. with the court’s permission. [Rule 6. [Donato v. 4) Prescription REMEDIAL LAW (1) Oversight. 8] • A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer shall be contained therein. Sec. A permissive counterclaim requires the payment of docket fees. are deemed waived. otherwise. CA (1993)] • Genuineness is alleged by: (1) copying a substantial portion of the document into the pleading. [Sun Insurance v. and sets forth what he claims to be the facts. (3) both copying and annexing document into the pleading. Goyala] HOW TO RAISE COUNTERCLAIMS 1) Included in the answer: [Rule 11. the excess is considered waived. RULES ON COUNTERCLAIMS • A counterclaim before the MTC must be within the jurisdiction of said court both as to the amount and nature. Asuncion] A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default. (4) When justice requires. WAIVER OF DEFENSES • Defenses and objections not pleaded either in a MTD or in the answer. Need not be answered. It is in effect an admission of the averment it is directed to. e) 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. Not barred even if not set up in the action. 7] • If a counterclaim is filed in the MTC in excess of its jurisdictional amount. and not merely evidentiary thereof. [Philamgen v. • • 3. A counterclaim is in the nature of a crosscomplaint. the transaction/occurrence that is the subject matter of the opposing party's claim. • ACTIONABLE DOCUMENT . Sweet Lines (1993)] INSUFFICIENT DENIALS OR DENIALS AMOUNTING TO ADMISSIONS 1) General denial. no default. For this reason. 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. Upon its filing. 3) It must be within the court’s jurisdiction. • In an original action before the RTC. Sec. it may be pleaded by filing a supplemental answer or pleading before judgment. 6] • • Definition: Any claim which a defending party may have against an opposing party. [Gojo v. 9] 100% UP LAW UP BAROPS 2008 Page 12 of 95 . Sec.A document which is really the basis of the cause of action (or defense). • Exception: Pleadings may be amended under Rule 11. or be necessarily connected with. Sec. [Rule 9. May require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. Ajax. • Exception: If it is a counterclaim which either matured or was acquired by a party after serving his answer. d) SPECIFIC DENIAL UNDER OATH Contests the authenticity or due execution of an actionable document. it is not part of the answer. 8] • Exception: the adverse party does not appear to be a party to the instrument. Sec. [Agustin v. Barred if not set up in the action. Does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. • Genuineness and due execution of an actionable instrument shall be deemed admitted unless the adverse party. principally because the issues raised in the counterclaim are deemed automatically joined by the allegations in the complaint. [Rule 8. c) On the grounds of: REQUISITES OF A COMPULSORY COUNTERCLAIM 1) It must arise out of. Sec. Sec. Permissive counterclaim It does not arise out of nor is it necessarily connected with the subject matter of the opposing party's claim. (2) annexing/incorporating the document into the pleading. 2) Negative pregnant. the defendant can be declared in default. • General rule: A compulsory counterclaim not set up in the answer is deemed barred. the same proceedings are had as in the original complaint. it must be answered 10 days from service. In this case. 2) It does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction. Sec. 3) Res judicata. Bacalan] • In Calo v. b) Before judgment. (3) Excusable neglect. Although it may be alleged in the answer. COUNTERCLAIM [Rule 6. 2) After the answer: [Rule 11. 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.CIVIL PROCEDURE material averment made in the complaint. [Rule 11. Must be answered. may be presented as a counterclaim/cross-claim by supplemental pleading before judgment. 9] • Counterclaims/cross-claims arising after the answer. under oath. 2) Litis pendentia. 10: a) By leave of court. 1] • Exception: 1) LOJ over the subject matter. specifically denies them. (2) Inadvertence.
or it may not (permissive counterclaim) 3rd Party complaint Against a person not a party to the action Must be in respect of the opponent’s (plaintiff’s) claim • • 5. excusable neglect. counterclaim may be set up by amendment before judgment. Rule 17. COUNTER-COUNTERCLAIMS AND COUNTER-CROSS-CLAIMS [Rule 6. Co] 6. 11] • Definition: It is a claim that a defending party may. inadvertence. REMEDIAL LAW necessary for the adjudication of said cross-claim. If he decides to file a MTD. There could also be a 4th/etc.CIVIL PROCEDURE • The filing of a MTD and the setting up of a compulsory counterclaim are incompatible remedies. the crossclaim is considered permissive. . 3RD – PARTY COMPLAINT [Rule 6. 8] 2) Where the answer alleges the defense of usury. indemnity.With leave of court. Sec. 3 arises. If any of the grounds to dismiss under Rule 17. New facts that were alleged in the answer are deemed controverted should a party fail to reply thereto. 2) If the court cannot acquire jurisdiction over 3rd parties whose presence is 7. 10] • Definition: The plaintiff’s response to the defendant's answer. [Meliton v. 3) The cross-claimant is prejudiced by the claim against him by the opposing party. Sec. COUNTER-CROSS-CLAIM – A claim filed against an original cross-claimant. dismissal of action due to plaintiff’s fault shall be without prejudice to the defendant’s right to prosecute his counterclaim in the same/separate action. 2] 2) Oversight. [Rule 8. etc. 2) It must arise out of the subject matter of the complaint or of the counterclaim. and simultaneously move that he be declared as in default on the compulsory counterclaim. Cross-claim Against a coparty Must arise out of the transaction that is the subject matter of the original action or of a counterclaim therein Counterclaim Against an opposing party May arise out of or be necessarily connected with the transaction or the subject matter of the opposing party’s claim (compulsory counterclaim). [Rule 8. • Exception: Reply is required: 1) Where the answer is based on an actionable document. Sec. [Leonen] REMEDIES 1) For failure to raise a compulsory counterclaim – None. with leave of court. 2] • Exception: 1) When it is outside the court’s jurisdiction. and reserve the right to present evidence ex parte on his compulsory counterclaim. 3rd-party complaint Brings into the action a 3rd person who was not originally a party Initiative is with the person already a party to Same Complaint in intervention Initiative is with a nonparty who seeks to join the 100% UP LAW UP BAROPS 2008 Page 13 of 95 . 9] • • COUNTER-COUNTERCLAIM – A claim asserted against an original counterclaimant. 11] 4. [BA Finance v. 8] REQUISITES FOR A CROSS-CLAIM 1) A claim by one party against a co-party. Sec. The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive. Sec. the proper recourse for a defendant who desires to pursue his compulsory counterclaim in the same proceeding is not a MTD. CROSS-CLAIM [Rule 6. • A cross-claim is always compulsory. The cause of action and relief prayed for in the complaint and in the counterclaim must necessarily be different. A crossclaim not set up shall be barred. 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. Sec. In the event that a defending party has a ground for dismissal and a compulsory counterclaim at the same time. EFFECT OF FAILURE TO REPLY • General rule: Filing a reply is merely optional. REPLY [Rule 6. in respect of his opponent's claim. [BA Finance v. TEST TO DETERMINE WHETHER A COUNTERCLAIM IS COMPULSORY OR PERMISSIVE • LOGICAL RELATIONSHIP TEST – 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. but not a cross-claim seeking an affirmative relief. In this case. [Rule 11. [Rule 9. [Rule 9. Instead. A compulsory counterclaim not set up is considered barred. he may still plead his ground for dismissal as an affirmative defense in his answer.-party complaint with the same purpose and function. Sec. but both arise out of the same legal relationship. he should only move to have the plaintiff declared nonsuited on the complaint so that the latter can no longer present his evidence thereon. But if he opts to set up his counterclaim. Sec. he must choose only one remedy. CA] • WON substantially the same evidence to sustain the counterclaim will refute the cause of action alleged in the plaintiff's complaint. file against a person not a party to the action for contribution. he will lose his counterclaim. Sec. subroqation or any other relief. 10] 3) If the main action fails – Motion to declare plaintiff non-suited in the main action and as in default in the counterclaim. Co (1993)] • Under Section 3. Sec.
2) WON the 3rd-party defendant would be liable to the plaintiff or to the defendant for all/part of the plaintiff’s claim against the original defendant. concise and direct statement of the ultimate facts on which the party pleading relies for his claim/defense.) – party defendant must be served for the court to obtain jurisdiction over his person. since he is not an original party. but there must still be an allegation that the specific condition precedent has been complied with. THREE WAYS OF MAKING A SPECIFIC DENIAL 1) SPECIFIC ABSOLUTE DENIAL – By specifically denying the averment and. FACTS THAT MAY BE AVERRED GENERALLY 1) Conditions precedent. 2) PARTIAL SPECIFIC DENIAL – Part admission and part denial. if amendment is not a matter of right 10 days from service of the order admitting the supplement. 2) Capacity to sue or be sued. xxx Answer to counterclaim/cross-claim Answer to 3rd-party complaint Answer to amended complaint/ counterclaim/ cross-claim/ complaintin-intervention xxx Answer to supplemental complaint Reply 100% UP LAW UP BAROPS 2008 Page 14 of 95 . • 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. whenever practicable. Sec. • Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. or although arising out of another/different transaction. • Omit evidentiary facts. 1] • In a methodical and logical form. 12] 3) Conclusion of law. 3) Capacity to sue or be sued in a representative capacity. Sec. 3) DISAVOWAL OF KNOWLEDGE – By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party's pleading. • General rule: Allegations not specifically denied are deemed admitted [Rule 8. setting forth the substance of the matters relied upon for such denial. if defendant is a private juridical entity and summons was served on the government official designated by law to receive it 10 days from service same as that of answer to complaint 15 days from service. 5) Malice/intent/knowledge or other condition of the mind.CIVIL PROCEDURE the action 3rd-party complaint Need not be within the jurisdiction of the court trying the main case Diminishes/defeats the recovery sought by the opposing party Cannot exceed the amount stated in the original complaint action Counterclaim 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 REMEDIAL LAW 7) Official documents/acts. to the knowledge of the court. tribunals. • If defense relied on based on law. [Rule 8. TESTS TO DETERMINE WHETHER THE 3RD-PARTY COMPLAINT IS IN RESPECT OF PLAINTIFF'S CLAIM 1) WON it arises out of the same transaction on which the plaintiff's claim is based. Where the trial court has jurisdiction over the main case. [Republic v. Sec. boards or officers (without need to show jurisdiction). Central Surety] A 3rd-party complaint is not proper in an action for declaratory relief. if amendment is a matter of right 10 days from service. • • PERIODS TO PLEAD Responsive pleading Answer to complaint When to file 15 days from service. 11] • Exceptions: 1) Allegations as to the amount of unliquidated damages. 2) Allegations immaterial to the cause of action. cite the provisions and their applicability. so plain and necessarily within the defendant's knowledge that his averment of ignorance must be palpably untrue. • This does not apply where the fact as to which want of knowledge is asserted is. unless otherwise provided by the court 30 days from service. FACTS THAT MUST BE AVERRED PARTICULARLY • Circumstances showing fraud/mistake in all averments of fraud/mistake. 3) WON the 3rd-party defendant may assert any defenses which the 3rd-party plaintiff has or may have to the plaintiff’s claim. • • Leave of court to file a 3rd-party complaint may be obtained by motion under Rule 15. Summons on 3rd (4th/etc. it also has jurisdiction over the 3rdparty complaint. unless otherwise provided by the court 10 days from service MANNER OF MAKING ALLEGATIONS IN GENERAL [Rule 8. 6) Judgments of domestic/foreign courts. 4) Legal existence of an organization . regardless of the amount involved as a 3rd-party complaint is merely auxiliary to and is a continuation of the main action. • Plain. otherwise it will be dismissed for lack of cause of action. is connected with the plaintiff’s claim.
SERVICE PAPERS REQUIRED TO BE FILED AND SERVED [Rule 13. completeness of service Upon actual delivery xxx proof of service Written admission of the party served Official return of the server. • If no registry service is available in the locality of either sender or addressee. Sec. b) Leaving a copy in counsel's office with his clerk or with a person having charge thereof. service may be done by ordinary mail. Sec. 6) Judgment. Sec. or if his office is unknown. in a sealed envelope. service may be done by ordinary mail. • If a party avails of a private carrier. 3] 1) Personally. Sec. with proof of failure of both personal service and service by mail. 3) Written Motion. 7 Registry receipt issued by the post office 1. [Rule 13. and with instructions to the postmaster to return the mail to the sender after l0 days if undelivered. 4) Notice. 2) Appearance. 8] • By delivering the copy to the clerk of court. • If registry service is not available in the locality of either sender or addressee. [Rule 13. 7) Demand. 3) Substituted service. 5) Order. Sec. 5] 1) Personal service. FILING MANNER OF FILING [Rule 13. 12] • • Filing is proved by its existence in the record of the case. plainly addressed to the party or his counsel at his office or at his residence (if known). MODES OF SERVICE [Rule 13. 2] xxx xxx Xxx Xxx xxx Xxx REMEDIAL LAW 1) Full statement of the date/place of depositing the mail in the post office in a sealed envelope addressed to the court 2) Postage fully paid 3) Instructions to the postmaster to return the mail to the sender after 10 days if undelivered • 2. Sec. 2] SERVICE – The act of providing a party or his counsel with a copy of the pleading or paper concerned. or if he has no office – Leaving the copy between 8am and 6 pm at the party's or counsel's residence (if known) with a person of sufficient age and discretion then residing therein. 10) Similar papers. [Rule 13. 2) Service by (registered) mail. [Rule 13. Sec. the date of the court’s 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. FILING AND SERVICE DEFINITION • FILING – The act of presenting the pleading or other paper to the clerk of court. by depositing the pleading in the post office). 6] a) Delivering personally a copy to the party or his counsel. 9) Resolution. 7 Affidavit of the person mailing. Sec. • The pleading is deemed filed on the date it was deposited with the post office. ACQUISITION OF JURISDICTION A. c) If no person is found in his office. 4] 1) Pleading subsequent to the complaint. with a full statement of the date/place/manner of service Affidavit of the person mailing.e. Personal service xxx PROOF OF FILING [Rule 13. unless otherwise provided by the court Whichever is earlier: Service by registered mail Xxx By registered mail 1) Actual receipt by the addressee 100% UP LAW UP BAROPS 2008 Page 15 of 95 . • 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. 7] • By depositing the copy in the office.CIVIL PROCEDURE III. • Filing by mail should be through the registry service (i. showing facts that comply with Rule 13. with postage fully pre-paid. If it is not in the record: Xxx Personally when pleading is deemed filed Upon receipt of the pleading by the clerk of court On the date the pleading was deposited with the post office proof of filing Written/stamped acknowledgment by the clerk of court Registry receipt. Sec. and affidavit of the person who did the mailing with: Service by ordinary mail 10 days after mailing. Sec. [Benguet Electric Cooperative v. • By personally presenting the original to the clerk of court. [Rule 13. showing facts that comply with Rule 13. or affidavit of the party serving. Sec. 8) Offer of Judgment. NLRC] 2) By registered mail.
Striking out an allegation of a party. AMENDMENT HOW TO AMEND PLEADINGS [Rule 10. 3) Notice shall contain the name of the parties and the object of the action/defense and a description of the property affected thereby. Correcting a mistake in the name of a party. The notice of cannot be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated. as Sec. incorporating the amendments. Sec. Sec. CA] 1) Action affects the title or the right of possession of the real property. which shall be indicated by appropriate marks. FINAL ORDERS OR RESOLUTIONS [Rule 13. FORM [Rule 10. at any time within l0 days after it is served. shall be filed. 2) Notice to the adverse party. • • KINDS OF AMENDMENTS 1) FORMAL AMENDMENTS – A defect in the designation of the parties and other clearly clerical errors may be summarily corrected by the court or by motion: • At any stage of the action. Adding the name of a party. • Claims and defenses in superseded pleading which are not incorporated in the amended pleading are deemed waived. 7] • A new copy of the entire pleading. without regard to technicalities. [Rule 10. the paper considered not filed.CIVIL PROCEDURE Xxx 2) 5 days after addressee received 1st postmaster's notice xxx REMEDIAL LAW 1. 2] b) If as a matter of discretion – Amendment requires leave of court if: (1) It is substantial. EFFECT [Rule 10. • Exception: Papers emanating from the court NOTICE OF LIS PENDENS [Rule 13. decreases as it progresses and changes at times to a strictness amounting to a prohibition. or 2) It is not necessary to protect the rights of the party who caused it to be recorded. liberality in allowing amendments is greatest in the early stages of a law suit. As a general policy. and in the most expeditious and inexpensive manner. and (2) A responsive pleading has already been served. 4) Action in rem. 14 provides that such cancellation may be authorized only upon order of court. • Provided that no prejudice is caused to the adverse party. 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. PRIORITY IN MODES OF FILING AND SERVICE [Rule 13. 3) Opportunity to be heard afforded to adverse party. CA (1993)] SERVICE OF JUDGMENT. • • B. Sec. 11] • • General rule: Personal filing and service. [Rule 10. The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. If it is a reply.Notice of a pendency of the action between the parties involving title to or right of possession over real property. 2) Affirmative relief is claimed. Sec. • Purpose: That the actual merits of the controversy may speedily be determined. AMENDMENT AND SUPPLEMENTAL PLEADINGS the WHEN AMENDMENT BY LEAVE OF COURT MAY NOT BE ALLOWED 100% UP LAW UP BAROPS 2008 Page 16 of 95 . [Barfel Development v. 3) By publication if party is summoned by publication and has failed to appear in the action. Sec. CA (1993)] 1) The notice is for the purpose of molesting the adverse party. prospective purchasers or encumbrancers of the property in litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. • Admissions made in the superseded pleading may still be received in evidence against the pleader. Requisites: [AFP Mutual Benefit Association v. after proper showing that: [Roxas v. 1] 1) 2) 3) 4) 5) Adding an allegation of a party. 2) By registered mail. Striking out the name of a party. 3] REQUISITES FOR AMENDMENTS BY LEAVE OF COURT 1) Motion filed in court. Sec. 2) SUBSTANTIAL AMENDMENTS a) If as a matter of right – Made at any time before a responsive pleading is served. and 6) Correcting a mistake or inadequate allegation or description in any other respect. The notice serves as a warning to all persons. 9] 1) By personal service. This is further restricted by the condition that the amendment should not prejudice the adverse party or place him at a disadvantage. Sec. 14] • LIS PENDENS . 8] • The amendment supersedes the amended pleading. Sec.
3) The details desired. [Rule 12. Presiding Judge (1990)] Either as a matter of right or a matter of discretion Supersedes the pleading REMEDIAL LAW Always a matter of discretion Supplements the pleading (i. Once exercised. 6] • AMENDMENT TO CONFORM TO EVIDENCE [Rule 10. with the view of enabling him to prepare properly his responsive pleading or to prepare for trial. Amendment of pleadings as may be necessary to cause them to conform to the evidence and to raise these issues. Sec. Unlike in an amended complaint. 1] 1) The defects complained of. a new copy of the entire pleading must be filed C. 3) Allow the parties the opportunity to be heard. Sec. 2) Grant the motion outright. 6] It is made upon motion of a party with reasonable notice and upon terms as are just. • Admitting an amended complaint in intervention is a matter addressed to the court’s discretion. [Metropolitan Bank v. they shall be treated as if they had been raised in the pleadings. The only question to be resolved in a motion for a BOP is WON the allegations in the complaint averred with sufficient definiteness/particularity to enable the movant to properly prepare his responsive pleading and to prepare for trial. In said motion. [Rule 12. 2) If amendment is intended to confer jurisdiction to the court. BILL OF PARTICULARS • Definition: 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. COMPLIANCE WITH ORDER [Rule 12. Republic (1991)] A BOP becomes part of the pleading for which it was intended. the court should not admit the supplemental complaint.e. occurrences or events which have happened since the date of the pleading sought to be supplemented. 2] 1) Deny. Sec. [Galeon v. COURT ACTION [Rule 12. AMENDMENTS VIS-À-VIS SUPPLEMENTAL PLEADINGS • A supplemental complaint/pleading supplies deficiencies in aid of an original pleading. CA] • • • WHEN APPLIED FOR [Rule 12. Jr. any time (even after judgment). [Shoemart v. 1] • Before responding to a pleading • If the pleading is a reply.CIVIL PROCEDURE 1) If the cause of action. may be made upon motion of any party. Galeon] Purpose: To inform the adverse party more specifically of the precise nature and character of the cause of action or defense alleged in the pleading. An action cannot be dismissed on the ground that the complaint is vague/indefinite. the original complaint exists side by side with the supplemental complaint. CA (1990)] Amendments Reason for the amendment is available at time of the 1st pleading Supplemental pleadings Grounds for the supplemental pleading arose after the 1st pleading was filed 100% UP LAW UP BAROPS 2008 Page 17 of 95 . [Tantuico. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings. Sec. the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. [Rule 10. 2) The paragraph wherein they are contained. Exists side by side with the original pleading) A supplemental pleading does not require the filing of a new copy of the entire pleading When an amended pleading is filed. Sec. SUPPLEMENTAL PLEADINGS • Definition: One which sets forth transactions. defense or theory of the case is changed. Otherwise. [Asset Privatization Trust v. subject only to the limitations that amendments should not substantially change the cause of action or alter the theory of the case or made to delay the action. except in case of abuse thereof. Sec. Sec. 5] • If issues not raised by the pleadings are tried with the express/implied consent of the parties. 1] It is filed by the plaintiff pursuant to a court order issued upon granting a motion for BOP filed by the defendant before the latter files an answer. The cause of action stated in the supplemental complaint must be the same as that stated in the original complaint. Sec. within 10 days from service thereof WHAT A MOTION FOR BOP SHOULD POINT OUT [Rule 12. Florendo (1992)] 3) If amendment is for curing a premature or nonexisting cause of action. 3] • If motion for BOP is granted wholly/partially: • Within 10 days from notice of order. BOP or a more definite statement should be submitted (unless court fixes a different period). • If the court has no jurisdiction in the subject matter of the case. • The purpose of a BOP is to define/ clarify/particularize/limit/circumscribe the issues in the case to expedite the trial and assist the court. • But failure to amend does not affect the result of the trial on these issues. the defendant prays for a more definite statement of matters which are not averred with sufficient definiteness in the complaint. the amendment of the complaint cannot be allowed so as to confer jurisdiction on the court over the property. it cannot be disturbed on appeal. not to entirely substitute the latter. v. [PNB v. 4) If amendment is for purposes of delay. The remedy of the defendant is to move for a BOP or avail of the proper mode of discovery. • • • 2.
b) He is going to be adversely affected by the disposition of the property in the custody of the court Intervention is a proceeding in a suit/action by which a 3rd person is permitted by the court to make himself a party. even during the proceeding. [Metropolitan Bank v. or demanding something adversely to both of them. 5] • A Motion for BOP interrupts the period to file an answer. Sec. 4] 1) In case of non-compliance or insufficient with the order for BOP. [Rule 19. by leave of court. but not after the trial has been concluded WHO MAY INTERVENE [Rule 19. Sec. the opportunity to appear and be joined so he could assert or protect such right/interest. Ofilada (1993)] • Hence. which should not be less than 5 days. but is ancillary and supplemental to the existing litigation. his answer will be stricken off and his counterclaim dismissed. • Factors considered in allowing intervention: 1) WON intervention will unduly delay or prejudice the adjudication of the rights of the original parties. b) Make such order as it may deem just. with the pleading-inintervention attached. Sec. 2) One who has a legal interest in the success of either of the parties. the court: a) May order the striking out of the pleading (or portion thereof) to which the order is directed. 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. Bill of Particulars (BOP) 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. 1] 1) One who has a legal interest in the matter in litigation. Ofilada (1993)] Intervention is never an independent action. the final dismissal of the principal action results into the dismissal of said ancillary action. considering that either: a) He has a legal interest in the subject matter of the action. Sec. 4. Must also serve copy of the pleading-in-intervention on the original parties.CIVIL PROCEDURE • BP or definite statement filed either as a separate pleading or as an amended pleading. • • • Available to any person not yet a party to the action at any time after the commencement of an action. 2] • General rule: Allowance of intervention is discretionary with the court. yet having a certain right/interest in the pending case. [Cariño vs. of a person not an original party to pending legal proceedings. but is ancillary and supplemental to the existing litigation. 2) Joining the defendant. by either: 1) Joining the plaintiff. 3) One who has an interest against both parties. Sec. • EFFECT OF NON-COMPLIANCE [Rule 12. Presiding Judge (1990)] It is the act/proceeding by which a 3rd person becomes a party in a suit pending between others. [Rule 9. or • 100% UP LAW UP BAROPS 2008 Page 18 of 95 . 3. He is entitled to have the issues raised between him and the original parties tried and determined. Rule 17. It is the admission. HOW INTERVENTION IS DONE • By a motion to intervene. and he will be declared in default upon motion of the plaintiff. not simply contingent or expectant. 3] 3) If defendant fails to obey. [Cariño vs. 2) If the plaintiff fails to obey. [Cariño vs. yet having a certain right/interest in the pending case. INTERVENTION • Definition: A legal remedy whereby a person is permitted to become a party in a case. direct and immediate. and to make his right effectual he must necessarily have the same powers as the original parties. Sec. the opportunity to appear and be joined so he could assert or protect such right/interest. yet having a certain right or interest in such action. Sec. • Exception: When the intervenor is an indispensable party. Ofilada (1993)] D. Sec. 4. It must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Sec. 2) If the motion is denied: File answer within the period the movant is entitled to. 3) Asserting his right against both plaintiff and defendant. Its purpose is to afford one not an original party. 4) One who is so situated as to be adversely affected by a distribution/disposition of property in the court’s custody. 2) WON the intervenor's rights may be fully protected in a separate proceeding. either joining plaintiff in claiming what is sought by the complaint. the opportunity to appear and be joined so he could assert or protect such right or interest REMEDIAL LAW uniting with defendant in resisting the claims of plaintiff. a copy of which must be served on the adverse party. Its purpose is to afford one not an original party. Rule 17. by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings. his complaint may be dismissed with prejudice unless otherwise ordered by the court. • Intervention is never an independent action. Rule 12. 1) If the motion is granted: 15 days to file answer. [Rule 12. An intervenor is a party to the action as the original parties are. • The interest must be actual and material. 4] STAY OF PERIOD TO FILE RESPONSIVE PLEADING [Rule 12.
if he refuses to receive it. 4] • It must be filed within 15 days from notice of the order admitting the complaint-inintervention. SUMMONS • Definition: A coercive force issued by the court to acquire jurisdiction over the person of the defendant. 7] • Rationale: Enjoyment of the privileges of residence within the state. 2] After rendition of judgment. DEFENDANT [Rule 14. A copy of the complaint and order for appointment of guardian ad litem (if any) shall be attached to the original and each copy of the summons. ANSWER TO COMPLAINT-IN-INTERVENTION [Rule 19. Sec. Sec. Purpose: 1) To acquire jurisdiction over the person of the defendant in a civil case. 3) Notice that unless the defendant so answers. Sec. Sec. if there is GAD. 4] • When the service has been completed. 3] 1) COMPLAINT-IN-INTERVENTION – If intervenor asserts a claim against either or all of the original parties. • • REMEDIAL LAW Summons must be directed to the defendant. Sec. b) Mandamus. 17] 1. any suitable person authorized by the court issuing the summons. supported by affidavit of the plaintiff or some person on his behalf. accompanied by proof of service. • The server shall also serve a copy of the return on the plaintiff's counsel within 5 days therefrom. where the state has provided and employed a reasonable method for apprising such an absent party of the • ISSUANCE OF SUMMONS • Upon the filing of the complaint and the payment of legal fees. • • • PLEADINGS IN INTERVENTION [Rule 19. 3) For justifiable reasons. [MagsaysayLabrador v. [Rule 14.CIVIL PROCEDURE Interest in the subject means a direct interest in the cause of action as pleaded and which would put the intervenor in a legal position to litigate a fact alleged in the complaint. RETURN OF SUMMONS [Rule 14. Sec. ALIAS SUMMONS [Rule 14. 3] 1) The sheriff or his deputy. The movant’s remedy is to file a separate action. 2) By tendering it to him. SERVICE OF SUMMONS WHO SERVES THE SUMMONS [Rule 14. [Rule 19. the clerk of court shall issue the corresponding summons to the defendants. SERVICE IN PERSON ON Intervention An ancillary action Proper in any of the four situations mentioned in Rule 19 There is already a defendant among the original parties to the pending suit Interpleader An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein. 1] SUMMON’S CONTENTS [Rule 14. Sec. the server shall. serve a copy of the return (personally or by registered mail) to the plaintiff's counsel. [Rule 14. even if the judgment itself recognizes the movant’s right. Sec. plaintiff will take judgment by default and may be granted the relief applied for. without the establishment of which plaintiff could not recover. within 5 days therefrom. 2. 2) Direction that the defendant answer within the time fixed. which in whole or in part is not disputed by the other parties to the action Defendants are being sued precisely to implead them E. signed by the clerk of the court under seal. 2] 100% UP LAW UP BAROPS 2008 Page 19 of 95 . 2) To give notice to the defendant that an action has been commenced against him. a motion to intervene is barred. 2) If summons was lost. and shall return the summons to the clerk who issued it. unless a different period is fixed by the court. Sec. 6] 1) By handing a copy of summons to him. and the attendant right to invoke the protection of its laws. 2) ANSWER-IN-INTERVENTION – If intervenor unites with the defending party in resisting a claim against the latter. REMEDIES 1) For denial of intervention: a) Appeal. Sec. 2) For improper granting of intervention: Certiorari. setting forth the grounds for the application. 5] • Upon plaintiff’s demand. One such incident of domicile is amenability to suit within the state even during sojourns without the state. SUBSTITUTED SERVICE [Rule 14. and contain: 1) Name of the court and names of the parties. CA] Intervention is allowed any time before TC renders judgment. Sec. 2) Other proper court officers. the clerk may issue an alias summons if either: 1) If summons is returned without being served on any/all of the defendants. are inseparable from the various incidences of state citizenship. MODES OF SERVICE OF SUMMONS • Any application to the court under Rule 14 for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing. stating the reasons for the failure of service.
Ventura v. who does not voluntarily submit himself to the authority of the court. CA (1993)] 3) Service by leaving copy of summons either: a) With some person of suitable age and discretion then residing in the defendant’s residence. 2) Action either: a) Affects the plaintiff’s personal status.CIVIL PROCEDURE proceedings against him. Summons by publication in a personal action cannot confer upon the court jurisdiction over the person of the defendant. 11] • Service upon foreign private juridical entity [Rule 14. While the sheriff's return carries with it the disputable presumption of regularity in the sense that the entries therein are deemed correct. Sec. 2) Person in charge of the office • The service does not bind individually any person whose connection with the entity was already severed before the service Serve upon the minor/incompetent and on his legal guardian. 2) Efforts made to find the defendant personally and the fact that such efforts failed. serve outside the Philippines by personal service. Ventura v. [Laus v. or • Service upon minors and incompetents [Rule 14. Sec. Breve (1988)] personality [Rule 14. attached. "Dwelling house" or "residence" refer to the place where the person named in the summons is living at the time when the service is made. 12] • Service upon public corporations [Rule 14. upon either: • Government official designated by law. 2) Defendant's identity or whereabouts are unknown and cannot be ascertained by diligent inquiry. Proof of prior attempts at personal service may be submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service. 15] • SERVICE OF SUMMONS UPON DIFFERENT ENTITIES Service on person associated in an entity without juridical If sued under the name by which they are commonly known – Serve upon 100% UP LAW UP BAROPS 2008 Page 20 of 95 . • If there is no guardian. b) With some competent person in charge of the defendant’s office or regular place of business. Sec. • If minor. 13] Extraterritorial service [Rule 14. b) Relates to or the subject matter of which is property within the Philippines in which defendant has a lien/interest. may serve on his parents. • Any officer or agent of the corporation within the Philippines If the defendant is the Republic of the Philippines – Serve upon the OSG If the defendant is a province/city/municipality or like public corporations – Serve upon the executive head or other officers as the law/court may direct • Requisites: 1) Defendant does not reside or is not found in the Philippines. [Sps. and such compliance must appear affirmatively in the return. Otherwise. [Mapa v. CA (1987)] Substituted service must be used only as prescribed and in the circumstances authorized by statute. it does not necessarily follow that an act done in relation to the official duty for which the return is made was not done simply because it is not disclosed therein. [Northwest v. Statutes prescribing modes other than personal service of summons must be strictly complied with to give the court jurisdiction. For a substituted service to be valid. [Laus v. Serve upon the officer having management of the jail/prison Serve upon either the: 1) President 2) Managing partner 3) General manager 4) Corporate secretary 5) Treasurer 6) In-house counsel Serve upon the resident agent. [Consolidated Plywood vs. the following must be established in the proof of service: [Sps. Sec. Sec. plaintiff may apply for the appointment of a guardian ad litem. Sec. Sec. CA (1995)] For a valid substituted service of summons. CA (1993)] Absence in the sheriff's return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. 9] Service upon domestic private juridical entity [Rule 14. CA (1987)] 1) Impossibility of the personal service of summons within a reasonable time. The proper recourse for the plaintiff is to locate properties of the defendant whose address is unknown and cause them to be attached. 8] REMEDIAL LAW either: 1) Any/all the defendants. c) Demands a relief which consists wholly/partially in excluding the defendant from any interest in any property within the Philippines. d) Has defendant’s property in the Philippines. Sec. 14] • Requisites: 1) The action is in rem or quasi in rem. 3) There must be leave of court. PUBLICATION [Rule 14. even though he may be temporarily out of the country at the time. 10] • Service upon prisoner [Rule 14. CA (1992)] 3. • Modes of service: a) With leave of court. summons served at the defendant's residence must be served at his residence at the time of such service and not at his former place of residence.
[Delos Santos v. • Exception: Doctrine of substantial compliance – If defendant actually received • • General rule: A motion cannot pray for judgment. Sec. The fact that the defendant did not actually receive the summons did not invalidate the service of such summons. Montesa (1993)] • • F. 3) Motion for judgment on demurrer to evidence. Sec. even if defendant was abroad at that time. 2) Motion for summary judgment. return was patently irregular. b) Affidavit showing the deposit of a copy of the summons and order for publication in the post office. is not deemed a voluntary appearance. • Without return of service: Burden is on plaintiff. 19] a) Affidavit of the printer.CIVIL PROCEDURE b) With leave of court. Maximo] WAIVER OF SERVICE OF SUMMONS [Rule 14. the server shall serve a copy of the return within 5 days (personally or by registered mail) to the plaintiff's counsel. in which case copy of the summons and order of the court must also be sent by registered mail to the defendant’s last known address. • Be sworn to when made by a person other than a sheriff or his deputy. Domingo] • Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant's residence. [Atkins v. while there was a return. [Montalban v. no further summons is required on the amended complaint if it does not introduce new causes of action. serve by publication in a newspaper of general circulation. Service upon a resident temporarily out of the Philippines [Rule 14. directed to the defendant by registered mail to his last known address. Sec. editor. with a copy of the publication attached. Custodio] But if the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint. Sec. 1] Motion 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) Pleading Contains allegations of the ultimate facts Prays for a relief Grant of relief extinguishes the action (final relief) Always in writing RETURN OF SERVICE [Rule 14. Sec. Sec. MOTIONS • Definition: An application for relief other than by a pleading. may serve extraterritorially REMEDIAL LAW summons and complaint despite all these technicalities. accompanied with the proof of service. foreman. thus no presumption of regularity could be had. and shall return the summons to the clerk who issued it. as the original complaint was deemed withdrawn upon such amendment. non-service or irregular service of summons renders null and void all subsequent proceedings and issuances in the action from the order of default up to and including the judgment by default and the order of execution. With leave of court. 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. though. 20] • Defendant's voluntary appearance in the action shall be equivalent to service of summons. • Exception: 1) Motion for judgment on the pleadings. new summons must be served on the defendant on the amended complaint. 18] • Set forth the manner/place/date of service. [Ong Peng v. General rule: Return of service of summons immediately shifts burden of evidence from plaintiff to defendant since there is a presumption of regularity. by publication in a newspaper of general circulation EFFECT OF NON-SERVICE OF SUMMONS • Unless the defendant voluntarily submits to the jurisdiction of the court. • Inclusion in the MTD of grounds other than LOJ over the defendant’s person. principal clerk. Sec. • In the Mapa case. business/advertising manager. 16] Service upon a defendant whose identity or whereabouts are unknown [Rule 14. 2) If by publication: [Rule 14. c) Any other manner the court deems sufficient • The court order granting extraterritorial service shall specify a period of at least 60 days within which the defendant must answer. • Specify any papers which have been served with the process and the name of the person who received the same. KINDS OF MOTION 100% UP LAW UP BAROPS 2008 Page 21 of 95 . [Rule 15. • Any mode of appearance in court by a defendant or his lawyer is equivalent to service of summons. If the defendant has already been served with summons on the original complaint. postage prepaid. • Exception: Special appearance to file a MTD. PROOF OF SERVICE 1) If personal or substituted service: In writing by the server and shall: [Rule 14. 14] With leave of court. 4] • When service has been completed.
Allegations contained in such motion do not have to be investigated/verified. or jointly submitted by the parties. it shall be accompanied by supporting affidavits and other papers. Sec. 9] • Must be accompanied by the pleading/motion sought to be admitted. 4) SPECIAL MOTION . Sec. MOTION FOR LEAVE TO FILE A PLEADING/MOTION [Rule 15. CA (1996)] 4) Motion and notice of hearing must be served at least 3 days before the date of hearing. motions are scheduled for hearing: 1) On Friday afternoons. is no notice at all. 7] • Except for urgent motions. 5) Proof of service. • Exception: When the court’s jurisdiction is in issue: 1) LOJ over subject-matter. [Rule 15. a motion that does not contain a notice of hearing to the adverse party is nothing but a mere scrap of paper. REMEDIAL LAW b) If by personal service: Affidavit or acknowledgment of receipt by the other party. 2) In the course of a hearing/trial. [Rule 15. 2] 2) Hearing on the motion set by the applicant. 3) Notice of hearing shall addressed to all parties not later than 10 days from the filing of the motion. A notice of hearing addressed to the clerk of court. After all. hence. it did not suspend the running of the period to appeal. CA (1996)] 100% UP LAW UP BAROPS 2008 Page 22 of 95 . as if it were not filed. if Friday is a non-working day. with an explanation. MOTIONS NOT ACTED UPON • Parties and counsel should not assume that courts are bound to grant the time they pray for. REQUISITES OF MOTIONS (NOT MADE IN OPEN COURT OR IN THE COURSE OF HEARING/TRIAL): 1) In writing. [Provident International Resources v. 3) Res judicata. 5] • Notice must be addressed to the counsels. An investigation of the facts alleged is required. 2) LITIGATED MOTION . All objections not included in the motion are deemed waived. • Exception: a) Ex parte motions. 2] • General rule: In writing. Exception: a) If the motion is one which the court can hear ex parte. 2) Litis pendentia. OMNIBUS MOTION RULE [Rule 15. [Rule 15.CIVIL PROCEDURE 1) MOTION EX PARTE . Sec. d) Motions for summary judgment which must be served at least 10 days before its hearing. b) If the court is satisfied that the rights of the adverse parties are not affected by the motion. 6] • 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: a) If by registered mail: Affidavit or registry receipt or postmark on envelope or return card. Sec. • Motions raising factual issues must be supported by affidavits. Sec. [Rule 15. 4) Prescription.Motion for a kind of relief/remedy to which the movant is entitled to as a matter of right. Sec. • PRO FORMA MOTION – A motion failing to indicate time and date of the hearing.Made with notice to the adverse party so that an opposition thereto may be made. c) Motions agreed upon by the parties to be heard on shorter notice. and not to the parties. • MOTION DAY [Rule 15. b) Urgent motions. [Orosa v. 2) Afternoon of the next working day. 3) MOTION OF COURSE . • Exception: Oral motions: 1) Made in open court. Sec. CONTENTS [Rule 15. 4] • Purpose: To prevent surprise upon the adverse party and to enable the latter to study and meet the arguments of the motion. c) If the party is in default because such a party is not entitled to notice.Made without notification to the other party because the question generally presented is not debatable. Accordingly. 8] • Definition: A motion attacking a pleading/order/judgment/proceeding must include all objections then available. Sec. a motion that is not acted upon in due time is deemed denied. Sec. MOTION’S FORM [Rule 15.Discretion of the court is involved. 3] 1) Relief sought to be obtained 2) Grounds upon which it is based 3) If it is required/necessary to prove facts alleged in a motion.
which attacks the entire pleading and seeks its dismissal based on: 1) Grounds which are patent on the face of the complaint. [Rule 17. 3] 3) Sec. IMPROPER VENUE • Unless and until the defendant objects to the venue in a MTD prior to a responsive pleading. the period to file a MTD for LOJ over his person does not commence to run until he voluntarily submits to the jurisdiction of the court. the venue cannot truly be said to have been improperly laid since. Sec. Sec. 3) Demurrer to evidence after plaintiff has completed the presentation of his evidence under Rule 33. 7) Prescription. The hearing shall be conducted as an ordinary hearing and the parties shall be allowed to present evidence. except when the motion is based upon failure 100% UP LAW UP BAROPS 2008 Page 23 of 95 . 1] 1) LOJ over the defendant’s person. GROUNDS [Rule 16. Hence. the defendant loses his right to present evidence. LOJ OVER THE DEFENDANT’S PERSON • The objection of LOJ over the person on account of lack of service or defective service of summons. 4. CA (1993)] • Appearance of counsel is equivalent to summons. 2) Defenses available to the defendant at the time of the filing of the complaint. • Exception: 1) Cases where the court may dismiss a case motu propio. [Laus v. 8) Failure to state a cause of action. TERMINATING THE ACTION BEFORE TRIAL A. but prior to. • Before any voluntary appearance is made. 4) Plaintiff’s lack of legal capacity to sue. defendant may present evidence. If granted. for all practical intents and purposes. If grounds other than invalid service of summons are raised. Improper venue may be waived and such waiver may occur by laches. unless such is made to protest the jurisdiction of the court over the person of the defendant. [Diaz v. 2. 2) After answer is filed.CIVIL PROCEDURE IV. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. REMEDIAL LAW of the complaint to state a cause of action. c) Due to fault of plaintiff. even for the first time on appeal and even if no such defense is raised in the answer. 6) Res judicata. 5) Litis pendentia. the court may hear the matter on affidavits/depositions. the court may dismiss the case outright instead of hearing the motion. 3) Improper venue. 11) Non-compliance with a condition precedent for filing claim. [De los Santos v. the venue though technically wrong may yet be considered acceptable to the parties for whose convenience the rules on venue had been devised. the filing of the defending party’s answer to the pleading asserting the claim against him If denied. LOJ OVER THE SUBJECT MATTER OF THE CLAIM • If the complaint shows on its face LOJ. 9) Extinguished claim. Montesa (1993)] • TYPES OF DISMISSAL OF ACTION: 1) MTD before answer under Rule 16. he may re-file the case • 3. MTD under Rule 16 MTD under Rule 33 (Demurrer to evidence) Based on insufficiency of evidence May be filed only by the defendant against the complaint of the plaintiff May be filed only after the plaintiff has completed the presentation of his evidence If denied. or the responding party in general. plaintiff may appeal or if a subsequent case is not barred. 4) At any stage of the proceeding. 4) Dismissal of an appeal. MOTION TO DISMISS (MTD) DEFINITION • MOTION TO DISMISS – A remedy of the defendant. must be raised: • At the very first opportunity. [Rule 9. Based on preliminary objections May be filed by any defending party against whom a claim is asserted in the action Should be filed within the time for. plaintiff appeals and the order of the dismissal is reversed. else. A MTD on the ground of LOJover the subject matter may be raised either: 1) Before answer. it cannot be considered as a special appearance. When the MTD is based on facts not appearing of record. 2) LOJ over the subject matter of the claim. it must raise all objections available at the time of the filing thereof. 3) After hearing had commenced. • • 1. 10) Unenforceable claim under the Statute of Frauds. Adiong (1993)] • A MTD shall be proved/disproved according to the rules of evidence. It hypothetically admits the facts stated in the complaint. 1] 2) Failure to prosecute. defendant answers. 2) MTD under Rule 17: a) Upon notice by plaintiff. General rule: A court may not motu propio dismiss a case. • If a defendant had not been properly summoned. he may be declared in default. unless a motion to that effect is filed by a party. Revised Rule on Summary Procedure. Sec. If granted. It is not a responsive pleading. It is not a pleading at all. b) Upon motion by plaintiff.
3) Relief founded on the same facts and the same basis. • 4. • 7. Lack of legal capacity to sue refers to plaintiff’s disability. b) Comparative accessibility of the court to the parties. It does not require that the later case be dismissed in favor of the earlier case. Inclusion of additional parties will not affect the application of the principle of res judicata. while lack of legal personality to sue refers to the fact that the plaintiff is not a real party in interest. [Vitrionics Computers v. in which case the ground for dismissal would be that the complaint states no cause of action. CA (1991)] 1) Public policy and necessity makes it the interest of the State that there should be an end to litigation. PLAINTIFF’S 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. • For res judicata to apply. the judgment in the 1st case operates as an estoppel only with regard to those issues directly controverted. To determine which case should be abated. the court must defer decision on the motion until such time as proof may be presented on such fact of prescription. Sec. 2) CONCLUSIVENESS OF JUDGMENT – Where the 2nd action between the parties is upon a different claim/demand. the parties’ good faith shall be taken into consideration. Sec. 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. [HSBC v. The 2nd case will not be abated if it is not brought to harass. REMEDIAL LAW 2) Judgment must be a final judgment. 2) identity of rights asserted and relief prayed for. a summary judgment (Rule 35). LITIS PENDENTIA • Requisites: [Anderson Group v. RES JUDICATA • Requisites: 1) Former judgment rendered by a court having jurisdiction over the subject matter and over the parties.CIVIL PROCEDURE • A stipulation between the parties as to venue does not preclude the filing of suits in the residence of plaintiff/defendant under Rule 4. In both tests. when he is not really a duly appointed administrator of an estate). If the fact of prescription is not indicated on the face of the complaint and the same may be brought out later. the remedy is prohibition. apply: 1) The More Appropriate Action Test. which is a matter of evidence (e. It is sufficient to allege and prove the pendency of another case.g. RTC (1993)] • TWO CONCEPTS OF RES JUDICATA [Abalos v. 3) Judgment must be on the merits. when he plaintiff is not in the full exercise of his civil rights). an agreement as to venue is merely permissive and there is no waiver of right to pursue remedy in other courts. STATUTE OF LIMITATIONS • Prescription applies only when the complaint on its face shows that indeed the action has already prescribed. 2) When he does not have the character which he claims. [DBP v. of subject matter and of the causes of action. • • 5. 2) The Interest of Justice Test. or an order of dismissal under Rule 17. The 1st case shall be abated if it is merely an anticipatory action or defense against an expected suit. Prescription Concerned with the fact of delay A matter of time Statutory Applies in law Based on fixed time Laches Concerned with the effect of delay A matter of equity Not statutory Applies in equity Not based on fixed time • 6. 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. 2(b). upon the determination of which the judgment was rendered. 4) There must be identity of parties. 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. • There can be res judicata without a trial. c) Other similar factors. 2) The hardship on the individual that he should be vexed twice for the same cause. CA (1997)] 1) Identity of parties. even if same had been brought later. In the absence of qualifying/restrictive words which would indicate that a specific place alone is the venue. such as in a judgment on the pleadings (Rule 34). 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. taking into account: a) Nature of the controversy. COMPLAINT STATES NO CAUSE OF ACTION 100% UP LAW UP BAROPS 2008 Page 24 of 95 . It is not required to allege that there be a prior pending case. Sherman (1989)] If the court erroneously denies the MTD. 8.g. absolute identity of parties is not required because substantial identity is sufficient. Pundogar (1993)] Rationale: The sum and substance of the whole doctrine is that a matter once judicially decided is finally decided because of: [Nabus v. 3.
it must deny the MTD and require the defendant to answer and then proceed to try the case on its merits. the court shall issue an order dismissing the case. parties shall submit: [Rule 16. • • • • • 9. Sec. Sec.e. IAC (1992)] • REMEDIAL LAW The court cannot defer the resolution of the MTD for the reason that the ground relied upon is not indubitable. 2] 1) Their arguments on questions of law. Test: Assuming the allegations and statements to be true.CIVIL PROCEDURE • Failure to state a cause of action (not lack of cause of action) is the ground for a MTD. Sec. 2) A motion for summary judgment. If the suit is not brought against the real partyin-interest. • If the case goes to trial. • Exception: Those not available at that time. Sec. Sec. 1 may be pleaded as an affirmative defense and the court may conduct a preliminary hearing thereon as if a MTD was filed. EXTINGUISHED CLAIM • That the claim/demand set forth in the plaintiff's pleading has been paid. 1] Dismissal here is effected not by motion but by mere notice before the service of either: 1) The answer. • Dismissal of the complaint under Rule 16. 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. 4) Prescription. Sec. 2) Their evidence on questions of fact. Sec.5] • General rule: The action/claim may be refiled. where such notice is premised on the fact of payment by the defendant of the claim involved. b) If pleading is ordered to be amended – Movant must file his answer within the period under Rule 11. abandoned or otherwise extinguished. 2) On periods for pleading: [Rule 16. a motion to dismiss may be filed on the ground that the complaint states no cause of action. 1] 1) LOJ over subject-matter. • The dismissal is still with prejudice even it the notice of dismissal does not so provide. The latter means that there is insufficiency in the factual basis of the action. If the court finds the allegations of the complaint to be sufficient but doubts their veracity. DISMISSAL OF ACTIONS 1. c) Extinguishment of the claim/demand. the grounds in Rule 16. counted from service of the amended pleading (unless the court gives a longer period). • B. the court has no discretion on WON to dismiss the case). waived. 3) On other grounds and omnibus motion rule: • MTD based on the following grounds may be filed even after filing an answer: [Rule 9. The dismissal is without prejudice. • Exception: 1) If the notice of dismissal provides that it is with prejudice. The failure to state a cause of action must be evident on the face of the complaint itself. A complaint containing a premature cause of action may be dismissed for failure to state a cause of action. Upon plaintiff’s filing of notice. Cabrera] 2) TWO-DISMISSAL RULE – If the plaintiff has previously dismissed an action based on or including the same HEARING AND ORDER • During the hearing of the motion. 2) Deny the MTD. The former means there is insufficiency in the allegations in the pleading.4] a) If MTD is denied – Movant must file his answer within the balance of the period under Rule 11 to which he was entitled at the time of serving his MTD (but not less than 5 days). 3) Order the amendment of pleadings. 6 is without prejudice to the prosecution (in the same or in a separate action) of a counterclaim pleaded in the answer. EFFECTS 1) Of dismissal: [Rule 16. 2) Litis pendentia. 3) Res judicata. NON-COMPLIANCE WITH A CONDITION PRECEDENT • Non-compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the case on the ground of non-compliance with a condition precedent. the court may either: [Rule 16. • Exception: The action cannot be refiled (although subject to appeal) if it was dismissed on any of the following grounds: a) Res judicata. The court’s resolution on the MTD must clearly and distinctly state the reasons therefor. After the hearing. 10. (i. b) Prescription. [Tanpinco v. Sec. d) Unenforceability under the Statute of Frauds. 3] 1) Dismiss the action/claim. 6] • If no MTD was filed. DISMISSAL UPON PLAINTIFF’S NOTICE [Rule 17. • • • • 100% UP LAW UP BAROPS 2008 Page 25 of 95 . PLEADING THE GROUNDS AS AFFIRMATIVE DEFENSES [Rule 16. Sec. UNENFORCEABLE CLAIM UNDER THE STATUTE OF FRAUDS 11. such evidence presented shall automatically be part of the evidence of the party who presented them. [Serrano v.
claim, the notice operates adjudication on the merits. as an
Dismissal is without prejudice to the defendant’s right to prosecute his counterclaim in a separate action (unless within 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action)
Dismissal is without prejudice to the defendant’s right to prosecute his counterclaim in the same or in a separate action
2. DISMISSAL UPON PLAINTIFF’S MOTION [Rule 17,
Sec. 2] • Here, dismissal of the complaint is subject to the court’s discretion and upon such terms and conditions as may be just. Leave of court for the dismissal is necessary because the motion is made after a responsive pleading or a motion for summary judgment has been served. If defendant pleaded a counterclaim prior to the service upon him of the plaintiff’s motion for dismissal, the dismissal shall be without prejudice to the defendant’s right to either: 1) Prosecute his counterclaim in a separate action; 2) Have the counterclaim resolved in the same action, by manifesting such preference within 15 days from being notified of plaintiff’s motion for dismissal. Dismissal here is without prejudice, unless otherwise provided in the order. Court approval of the court is necessary in the dismissal/compromise of a class suit. 3. DISMISSAL DUE TO
DISMISSAL OF COUNTERCLAIMS/CROSSCLAIMS/3RD-PARTY COMPLAINTS [Rule 17, Sec. 4] • Rule 17 applies to the dismissal of counterclaims, cross-claims or 3rd-party complaints. 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)]
PLAINTIFF’S FAULT [Rule 17,
C. DEFAULTS [Rule 9, Sec. 3]
• If, without justifiable cause, plaintiff fails either: 1) To appear on the date of the presentation of his evidence-in-chief on the complaint; • The plaintiff’s 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. It is merely a waiver of his right to crossexamine and to object to the admissibility of evidence. [Jalover v. Ytoriaga] 2) To prosecute his action for an unreasonable length of time (nolle prosequi); • 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)] 3) To comply with the ROC or any court order. Here, the case may be dismissed motu propio or upon the defendant’s motion. The dismissal has the effect of an adjudication on the merits, unless the court declares otherwise.
Rule 17, Sec. 2 Dismissal is at the plaintiff’s instance Rule 17, Sec. 3 Dismissal is not procured by plaintiff, although justified by causes imputable to him Dismissal is a matter of evidence, an adjudication on the merits
Definition: Failure of the defendant to answer within the proper period. It is not his failure to appear nor his failure to present evidence.
Order of default Issued by the court on plaintiff’s 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 plaintiff’s evidence Final – Appealable
ELEMENTS OF A VALID DECLARATION OF DEFAULT 1) Court validly acquired jurisdiction over the defendant’s person, either by service of summons or voluntary appearance; 2) Defendant fails to answer within the time allowed therefor; 3) Motion to declare the defendant in default; 4) Notice to the defendant by serving upon him a copy of such motion; 5) Proof of such failure to answer. CASES WHERE NO DEFAULTS ARE ALLOWED 1) Annulment of marriage; Declaration of nullity of marriage; Legal Separation; • Here, the court shall order the prosecuting attorney to investigate WON parties are colluding and, if there is no collusion, to intervene from the State to ensure that evidence is not fabricated. 2) Special civil actions of certiorari, prohibition and mandamus, where comment (instead of an answer) is required to be filed. EFFECT OF ORDER OF DEFAULT
Dismissal is a matter of procedure, without prejudice unless otherwise stated in the court order or on plaintiff’s motion for dismissal of his own complaint.
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1) Party in default loses standing in court as a party litigant. His failure to answer operates as a waiver of right to take part in the trial, of being heard, and of presenting evidence in his favor. • If the defendant was declared in default upon an original complaint, the filing of the amended complaint resulted in the withdrawal of the original complaint. Hence, the defendant was entitled to file answer to the amended complaint as to which he was not in default. 2) The court shall proceed to render judgment granting the claimant relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. 3) The party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. • 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] • A party in default is entitled to notice of: a) Motion to declare him in default; b) Order declaring him in default; c) Subsequent proceedings; d) Service of final orders and judgments.
who fails to appear Plaintiff
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
Default (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 Relief awarded must be the same in nature and amount as prayed for in the complaint
As in default (Rule 18, Sec. 5) Not required Not required Court to allow plaintiff to present evidence ex parte, then the court shall render judgment Relief awarded may be of different nature and amount from the relief prayed for
RELIEF FROM ORDER OF DEFAULT • Before judgment, a party declared in default may file a motion under oath to set aside the order of default upon proper showing that: 1) His failure to answer was due to fraud, accident, mistake or excusable negligence; 2) He has a meritorious defense. • In such case, the order of default may be set aside on terms and conditions as justice requires. EFFECT OF PARTIAL DEFAULT • If the pleading asserting a claim states a common cause of action against several defending parties, and some of the defending parties answer while the others fail, the court shall try the case against all defendants upon the answers filed and render judgment upon the evidence presented. • Exception: If the defense is personal to the one who answered; in which case, it will not benefit those who did not answer. EXTENT OF RELIEF TO BE AWARDED • The award shall not exceed the amount or be different in kind from that prayed for; nor award unliquidated damages. • Rationale: It is presumed that where the relief demanded is greater or different in kind, defendant would not have allowed himself to be declared in default. • In a judgment based on evidence presented ex parte, judgment should not exceed the amount or be different in kind from that prayed for. 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. [Datu Samad Mangelen v. CA (1992)]
A defendant who already filed an answer cannot be declared in default. Only when the defendant fails to file an answer to the complaint may the court proceed to render judgment. [Lesaca v. CA (1992)] The Revised Rules on Summary Procedure does not provide that an answer filed after the reglamentary period should be expunged from the records. As a matter of fact, there is no provision for an entry of default if a defendant fails to file his answer. The defense of LOJ may have even been raised by the defendant in a MTD as an exception to the rule on prohibited pleadings in the Revised Rule on Summary Procedure. Such a motion is allowed under Sec. 19(a) thereof. [Bayog v. Natino (1996)] Where the failure to appear at the pre-trial hearing was uncontrovertedly due to illness, the default order may be set aside on the ground of accident over which petitioner had no control. Also, the order of arrest was illegal as there is nothing in the ROC which authorizes such a consequence of a default order. [Malanyaon v. Sunga (1992)]
REMEDIES • Pleadings, as well as remedial laws, should be liberally construed in order that litigants may have ample opportunity to prove their respective claims, and possible denial of substantial justice. [Gerales v. CA]
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Motion to set aside order of default [Rule 9, Sec. 3(b)] At any time after the discovery of default and before judgment, defendant may file a motion under oath to set aside order of default on the ground that his failure to file an answer or appear on the date set for the pre-trial was due to fraud, accident mistake of law, and excusable negligence and that he has a meritorious defense If the judgment has already been rendered when the defendant discovered the default, but before the same became final and executor. It should be filed within the period for perfecting an appeal. Timely filing thereof interrupts the 15day reglementary period for an appeal. It is required that defendant file first a motion to lift order of default to regain his standing. [Tan v. CA (1997)] If the defendant discovered the default after the judgment has become final and executory The defendant may also appeal from the judgment rendered against him as contrary to the evidence or the law, even if he did not present a petition to set aside the order of default
file a motion to set aside the declaration of default, he has the right to appeal the default judgment. But in the appeal, only the evidence of the petitioner may be considered, respondent not having adduced any defense evidence. [Boticano v. Chu (1987)]
D. JUDGMENT ON THE PLEADINGS [Rule 34]
• Grounds: If the answer either: 1) Fails to tender an issue; 2) Admits the material allegations of the adverse party’s pleading. An answer fails to tender an issue due to either: 1. General denial of the material allegations of the complaint; 2. Insufficient denial of the material allegations of the compliant. A judgment on the pleadings can be done only upon motion to the effect filed by the appropriate party. It cannot be rendered by the court motu propio. • Exception: If at pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu propio. [Rule 18, Sec. 2(g)] In the following cases, judgment on the pleadings will not lie and material facts alleged in the complaint must always be proved: 1) Declaration of nullity of marriage; 2) Annulment of marriage; 3) Legal separation. By moving for judgment on the pleadings, the plaintiff waives his claim for unliquidated damages (because claims for such damages must be alleged and proved). One who prays for the judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence, must be understood to admit all material and relevant allegations of the opposing party and to rest his motion for judgment upon those allegations taken together with such of his own as are admitted in the pleadings. [Falcasantos v. How Suy Ching]
MNT [Rule 37, Sec. 1(a)]
Petition for relief from order [Rule 38, Sec. 1 and 2]
Appeal from the RTC [Rule 41, Sec. 1]
[Dulos v. CA (1990)] • An order of default is an interlocutory order which is not appealable. A judgment by default is a final disposition of the case and is appealable. [MERALCO v. La Campana Food Products (1995)] A petition for certiorari under Rule 65, although not a substitute for an available or lost appeal, may be invoked while the orders of the lower court are issued without or in excess of jurisdiction. Judgment by default being appealable, appeal should be perfected within 15 days from receipt of copy of order denying MFR of default judgment. [Oriental Media v. CA (1995)] A satisfactory showing by the movant of the existence of fraud, accident, mistake or excusable neglect is an indispensable requirement for the setting aside of a judgment of default or the order of default. A meritorious defense is only one of the two conditions. The meritorious defense must concur with the satisfactory reason for the non-appearance of the defaulted party. If there is no such reason, the appropriate remedy is an ordinary appeal under Rule 41, Sec. 2. [Ramnani v. CA (1993)] The jurisdiction was properly acquired by the TC over the defendant’s person; he was therefore properly declared in default for not having filed any answer. Despite his failure to
E. SUMMARY JUDGMENTS
• Definition: A judgment granted by the court for the prompt disposition of civil actions, if it clearly appears that there exists no genuine issue/controversy as to any material fact, except as to the amount of damages. Also called accelerated judgment. GENUINE ISSUE – An issue of fact which calls for the presentation of evidence; as distinguished from an issue which is sham, fictitious, contrived and patently insubstantial so as not to constitute a genuine issue for trial. When the facts as pleaded appear uncontested or undisputed, then there is no real/genuine issue as to the facts.
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or b) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing. who may file motion for summary judgment Plaintiff when REMEDIAL LAW V. except annulment of marriage or legal separation cases Available in any action. The liberty of a party to avail of such modes of discovery is unrestricted if the matters inquired into are relevant and not privileged. admissions and affidavits There is no genuine issue between the parties Judgment on the pleadings Based solely upon the pleadings Available to both plaintiff and defendant The answer fails to tender an issue or there is an admission of the material allegations Generally available only to the plaintiff. upon the following. as follows: 1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. • Effect of partial summary judgment: A partial summary judgment is not a final judgment. the movant must also file a Motion for Extension of Time to File Answer. (Rule 25) PARTIAL SUMMARY JUDGMENT • Applies when for some reason there can be no full summary judgment. unless the defendant presents a counterclaim 3-day notice required On the merits Judgment by default Based on the complaint and evidence. or for declaratory relief 3-day notice rule applies On the merits Available in any action. A party must move for summary judgment. depositions. Reyes (1993)] • Exception: The exceptions however to the inadmissibility of such deposition are provided for in Rule 23.Inc. v. The court shall direct further proceedings in the action as are just. unless it appears that his absence was procured by the party offering the deposition. Section 4. 3) The deposition of a witness. Bases of summary judgment: When. or for a liquidated sum of money. Trial should deal only with the facts not yet specified or established. If available to testify. 2) Depositions of the adverse or a 3rd party. 2) The deposition of a party or of any one who at the time of taking the deposition was an officer. except annulment of marriage or legal separation cases 100% UP LAW UP BAROPS 2008 Page 29 of 95 . or in such a manner as to annoy. If the witness is available to testify. MODES OF DISCOVERY A. DEPOSITIONS UNDER RULE 23 1. or when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege. Hence. or association which is a party may be used by an adverse party for any purpose. no genuine issue as to any material fact exists: 1) Affidavits made on personal knowledge. CA (1983)] • Summary judgment Based on the pleadings. and the inquiry is made in good faith and within the bounds of the law. [Dasmariñas Garments. or managing agent of a public or private corporation. partnership. embarrass or oppress the person under examination. or May file the motion only after the answer has been served May file the motion any time Defendant • • Filing of a motion for summary judgment does not interrupt the running of the period for filing an answer. (Rule 26) 4) Answers to interrogatories. Under certain conditions and for certain limited purposes. whether or not a party. director. may be used by any party for any purpose if the court finds: a) that the witness is dead. Limitations would arise if the examination is conducted in bad faith. the primary function of which is to supplement the pleadings for the purpose of disclosing the real points of dispute between the parties and affording an adequate factual basis during the preparation for trial. if court requires its presentation No issues as no answer is filed by the defending party Available to the plaintiff alone 10-day notice required May be interlocutory or on the merits Usually available in actions to recover a debt. [Guevarra v. he should be presented in court to testify. a party’s or witness’ deposition is inadmissible in evidence for being hearsay. but merely a pre-trial adjudication that said issues in the case shall be deemed established for the trial of the case. GENERAL RULES • PRIMARY FUNCTION OF A DEPOSITION Deposition is chiefly a mode of discovery. or is out of the Philippines. (Rule 23) 3) Admissions of the adverse party.CIVIL PROCEDURE • The TC cannot motu propio issue a summary judgment. [Jonathan Landoil v Mangudadatu (2006)] General Rule: A deposition is not generally supposed to be a substitute for the actual testimony in open court of a party or witness. it may be taken even after trial has commenced and may be used without the deponent being actually called to the witness stand.
consul. notary public. or 3) who is financially interested in the action. or employee of such counsel. • Exceptions: In our jurisdiction. or imprisonment. depositions in foreign countries may be taken: 1) on notice before a secretary of embassy or legation. in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. to allow the deposition to be used. or In the form of a request. no need to resort to diplomatic channels unlike in letters rogatory) Usually authoritative in the sense that it orders the commissioned officer to take the deposition in accordance with the rules laid down by the issuing court LETTERS ROGATORY A judicial authority in the foreign country RULES THAT GOVERN THE DEPOSITION WHEN ISSUED Rules laid down by such foreign judicial authority Generally resorted to when there is difficulty or impossibility of obtaining the deposition by commission (J. consul general. REMEDIAL LAW 3) before any person authorized to administer oaths as stipulated in writing by the parties. and any party may introduce any other parts. 2) before such person or officer as may be appointed by commission or under letters rogatory. or e) upon application and notice. 100% UP LAW UP BAROPS 2008 Page 30 of 95 . or consular agent of the Republic of the Philippines. or who is a relative within the same degree. or the person referred to in section 14 (which refers to any person authorized to administer oaths designated by the parties by stipulation). or d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. sickness. Regalado) TONE OF COMMUNICA TION 2. that such exceptional circumstances exist as to make it desirable. infirmity. or 2) employee or counsel of any of the parties. vice consul. the adverse party may require him to introduce all of it which is relevant to the part introduced. it being issued to a representative of another sovereign state. COMMISSION ADDRESSED TO WHOM Any authority in a foreign country authorized therein to take down depositions Rules laid down by the court issuing the commission Preferred over letters rogatory since the process is simpler (generally. BEFORE WHOM TAKEN • General Rule: Depositions may be taken before any judge.CIVIL PROCEDURE c) that the witness is unable to attend to testify because of age. and 4) If only part of a deposition is offered in evidence by a party. • No deposition shall be taken before a person who is: 1) a relative within the sixth degree of consanguinity or affinity.
CIVIL PROCEDURE REMEDIAL LAW 3. a party may serve re cross-interrogatories upon the party proposing to take the deposition. embarrassment or oppression. Within f ive (5) days thereaf ter. or to the conduct of any party. PROCEDURE FOR TAKING DEPOSITIONS DE BENE ESSE UNDER RULE 23 Af ter jurisdiction has been obtained over any defendant or over the property subject of the action. SCOPE OF EXAMINATION. may issue orders f or the protection of parties and deponents f rom annoyance. the latter may serve re-direct interrogatories upon a party w ho has served cross-interrogatories. but bef ore the answ er is f iled. (Section 17) DEPOSITION BY WRITTEN INTERROGATORIES: A party desiring to take the deposition of any person upon w ritten interrogatories shall serve them upon every other party w ith a notice stating the name and address of the person w ho is to answ er them and the name or descriptive title and address of the off ic er bef ore w hom the deposition is to be taken. PARTIES SERV ED WITH NOTICE OF TAKING A DEPOSITION MAY TRANSMIT WRITTEN INTERROGATORIES TO THE OFFICERS. (RUL E 21. The testimony shall be taken stenographically unless the parties agree otherw ise. DEPOSITION BY ORAL EXAMINATION: The of f ic er bef ore w hom the deposition is to be taken shall put the w itness on oath and shall personally. WHO SHALL PROPOUND THEM TO THE WITNESS AND RECORD THE ANSWERS VERBATIM. shall constitute suff icient authorization for the issuance of subpoenas f or the persons named in said notice by the clerk of the court of the place in w hich the deposition is to be taken. FILE A MOTION TO TAKE DEPOSITION AND SERVE REASONABLE NOTICE IN WRITING TO EV ERY OTHER PARTY IN THE ACTION Af ter an answ er has been f iled. shall be noted by the officer upon the deposition. may issue orders f or the protection of parties and deponents f rom annoyance. however. embarrassment or oppression. The clerk shall not. IN L IEU OF PARTICIPATING IN THE ORAL EXAMINATION. record the testimony of the w itness. or to the evidence presented. Within three (3) days af ter being served w ith re-direct interrogatories. and any other objection to the proceedings. The court upon motion seasonally made by any party or the by the person to be examined f or good cause show n (under Section 16). the court upon motion seasonally made by any party or the by the person to be examined f or good cause sho w n (under Section 16). the deponent may be examined regarding any m atter. Within ten (10) days thereafter. Evidence objected to shall be taken subject to the objections. no leave of court is required thus. not privilege d. the party seeking to take deposition may FILE A NOTICE TO TAKE DEPOSITION AND SERVE REASONABLE NOTICE IN WRITING TO EV ERY OTHER PARTY IN THE ACTION PROOF OF SERVICE OF A NOTICE TO TAKE A DEPOSITION. a party so served may serve cross-interrogatories upon the party proposing to take the deposition. AS PROVIDED I N SECTIONS 15 AND 25 OF RUL E 23. or by some one acting under his direction and in his presence. or to the manner of talking it. Unless otherw ise ordered by the court as provided by se ction 16 or 18 of this Rule . issue a subpoena duces tecum to any such person w ithout an order of the court . w hic h is relevant to the subject of the pending action. All objections made at the time of the examination to the qualif ications of the off icer taking the deposition. 100% UP LAW UP BAROPS 2008 Page 31 of 95 . SECTION 5) Upon court approval f or the taking of deposition.
THE COURT HOLDS THAT THE REASONS GIV EN FOR THE REFUSAL TO SIGN REQUIRE REJECTION OF T HE DEPOSITION IN WHOLE OR IN PART. EMBARRASS. REMEDIAL LAW A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition to the officer designated in the notice. Substitution of parties does not affect the right to use depositions previously taken.e. OTHER RULES • RULE 23 Section 5. if any. The officer taking the deposition shall give prompt notice of its filing to all the parties FURNISHING COPIES. OR OPPRESS THE DEPONENT OR PARTY. who shall proceed promptly. and upon a showing that the examination is being conducted IN BAD FAITH OR IN SUCH MANNER AS UNREASONABLY TO ANNOY. this SECTION ACTUALLY ENUNCIATES THE EFFECT OF • • • • • TAKING A DEPOSITION. If the deposition is not signed by the w itness. SUBMISSION TO WITNESS. and the deposition may then be used as fully as though signed. CHANGES. The deposition offic er shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. General Rule: Introduction in evidence of deposition or any part thereof for any purpose makes the deponent the witness of the party introducing the deposition. SIGNING: When the testimony is fully transcribed. unless such examination and reading are waiv ed by the witness and by the parties.. It in effect preserves testimony of a person subject to the limitations of its use under Section 4 of the rule. He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked "Deposition of (here insert the name of witness)" and shall promptly file it w ith the court in w hich the action is pending or send it by regis tered mail to the clerk thereof for filing NOTICE OF FILING. DEPOSITION. CERTIFICATION. the title of this section notwithstanding. in the manner provided by sections 17 (i. the officer shall furnis h a copy of the deposition to any party or to the deponent. the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together w ith the reason be given therefor. as provided in section 16 of this Rule.CIVIL PROCEDURE Examination and cross-examination of deponents may proceed as permitted at the trial under sections 3 to 18 of Rule 132. Upon payment of reasonable charges therefor. Effect of substitution of parties. • Exception: if the purpose if to contradict or impeach the deponent. Any changes in form or substance which the w itness desires to make shall be entered upon the deposition by the officer with a statement of the reasons giv en by the w itness for making them. MOTION TO LIMIT OR TERMINATE EXAMINATION: At any time during the taking of the deposition. 19 and 20 of Rule 23. AND FILING BY OFFICER. the court in w hich the action is pending or the Regional Trial Court of the place where the deposition is being taken may order the officer conducting the examination to cease forth w ith from taking the deposition. all depositions lawfully taken and duly filed in the former action MAY BE USED IN THE LATTER AS IF ORIGINALLY TAKEN THEREFOR. unless the parties by stipulation w aiv e the signing or the w itness is ill or cannot be found or refuses to sign. According to Professor Avena. the deposition shall be submitted to the w itness for examination and shall be read to or by him. UNLESS ON A MOTION TO SUPPRESS UNDER SECTION 29 (F) OF THIS RUL E. 4. questions are read to deponent subject to objections). or may limit the scope and manner of the taking of the deposition. when an action has been dismissed and another action involving the same subject is afterward brought between the same parties or their representatives or successors in interest. on motion or petition of any party or of the deponent. ONLY INSTANCE WHEN ONE ALWAYS NEEDS LEAVE OF COURT BEFORE TAKING DEPOSITIONS: Where the deponent is in jail. and. A party shall not be deemed to make a person his own witness for any purpose by taking his deposition (Section 7). The deposition shall then be signed by the w itness. in keeping with its nature 100% UP LAW UP BAROPS 2008 Page 32 of 95 . WHEN AVAILABLE IN CRIMINAL CASES: A deposition.
The use of discovery procedure in criminal cases is directed to the sound discretion of the trial judge. • DASMARINAS GARMENTS VS. at a time and place named therein. 100% UP LAW UP BAROPS 2008 Page 33 of 95 . Procedure: • • 1) FILE A VERIFIED PETITION IN THE COURT OF THE PLACE OF THE RESIDENCE OF ANY EXPECTED ADVERSE PARTY. materiality and competence of the deposition to the action -Deposition officer is disqualified -Error in the manner of taking the deposition -Error in the form of the deposition -Manner preparing deposition of the REMEDIAL LAW e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each. in lieu of actual testimony of the deponent in court. The petition shall be entitled in the name of the petitioner and shall show: a) 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.CIVIL PROCEDURE as a mode of discovery. together with a copy of the petition. The deposition taking can not be based nor can it be denied on flimsy reasons.particularly on the defense of alibi. rules on criminal practice . may be opposed and excluded for being hearsay save in specific instances under the Rules. Procedure: • C. the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons.states that when a person intends to rely on such a defense. it shall make an order 1) designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and 2) whether the depositions shall be taken upon oral examination or written interrogatories 4) Procedure for taking deposition by oral examination or written interrogatories will be governed by Rule 23 on depositions de bene esse. upon the same notice and service thereof as if the action was pending therein. c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known. 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. should be taken BEFORE AND NOT DURING TRIAL. [Dasmariñas Garments v. that person must move for the taking of the deposition of his witnesses within the time provided for filing a pre-trial motion. 2) NOTICE AND SERVICE to each person named in the petition as an expected adverse party. Reyes (1993)] B. and 1) DURING THE PENDENCY OF AN APPEAL. In fact. 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. Discretion has to be exercised in a reasonable manner and in consonance with the spirit of the law. [People v. Hubert Webb (1999)] GROUNDS FOR QUESTIONING THE DEPOSITION BEFORE DURING AFTER DEPOSITION DEPOSITION DEPOSITION -Lack of notice to parties -Deposition officer is disqualified -Lack of relevance. which is respondent’s main defense in the criminal proceedings against him in the court below . Regalado and Prof. 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. DEPOSITIONS PENDING APPEAL UNDER RULE 24 J. At least twenty (20) days before the date of the hearing. 3) ORDER AND EXAMINATION: If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice. for the order described in the petition. b) the subject matter of the expected action and his interest therein. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions. and (b) the reason for perpetuating their testimony 2) ORDER ALLOWING THE DEPOSITION: If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice. Avena both believe that the following procedure is applicable to civil and criminal cases. stating that the petitioner will apply to the court. DEPOSITIONS BEFORE ACTION UNDER RULE 24 • Purpose: To perpetuate the testimony of witnesses for probable use in the event of further proceedings in said court. it may make an order allowing the deposition to be taken. REYES (1993): Any deposition offered to prove the facts therein at the trial of the case.
if the party served is a public or private corporation or a partnership or association. SECTION 3c) D. documents. INTERROGATORIES TO PARTIES UNDER RULE 25 2) • Procedure: 1) Either: 1) BY LEAVE OF COURT AFTER JURISDICTION HAS BEEN OBTAINED OVER ANY DEFENDANT OR OVER PROPERTY WHICH IS THE SUBJECT OF THE ACTION. section 6) CONSEQUENCES OF REFUSAL TO ANSWER THE SET OF INTERROGATORIES: 1) The party serving the interrogatories may apply to the court for an order to compel an answer. or both of them. or to give a deposition pending appeal unless thereafter allowed by the court for good cause shown and to prevent a failure of justice. with notice as in case of a motion. custody. AND (RULE 29. it may require the refusing party or deponent or the counsel advising the refusal. 3) ANSWER DEFERRED when objections to any interrogatories is presented to the court within ten (10) days after service thereof. SECTION 3c) STAYING FURTHER PROCEEDINGS UNTIL THE ORDER IS OBEYED. TO PAY THE PROPONENT THE AMOUNT OF THE REASONABLE EXPENSES INCURRED IN OBTAINING THE ORDER. CONSEQUENCE OF FAILURE TO SERVE WRITTEN INTERROGATORIES. CONTEMPT for refusal to comply with an order of the court to compel an answer (According to Prof.CIVIL PROCEDURE 3) RULE 23 APPLIES ON THE MANNER CONDUCT OF THE DEPOSITION. or other tangible things and the identity and location of persons having knowledge of relevant facts USE OF INTERROGATORIES: Same as Rule 23 Section 4 mutatis mutandis. Rule 23). (1) not privileged and which is (2) relevant to the subject of the pending action. not Rule 29. a party may file and serve upon any other party may file and serve upon any other party a written request for the admission by the latter of a) the GENUINENESS OF ANY MATERIAL AND RELEVANT DOCUMENT DESCRIBED IN AND EXHIBITED WITH THE REQUEST or b) of the TRUTH OF ANY MATERIAL AND RELEVANT MATTER OF FACT SET FORTH IN THE REQUEST. SCOPE OF INTERROGATORIES: any matter. If it also finds that the refusal 3) 4) 5) 6) 7) 8) E. 2) ANSWER. which shall not be less than fifteen (15) days after service thereof. The interrogatories shall be ANSWERED FULLY IN WRITING and shall be SIGNED AND SWORN TO BY THE PERSON MAKING THEM. SECTION 3c) In lieu of any of the foregoing orders or in addition thereto. INCLUDING ATTORNEY'S FEES (Rule 29. whether relating to the claim or defense of any other party. • NUMBER OF INTERROGATORIES. The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party submitting the interrogatories within fifteen (15) days after service thereof unless the court on motion and for good cause shown. without leave of court. SECTION 3c). REQUEST FOR ADMISSION UNDER RULE 26 1) AT ANY TIME AFTER ISSUES HAVE BEEN JOINED. 2) EACH OF THE MATTERS OF WHICH AN ADMISSION IS REQUESTED SHALL BE DEEMED ADMITTED unless. (RULE 25. or 2) WITHOUT SUCH LEAVE AFTER AN ANSWER HAS BEEN SERVED. Section 3b. condition. or within such further time as the court may allow on motion.2 which refers only to depositions) Subject of discovery DEEMED ADMITTED OR ESTABLISHED (RULE 29 SECTION 3a). or DISMISSING THE ACTION OR PROCEEDING OR ANY PART THEREOF(RULE 29. extends or shortens the time. SECTION 3b) STRIKING OUT PLEADINGS OR PARTS THEREOF (RULE 29. an order directing the arrest of any party or agent of a party for disobeying any of such orders (RULE 29. including the existence. • • • • 3) OBJECTIONS TO ANY REQUEST FOR ADMISSION SHALL BE SUBMITTED TO THE COURT BY THE PARTY REQUESTED WITHIN THE PERIOD FOR AND PRIOR TO THE FILING OF HIS SWORN STATEMENT as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such 100% UP LAW UP BAROPS 2008 Page 34 of 95 . within a period designated in the request. No party may. Avena. and location of any books. by any officer thereof competent to testify in its behalf. serve more than one set of interrogatories to be answered by the same party (Section 4. section 1). OR REMEDIAL LAW to answer was without substantial justification. the basis is Rule 71. description. any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served or. nature. or RENDERING A JUDGMENT BY DEFAULT AGAINST THE DISOBEDIENT PARTY. Party prohibited from introducing CONTRADICTORY EVIDENCE (RULE 29. the party to whom the request is directed files and serves upon the party requesting the admission a SWORN STATEMENT either 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. A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court.
photographs. • F. Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding. • • Note the term ALSO in Rule 21. Unless otherwise allowed by the court for (1) good cause shown and (2) to prevent a failure of justice. WITHDRAWAL. SHALL NOT BE PERMITTED TO PRESENT EVIDENCE ON SUCH FACTS. or court where the deposition is to be taken or clerk or body authorized by law or any justice of the Supreme Court or CA in any case or investigation pending within the Philippines Issued upon request (Request to the clerk. WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER. The request for admission MUST BE SERVED ON THE PARTY and NOT ON THE COUNSEL. or other things under his control or possession. which constitute or contain WHEN ISSUED Issued by a court before whom the witness is required to attend. This she believes is the reason why Rule 27 becomes relevant. The court may allow the party making an admission under the Rule. [Duque v. to withdraw or amend it upon such terms as may be just. papers. whether express or implied. TO WHOM DIRECTED WHEN MAY ASKED IT BE To any person Only to a party Only during trial Before and/or during trial ISSUED BY WHOM SUBPOENA DUCES TECUM NATURE Process requiring a person to bring with him any books. • EFFECT OF ADMISSION. documents. or photographing the property or any designated relevant object or operation thereon. EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR ADMISSION. section1. letters. It is enough that the requesting party be given the opportunity to inspect or copy or photograph the document or take a look at the thing. no notice) NO Issued by the court where the action is pending WHETHER IT IS NECESSARY TO SHOW GOOD Issued upon motion (application with notice to the other party) YES 100% UP LAW UP BAROPS 2008 Page 35 of 95 . OR OUGHT TO BE. not privileged. or (b) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting. of any designated documents. measuring. CA (2002)] SUBPOENA DUCES TECUM REMEDIAL LAW ORDER FOR THE PRODUCTION OR INSPECTION evidence material to any matter involved in the action and which are in his possession. by or on behalf of the moving party. This is an exception to the general rule that notices shall be served upon counsel and not upon the party. documents. accounts. books. This for her is an inherent limitation of subpoena. AVENA NOTES: Subpoena duces tecum CANNOT BE ISSUED without a prior subpoena ad testificandum ORDER FOR THE PRODUCTION OR INSPECTION (a) order any party to produce and permit the inspection and copying or photographing.CIVIL PROCEDURE objections are resolved. a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which ARE. PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS • This mode of discovery does not mean that the person who is required to produce the document or the thing will be deprived of its possession even temporarily. surveying. objects or tangible things. custody or control. which resolution shall be made as early as practicable.
the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification. oppressive. of the same mental or physical condition. • CONSEQUENCE OF DISOBEDIENCE See Section 3. After such request and delivery. previously or thereafter made. CONSEQUENCES OF REFUSAL UNDER RULE 29 PROVISION HIGHLIGHTS APPLICABILITY G. or The person in whose behalf the subpoena is issued fails to advance the reasonable costs of the production thereof Constitutes contempt of the court from which the subpoena is issued. If requested by the party examined. 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. By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner. • IF THE APPLICATION IS GRANTED. If the party examined refuses to deliver such report. Such examination is not necessary to treat or cure the patient but to assess the extent of injury or to evaluate his physic al or mental condition. Avena) to the proper court of the place where the deposition is being taken.e. to pay the proponent the amount of the reasonable expenses incurred in obtaining the order. regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination. irrelevant. including attorney's fees. the court on motion and notice may make an order requiring delivery on such terms as are just. or both of them. If a party or other deponent refuses to answer any question upon oral examination. • IF THE APPLICATION IS DENIED and the court finds PARTY OR DEPONENT /WITNESS IN RULE (depositions bene esse). CAUSE GROUNDS FOR QUASHAL Unreasonable.CIVIL PROCEDURE SUBPOENA DUCES TECUM ORDER FOR THE PRODUCTION OR INSPECTION No good cause shown • REMEDIAL LAW WAIVER OF PRIVILEGE. and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at the trial. INTERROGATORIES TO PARTIES 100% UP LAW UP BAROPS 2008 Page 36 of 95 . for an order to compel an answer. REFUSAL TO ANSWER.. by MOTION FOR THE ISSUANCE OF AN ORDER TO COMPEL AN ANSWER. (1) the examination may be completed on other matters or (2) adjourned as the proponent of the question may prefer. 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.Prof. (3) The proponent may thereafter apply (i. PHYSICAL AND MENTAL EXAMINATION OF A PARTY UNDER RULE 28 • Procedure: Section 1. it may require the refusing party or deponent or the counsel advising the refusal. requisites a) the lis mota of the case is the physical or mental condition of a party (NOT A WITNESS!!!) b) good cause c) notice to the party to be examined d) must specify physician e) scope of examination 2) COURT IN WHICH THE ACTION IS PENDING MAY IN ITS DISCRETION issue the order for examination. RULE (depositions perpetuam memoriam) 23 de 1) MOTION FOR THE ISSUANCE OF AN ORDER FOR EXAMINATION. Rule 29 H. PHYSICIAN-PATIENT PRIVILEGE. 3) REPORT OF FINDINGS. INAPPLICABLE because the results of the examination are intended to be made public. the party examined waives any privilege he may have in that action or any other involving the same controversy. 24 in rei RULE 25.
(4) or rendering a judgment by default against the disobedient party. (c) An order (1) striking out pleadings or parts thereof. or the contents of the paper. an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination. 24. or (3) dismissing the action or proceeding or any part thereof. or both of them. Other consequences AGGRIEVED PARTY MAY APPLY FOR: (a) An order that the matters regarding which the questions were asked. 25 IN RELATION TO RULE 29. the refusal may be considered a contempt of that court.CIVIL PROCEDURE REMEDIAL LAW PROVISION HIGHLIGHTS that it was filed without substantial justification. APPLICABILITY (depositions bene esse).1 ON ORDER TO COMPEL AN ANSWER PARTY IN 27. Section 3. RULE (depositions perpetuam memoriam) 23 de RULE 28 (Physical and mental examination of persons) (APPLIES TO all modes of discovery except RULE 26 ON REQUEST FOR ADMISSION BY AN ADVERSE PARTY) 24 in rei Prof. (b) An order (1) refusing to allow the disobedient party to support or oppose designated claims or defenses or (2) prohibiting him from introducing in evidence designated documents or things or items of testimony. including attorney's fees. to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application. and (d) IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO. Rule 26. the court may require the proponent or the counsel advising the filing of the application. or the physical or mental condition of the party. Avena: Pay attention to the distinction between Rule 26.5 and this Section. If a party or other witness (1) refuses to BE SWORN OR (2) REFUSES TO ANSWER ANY QUESTION AFTER BEING DIRECTED TO DO SO by the court of the place in which the deposition is being taken.” How then will you cite a party or witness for contempt? The answer is to apply for an order to compel an answer and once an order is issued. PARTY OR WITNESS IN RULE (depositions bene esse). or the character or description of the thing or land. 28 RULE 23 PARTY SERVED WITH A REQUEST RULE 26 ADMISSION BY AN ADVERSE PARTY Prof. Avena believes that Section 2 DOES NOT CONTEMPLATE Rule 25 on interrogatories because of the phrase “by the court of the place in which the deposition is being taken. APPLICABILITY PROVISION HIGHLIGHTS taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order. or (3)from introducing evidence of physical or mental condition.5 applies to party who fails to file and serve request for If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth of any matter of fact (1) SERVES A SWORN DENIAL THEREOF and (2) IF THE PARTY REQUESTING THE ADMISSIONS 100% UP LAW UP BAROPS 2008 Page 37 of 95 .3b as basis for holding a party or other witness for contempt. Expenses on refusal to admit. RULE (depositions perpetuam memoriam) de 24 in rei RULE 25 (Interrogatories to parties) RULE 27 (Motion production inspection documents things) for or of or Section 2. Contempt of court. or any other designated facts shall be PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY IN 23. Section 4. you can use Rule 71. or (2) staying further proceedings until the order is obeyed.
including attorney's fees SECTION 6. SECTION 5. SUCH ORDER SHALL BE ISSUED. Both provisions have a common objective. THE COURT ON MOTION AND NOTICE. MAY (1) strike out all or any part of any pleading of that party. If a party or an officer or managing agent of a party (1) wilfully fails to appear before the officer who is to take his deposition. or (3) enter a judgment by default against that party. including attorney's fees. PROVISION HIGHLIGHTS Republic of the Philippines under this Rule APPLICABILITY represents the Republic in an official capacity) to pay. that is. Unless the court finds THAT THERE WERE GOOD REASONS FOR THE DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL IMPORTANCE.CIVIL PROCEDURE REMEDIAL LAW PROVISION HIGHLIGHTS THEREAFTER PROVES THE GENUINENESS OF SUCH DOCUMENT OR THE TRUTH OF ANY SUCH MATTER OF FACT. PARTY OR AN OFFICER OR MANAGING AGENT OF A PARTY RULE 23 (depositions de bene esse). INTERROGATORIES TO PARTIES Applies to all provisions in Rule 29 requiring a noncompliant party or witness (who 100% UP LAW UP BAROPS 2008 Page 38 of 95 . or (2) fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. after being served with a proper notice. Expenses and attorney's fees are not to be imposed upon the APPLICABILITY admission while this section applies to the party being served with a request. he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making such proof. (4) and in its discretion. order him to pay reasonable expenses incurred by the other. to help expedite court proceedings. or (2) dismiss the action or proceeding or any part thereof. RULE 24 (depositions in perpetuam rei memoriam) RULE 25.
which last pleading may be the plaintiff's reply. 2) Summary of admitted facts and proposed stipulation of facts. PRE-TRIAL • Definition: A mandatory conference and personal confrontation before the judge between the parties litigant and their representative counsels. There are instances when parties may properly be defaulted. 2] 1) Possibility of an amicable settlement or of a submission to alternative modes of dispute resolution. Thus. [Calalang v. or summary judgment. Sec. c) To enter into stipulations/admissions of facts and of documents. 5) Should the action proceed to trial. Pre-trial order’s contents: 1) Matters taken up in the conference. Consequence: The contents of the order shall control the subsequent course of the action. [Caltex v. Upon termination of such proceedings. CA (1992)] When conducted: After the last pleading has been served and filed. 4) Agreements/admissions made by the parties as to any matters considered. 3) Amendments allowed on the pleadings. Sec. 2) A representative appears in his behalf. Upon manifestation of the parties of their willingness to discuss a compromise. 6) Number and names of the witnesses. except where the period to file the last pleading has lapsed. Counsel served with such notice has a duty to notify the party he represents. 7) Propriety of rendering judgment on the pleadings. stating the purpose thereof. fully authorized in writing: a) To enter into an amicable settlement. and 9) Other matters that may aid in the prompt disposition of the action. indicating the desired terms thereof. [Citibank v. called by the court after the joinder of issues in a case or after the last pleading has been filed and before trial. unless modified before trial to prevent manifest injustice. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case are properly raised. 5) Manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners. Discretion to declare a party non-suited in PTC must not be abused. to obviate the element of surprise. b) To submit to alternative modes of dispute resolution. 4) Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof. Pre-trial brief’s contents: 1) Statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution. or on the party who has no counsel. 4) Documents/exhibits to be presented. except such as may involve privileged or impeaching matters.CIVIL PROCEDURE VI. it shall be the plaintiff’s duty to move ex parte that the case be set for pre-trial. but such is the exception rather than the rule and should be used only in clear cases of obstinate refusal or inordinate neglect to comply with court orders. irresponsible. Purpose: To consider: [Rule 18. 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. [Rule 18. for the purpose of settling the litigation expeditiously or simplifying the issues without sacrificing the necessary demands of justice. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. 6] • Parties shall file and serve their respective pretrial briefs. Sec. SC admonishes the courts against precipitate orders of default as they have the effect of denying the party the chance to be heard. 4] 100% UP LAW UP BAROPS 2008 Page 39 of 95 . the court shall issue the pre-trial order. Chua (1993)] • • • PRE-TRIAL BRIEF [Rule 18. Sec. ensuring receipt by adverse party at least 3 days before the date of the pre-trial. or of dismissing the action should a valid ground therefor be found to exist. CA (1993)] • • REMEDIAL LAW It is the duty of the parties and their counsel to appear at the pre-trial. A party’s non-appearance may be excused only if either: 1) Valid cause is shown for it. 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 • NOTICE OF PRE-TRIAL [Rule 18. 7] • The pre-trial proceedings shall be recorded. • • • • RECORD OF PRE-TRIAL [Rule 18. or dilatory as to provide substantial grounds for dismissal for non-appearance. Unless a party is so negligent. Sec. the court should consider lesser sanctions which would still amount to achieving the end desired. 3) Necessity/desirability of amendments to the pleadings. 5) Limitation of the number of witnesses. • APPEARANCE OF PARTIES [Rule 18. 8) Advisability/ecessity of suspending the proceedings. 2) Action taken thereon. and the substance of their respective testimonies. contumacious. Note: See the section on default for the effects of failure to appear in the pre-trial. 1] • A pre-trial cannot validly be held until the last pleading has been filed. 2) Simplification of the issues. 3] • • • Notice of pre-trial shall be served on counsel. The determination of issues at a pre-trial conference bars the consideration of other questions on appeal. 6) Advisability of a preliminary reference of issues to a commissioner. the explicit definition and limit of the issues to be tried. Sec. 3) Issues to be tried/resolved.
the clerk shall notify parties the date of its trial. [Rule 20. as the expeditious and convenient transaction of business may require. 2) That due diligence has been used to procure the evidence But if the adverse party admits the facts to be given in evidence.Process directed to a person. 1] 1) SUBPOENA AD TESTIFICANDUM . 1] The assignment of cases to the different branches of a court shall be done exclusively by raffle. Sec. 1] Preference shall be given to habeas corpus cases. Sec. Sec. 2) The court of the place where the deposition is to be taken. ensuring receipt of the notice at least 5 days before the trial date. 4] Affidavit or sworn certification: 1) That the presence of such party/counsel at the trial is indispensable. the clerk of court shall keep a calendar of cases for pre-trial. election cases. requiring him to bring with him any books/documents/things under his control. 2) SUBPOENA DUCES TECUM – Process directed to a person. 2] • General rule: The court may adjourn a trial from day to day to any stated time. For illness of party/counsel [Rule 30. [Rule 20. BY WHOM ISSUED [Rule 21. CALENDAR OF CASES • Under the direct supervision of the judge. • Exception to exception: When authorized in writing by the SC Court Administrator. • • B. 2] A. [Rule 20. 3] Requisite for motion to postpone Affidavit showing: 1) The materiality/relevancy of such evidence. Sec. or for the taking of his deposition. TRIAL NOTICE OF TRIAL [Rule 30. then the action should have continued as if no suspension had taken place. Sec. CA (1992)] • Note: AM 03-1-09-SC REMEDIAL LAW VII. 1] • Upon entry of a case in the trial calendar. 2] 1) The court before whom the witness is required to attend.CIVIL PROCEDURE settlement conference still fails. Sec. special civil actions. [Goldloop Properties v. and those with motions to set for hearing. Sec. SUBPOENA TYPES OF SUBPOENA [Rule 21. 100% UP LAW UP BAROPS 2008 Page 40 of 95 . those whose trials were adjourned/postponed. 2) That the character of his illness is such as to render his nonattendance excusable. requiring him to attend and to testify at the hearing/trial of an action or at any investigation conducted by competent authority. • Exception: Court may not adjourn for longer than 1 month for each adjournment. nor more than 3 months in all. Ground for postponement of trial For absence of evidence [Rule 30. and those so required by law. Sec. ADJOURNMENTS AND POSTPONEMENTS [Rule 30. for trial. The assignment shall be done in open session of which adequate notice shall be given so as to afford interested parties the opportunity to be present. trial shall not be postponed even if he objects or reserves the right to object to their admissibility. Sec.
3. 2] • The judge/officer shall examine and study the application carefully to determine WON it is made for a valid purpose. Sec. Sec. counterclaim. GENERAL ORDER OF TRIAL 1) Plaintiff shall adduce evidence in support of his claim. 5] • Proof of service of a notice to take a deposition is sufficient authorization for the issuance of subpoena ad testificandum for the persons named in the notice. • REMEDIAL LAW Service must be made so as to allow the witness reasonable time for preparation and travel to the place of attendance PERSONAL APPEARANCE IN COURT [Rule 21. in the order prescribed by the court. at/before the time specified in the subpoena. the case shall be deemed submitted for decision. • Exception: 1) Provisions on separate trials. • Exception: When the court permits them to adduce evidence upon their original case. with tender of fees for one day’s attendance and kilometrage. 2) Subpoena ad testificandum: a) That the witness is not bound thereby. [Rule 21. 9] • If subpoena was not issued by a court. c) The person in whose behalf the subpoena is issued fails to advance the reasonable cost of production. Sec. subpoena duces tecum for depositions cannot be issued without court order. Title of action/investigation. REMEDY IN CASE OF WITNESS’ FAILURE TO ATTEND • Upon proof of service of subpoena and of witness’ failure to attend. • However. • Issued by the clerk of court of the place in which the deposition is to be taken. 7] • A person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena issued by such court/officer. C. no prisoner sentenced to death. also tender the reasonable cost of producing the books/documents/things demanded. b) That witness fees and kilometrage were not tendered when the subpoena was served. b) The relevancy of the books/documents/things does not appear. • Exception: Arrest warrant and contempt not applicable to: [Rule 21. If subpoena duces tecum. d) Witness fees and kilometrage were not tendered when subpoena was served. 2) Defendant shall adduce evidence in support of his defense. • However. 4] • Upon motion promptly made. crossclaim and 4th-party complaint. Sec. QUASHING A SUBPOENA [Rule 21. 4) 4th-party (and so forth) shall adduce evidence of the material facts pleaded by them. 5] [Rule 30. 6) Parties may then respectively adduce rebutting evidence only. SUBPOENA’S FORM AND CONTENTS [Rule 21. CONDUCT OF TRIAL Sec. 5) Parties whom any counterclaim or cross-claim has been pleaded. [Rule 21. • Grounds for quashing: 1) Subpoena duces tecum: a) It is unreasonable and oppressive. the court/judge issuing the subpoena may issue a warrant to the sheriff to arrest the witness and bring him before the court/officer where his attendance is required. 7) Upon admission of evidence. a reasonable description of the books/documents/things demanded which must appear to the court prima facie relevant. 3] 1. shall adduce evidence in support of their defense. APPLICATION FOR SUBPOENA TO PRISONER [Rule 21. 3) 3rd-party defendant (if any) shall adduce evidence of his defense. unless the 100% UP LAW UP BAROPS 2008 Page 41 of 95 . 2. 6] • Same manner as personal or substituted service of summons.CIVIL PROCEDURE 3) The officer/body authorized by law to do so in connection with investigations conducted by said officer/body. 2) A detention prisoner. Sec. • Such failure shall be deemed a contempt of the court which issued the subpoena. 8] • The cost of warrant and seizure shall be paid by the witness if the court determines that the failure to attend was willful and without just excuse. Sec. reclusion perpetua or life imprisonment and who is confined in a penal institution shall be brought outside for appearance/attendance in any court unless authorized by the SC. • The original shall be exhibited and a copy delivered to person on whom it is served. if there is no permission from the court in which his case is pending. Name of court. 4) Any SC/CA Justice in any case or investigation pending within the Philippines. • General rule: Trial shall be limited to the issues stated in the pre-trial order. 2) When for special reasons the court directs otherwise. for good reasons and in furtherance of justice. • For subpoena duces tecum. cross-claim and 3rdparty complaint. Sec. 10] 1) A witness who resides more than 100km from his residence to the place where he is to testify. Directed to a person whose attendance is required 4. Sec. SUBPOENA FOR DEPOSITIONS [Rule 21. the disobedience shall be punished by applicable law or ROC. counterclaim. SERVICE OF SUBPOENA [Rule 21. • Exception: Tender not required if subpoena is issued by or on behalf of the Republic or an officer/agency thereof. Sec.
only questions of law shall thereafter be considered. 1] F. After the 10 days. Grant of demurrer The case shall be dismissed Denial of demurrer The court should set the date for the reception of the defendant’s evidencein-chief [Northwest Airlines v. 1] • When actions involving common question of law/fact are pending before the court. • • REMEDIAL LAW The commissioner shall set a time/place for the first meeting and shall notify parties/counsels. • If the parties agree to only some of the facts in issue. ORDER OF REFERENCE [Rule 32. an auditor or an examiner. • 100% UP LAW UP BAROPS 2008 Page 42 of 95 . Sec. 1 and 2] 1) Reference by consent of both parties. 3) Of any number of claims. The clerk shall notify parties of the filing of the report. the clerk of court has no power to rule on objections to any question/admission of exhibits. arises in any stage of a case or for carrying a judgment/order into effect. the report shall be set for hearing. 3) Make such orders concerning the proceedings as to avoid unnecessary costs or delay. [PCGG v. Sandiganbayan (1992)] SEVERANCE OF TRIAL [Rule 31. 8] • Governed by the CC provisions. any statement made by the judge shall be made of record in the STN if made with reference to the case/parties/witnesses/counsels. trial shall be held as to the disputed facts in such order as the court shall prescribe. The order may specify/limit the commissioner’s power. D. the court shall determine the relative order of presentation of their evidence. • Exception: The court may delegate the reception of evidence to its clerk of court who is a member of the bar in: a) Default hearings.e. The court may issue an order adopting/modifying/rejecting the report or part of it. Sec. 6] • Parties may agree in writing upon the facts involved in the litigation. 2 to 12] • When a reference is made. or to do/perform particular acts. Sec. and may direct him to report only upon particular issues. or for carrying judgment/order into effect. b) Ex parte hearings. • However. 3rd-party complaints or issues. c) A question of fact. other than upon the pleadings. Sec. CA] KINDS OF TRIAL BY COMMISSIONER [Rule 32. When parties stipulate that the Commissioner's findings of fact are final. 7] • During the hearing/trial of the case. cross-claim. Sec. 2) Order all the actions consolidated. [Rule 33. counterclaim or 3rd-party complaint. or to receive and report evidence only. 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 court’s information before judgment. c) Cases where parties agree in writing. • • AGREED STATEMENT OF FACTS [Rule 30. 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. Upon completion of the trial/hearing. it may: 1) Order a joint hearing/trial of any/all the matters in issue in the actions. • Objections shall be resolved by the court upon submission of the clerk’s report and TSN within 10 days from termination of the hearing. 2] • The court may issue separate trials for convenience or to avoid prejudice: 1) Of any claim. Sec. counterclaims. TRIAL BY COMMISSIONER • COMMISSIONER – Includes a referee. DEMURRER TO EVIDENCE • Definition: A specie of MTD that may be invoked based on insufficiency of evidence (i. Sec. 9] • General rule: The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. • If several defendants or 3rd-party defendants having separate defenses appear by different counsel. upon the facts and the law the plaintiff has shown no right to relief). cross-claims. CONSOLIDATION AND SEVERANCE CONSOLIDATION OF TRIAL [Rule 31. • Where a case has been partially tried before one judge. Sec. 1] It is invoked after the plaintiff has presented all the evidence available to him. [Rule 32.CIVIL PROCEDURE court directs the parties to argue or to submit their respective memoranda or any further pleadings. Sec. STATEMENT OF THE JUDGE [Rule 30. 2) Of any separate issue. SUSPENSION OF ACTIONS [Rule 30. the commissioner shall file a written report with the court. the clerk shall furnish the commissioner with a copy of the order of reference. • E. The parties 10 days to object to the report’s findings. Sec. and submit the case for judgment without introduction of evidence. RECEPTION OF EVIDENCE [Rule 30.
e. Republic v. ineffective. Art. [Poland Industrial v. Sec . 4) Evidence must have been considered by the tribunal in deciding the case. JUDGMENTS. Sandiganbayan] Xxx REMEDIAL LAW VIII. 2) Court must have jurisdiction over the parties and the subject matter. • A verbal judgment is. 2) DISPOSITION OF THE CASE – The final and actual disposition of the rights litigated (i.e. 3) Parties must have been given an opportunity to adduce evidence in their behalf. evidence is insufficient) Ground Effect If a MTD is granted. under the law. Leave of court is necessary so that the accused can present his evidence in case the demurrer is denied If the demurrer was without leave. the dispositive portion controls. Sec. the accused can no longer present his evidence. Judgment upon compromise Judgment by confession If the demurrer is granted.It contains the findings of facts and conclusions of law. depending on the ground. based on the merits of the evidence presented so far) An interlocutory order and not appealable. Del Rosario]X Equivalent to judgment (i.1. [Radiowealth Finance v. • A decision need not be a complete recital of the evidence presented. COMELEC] 5) Judgment must be in writing. personally and directly prepared by the judge. REQUISITES OF A VALID JUDGMENT [Rule 36. • Exception: Where the inevitable conclusion from the body of the decision is so clear that there was a mistake in the dispositive portion. the order of dismissal is appealable The order of dismissal is not appealable because it will constitute double jeopardy 100% UP LAW UP BAROPS 2008 Page 43 of 95 . Sec. [Corpus v. • Where there is a conflict between the body and the dispositive portion (fallo) of the decision. if the order granting the demurrer is reversed on appeal. the remedy of the party is to file a motion for clarificatory judgment and not to assail the judgment as void. 8. the case is deemed submitted for decision based on prosecution’s evidence [Rule 119. So long as the factual and legal bases are distinctly and clearly set forth. [Chan v.23] INTERPRETATION OF THE JUDGMENT • Where the judgment is difficult to execute because of ambiguity in its terms. FINAL ORDERS AND ENTRY OF JUDGMENT • JUDGMENT . the judgment is valid. signed by the judge and filed with the clerk of court.e. the complaint may be re-filed If the MTD is denied. National Dev’t Co. However. 14. But. 2) JUDGMENT UPON CONFESSION – It is one rendered by the court when a party expressly agrees to the other party’s claim or acknowledges the validity of the claim against him. 1.CIVIL PROCEDURE Plaintiff's remedy would be to appeal. the complaint is likewise dismissed. • It is immediately executory in the absence of a motion to set aside on the ground of FAME. Sandiganbayan] 6) Judgment must state clearly the facts and the law upon which the decision is based. CA] When to File MTD Before the service and filing of the answer Those enumerated in Rule 16 Demurrer After the plaintiff rests his case Only ground: The plaintiff has shown no right to relief (i. Sec. the body of the decision will prevail. However. the defendant shall file his responsive pleading Demurrer in civil cases Defendant need not ask for leave of court Demurrer in criminal cases May be filed with or without leave of court. it may be the subject of a petition for certiorari for GAD under Rule 65 [Katigbak v.] KINDS OF JUDGMENT 1) JUDGMENT UPON COMPROMISE – It is one conferred on the basis of a compromise agreement entered into between the parties. PARTS OF A JUDGMENT 1) OPINION OF THE COURT . [Rule 33.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. 3) Signature of the judge. [Acosta v. Tuvera] The appellate court should render judgment on the basis of the evidence submitted by the plaintiff. the defendant loses his right to present evidence. the dispositive part). Consti] 1) Court/tribunal must be with authority to hear and determine the matter before it.
• Date of finality of the judgment – Date of its entry in the book. instead of entering a plea. and may prescribe conditions to secure the judgment’s benefits.CIVIL PROCEDURE The provisions and terms are settled by the parties to the action. REMEDIAL LAW Judgment may be given for/against one or more of several plaintiffs/defendants. the defendant. made known to the public or delivered to the clerk of court for filing. The judgment is entered in the record by consent of the court. 2) To clarify an ambiguity which is borne out by and justifiable in the context of the decision. 100% UP LAW UP BAROPS 2008 Page 44 of 95 . JUDGMENT NON PRO TUNC . [Rule 36. and certified that the judgment has become final and executor. SEPARATE JUDGMENT – It is one rendered disposing of a claim among several others presented in a case. 4] • It is proper when the liability of each party is clearly separate and distinct from his coparties such that the claims against each of them could have been the subject of separate suits. and shall proceed as to the remaining claims. which can always be amended from time to time. 2] • If there is no appeal/MNT/MFR filed within the prescribed periods.Literally. MEMORANDUM DECISION – A decision of the appellate court which adopts the findings and conclusions of the TC. [Rule 36. Sec. “now for then”. 3] If judgment is rendered against 2 or more persons sued as an entity without juridical personality. • The judgment shall terminate the action with respect to the claims disposed of. whereupon judgment was entered against him without proceeding to trial. 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. coupled with notice to the parties or their counsel. CLARIFICATORY JUDGMENT – It is rendered to clarify an ambiguous judgment or one difficult to comply with. Sec. the clerk of court shall enter the judgment or final order in the book of entries of judgments. The court exercises a certain amount of supervision over the entry of judgment. CONDITIONAL JUDGMENT – It is one the effectivity of which depends upon the occurrence or non-occurrence of an event. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. as by an amendment non pro tunc. An affirmative and voluntary act of the defendant himself. [Rule 36. file the appropriate petition under Rule 65. 6] PROMULGATION – The process by which a decision is published. • The record shall contain the judgment’s dispositive part. 3) In judgments for support. • • • • 3) 4) 5) 6) AMENDMENTS TO JUDGMENTS • The power to amend judgments is inherent to the court before judgment becomes final and executory. leaving the action to proceed against the others. 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. 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 7) 8) 9) ENTRY OF JUDGMENTS AND FINAL ORDERS [Rule 36. Sec. • Exception: 1) To make corrections of clerical errors. the defendant both: (a) confessed the plaintiff’s cause of action and (b) withdrew his plea or other allegations. acknowledged and confessed that the plaintiff’s cause of action was just and rightful. A judgment is considered rendered upon the filing of the signed decision. • The court may stay its enforcement until rendition of subsequent judgments. JUDGMENT SIN PERJUICIO – It may refer to a dismissal of a case without prejudice to it being re-filed. confession or compromise is to first file a motion to set it aside. Sec. • General rule: The court cannot amend the judgment once it has become final and executory. It is a judgment intended to enter into the record the acts which had already been done. [Rule 36. 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. officially announced. but which do not appear in the records. b) JUDGMENT BY CONFESSION RELICTA VERIFICATIONE – After pleading and before trial. the judgment shall set out their individual names (if known). The court may require the parties on each side to file adversary pleadings as between themselves. shall be signed by the clerk of court. • Remedy against judgment by consent. Sec. not substantial amendments. and the judgment for or against one of them will not necessarily affect the other. SEVERAL JUDGMENT – It is one rendered by a court against one or more defendants and not against all of them. if denied. • • Kinds of judgment by confession: a) JUDGMENT BY COGNOVIT ACTIONEM – After service.
CIVIL PROCEDURE IX. POST-JUDGMENT REMEDIES
Remedies against a judgment A. Before a judgment becomes final and executory: 1) MFR; 2) MNT; 3) Appeal. B. After the judgment becomes final and executory: 1) Petition for relief from judgment; 2) Action to annul a judgment; 3) Certiorari; 4) Collateral attack of a judgment that is void on its face.
• No appeal may be taken from an order denying a MNT/MFR. [Rule 37, Sec. 9; Rule 41, Sec. 1(a)] Remedy if motion is denied: 1) To appeal from the judgment or final order itself. [Rule 37, Sec. 9]. 2) The order denying the MNT/MFR may itself be assailed by a petition for certiorari under Rule 65. A MNT or MFR is not a prerequisite to an appeal, a petition for review or a petition for review on certiorari. And since the purpose is to expedite the final disposition of cases, a strict but prospective application of said ruling is in order. [Habaluyas v. Japson (1986)]
MOTION FOR RECONSIDERATION
A. REMEDIES BEFORE A JUDGMENT HAS BECOME FINAL AND EXECUTORY
PROVISIONS COMMON TO MNT/MFR
WHEN TO FILE • Motion must be filed within the period for appeal. [Rule 37, Sec. 1] • The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. [Rule 40, Sec. 2; Rule 41, Sec. 3; Rule 45, Sec. 2] • 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. • No motion for extension of time shall be allowed. [Rule 37, Sec. 2; Rule 41, Sec. 3] • Where a ROA is required, the appellant shall file a (1) NOA and a (2) ROA within 30 days from notice of the judgment or final order. [Rule 41, Sec. 3] • A ROA is required only in: 1) Special proceedings; 2) Other cases of multiple or separate appeals. [Rule 40, Sec. 3] EFFECT OF FILING • The filing of a timely motion interrupts the period to appeal. [Rule 40, Sec. 2; Rule 41, Sec. 3] FRESH PERIOD RULE • If the motion is denied, the movant has a “fresh period” of 15 days from receipt or notice of the order denying the MNT/MFR within which to file an appeal. This applies to Rules 40, 41, 42, 43 and 45. [Neypes v. CA (2005)] • Note: Prior to Neypes v. CA, if a party filed a MNT/MFR, he only had the remaining time of the 15-day appeal period to file his appeal. RESOLUTION OF THE MOTION • The motion shall be resolved within 30 days from the time it is submitted for resolution. [Rule 37, Sec. 4]
MFR under Rule 37 is directed against a judgment or final order. It is not the MFR of an interlocutory order, which often precedes a petition for certiorari under Rule 65. It does not apply to cases that fall under Summary Procedure. [Sec. 19(c), Revised Rules on Summary Procedure]
GROUNDS [Rule 37, Sec. 1(2)] 1) The evidence is insufficient to justify the decision; 2) The damages awarded are excessive; 3) The decision or final order is contrary to law. FORM AND CONTENT • MFR must be in writing, a written notice of which must be served on the adverse party. • It is not sufficient to mention the ground relied upon. It is necessary for the MFR to point out specifically the findings/conclusions of the judgment or final order which are not supported by the evidence or which are contrary to law, making express reference to the testimonial/documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. [Rule 39, Sec. 2] • Non-compliance with this requirement would reduce the motion to a mere pro forma motion, which shall not toll the period for appeal. EFFECT
Grant of MFR The court may amend the judgment or final order accordingly. [Rule 37, Sec. 3] The amended judgment is in the nature of a new judgment, which supersedes the original judgment If the court finds that a motion affects less than all of the matters in controversy or less than all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest [Rule 37, Sec. 7] Denial of MFR The judgment or final order shall stand as is
An order denying a MFR is not appealable. [Rule 37, Sec. 9]
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• SINGLE MOTION RULE – A party shall not be allowed to file a 2nd MFR of a judgment or final order. [Rule 37, Sec. 5] • The prohibition on a 2nd motion does not apply to a MFR of an interlocutory order. EFFECT
Grant of MNT 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) [Rule 37, Sec. 6] If the court finds that a motion affects the issues of the case as to only a part or less than all of the matters in controversy, or only one or less than all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest [Rule 37, Sec. 7] The effect of this order is a partial new trial. When there is an order for partial new trial, the court may either enter a judgment or final order as to the rest, or stay the enforcement of such judgment or final order until after the new trial [Rule 37, Sec. 8]
Denial of MNT The judgment or final order shall stand as is
MOTION FOR NEW TRIAL (MNT)
GROUNDS [Rule 37, Sec. 1] • The aggrieved party may move the TC to set aside the judgment or final order and grant a new trial for one or more of the following causes materially affecting the substantial rights of the said party: 1) FAME (Extrinsic Fraud, Accident, Mistake or Excusable Negligence) which ordinary prudence could not have guarded against and by reason of which the aggrieved party has probably been impaired in his rights. • The motion shall be supported by affidavits of merit. Non-compliance with this requirement would reduce the motion to a mere pro forma motion. [Rule 37, Sec. 2] • The affidavits of merit must show the facts (not mere conclusions or opinions) constituting the valid cause of action or defense which the movant may prove in case a new trial is granted. Otherwise, if the complaint is after all groundless or the defense is ineffective, a new trial would serve no purpose. • EXTRINSIC FRAUD – Any fraudulent scheme executed by the prevailing party outside of the trial against the losing party who, because of such fraud, was prevented from presenting his side of the case. • INTRINSIC FRAUD – Acts of a party during the trial which does not affect the presentation of the case. • ACCIDENT - An event that occurs without one’s foresight or expectation. • MISTAKE - Generally, mistakes of facts or law where, in good faith, the defendant was misled in a case. • What constitutes excusable negligence depends upon the circumstances of each case. 2) Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. • The motion shall be supported by: a) Affidavits of the witnesses by whom such evidence is expected to be given; and/or b) Duly authenticated documents which are proposed to be introduced in evidence. • Non-compliance with this requirement would reduce the motion to a mere pro forma motion. [Rule 37, Sec. 2] • Newly discovered evidence may and does commonly refer to evidence already in existence prior to or during trial but which could not have been secured and presented during the trial despite reasonable diligence on the part of the litigant. [Tumang v. CA]
WHEN A 2ND MNT IS PERMISSIBLE • A MNT shall include all grounds then available. Those not so included are deemed waived. However, when a ground for new trial was not existing/available when the 1st motion was made, a 2nd MNT may be filed. [Rule 37, Sec. 5]
MNT Legal Basis Expressly provided for in the ROC Motion for reopening of the trial Not mentioned in the ROC but is nevertheless a recognized procedural recourse deriving validity and acceptance from long established usage Note: It is referred to in the Rules of Criminal Procedure (Rule 119, Sec. 24) May be presented after either or both the parties have formally offered and closed their evidence, but before judgment
Only after promulgation of judgment
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Grounds Civil cases: Rule 37; Criminal cases: Rule 121 Controlled by no other rule than the paramount interest of justice, relying solely upon the sound discretion of the TC. The exercise of such discretion may not be reviewed on appeal unless a clear abuse thereof is shown
so long as the facts required to be set out also appear in the verified petition. When an affidavit of merit is not necessary: a) When there is LOJ over the defendant; b) When there is LOJ over the subject matter; c) When judgment was taken by default; d) When judgment was entered by mistake or was obtained by fraud; or e) Other similar cases.
B. REMEDIES AFTER A JUDGMENT HAS BECOME FINAL AND EXECUTORY
RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS
• Definition: It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he is unjustly deprived of a hearing or was prevented from taking an appeal because of FAME. A party who has filed a timely MNT/MFR 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 MNT/MFR that a petition for relief can be filed. [Francisco v. Puno]
TWO HEARINGS 1) Hearing to determine WON the judgment should be set aside; 2) If #1 in the affirmative, hearing upon the merits of the case. PRELIMINARY INJUNCTION PENDING PROCEEDINGS. • The court in which the action is filed may grant such preliminary injunction as may be necessary for the preservation right of the parties, upon the filing of the petitioner of a bond in favor of the adverse party. [Rule 38, Sec. 5] • A petition for relief is a remedy available after the judgment or final order has become final and executory. Hence, the judgment is susceptible to being the subject of a writ of execution.
Rule 37 Before judgment becomes final and executory Within the time to appeal Rule 38 After judgment becomes final and executory Within 60 days from knowledge of judgment AND within 6 months from entry of judgment Judgments, final orders, and other proceedings: - Land Registration; - Special Proceedings; - Order of Execution. FAME
GROUNDS [Rule 38, Sec. 1 and 2] 1) When a judgment or final order is entered into, or any other proceedings is taken against the petitioner in any court through FAME. 2) When the petitioner has been prevented from taking an appeal by FAME. • Under both grounds, the petition shall be filed in the same court which rendered the judgment and in the very same case.
Period to file petition
Scope of application
Applies to judgments and final orders only
PRAYER 1) That the judgment/order/proceeding be set aside; 2) That the appeal be given due course. WHEN TO FILE [Rule 38, Sec. 3] 1) 60 days from knowledge of judgment/order/proceedings to be set aside; 2) 6 months from the entry of such judgment/order/proceeding. • Both periods must concur. They are also nonextendible and never interrupted.
Grounds 1) FAME; 2) Newly discovered evidence Legal remedy Motion need not be verified
Equitable remedy Petition must be verified
FORM AND CONTENT OF PETITION 1) Must be verified; 2) Must be accompanied by an affidavit showing the FAME relied upon; 3) The affidavit of merit accompanying the petition must also show the facts constituting the petitioner’s good and substantial cause of action or defense. • An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not a fatal defect to warrant denial of the petition
Rule 38 is of equitable character and is allowed only in exceptional cases, when there is no other available/adequate remedy. A petition for relief is not regarded with favor and judgment will not be disturbed where the party complaining has or by exercising proper diligence would have had, an adequate remedy at law. Relief will not be granted to a party when loss of remedy at law was due to his own negligence or mistaken mode of procedure; otherwise, the petition for relief will be tantamount to reviving the right of appeal which had already been lost. [Meralco v. CA (1990)]
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• Effect of failure to perfect appeal: • Defeats a party’s right to appeal. cross-claims. [Rule 40. • Exception: If court allows appeal. and may be exercised only in the manner and in accordance with the provisions of the law. [Balgami v. APPEAL THREE MODES OF APPEAL [Rule 41. the court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal (NOA) in the RTC.CIVIL PROCEDURE X. 7) Order dismissing an action without prejudice. • An order for partial summary judgment is an interlocutory order which cannot be appealed from. issues which are inferred from or necessarily connected with the issue properly raised and pleaded may be resolved by the appellate court. ORDINARY APPEAL RECORD ON APPEAL (ROA) 100% UP LAW UP BAROPS 2008 Page 48 of 95 . • In the cases not appealable under Rule 41. • Not appealable under Rule 41: 1) Order denying PFR or any similar motion seeking relief from judgment. an order is final if it disposes of the entire case. v. b) In separate claims. 2) Rule 42 on petitions for review from RTC to CA. 2) Multiple or separate appeals where the law/ROC so requires. Camposagrado (2005)] COGNIZABLE JUDGMENTS/ISSUES • Appellate court has no jurisdiction to review a judgment which is immediately final and executory by express provision of law. The TC had not yet rendered a complete PERFECTION OF APPEAL • Perfection of an appeal in the manner and within the period laid down by law is mandatory and jurisdictional. [Espina v. counterclaims. 4) Order denying motion to set aside judgment buy consent/confession/ compromise on ground of fraud/mistake/ duress or any other vitiation of consent. • Rule 40 Rule 41 FRESH PERIOD RULE [Neypes v. [Investments. Such discretion should consider all attendant circumstances and must be exercised with a view to substantial justice. 2007) amended Rule 41 by taking out. 5) Order of execution. [Camposagrado v. counted from receipt of the order dismissing a MNT/MFR. Rationale: To standardize the appeal periods provided in the ROC and to afford litigants fair opportunity to appeal their cases. Sec. • Note: AM 07-7-12-SC (December 4. Motion for extension of time to file MNT or MFR is not allowed. from the above list of non-appealable cases. the aggrieved party may file a special civil action under Rule 65. 2) Interlocutory order. CA (2005)] • Definition: Period of appeal is interrupted by a timely MNT/MFR. [Republic v. • Precludes appellate court from acquiring jurisdiction. Only issues pleaded in the lower court and properly raised may be resolved by the appellate court. judgment or final order: a) For/against one or more of several parties. Inc. 3) Rule 43 on appeals from QJA to CA. Bermudez-Lorino (2005)] • Rationale: Appeal is merely a privilege conferred by law upon the litigants. Sec. 6) While the case is pending. when declared by ROC to be appealable. CA (1992)] • However. 1] • Appeal of judgment or final order that completely disposes of either: 1) The case. Sec. orders denying MNT/MFR. • Petition for review Rule 42 Rule 43 • Appeal by certiorari (petition for review on certiorari) Rule 45 ORDINARY APPEAL FROM RTC TO CA [Rule 41] APPLICABILITY [Rule 41. It is not a natural right nor a part of due process. 2] Applicability: 1) Rule 40 on appeals from MTC to RTC. CA (1987)] • For purposes of appeal. • A party cannot change the theory on appeal. [Medina v. • Failure to pay the appellate court docket fee within the reglementary period confers only a discretionary (not mandatory) power to dismiss the proposed appeal. 2] mode of appeal Ordinary appeal applicability Appeal to RTC of MTC judgment/final order Appeal to CA of RTC judgment/final order rendered in exercise of RTC's original jurisdiction Appeal to CA of RTC judgment/final order rendered in exercise of RTC's appellate jurisdiction Appeal to CA of QJA judgments/final orders/awards/ resolutions rendered in exercise of quasijudicial functions Appeal to SC where only questions of law are raised/involved REMEDIAL LAW Required only in: 1) Special proceedings. CA (1992)] A. 3) Order disallowing/dismissing appeal. CA (2004)] • Rationale: Appeal is merely a statutory privilege. 3rd-party complaints. 2) A particular matter in the case. 4) Rule 45 on appeals by certiorari to SC. INTERLOCUTORY ORDER • Definition: If it does not dispose of the case but leaves something else to be done by the TC on the merits of the case.
Under Rule 43. in the first instance. judgments. 3) The denial of the petitioner’s MFR duly filed according to the governing law of the court or agency a quo. 4 the petition should be filed within 15 days from: [Villorente v. 6) Social Security Commission (SSC). PETITION FOR REVIEW • PETITION FOR REVIEW FROM RTC TO CA [Rule 42] APPLICABILITY • Appeal of RTC decision rendered in exercise of appellate jurisdiction. 7) Civil Aeronautics Board (CAB). [Coca-cola v. Sec. Resolution of DOJ Secretary is not appealable under Rule 43. Sec. • The order of dismissal due to failure to prosecute is appealable by NOA under Rule 41. 5) Land Registration Authority (LRA). Either a legible duplicate original or certified true copy thereof shall be submitted. 9) National Electrification Administration (NEA). 14) Employees Compensation Commission (ECC). Roa (2006)] • EXHAUSTION OF ADMINISTRATIVE REMEDIES – If an appeal/remedy obtains or is available within the administrative machinery. 1] • PETITION FOR REVIEW FROM QJA TO CA [Rule 43] • APPLICABILITY • Appeals from judgments or final orders of the CTA and from awards. there is no need to implead the lower court or agency which rendered the assailed decision. • Rule 43 shall not apply to judgments or final orders issued under the Labor Code. Recourse should be to the President. This is to assure that such copy is a faithful reproduction of the judgment/order/resolution/ruling subject of the petition. (Rule 69) c) Judicial foreclosure of mortgage. instead of the CA. [Rule 42. (Rule 68) • Special proceedings also admit of multiple appeals. Trademarks and Technology Transfer (BPTTT). Also. 11) National Telecommunications Commission (NTC). Sec. final orders or resolutions of or authorized by any quasijudicial agency (QJA) in the exercise of its quasi-judicial functions: [Rule 43. 15) Agricultural Inventions Board (AIB). Desierto (1998)] RA 9282: Decisions of the CTA are now appealable to the SC by petition for review on certiorari under Rule 45. [Rule 42. When such accounting is submitted and either approved or rejected by the TC. [Orosa v. petitioner may comply with the requirement after he has filed the petitions. by the CA on certiorari under Rule 65. then it is required that the same is certified by the proper officer of the court/tribunal/agency/office involved. 10) Energy Regulatory Board (ERB). 2] • NLRC judgments and final orders or resolutions are now reviewable. this should be resorted to before resort can be made to the courts. (Rule 67) b) Judicial partition. Under Rule 43. • 100% UP LAW UP BAROPS 2008 Page 49 of 95 .CIVIL PROCEDURE final judgment. 18) Board of Investments (BOI). If what is submitted is a copy. 1] CNFS • Petitioner in a petition for review in CA/SC must submit a CNFS with the petition. Sec. 2) Special civil actions: a) Expropriation. [Fabian v. However. PI (2004)] REMEDIAL LAW 12) Department of Agrarian Reform (DAR under RA 6657) 13) Government Service Insurance System (GSIS). PNB (2006)] But an order of dismissal without prejudice is not appealable under Rule 41. 4) Office of the President (OP). this rule is relaxed where there is need to conduct a review. 1] 1) Civil Service Commission (CSC). In those instances. Sec. [GSIS v. 2) The date of its last publication. 2) Central Board of Assessment Appeals (CBAA). 3) Securities and Exchange Commission (SEC). appeals from the Office of the Ombudsman in administrative disciplinary cases are now covered by this rule. [Rule 43. [Ko v. Cabalo (2006)] • B. 19) Construction Industry Arbitration Commission. but those of the ECC should be brought to the CA through a petition for review under this Rule. 20) voluntary arbitrators authorized by law. [Basmayor v. if publication is required by law for its effectivity. Laiya (2005)] 1) Notice of the final order. another appeal lies therefrom. under the established principle of exhaustion of administrative remedies. Philippine Village Hotel (2004)] MULTIPLE APPEALS • Civil cases which admit of multiple appeals: 1) Judgment in an action for recovery or for partition of property is separately appealable from the proceedings on that part of the judgment wherein accounting for receipts from the property is ordered as a primary or incidental relief. Atencio (2005)] Submission of the duplicate original or certified true copy of judgment/order/resolution/ruling subject of a petition for certiorari is essential to determine WON the court/body/tribunal which rendered the same indeed committed GAD. [Philexport v. 16) Insurance Commission. 8) Bureau of Patents. 17) Philippine Atomic Energy Commission (PAEC).
Sec. 2] • On motion duly filed and served. or b) When the court a quo has so far departed from the accepted and usual course of judicial proceedings. 7] • For purposes of determining WON the petition should be dismissed or denied pursuant to Rule 45. 2(c)] Appeal by certiorari from a judgment or final order or resolution of CA/Sandiganbayan/RTC or other courts whenever authorized by law. Lorenzo (2005)] • A question of law does not involve an examination of the probative value of the evidence presented by any of the litigants. and such material portions of the record as would support the petition. proof of service of the petition. [Rule 45. MAY REQUIRE PLEADINGS AND DOCUMENTS [Rule 45. Sec. • Exception: Criminal cases where the penalty imposed is death. deposit for costs. Sec. or of the denial of the petitioner's MNT/MFR filed in due time after notice of the judgment. REMEDIAL LAW PAYMENT OF DOCKET AND OTHER LAWFUL FEES • Unless he has theretofore done so. [Rule 45. FILING OF PETITION • File with the SC a verified petition for review on certiorari. final orders or resolutions of the Court of Tax Appeals to the cases appealable under Rule 45. [Rule 45. Sec. [Rule 45. or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof. • SC may on its own initiative deny the petition on the ground that: 1) The appeal is without merit. 5. reclusion perpetua or life imprisonment. 1] • Contents of petition: [Rule 45. 4) A clearly legible duplicate original. Sec. and the contents of and the documents which should accompany the petition. or has decided it in a way probably not in accord with law or with the applicable decisions of the SC. 3) The questions raised therein are too unsubstantial to require consideration. Sec. AM 07-7-12-SC also added that a Rule 45 petition may include an application for a writ of preliminary injunction or other provisional remedies. 4] • Petition shall raise only questions of law which must be distinctly set forth. • The following. and the reasons/arguments relied on for the allowance of the petition. 2007) by adding judgments. the SC may require/allow the filing of pleadings/briefs/memoranda/documents as it may deem necessary. • There is a question of law in a given case when the doubt or difference arises as to what the • • APPLICABILITY [Rule 45. 9] • Applicable to both civil and criminal cases. Sec. 8] • If the petition is given due course. and will be granted only when there are special and important reasons therefor. 2) Material dates: a) When notice of the judgment or final order or resolution subject thereof was received. 5] • Failure of the petitioner to comply with any of the requirements regarding the payment of the docket and other lawful fees.CIVIL PROCEDURE C. 1] Rule 45. • File within 15 days from notice of the judgment or final order or resolution appealed from. shall be sufficient ground for the dismissal thereof. Sec. 100% UP LAW UP BAROPS 2008 Page 50 of 95 . APPEAL BY CERTIORARI TO SC • • Where only questions of law are raised/involved. 1 was amended by AM 07-7-12SC (December 4. indicate the character of reasons which will be considered: a) When the court a quo has decided a question of substance. 3) Concise statement of the matters involved. 3] • A review is not a matter of right. • Without impleading the lower court or judges as petitioners/respondents. Sec. 1] • In 18 copies. Sec. Sec. QUESTION OF LAW [Agote v. or so far sanctioned such departure by a lower court. b) When a MNT/MFR (if any) was filed and when notice of the denial thereof was received. DISCRETIONARY REVIEW [Rule 45. 4] 1) Full name of the appealing party (petitioner) and the adverse party (respondent). and impose the sanctions in case of non-filing or unauthorized filing of such pleadings and documents or noncompliance with the conditions therefor. Sec. [Rule 45. 5) CNFS. with the original copy intended for the court being indicated as such by the petitioner. 2) The appeal is prosecuted manifestly for delay. Further. 3] PROOF OF SERVICE OF PETITION • Proof of service of a copy on the lower court and on the adverse party shall be submitted together with the petition. Sec. with full payment of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. [Rule 41. the petitioner shall pay the docket and other lawful fees to the SC clerk of court and deposit P500 for costs at the time of the filing of the petition. the SC may for justifiable reasons grant an extension of 30 days only within which to file the petition. as to call for an exercise of the power of supervision. or where the petition is given due course under Sec. DUE COURSE AND ELEVATION OF RECORDS [Rule 45. the petitioner may seek the same provisional remedies by verified motion filed in the same action/proceeding at any time during its pendency. [Rule 45. not theretofore determined by the SC. Sec. Sec. the SC may require the elevation of the complete record of the case or specified parts thereof within 15 days from notice. 3] DISMISSAL/DENIAL OF PETITION [Rule 45. [Rule 45. while neither controlling nor fully measuring the court's discretion. but of sound judicial discretion. 8 hereof. Sec.
2] • The counsel and guardians ad litem of the parties in the court of origin shall be respectively considered as their counsel and guardians ad litem in the CA. 7] • It shall be the duty of the appellant to file with the court. and a tables of: (1) cases alphabetically arranged. stated without repetition and numbered consecutively. People] 4) Judgment is based on a misapprehension of facts. [De la Cruz v. 7 copies of his legibly typewritten/mimeographed/printed brief. there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. 13] a) SUBJECT INDEX – Digest of the arguments and page references. • Where the completion of the record could not be accomplished within a sufficient period allotted for said purpose due to insuperable or extremely difficult causes. Teves] provided they are borne out by the record or are based on substantial evidence. Sec. shall file with the clerk of court 7 clearly legible copies of the approved ROA. Sec. CASE TITLE [Rule 44. within 45 days from receipt of the notice of the clerk that all the evidence are attached to the record. with notice to the other. the clerk of the CA shall so inform said court and recommend to it measures necessary to complete the record. Linatok] 3) There is GAD in the appreciation of facts. CA (1987)] Rule 65 cannot cure the failure to appeal thru Rule 45. or where the findings of fact of the CA are premised on absence of evidence but are contradicted by the evidence of record. either party may file a motion with the TC. PROCEDURE IN CA ORDINARY APPEALED CASES [Rule 44] APPLICABILITY [Rule 44. Sec. [Luna v. • Within 10 days from receipt of said notice. with references to the pages where they are cited. CA (2006)] • REMEDIAL LAW When others appear or are appointed. Sec. Sosing] 5) CA’s findings of fact are conflicting. [Joaquin v. in making its findings. for the transmittal of such record or ROA. but appealing party shall be further referred to as appellant and adverse party as appellee. and (2) books and statutes cited. 15] • D. [Abellana v.CIVIL PROCEDURE law is on a certain state of facts. notice thereof shall be served immediately on the adverse party and filed with the court. Sec. if properly considered. distinctly and concisely. [Rule 44. Sec. • Contents of appellant’s brief: [Rule 44. • ORDER OF TRANSMITTAL OF RECORD [Rule 44. he may include in his assignment of errors any question of law/fact that has been raised in the court below and which is within the issues framed by the parties. the court may declare that the record and its accompanying transcripts and exhibits so far available are sufficient to decide the issues raised in the appeal. 100% UP LAW UP BAROPS 2008 Page 51 of 95 . 1] • Cases appealed under R41. [Nakpil and Sons v. RECORD COMPLETION [Rule 44. Sec. COUNSELS AND GUARDIANS [Rule 44. or where the facts set forth by the petitioner are not disputed by the respondent. and shall issue an order explaining the reasons for such declaration. CA (1979)] • Exception: CA’s findings of fact may be reviewed by the SC on appeal by certiorari when: 1) Conclusion is a finding grounded entirely on speculations/surmises/ conjectures. [Amigo v. the appellant. Navarro] 2) Inference made is manifestly mistaken/absurd/impossible. [Manlapaz v. Sec. as well as the proof of payment of the docket and other lawful fees. the clerk of the CA shall docket the case and notify the parties thereof. Dosdos (1965)] 8) CA’s findings of fact are contrary to those of the TC. in appeals by ROA. 3] • If the original record or the record on appeal is not transmitted to CA within 30 days after the perfection of the appeal. went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee. together with the proof of service of 2 copies thereof upon the appellee. [Alsua-Betts v. 6] APPELLANT’S BRIEF [Rule 44. Villaseca] 6) CA. 5] • Where the record of the docketed case is incomplete. [Buyco v. [Rule 44. 1] • Same as that in the court of origin. or are mere conclusions without citation of specific evidence. [Casica v. would justify a different conclusion. General rule: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. • Any unauthorized alteration/omission/addition in the approved ROA shall be a ground for dismissal of the appeal. with proof of service of 2 copies thereof upon the appellee. • WON appellant has filed a MNT in the court below. Sec. 4] • Upon receiving the original record or ROA and the accompanying documents and exhibits transmitted by the lower court. b) ASSIGNMENT OF ERRORS – Errors urged separately. [Perez-Rosario v. CA (1986)] 7) CA manifestly overlooked certain relevant facts not disputed by the parties and which. It shall be the duty of said court to take appropriate action towards the completion of the record within the shortest possible time. CASE DOCKETING [Rule 44. Sec.
2) Concise statement of the matters involved. CA but Rule 65 generally serves to supplement the same. g) RELIEF – Specification of the order/judgment which the appellant seeks. Sec. 14] a) Subject index. • Contents of appellee’s brief: [Rule 44. mere duplicate originals of the assailed orders are allowed. [Republic v. 10] • In certiorari. • Rule 46 primarily governs original actions for certiorari filed in. c) ARGUMENT – Appellee’s arguments on each assignment of error. In cases not brought up by record on appeal. the party instituting the action shall be called the petitioner and the opposing party the respondent. with page references to the record. Sec. [Rule 124. Sec. with page references to the record. Sec. and by fair argument on the facts and law of the case to assist the court in arriving at a just and proper conclusion. Sec. prohibition. ORIGINAL CASES [Rule 46] APPLICABILITY [Rule 46. 3] 1) Full names and actual addresses of all the petitioners and respondents. d) STATEMENT OF FACTS – Clear and concise narrative statement of the facts admitted by both parties and of those in controversy. • Failure to comply with required contents of appellant’s brief is cause for dismissal of the petition. Sec. the appellant may file a reply brief answering points in appellee's brief not already covered in his main brief. the appellant’s brief shall contain (as an appendix) a copy of the judgment or final order appealed from. and only if the motion for extension is filed before the expiration of the time sought to be extended. Sec. e) ISSUES – Clear and concise statement of issues of fact/law submitted to the court for its judgment. for certiorari. • Except as otherwise provided. the parties shall be file (in lieu of briefs) their respective memoranda within a non-extendible period of 30 days from receipt of the notice issued by the REMEDIAL LAW clerk that all the evidence is already attached to the record. 3) Factual background of the case. Sec. Sec. Rules 46 and 65 co-exist with each other and should be construed so as to give effect to every provision of both rules. 11] • Where there are several appellants/appellees. CONTENTS OF PETITION [Rule 46. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. with page references to the record. copies of the brief may be served upon any of them. prohibition and mandamus by Rule 65. the appealed court rulings and orders. 3] 100% UP LAW UP BAROPS 2008 Page 52 of 95 . the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy. except for good and sufficient cause. Matters in the appellant’s statement of facts should not be repeated. f) ARGUMENT – Appellant’s arguments on each assignment of error. prohibition.CIVIL PROCEDURE c) STATEMENT OF THE CASE – Clear and concise statement of the nature of the action. and for quo warranto by Rule 66. 12] • Extension of time for the filing of briefs will not be allowed. Sec. FILING OF PETITION [Rule 46. each counsel representing one or more but not all of them shall be served with only one copy of the briefs. 8] • Within 45 days from receipt of appellant's brief. BRIEF [De Liano v. b) STATEMENT OF FACTS – Statement that appellee accepts the statement of facts in the appellant’s brief. h) Attachment: Certified true copy of the decision or final order appealed from. a summary of the proceedings. Sec. 7] APPELLEE’S BRIEF [Rule 44. CA (2001)] • Purpose: To present to the court in concise form the points and questions in controversy. MEMORANDA IN SPECIAL CASES [Rule 44. • When several counsel represent one appellant or appellee. • The brief should be so prepared as to minimize the labor of the court in the examination of the record upon which the appeal is heard and determined. Carmel (2002)] CASE TITLE [Rule 46. the actions for annulment of judgment shall be governed by Rule 47. Under Rule 46. with proof of service of 2 copies thereof upon the appellant. together with the substance of the related proof. mandamus and quo warranto. EXTENSION OF TIME FOR FILING BRIEFS [Rule 44. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. The failure of the appellant to file his memorandum within the period therefor may be a ground for dismissal of the appeal. REPLY BRIEF [Rule 44. 9] • Within 20 days from receipt of appellee's brief. mandamus. in sufficient detail to make it clearly intelligible and with page references to the record. • SEVERAL/PLURALITY OF APPELLANTS/APPELLEES/COUNSELS [Rule 44. 4) Grounds relied upon for the relief prayed for. 1] • In all cases originally filed in the CA. with references to the supporting pages of the record. quo warranto and habeas corpus cases. 2] • Original actions for certiorari. or COUNTERSTATEMENT OF FACTS – Points out the insufficiencies/inaccuracies appellee believes to exist in the appellant’s statement of facts. the appellee shall file with the court 7 copies of his legibly typewritten/mimeographed/printed brief.
[Rule 49. the court may call the parties and their counsel to a preliminary conference: [Rule 48. 5] • The court may either: 1) Dismiss the petition outright with specific reasons for such dismissal. The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any other action involving the same issues in the SC/CA or different divisions thereof or any other tribunal/agency. [Rule 48. 2) By his voluntary submission to such jurisdiction. Sec. [Rule 48. Sec. The oral argument shall be limited to such matters as the court may specify in its order/resolution. a resolution shall be issued embodying all: (1) the actions taken therein. and (3) the issues defined. [Rule 49. The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of all documents attached to the original. Sec. he must state the status of the same. limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court. 3] • Exception: 1) Modifications may be made to prevent manifest injustice. 3] • JURISDICTION OVER RESPONDENT’S PERSON [Rule 46. 3) To formulate stipulations of facts and admissions of documentary exhibits. 3] DISMISSAL OF APPEAL • Grounds: [Rule 50. the case may be decided on the basis of the record. • PAYMENT OF DOCKET AND LAWFUL FEES [Rule 46. 3] • The petitioner shall pay the docket and other lawful fees to the clerk of court and deposit P500 for costs at the time of the filing of the petition. 1] 1) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by ROC. 2) Failure to file the NOA/ROA within the period prescribed by ROC. no hearing or oral argument shall be allowed in support of motions. 100% UP LAW UP BAROPS 2008 Page 53 of 95 . Sec. Upon the conclusion thereof. The adverse party may file objections to the motion within 5 days from service. and all other related matters shall be as directed by the court. 2) Require the respondent to file a comment on the same within 10 days from notice. If there is such other action/proceeding. Unless the court otherwise directs. FAILURE TO COMMENT [Rule 46. such material portions of the record as are referred to therein. 3) Failure of the appellant to pay the docket and other lawful fees under Rule 41. PRELIMINARY CONFERENCE • Matters to be taken up: At any time during the pendency of a case. • The proceedings at the preliminary conference shall be recorded. Sec. Sec.CIVIL PROCEDURE • It shall be filed in 7 clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner. 4] 1) By the service on him of its order/resolution indicating its initial action on the petition. 2) Within 5 days from notice thereof. • Only pleadings required by the court shall be allowed. 2) Delegate the reception of the evidence on such issues to any of its members or to an appropriate court/agency/office. Sec. Sec. (2) the stipulations and admissions made. and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment/order/resolution/ruling subject thereof. Sec. 4) To take up such other matters which may aid the court in the prompt disposition of the case. and other documents relevant/pertinent thereto. any party may satisfactorily show valid cause why the resolution should not be followed. Sec. [Rule 46. The certification shall be accomplished by the proper clerk of court or by the proper officer of the court/tribunal/agency/office involved. or those within its appellate jurisdiction where a MNT is granted on the ground of newly discovered evidence. 1] • Unless authorized by the court. 2) To define/simplify/clarify the issues for determination. COURT ACTION [Rule 46. and if he should thereafter learn that a similar action/proceeding has been filed or is pending before the SC/CA or different divisions thereof or any other tribunal/agency. 2] • Motions shall not be set for hearing. 7] • When no comment is filed by any of the respondents. • The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. REMEDIAL LAW disciplinary action which the court may take against the disobedient party. 6] • Whenever necessary to resolve factual issues. The duration allowed for each party. the sequence of the argumentation. Upon the expiration of the 5 days. except when the case is not allowed by law to be compromised. All other pleadings and papers may be filed only with leave of court. he undertakes to promptly inform the aforesaid courts and other tribunal/agency thereof within 5 days therefrom. Sec. Sec. [Rule 49. 2] The resolution in the preliminary conference shall control the subsequent proceedings in the case. Sec. 1] 1) To consider the possibility of an amicable settlement. the court may either: 1) Conduct hearings thereon. Sec. 4. the motion shall be deemed submitted for resolution. DETERMINATION OF FACTUAL ISSUES [Rule 46. without prejudice to any ORAL ARGUMENT • The court may hear the parties in oral argument on the merits of a case or on any material incident in connection therewith. only one counsel may argue for a party.
5) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by the ROC. Revised Rules on Summary Procedure] 4) Decision of QJA under the Rule 43. [Rule 39. it may.— 1) Where no comment is filed. 2) Where such a hearing is held. 7) Failure of the appellant to take the necessary steps for the correction/completion of the record within the time limited by the court in its order. [Rule 70. [Padasas v. 1(c). [Rule 51. CA has discretion to dismiss or not to dismiss appeal. Sec. B. the presumption is that it has been so exercised. Sec. Sec. 4. Sec. to relieve a litigant of an injustice commensurate with his failure to comply with the prescribed procedure. an appeal by NOA instead of by petition for review from the appellate judgment of a RTC shall be dismissed. 3) Where a hearing on the merits of the main case is held. issues purely of law not being reviewable by said court. Sec. But where SC believes that there are factual issues which must be resolved. 12. Philippine Milling (1969)] Failure to file appellant’s brief within the reglementary period need not necessarily cause dismissal of appeal where the same was due to force majeure. Sec. 1] A. If the 3 Justices do not 100% UP LAW UP BAROPS 2008 Page 54 of 95 . or of page references to the record as required in Rule 44. 5) Decision in cases of injunction. having in mind the circumstances obtaining in each case. unless otherwise provided by the CA. 4 is a ground for the dismissal of an appeal under Rule 50. Thereafter. 2] 3) Decision of the RTC rendered in the exercise of its appellate jurisdiction on cases tried and decided by the court of origin under Summary Procedure. or the expiration of the period for its filing. the rules may be relaxed but only for persuasive and weighty reasons. True. 2] • The participation of all 3 Justices of a division shall be necessary at the deliberation. (c). or the expiration of the period for its filing. upon its termination or upon the filing of the last pleading/memorandum required/permitted to be filed by the court. • • DISMISSAL OF IMPROPER APPEAL [Rule 50. • Exception to exception: If appellant stays immediate execution by filing a NOA. (d) and (f). • It is true that Circular No. 1) Where no hearing on the merits of the main case is held. • An appeal erroneously taken to the CA shall not be transferred to the appropriate court but shall be dismissed outright. 2) Where no hearing is held. JUDGMENT • It is rendered by the members of the court who participated in the deliberation on the merits of the case before its assignment to a member for the writing of the decision. 4] WHEN CASE IS SUBMITTED FOR JUDGMENT [Rule 51. Sec. [Sec. In original actions and petitions for review. Although said discretion must be a sound one. support and accounting. execution is stayed. The unanimous vote of the 3 Justices shall be required for the pronouncement of a judgment or final resolution. 8) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with court orders/circulars/directives without justifiable cause. 19] 2) Decision of the MeTC/MTC/MCTC or the RTC where execution pending appeal has been granted by the court of origin or in a proper case by the appellate court upon good reasons to be stated in the order. In ordinary appeals. 2-90 now prohibits the transfer of appeals erroneously taken to the SC/CA to whichever of these tribunals has appropriate appellate jurisdiction. [Atlas Consolidated v. supersedeas bond and depositing in court a monthly rental or compensation for the occupation as fixed by the court which rendered the decision. the withdrawal may be allowed in the discretion of the court. upon the expiration of the period to comment. CA (1974)] • REMEDIAL LAW An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. [Cu-unjieng v. or the expiration of the period for its filing. upon its termination or upon the filing of the last pleading/memorandum required/permitted to be filed by the court. [Rule 39. 2] • An appeal under Rule 41 taken from the RTC to the CA raising only questions of law shall be dismissed. CA (2006)] WITHDRAWAL OF APPEAL [Rule 50. paragraphs (a).CIVIL PROCEDURE 4) Unauthorized alterations/omissions/ additions in the approved ROA under Rule 44. • Exception: 1) Decision in forcible entry and unlawful detainer. either itself take cognizance of and decide such issues or refer them to CA for determination. upon the filing of the last pleading required/permitted to be filed by the court. Sec. 3] STAY OF EXECUTION • General rule: In ordinary appeals. to be exercised in accordance with the tenets of justice and fair play. 6) Absence of specific assignment of errors in the appellant's brief. Sec. Sec. upon the filing of the last pleading/brief/memorandum required by the ROC or by the court itself. [PNB v. 21. 13. or the expiration of the period for its filing. SC has invariably sustained the CA’s dismissal on technical grounds under the aforequoted provision unless considerations of equity and substantial justice present cogent reasons to hold otherwise. Similarly. 9) The fact that the order/judgment appealed from is not appealable. in the exercise of its sound discretion and considering the attendant circumstances. Sec. receivership. Sec. CA (1991)] • Nonpayment of the appellate court docket and other lawful fees within the reglementary period as provided under Rule 41.
• In original actions in the CA. as the court shall deem proper. 2) Make such order as to the taking of further testimony. 7] No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors. The clerk shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel. [Rule 52. modifying or otherwise disturbing a judgment/order. [Rule 51. • • • • EXECUTION OF JUDGMENT [Rule 51. 2] 1) Grant/refuse a new trial. 4] Every decision or final resolution of the CA in appealed cases shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based. 8] • Exception: The court may pass upon plain errors and clerical errors. 3] • Pendency of a MFR filed on time and by the proper party shall stay the execution of the judgment or final resolution sought to be reconsidered. with a directive for such court of origin to issue the proper writ for its enforcement. 3] The CA. • Exception: If the judgment or final order or resolution (or a portion thereof) is ordered to be immediately executory. Sec. 3) Render such other judgment as ought to be rendered upon such terms as it may deem just. After the judgment or final resolution and and dissenting/separate opinions are signed by the Justices taking part. and may direct a new trial or further proceedings to be had. and costs may be adjudged in such cases. The participation of all the 5 members of the special division shall be necessary for the deliberation and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. The court at every stage of the proceeding must disregard any error/defect which does not affect the substantial rights of the parties. and may: [Rule 53. BP 129. in the exercise of its appellate jurisdiction. with a certificate that such judgment or final resolution has become final and executory. Sec.CIVIL PROCEDURE reach a unanimous vote. 2] • A MFR in the CA shall be resolved within 90 days from the date when the court declares it submitted for resolution. 40. Sec. Rule 51. and the case shall thereafter be proceeded with as if separate actions had been begun and prosecuted. or closely related to or dependent on an assigned error and properly argued in the brief. [Sec. Sec. either orally in court or by depositions. 5] HARMLESS ERROR RULE — No error in the admission/exclusion of evidence and no error/defect in any ruling/order or in anything done/omitted by the TC or by any of the parties is ground for granting a new trial or for setting aside. • In appealed cases. [Rule 51. 1] • No 2nd MFR of a judgment or final resolution by the same party shall be entertained. where the motion for execution pending appeal is filed in the CA at a time that it is in possession of the original record or ROA. Sec. unless the court directs otherwise for good reasons. 9] • REMEDIAL LAW The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. the judgment or final resolution shall be entered by the clerk in the book of entries of judgments. Sec. Sec. Sec. The MNT shall be accompanied by affidavits showing the facts constituting the grounds therefor and the newly discovered evidence. 11] • Motion for execution of the judgment or final order or resolution may only be filed in the proper court after its entry. its writ of execution shall be accompanied by a certified true copy of the entry of judgment or final resolution and addressed to any appropriate officer for its enforcement. with proof of service on the adverse party. which may be contained in the decision or final resolution itself. [Rule 52. Thereafter. [Rule 51. Sec. [Rule 51. [Rule 52. [Rule 51. Sec. 6] In all actions/proceedings. unless refusal to take such action appears to the court inconsistent with substantial justice. the Chairman of the division shall refer the case (together with the minutes of the deliberation) to the Presiding Justice who shall designate 2 Justices chosen by raffle from among all the other members of the court to sit temporarily with them. the resolution granting such motion shall be transmitted to the lower court from which the case originated. Sec. 4] NEW TRIAL • Any time after the appeal from the lower court has been perfected and before the CA loses jurisdiction over the case. Sec. 100% UP LAW UP BAROPS 2008 Page 55 of 95 . The record shall contain the dispositive part of the judgment or final resolution and shall be signed by the clerk. [Rule 52. the clerk shall enter the votes of the dissenting Justices in the record. or adopted from those set forth in the decision/order/resolution appealed from. may affirm/reverse/modify the judgment or final order appealed from. 1] • The CA shall consider the new evidence together with that adduced at the trial below. MFR • A party may file a MFR of a judgment or final resolution within 15 days from notice thereof. an appealed judgment may be affirmed as to some of the appellants and reversed as to others. forming a special division of 5 Justices. Execution of the judgment of affirmance may be had accordingly. • • • ENTRY OF JUDGMENT AND FINAL RESOLUTIONS [Rule 51. Sec. Sec. together with a certified true copy of the judgment or final order to be executed. a party may file a MNT on the ground of newly discovered evidence which could not have been discovered prior to the trial in the court below by the exercise of due diligence and which is of such a character as would probably change the result. [Rule 51. Sec. they shall be delivered for filing to the clerk. [Rule 53. 10] • If no appeal/MNT/MFR is filed within the reglementary period.
4] REMEDIAL LAW GROUNDS FOR DISMISSAL OF APPEAL [Rule 56. 1] E. EQUALLY DIVIDED SC [Rule 56. prohibition. Rules 45. 48. 2) The proceedings for disciplinary action against members of the judiciary shall be governed by the laws and Rules prescribed therefor. Sec. Memoranda of all other judgments and final resolutions not so published shall be made by the reporter and published in the OG and the authorized reports. [Rule 53. PROCEDURE [Rule 56. laws. mandamus. Sec. 3 regarding appeals in criminal cases where the penalty imposed is death. together with proof of service on all adverse parties. 48. Sec. Sec. 2) Prohibition. the procedure in the new trial shall be the same as that granted by a RTC. laws. Sec. The determination of the SC on WON issues of fact are involved shall be final. [Rule 55. reclusion perpetua or life imprisonment. 3) Failure to pay the docket and other lawful fees or to make a deposit for costs. and those against attorneys by Rule 139-B. • PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS • Judgments and final resolutions of the CA shall be published in the OG and in the Reports officially authorized by the court in the language in which they have been originally written. 4) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition. 7] • Where the court en banc is equally divided in opinion. 5) Failure to comply with any SC circular/directive/order without justifiable cause. 2 and 5 to 11 of Rule 51. 5] 1) Failure to take the appeal within the reglementary period. 1] 1) Certiorari. PROCEDURE IN SC ORIGINAL CASES [Rule 56. 7) Cases affecting ambassadors. [Rule 53. 7) The fact that the case is not appealable to SC. 52 and this Rule. other public ministers and consuls. 1. 3) Mandamus. • Exception: Criminal cases where the penalty imposed is death. 5) Habeas corpus. Sec. 2) Lack of merit in the petition. 3] • Only by a petition for review on certiorari. 2) In appealed cases. Sec. Sec. 2] 1) The procedure in original cases for certiorari. reclusion perpetua or life imprisonment.A] COGNIZABLE ORIGINAL CASES • Only petitions for: [Rule 56. APPLICABLE RULES [Rule 56.CIVIL PROCEDURE • The CA shall resolve a MNT within 90 days from the date when the court declares it submitted for resolution. quo warranto and habeas corpus shall be in accordance with the applicable provisions of the Constitution. APPEALED CASES [Rule 56. Sec. • 18 clearly legible copies of the petition shall be filed. • Exception: Rule 122. the case shall again be deliberated on. • The portions of said Rules dealing strictly with and specifically intended for appealed cases in the CA shall not be applicable. or the necessary majority cannot be had. • All references in said Rules to the CA shall be understood to also apply to the SC. 6) Error in the choice/mode of appeal. 3] Unless the court otherwise directs. 51. 6] • An appeal taken to the SC by NOA shall be dismissed. IMPROPER APPEAL [Rule 56. 6) Disciplinary proceedings against members of the judiciary and attorneys. Sec. 4) Quo warranto.B] MODE OF APPEAL [Rule 56. 52 and this Rule. 4] • Governed by and disposed of in accordance with the applicable provisions of the Constitution. Sec. 49. • An appeal by certiorari taken to the SC from the RTC submitting issues of fact may be referred to the CA for decision or appropriate action. Sec. as amended. the judgment/order appealed from shall stand affirmed. 100% UP LAW UP BAROPS 2008 Page 56 of 95 . 3) On all incidental matters. the petition/motion shall be denied. together with the syllabi therefor prepared by the reporter in consultation with the writers thereof. If after such deliberation no decision is reached: 1) The original action commenced in the court shall be dismissed. and Rules 46.
3) When the judgment has been NOVATED BY THE PARTIES 4) When SUBSEQUENT FACTS AND CIRCUMSTANCES transpire as to render such execution unjust or impossible 5) On EQUITABLE GROUNDS as when there has been a change in the situation of the parties which makes execution INEQUITABLE. the appellate court in its discretion may make an order suspending. w hic h is granted by the judge since it is a matter of right Prevailing party files a motion in the court of origin . be stayed by an appeal taken therefrom. there are two ways by which execution can be carried out Prevailing Party applies (by motion) for a w rit of execution. According to Prof. judgments in the following action. unless the court orders otherwise: 1) 2) 3) 4) 5) injunction receivership accounting support such other judgments as shall now or may hereafter be declared to be immediately executory Judgments in these actions shall be enforceable after their rendition and shall not. a judgment may be enforced by action. • Exceptions: • 100% UP LAW UP BAROPS 2008 Page 57 of 95 . shall be executed. the court cannot refuse to issue a writ of 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 (R-I-N-S-E-D): 1) When a PETITION FOR RELIEF or an action to enjoin judgment is filed and a preliminary injunction is prayed for and granted (Rule 38. despite perfection of an appeal. After the lapse of such time. when the interest of justice so requires. General rule: When the judgment or order becomes executory. the 5-year period under Rule39.6 having expired without the judgment having been revived. • General rule: An ex parte motion for the issuance of the writ of execution would suffice since the trial court may take judicial notice of the record of the case to determine the propriety of the issuance thereof. on motion in the same case. receivership. direct the court of origin to issue the writ of execution. the maximum period within which a final and executory judgment may be executed is 20 years. EXECUTION OF JUDGMENTS A. The appellate court may. unless discretionary execution is granted by the court. and before it is barred by the statute of limitations. 6) When the judgment becomes DORMANT. submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof. • Exceptions: However. with notice to the adverse party1. • Exception: However when the losing party shows that subsequent facts had taken place which would render the execution unjust. such judgment CANNOT BE FINAL. or award of support. or the period of appeal has expired If an appeal has been perfected and duly resolved.CIVIL PROCEDURE XI. Section 6: A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. On appeal therefrom. restoring or granting the injunction. Avena’s textual analysis of this provision. accounting. modifying. a hearing on the motion should be held. [Luzon Surety v. EXECUTION AS A MATTER OF RIGHT JUDGMENT OR FINAL ORDER (order that disposes of the action or proceeding) REMEDIAL LAW If no appeal has been perfected. Beson (1976)] General rule: An appeal seasonably perfected shall stay the execution of the judgment. 2) When the judgment turns out to be INCOMPLETE OR IS CONDITIONAL since as a matter of law. • General rule: According to Rule 39. UNLESS OTHERWISE ORDERED BY THE TRIAL COURT. The revived judgment may also be enforced by motion within five (5) years from the date of its entry and thereafter by action before it is barred by the statute of limitations.5).
CA (2000)] • General rule: The filing of a supersedeas bond is sufficient to stay the enforcement of a discretionary execution. or annulled. 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. 4) land registration proceedings (and other special proceedings). as the case may be. • Exception: However. Regalado. on appeal or otherw ise. Situation 2: Trial court has lost jurisdiction In Situat ion1. 3) issuance of writs of possession in FORECLOSURE CASES within the statute of limitations. hence the right to ask for a WRIT OF POSSESSION THEREIN NEVER PRESCRIBES REMEDIAL LAW B. according to J. prevailing party f iles a MOTION WITH NOTICE TO THE ADVERSE PARTY in the Trial Court. [Heirs of Justice J. however. The CA has no authority to issue IMMEDIATE EXECUTION PENDING APPEAL OF ITS OWN DECISIONS THEREIN. THE FILING OF SUPERSEDEAS 100% UP LAW UP BAROPS 2008 Page 58 of 95 . issue such orders of res titution or reparation of dam ages as equity and justice m ay w arrant unde r the circumstances General rule: Under the Rule on Discretionary Execution. the trial court may. Blanco]. on motion. 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. may exercise discretion and order execution pending appeal.B. A JUDGMENT OF THE CA CANNOT BE EXECUTED PENDING APPEALIt is acquired either by the arrest of the accused or by his voluntary appearance in court. In Situation2. Discretionary execution may be granted only f or GOOD REASONS to be stated in a SPECIAL ORDER. prevailing party f iles the motion for execution pending appeal in the appellate court. • Exception: This rule. DISCRETIONARY EXECUTION Situation 1: Trial Court still has jurisdiction over the case and is in possession of either the original record or the record on appeal. if it still has jurisdiction. the court rendering the judgment. Reyes v.CIVIL PROCEDURE 1) judgment for support WHICH DO NOT BECOME DORMANT AND WHICH CAN BE EXECUTED BY MOTION [Canonizado v. NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against w hom it is directed. is inapplicable in the case of the Court of Appeals. conditioned upon the performance of the judgment or order allow ed to be executed in case it shall be finally sustained in w hole or in part. 2) contempt orders by reason of unauthorized reentry on the land by the ejected defendant [Azotes v.L. The bond thus given m ay be procee ded against on motion with notice to the s urety IN CASE the judgment w hich w as executed pending appeal is reversed totally or partially. Benitez] except for support in arrears beyond 10 years from the date they become due.
Garnishment merely sets apart such funds but does not constitute the creditor as owner of the garnished property. certified bank check or other mode of payment acceptable to the judgment obligee. commissions and other personal property not capable of manual delivery in the possession or control of third parties. deposit said amounts to a fiduciary account in the nearest government depository bank of the Regional Trial Court of the locality. EXECUTION OF JUDGMENTS FOR MONEY 1. the Court can order immediate execution despite such SUPERSEDEAS BOND. If not. the officer shall first levy on the personal properties. the amount of the judgment debt under proper receipt directly to the judgment obligee or his authorized representative if present at the time of payment. Ortega. If susceptible of appropriation. dacion en pago). and then on the real properties if the personal properties are insufficient to answer for the judgment. otherwise the same is placed under sheriff’s guards. GARNISHMENT OF DEBTS AND CREDITS • Scope: The officer may levy on debts due the judgment obligor and other credits. Vandevella (1966)]. sufficient to satisfy the judgment 3) If the judgment obligor does not exercise the option. royalties. if any. or certified bank check issued in the name of the judgment obligee. REMEDIAL LAW Without valid levy having been made. The excess. 4) The sheriff shall sell only a sufficient portion of the personal or real property of the judgment obligor which has been levied upon. IMMEDIATE PAYMENT ON DEMAND • Procedure: 1) The sheriff or executing officer demands from the judgment obligor the immediate payment of the full amount stated in the writ of execution and all lawful fees. 4) The clerk of said court shall thereafter arrange for the remittance of the deposit to the account of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment obligee in satisfaction of the judgment. or if the same is not practicable. he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees. The process of levying shall be called garnishment if the property involved is money. Where the needs of the prevailing party are URGENT. or other incorporeal property in the HANDS OF THIRD PERSONS. The garnishment shall cover only such amount as will satisfy the judgment and all lawful fees. the Court held that garnishment is not a violation of RA 1405 on the secrecy of bank deposits. if any. 100% UP LAW UP BAROPS 2008 Page 59 of 95 . 3) If the judgment obligee or his authorized representative is not present to receive payment.. ANY SALE OF THE PROPERTY THEREAFTER is void. the officer shall levy upon (1) the properties of the judgment obligor of every kind and nature whatsoever which may be disposed. certified bank check payable to the judgment obligee. 5) When there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees. • C.CIVIL PROCEDURE BOND does not entitle the judgment debtor to the suspension of execution as a MATTER OF RIGHT.g. shall BE DELIVERED DIRECTLY TO THE JUDGMENT OBLIGEE • 2. In Chinabank v. 3. of for value and (2) not otherwise exempt from execution 2) The sheriff gives the judgment obligor the option as to which of the property or part thereof may be levied upon. Procedure: 1) If the judgment obligor cannot pay all or part of the obligation in cash. SATISFACTION BY LEVY • Nature: 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. 2) The judgment obligor shall pay in cash. or ANY OTHER FORM OF PAYMENT ACCEPTABLE TO THE LATTER (e. Procedure: 1) Levy shall be made by SERVING NOTICE UPON THE PERSON OWING SUCH DEBTS OR HAVING IN HIS POSSESSION OR CONTROL SUCH CREDITS TO WHICH THE JUDGMENT OBLIGOR IS ENTITLED. stocks. The lawful fees shall be handed under proper receipt to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. the officer REMOVES AND TAKES THE PROPERTY FOR SAFEKEEPING. financial interests. the judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over all the amounts coming into his possession within the same day to the clerk of court of the court that issued the writ. the report shall state how much funds or credits the garnishee holds for the judgment obligor 3) The garnished amount in cash. In no case shall the executing sheriff demand that any payment by check be made payable to him. shall be delivered to the judgment obligor while the lawful fees shall be retained by the clerk of court for disposition as provided by law. including bank deposits. 2) The garnishee shall make a WRITTEN REPORT to the court within five (5) days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to satisfy the amount of the judgment.
Avena. of appropriate peace officers. or to deliver deeds or other documents. ANY COSTS. the judgment obligor. and place the judgment obligee in possession of such property. Special judgments are those which can be complied with by the judgment obligor because of his personal qualifications or circumstances (e. there are two possible remedies. 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. the choice shall be made by the judgment obligee. DELIVERY OF PERSONAL PROPERTY • In judgment for the delivery of personal property. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS 1. there is a judgment which directs a party to execute a conveyance of land or personal property. if necessary. except the lawful fees which shall be paid directly to the court. the officer shall not destroy. or 2) if real or personal property is situated within the Philippines. there must be a hearing on motion and due notice for the issuance of special order.. When a party refuses to yield possession of a property as ordered by a writ of execution. DAMAGES. EXECUTION OF JUDGMENTS SPECIAL 3. REMEDIAL LAW oust all such persons therefrom with the assistance. OR OTHER SPECIFC ACTS • Under this situation. and restore possession thereof to the judgment obligee. 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. which shall have the force and effect of a conveyance executed in due form of law. 4) In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the judgment. but if demolition is involved. If the party so ordered fails to comply within a specified period. DELIVERY OF DEEDS. and employing such means as may be reasonably necessary to retake possession. a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered. the officer shall • When a judgment requires the performance of ANY ACT OTHER THAN THOSE MENTIONED IN THE TWO PRECEDING SECTIONS (EXECUTION OF JUDGMENT FOR MONEY AND SPECIFIC ACTS). or upon any other person required thereby. 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. RENTS OR PROFITS AWARDED BY THE JUDGMENT SHALL BE SATISFIED IN THE SAME MANNER AS A JUDGMENT FOR MONEY. CONVEYANCE. to obey the same. 5. According to Prof.g. contempt IS NOT THE REMEDY. shall have the right to indicate the garnishee or garnishees who shall be required to deliver the amount due. an order for execution shall be issued describing such property as may be ordered sold. 4. Either: 1) the court may DIRECT THE ACT TO BE DONE AT THE COST OF THE DISOBEDIENT PARTY by some other person appointed by the court and the act when so done shall have like effect as if done by the party.CIVIL PROCEDURE within ten (10) working days from service of notice on said garnishee requiring such delivery. 2. demolish or remove said improvements except upon special order of the court. and applying the proceeds in conformity with the judgment’s instructions. The writ of execution directing the sheriff to cause the defendant to vacate is in the nature of HABERE FACIAS POSSESSIONEM and authorizes the sheriff WITHOUT NEED OF SECURING A BREAK OPEN ORDER to break open the premises where there is no occupant therein. otherwise. or to perform. if available. 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 court in lieu of directing a conveyance thereof may by an order divest the title of any party and vest it in others. • E. The sheriff must oust said party from the property. 100% UP LAW UP BAROPS 2008 Page 60 of 95 . any other specific act IN CONNECTION THEREWITH. and such party or person may be punished for contempt if he disobeys such judgment. SALE OF REAL OR PERSONAL PROPERTY • If judgment is rendered ordering the sale of real or personal property. or by law. a judgment ordering a party to comply with his recording contract otherwise. 5) The executing sheriff shall observe the same procedure under IMMEDIATE PAYMENT ON DEMAND with respect to delivery of payment to the judgment obligee. a judgment ordering a partner to render an accounting. selling it. • D. otherwise.
or three cows. or money or property obtained as such support. Filipino. It is not the duty of the sheriff to set off the exceptions on his own initiative. or its effectivity expires. or other beasts of burden. and no other. of a value not exceeding one hundred thousand pesos. savings of national prisoners deposited with the POSTAL SAVINGS BANK [Act 2489]. and if the assessed value of the property exceeds fifty thousand (P50. considering the character and condition of the property. laborer’s wages except for debts incurred for food. clergymen. clothing and medical attendance [ART 1708. the officer shall report to the court and state the reason therefor. by posting a similar notice in the three (3) public places above-mentioned for not less than five (5) days. GENERAL RULES GOVERNING EXECUTIONS 1. lawyers.000. The exemptions MUST BE CLAIMED. CA 458]. dentists. and land necessarily used in connection therewith. (j) Lettered gravestones. (i) So much of the salaries. and used for that purpose by the judgment obligor and his family. CIVIL CODE]. or annuities accruing or in any manner growing out of any life insurance. The officer shall make a report to the court every thirty (30) days on the proceedings taken thereon until the judgment is satisfied in full. in the absence thereof. by posting written notice of the time and place of the sale in three (3) public places. (c) In case of real property. 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. (b) In case of other personal property. employment. benefits • • 2. surveyors. benefit payments from SSS [Section 16. for such time as may be reasonable. such as the judgment obligor may select necessarily used by him in his ordinary occupation. by publishing a copy of the notice once a week for two (2) consecutive weeks in one newspaper selected by raffle. Rule 39] 3. such as the judgment obligor may select. shall be exempt from execution: (FOTNUP-LBS-GMRE) • (a) The judgment obligor's family home as provided by law. or three carabaos. [Herrera v. and shall be filed with the court and copies thereof promptly furnished the parties. REMEDIAL LAW from private retirement systems of companies and establishments with limitations [RA 4917]. The returns or periodic reports shall set forth the whole of the proceedings taken. If the judgment cannot be satisfied in full within thirty (30) days after his receipt of the writ. or livelihood.00) pesos. (b) Ordinary tools and implements personally used by him in his trade. wages. teachers. engineers. not exceeding three hundred thousand pesos in value.g. the following property. notice thereof must be given as follows: (a) In case of perishable property. by posting for twenty (20) days in the three (3) public places abovementioned a similar notice particularly describing the property and stating where the property is to be sold. (d) His necessary clothing and articles for ordinary personal use. Such writ shall continue in effect during the period within which the judgment may be enforced by motion. or the homestead in which he resides. privileges.CIVIL PROCEDURE pay damages). otherwise they are deemed waived. property mortgaged to the DBP [Section 26. (c) Three horses. [Section 12. excluding jewelry. pharmacists. 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. NOTICE REQUIREMENT Before the sale of property on execution.. or any pension or gratuity from the Government. (g) The professional libraries and equipment of judges. 100% UP LAW UP BAROPS 2008 Page 61 of 95 . (m) Properties specially exempted by law. preferably in conspicuous areas of the (CPM) municipal or city hall. (f) Provisions for individual or family use sufficient for four months. Mcmicking] F. edited and circulated or. (k) Monies. (e. RA 1161 AS AMENDED]) • Exception: However. and other professionals. having general circulation in the province or city. shelter. (e) Household furniture and utensils necessary for housekeeping. RETURN OF EXECUTION WRIT OF The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in part or in full. physicians. (h) 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. (l) The right to receive legal support. benefits. Note the difference with sections 9 and 10 (on execution of money judgments and specific acts) where contempt is not a remedy against disobedience by a party. or any major regional language published. PROPERTY EXEMPT EXECUTION • FROM General rule: Except as otherwise expressly provided by law. post office and public market in the municipality or city where the sale is to take place. whether in English.
7 on replevin. [Section 18. otherwise the adjournment will be void [Abrozar v. IAC (1988)] Upon a sale of real property . Without such agreement. on demand of the officer. or their duly authorized representatives. a definite period is given. Rule 39] By written consent of the judgment obligor and obligee. Rule 39]. CONCLUDING THE EXECUTION SALE When the purchaser is the judgment obligee. OR PREVENT THE JUDGMENT OBLIGEE FROM CLAIMING DAMAGES IN THE SAME OR A SEPARATE ACTION AGAINST A THIRD-PARTY CLAIMANT WHO FILED A FRIVOLOUS OR PLAINLY SPURIOUS CLAIM. The difference lies in the fact that under Rule 68. [Section 21. Apart from Rule 39. the sale shall be held in the place where the property is located. date and exact time of the sale which should not be earlier than nine o'clock in the morning and not later than two o'clock in the afternoon (9am2pm). Rule 39] PENALTIES (Selling without notice and defacing notice) An officer selling without the notice prescribed by section 15 of this Rule pay punitive damages in the amount of five thousand (P5. the sale of the property or personal property not capable of manual delivery shall be held in the office of the clerk of court of the Regional Trial Court or the Municipal Trial Court which issued the writ of or which was designated by the appellate court. If it does. he may adjourn the sale from day to day if it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day to which it was adjourned [Section 22. BOTH TO BE RECOVERED BY MOTION IN THE SAME ACTION A person willfully removing or defacing the notice posted if done before the sale.CIVIL PROCEDURE (d) In all cases.00) pesos to any person injured by reason thereof. • The notice shall specify the place. in addition to his actual damages. Rodriguez and Northern Motors v. written notice of the sale shall be given to the judgment obligor. RULES REGARDING TERCERIA (THIRD-PARTY CLAIMS) The third person whose property was levied on must make an (1) affidavit of his title thereto or right to the possession thereof. files a bond approved by the court to indemnity the thirdparty claimant in a sum not less than the value of the property levied on. The officer shall not be liable for damages for the taking or keeping of the property. PREVENTING EXECUTION SALE • At any time before the sale of property on execution. as a general rule • 6.000. the Court held that the third party claimant CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the event that his claim was denied since HE IS A NONPARTY to the original action.14 on preliminary attachment and Rule 60. the only other provisions of the Rules of Court dealing with terceria or third party claims are Rule 57. In the case of personal property capable of manual delivery. at least three (3) days before the sale. shall be liable to pay five thousand (P5. the officer may adjourn the sale to any date and time agreed upon by them. In Sierra v. and (3) serves the same upon the officer making the levy and copy thereof. The place of the sale MAY BE AGREED UPON BY THE PARTIES. • • 5. or before the satisfaction of the judgment if it be satisfied before the sale. and no third-party claim has been filed. 4. Coquia.00) pesos to any person injured thereby.000. • 100% UP LAW UP BAROPS 2008 Page 62 of 95 . In the absence of such agreement. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. IN ADDITION TO HIS ACTUAL DAMAGES. to be recovered by motion in the same action REMEDIAL LAW In case of disagreement as to such value of the bond. which is available to the judgment obligor in judicial foreclosure of mortgage. upon the judgment oblige. the same shall be determined by the court issuing the writ of execution. [Section 15. the judgment obligor may prevent the sale by paying the amount required by the execution and the costs that have been incurred therein. except as provided in paragraph (a) hereof where notice shall be given the same manner as personal service of pleadings and other papers as provided by section 6 of Rule 13. Written consent is essential. (2) stating the grounds of such right or title. he need not pay the amount of the bid if it does not exceed the amount of his judgment. The officer shall not be bound to keep the property. he shall pay only the excess. Rule 39] This is akin to the equitable right of redemption under Rule 68. the officer must give to the purchaser a certificate of sale • Sheriff is bound to keep the property when the judgment obligee. to any thirdparty claimant if such bond is filed • The proceedings set forth above SHALL NOT PREVENT SUCH CLAIMANT OR ANY THIRD PERSON FROM VINDICATING HIS CLAIM TO THE PROPERTY IN A SEPARATE ACTION.
if desired. (c) The whole price paid by him. CONVEYANCE TO PURCHASER OF PERSONAL PROPERTY NOT CAPABLE OF MANUAL DELIVERY.CIVIL PROCEDURE containing: (a) A particular description of the real property sold. When the sale is of real property. [Section 27. Such certificate must be registered in the registry of deeds of the place where the property is situated. (d) A statement that the right of redemption expires one (1) year from the date of the registration of the certificate of sale. when a portion of such real property is claimed by a third person. capable of manual delivery. or any part thereof sold separately. to the highest bidder. may direct the order in w hic h property. pays the purchase pric e. Rule 39] 100% UP LAW UP BAROPS 2008 Page 63 of 95 . the off ic er making the sale must deliver the property to the purchaser and. he may require it to be sold separately When the sale is of personal property capable of manual delivery. judgment or mortgage on the property sold. Refusal of purchaser to pay. it must be sold w ithin view of those attending the same and in such parcels as are likely to bring the highest price Af ter suff ic ient property has been sold to satisfy the execution. the off icer making the sale must execute and deliver to the purchaser a certificate of sale. w hen such property consists of several know n lots or parcels w hich can be sold to advantage . no more shall be sold and any excess property or proceeds of the sale shall be promptly delivered to the judgment obligor or his authoriz ed representative. but the court may (1) order the ref using purchaser to pay into the court the amount of such loss1. When the purchaser of any personal property. or on some part thereof.separately. to start at the exact time f ixed in the notice. subsequent to the lien under which the property was sold. they must be sold separately . may be redeemed in the manner hereinafter provided. if present at the sale. The amount of such payment shall be for the benef it of the person entitled to the proceeds of the execution. by the following persons: a) The judgment obligor. If a purchaser ref uses to pay the amount bid by him f or property struck off to him at a sale under execution. execute and deliver to him a certif icate of sale. RULES GOVERNING REDEMPTION 1) Real property sold as provided in the last preceding section. in which event such proceeds shall be f or the benef it of the judgment obligor. The sale conveys to the purchaser all the rights w hic h the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment. b) A creditor having a lien by virtue of an attachment. the off icer may again sell the property to the highest bidder and shall not be responsible f or any loss occasioned thereby. consisting of several know n lots. real or personal shall be sold. Such redeeming creditor is termed a redemptioner. When the purchaser of any personal property. CONVEYANCE TO PURCHASER OF PERSONAL PROPERTY CAPABLE OF MANUAL DELIVERY. or. not capable of manual delivery. unless otherw is e directed by the judgment or order of the court. (b) The price paid for each distinct lot or parcel. or his successor in interest in the whole or any part of the property. and may punish him for contempt if he disobeys the order. Rule 39] How property is sold on execution: REMEDIAL LAW • All sales of property under execution must be made at public auction. pays the purchase price. w ith costs. unless the execution has been fully satisfied. The judgment obligor. [Section 25. Such certif icate conveys to the purchaser all the rights w hich the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment Section 23. (2) The officer m ay Section 24. Se ction 20.
an original or certified copy of any assignment necessary to establish his claim. Purchase price 1 % interest thereon up to the time of redemption iii. [Section 29. [Section 31. a memorandum of the record thereof. and serve with his notice to the officer i. THE PERIOD FOR REDEMPTION IS NOT SUSPENDED BY AN ACTION TO ANNUL THE FORECLOSURE SALE. iii. IF THE JUDGMENT OBLIGOR REDEEMS. no further redemption is allowed and he is restored to his estate. Within one year FROM THE DATE OF REGISTRATION OF THE CERTIFICATE OF SALE. In all. Use the property in the same manner it was previously used. If the purchaser be also a creditor having prior lien to that of the redemptioner. Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and interest on such last named amount at the same rate. the court may. the amount of such other lien. with interest. BUT IN ALL CASES. All rents. Make Necessary repairs to buildings thereon while he occupies the property 100% UP LAW UP BAROPS 2008 Page 64 of 95 . restrain the commission of waste on the property by injunction. a copy of the judgment or final order under which he claims the right to redeem. or to make the necessary repairs to buildings thereon while he occupies the property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. iv. on the application of the purchaser or the judgment obligee. the judgment debtor shall exercise the following rights: i. earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. Amount of any liens held by said last redemptioner prior to his own with interest 5) Effects of redemption a) If the judgment obligor redeems he must make the same payments as are required to effect a redemption by a redemptioner. or for him to the officer who made the sale. other than the judgment under which such purchase was made. He cannot be ejected. no further redemption shall be allowed and he is restored to his estate. iii. b) If redemptioner i. but it is not waste for a person in possession of the property at the time of the sale. or to use it in the ordinary course of husbandry. Rule 39] c) Until the expiration of the time allowed for redemption. Rule 39] d) The purchaser or a redemptioner shall not be entitled to receive the rents.CIVIL PROCEDURE 2) Redemption can be made by either person: a) JUDGMENT OBLIGOR. or within 60 days from the LAST REDEMPTION BY ANOTHER REDEMPTIONER. with or without notice. Within one year from the date of REGISTRATION OF THE CERTIFICATE OF SALE b) REDEMPTIONER. the judgment obligor shall have the entire period of 1 YEAR from the date of registration of the sale to redeem the property. or the value of the use and occupation thereof when such property is in the possession of a tenant. showing the amount then actually due on the lien. an affidavit executed by him or his agent. Any amount of assessments or taxes which the last redemptioner may have paid thereon after redemption by him with interest on such last named amount. 2% interest thereon. whereupon. ii. Rule 39] b) A redemptioner must produce to the officer. Remain in possession of the property ii. certified by the clerk of the court wherein the judgment or final order is entered. AND iv. OR iii. as in other proper cases. certified by the registrar of deeds. OR. Amount paid on the last redemption ii. iv. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption REMEDIAL LAW acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. if he redeems upon a mortgage or other lien. or person from whom he seeks to redeem. during the period allowed for redemption. or entitled to possession afterwards. 3) A right of redemption cannot be levied upon by a judgment creditor. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner. The creditor may not deprive the debtor of any further rights to the property [Lichauco v. ii. iv. earnings and income of the property sold on execution. to continue to use it in the same manner in which it was previously used. [Section 30. Olegario] 4) Redemption price varies depending on who the redemptioner is: a) If judgment obligor: i.
[Section 35. it may ORDER PAYMENT IN INSTALLMENTS [Section 40] 5. and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. and when a judgment is upon an obligation of one of them. earnings and income derived from the property until the expiration of peiord of redemption. either by sale of his property or before sale. or any part thereof. title. and in the execution book. the court may order the property applied to the satisfaction of the judgment. Collect rents. a. THE COURT MAY ORDER A SALE OF SUCH INTEREST [Section 42]. and MORE THAN A DUE PROPORTION OF 100% UP LAW UP BAROPS 2008 Page 65 of 95 . If the execution is returned unsatisfied. Rule 39] REMEDIAL LAW THE JUDGMENT IS SATISFIED OUT OF THE PROCEEDS OF THE SALE OF THE PROPERTY OF ONE OF THEM. 7. irregularities in the proceedings concerning the sale b. and notice thereof given. he may compel repayment from the principal. AND HIS INTEREST CAN BE ASCERTAINED WITHOUT CONTROVERSY. without a sale. MORTGAGEE OR OTHERWISE. but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. he may compel a contribution from the others. Use it in the ordinary course of husbandry vi.CIVIL PROCEDURE v. or Is evicted due to: REMEDIES IN CASE THE SALE IS NOT EFFECTIVE 1. as security for another. REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION (Sections 36-43) 1. Upon the expiration of the right of redemption. the court finds the property of the judgment debtor either in his own hands or that of any person. ENTRY OF SATISFACTION 1. The court may appoint a receiver for the property of the judgment debtor not exempt from execution or FORBID a transfer or disposition or interference with such property [Section 41] 6. [Section 33. A party or other person may be COMPELLED BY AN ORDER OR SUBPOENA TO ATTEND BEFORE THE COURT OR COMMISSIONER TO TESTIFY as provided in Sect 36-37. The purchaser or his successors in interest fails to recover possession of the property. THE COURT MAY AUTHORIZE THE JUDGMENT CREDITOR TO INSTITUTE AN ACTION TO RECOVER THE PROPERTY. and the surety pays the amount. he may cause the EXAMINATION OF THE JUDGMENT DEBTOR AS TO HIS PROPERTY AND INCOME [Section 36] 2. If after examination. more than his proportion. e) If no redemption be made within one (1) year from the date of the registration of the certificate of sale. or. or one of them pays. 3. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party IS ACTUALLY HOLDING THE PROPERTY adversely to the judgment obligor. claims an adverse interest in the property or denies the DEBT. If the COURT FINDS THE JUDGMENT DEBTOR HAD AN ASCERTAINABLE INTEREST IN REAL PROPERTY EITHER AS MORTGAGOR. 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 [Section 37]. the purchaser or redemptioner shall be substituted to and acquire all the rights. the property sold was exempt from execution. Bring an action against the judgment creditor. and the time for redemption has expired. the last redemptioner is entitled to the conveyance and possession . A third person has vindicated his claim to the property 3. interest and claim of the judgment obligor to the property as of the time of the levy. If the court finds the earnings of the judgment debtor are more than sufficient for his family’s needs. Rule 39]. FORBID ITS TRANSFER AND MAY PUNISH DISOBEDIENCE FOR CONTEMPT [Section 43] f) Recovery of purchase price and revival of judgment: WHEN PURCHASER MAY RECOVER PURCHASE PRICE 1. Bring an action to recover possession of property. 2. If the person alleged to have the property of the judgment debtor or be indebted to him. The deed shall be executed by the officer making the sale or by his successor in office. judgment has been reversed or set aside c. File a MOTION FOR REVIVAL OF JUDGMENT in the name of judgment creditor against the judgment debtor 2. upon the return of a writ of execution showing the full satisfaction of the judgment. Satisfaction of a judgment shall be entered by the clerk of court in the court docket. 4. if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made. the purchaser is entitled to a conveyance and possession of the property. or upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the same manner as a g) When property liable to an execution against several persons is sold thereon. d. 8. 9.
and this is particularly true where intervening or contemporaneous change in law has occurred by overruling former decisions or establishment of new precedent by controlling authority. the judgment obligee or his counsel must execute and acknowledge. or MAY ORDER THE ENTRY OF SATISFACTION TO BE MADE WITHOUT SUCH ADMISSION. Such limitation on the review of foreign judgment is adopted in all legal systems to avoid repetitive litigation on claims and issues. but they become and remain the law of the case in all other steps whether in the lower court or in the appellate court on a subsequent appeal [Zarate vs. WANT OF NOTICE TO THE PARTY. the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. [Section 44. • • 100% UP LAW UP BAROPS 2008 Page 66 of 95 . the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. the judgment or final order is. conclusive between the parties and their successors in interest. [Section 45. status or relationship of the person. political. COLLUSION.CIVIL PROCEDURE conveyance of real property by the judgment obligee or by his counsel unless a revocation of his authority is filed. subject matter and causes of action The first judgment constitutes an absolute bar to all matters directly adjudged and those that might have been adjudged. or otherwise than upon an execution on demand of the judgment obligor. and after notice and upon motion the court may order either the judgment obligee or his counsel to do so. CONCLUSIVENESS OF JUDGMENT/ PRECLUSION OF ISSUES (AUTER ACTION PENDANT) • In any other litigation between the same parties or their successors in interest. or indorse an admission of the satisfaction as provided in the last preceding section. in respect to the personal. condition. Rule 39] 2. EFFECT OF FOREIGN JUDGMENTS • In case of a judgment or final order upon a specific thing . It is a doctrine which provides that an appellate court’s determination on a legal issue is binding on both the trial court on remand and an appellate court on a subsequent appeal given the same case and substantially the same facts. Rule 39] REMEDIAL LAW BAR BY FORMER JUDGMENT (RES JUDICATA) CONCLUSIVENESS OF JUDGMENT There is identity of parties. is conclusive upon the title to the thing. Law of the case refers to legal conclusions announced on a first appeal. on the face of the record of the judgment. RES JUDICATA IN JUDGMENTS IN REM JUDGMENTS OR FINAL ORDER Against a specific thing Probate of a will or administration of the estate of a deceased person CONCLUSIVE AS TO • Title of the thing the will or administration. IN EITHER CASE. 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. The first judgment is conclusive only as to matters directly adjudged and actually litigated in the first action. by title subsequent to the commencement of the action or special proceeding. Res Judicata vs. RES JUDICATA IN JUDGMENTS IN PERSONAM • In other cases. In case of a judgment or final order against a person. Director of Lands]. or which was actually and necessarily included therein or necessary thereto. Whenever a judgment is satisfied in fact. with respect to the matter directly adjudged or as to any other matter that could have been missed in relation thereto. litigating for the same thing and under the same title and in the same capacity. the judgment or final order. However. 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. 4. OR CLEAR MISTAKE OF LAW OR FACT. or upon the endorsement of such admission by the judgment obligee or his counsel. “law of the case”. EFFECTS OF JUDGMENTS OR FINAL ORDERS 1. • G. Identity of parties and subject matter. not only prescribe the duty and limit the power of the trial court to strict obedience and conformity thereto. • 3. The doctrine of "law of the case" is one of policy only and will be disregarded when compelling circumstances call for a redetermination of the determination of point of law on prior appeal. Second action can be prosecuted. THE JUDGMENT OR FINAL ORDER MAY BE REPELLED BY EVIDENCE OF A WANT OF JURISDICTION. Law of the case designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings. or legal condition or status of a particular person or his relationship to another 2. FRAUD. whether on the general law or the law as applied to the concrete facts.
• All pleadings shall be verified. the court may reduce the amount of damages and attorney's fees claimed for being excessive or otherwise unconscionable. SUMMARY PROCEDURE 1991 REVISED RULES ON SUMMARY PROCEDURE SCOPE [Sec. • except for LOJ over the subject matter. Article II) of the 1987 Constitution [Regalado]. 3] 1) Complaints. exclusive of interest and costs. except probate proceedings. THE ONLY PLEADINGS ALLOWED [Sec. Where attorney's fees are awarded. • Affirmative and negative defenses not pleaded therein shall be deemed waived. • Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. • A patently erroneous determination to avoid the application of the Rule is a ground for disciplinary action. it may dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action. The answer to counterclaims or crossclaims shall be filed and served within ten 10 days from service of the answer in which they are pleaded. the same shall not exceed P20K. irrespective of the amount of damages or unpaid rentals sought to be recovered. COURT DUTY [Sec. This policy of preclusion rests on principles of comity. 2) Compulsory counterclaims and cross-claims pleaded in the answer. As a generally accepted principle of international law. 2] • Upon the filing of a civil action. 2) All other civil cases. utility and convenience of nations. • If no ground for dismissal is found it shall forthwith issue summons which shall state that the summary procedure under this Rule shall apply. 4] • After the court determines that the case falls under summary procedure. 5] • Within 10 days from service of summons. REMEDIAL LAW XII.CIVIL PROCEDURE prevent harassment of the parties and avoid undue imposition on the courts. where the total amount of the plaintiff's claim does not exceed P10K. 1] • This governs the summary procedure in the MeTCs/MTCs/MCTCs in the following cases falling within their jurisdiction: 1) All cases of forcible entry and unlawful detainer. from an examination of the allegations therein and such evidence as may be attached thereto. 3) Answers thereto. ANSWER [Sec. • However. DETERMINATION OF APPLICABILITY [Sec. the court shall issue an order declaring WON the case shall be governed by this Rule. 100% UP LAW UP BAROPS 2008 Page 67 of 95 . it is part of the law of the Philippines by virtue of the Incorporation Clause (Section 2. EFFECT OF FAILURE TO ANSWER [Sec. 6] • The court shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff.
5) Motion for extension of time to file pleadings/affidavits. • Exception: Criminal cases where the accused was arrested without a warrant. during the said period it may issue an order specifying the matters to be clarified. and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. 3) WON based on the pleadings and stipulations and admissions made by the parties. 4) Petition for relief from judgment. 20] • The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence. 3) MNT/MFR of a judgment. RENDITION OF JUDGMENT [Sec. All cross-claims shall be dismissed. shall be immediately executory. 11) 3rd party complaints. • The rules on pre-trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule. Sec. or motion for opening of trial. • Exception: This 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 the preliminary conference. or the expiration of the period for filing the same. in which event the judgment shall be rendered within 30 days from issuance of the order. 100% UP LAW UP BAROPS 2008 Page 68 of 95 . • The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with Sec. together with their position papers setting forth the law and the facts relied upon by them. • The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment. 2) Motion for a BOP. ROC if there are 2 or more defendants. and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. 2) Stipulations or admissions entered into by the parties. BP 129. SUBMISSION OF AFFIDAVITS AND POSITION PAPERS [Sec. 7) Petition for certiorari/mandamus/prohibition against any interlocutory order. Sec. 6) Memoranda. or the expiration of the period for filing the same. the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order. 4) A clear specification of material facts which remain controverted. RECORD OF PRELIMINARY CONFERENCE [Sec. 4. PRELIMINARY CONFERENCE [Sec. a preliminary conference shall be held. including forcible entry and unlawful detainer. • Rule 70. PROHIBITED PLEADINGS AND MOTIONS [Sec. 10 shall be deemed repealed. • If a sole defendant shall fail to appear. • A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action. without prejudice to a further appeal that may be taken therefrom. 7] • Not later than 30 days after the last answer is filed. AFFIDAVITS [Sec. 10] • Within 30 days after receipt of the last affidavits and position papers. 10) Reply. the plaintiff shall be entitled to judgment in accordance with Sec. 8] • Within 5 days after the termination of the preliminary conference. shall be dismissed without prejudice and may be revived only after such requirement shall have been complied with. APPEAL [Sec. 6. including but not limited to: 1) WON the parties have arrived at an amicable settlement and the terms thereof. 6.CIVIL PROCEDURE • This is without prejudice to the applicability of Rule 15. • The RTC decision in civil cases governed by this Rule. the court shall render judgment. • The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal of his complaint. 18] • Cases requiring referral to the Lupon for conciliation under PD 1508 where there is no showing of compliance with such requirement. REMEDIAL LAW REFERRAL TO LUPON [Sec. 5) Other matters intended to expedite the disposition of the case. judgment may be rendered without the need of further proceedings. the court shall issue an order stating the matters taken up therein. Judgment shall be rendered within 15 days after the receipt of the last clarificatory affidavits. 9) Dilatory motions for postponement. and shall show their competence to testify to the matters stated therein. 19] 1) MTD the complaint or to quash the complaint/information except on the ground of LOJ over the subject matter. 9] • Within 10 days from receipt of the order. 8) Motion to declare the defendant in default. or failure to comply with the preceding section. 22. • However should the court find it necessary to clarify certain material facts. 22] • The regular procedure prescribed in the ROC shall apply suppletorily. APPLICABILITY OF THE REGULAR RULES [Sec. 21] • The judgment or final order shall be appealable to the RTC which shall decide the same in accordance with Sec. 12) Interventions.
jurisdiction over the person of the defendant is NOT necessary. [Calo vs. • STAGES IN THE GRANT OF PRELIMINARY ATTACHMENT 1. 1992] ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT [Rule 57. for the purpose of securing the judgment or preserving the status quo. when the property. REMEDIAL LAW converted. the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant. of a final judgment in the case. removed. and in some cases after judgment. the court must have acquired jurisdiction over the defendant. 1946] All inferior courts can grant appropriate provisional remedies provided that the main action is within their jurisdiction. 3. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment. 1982] CONTENTS OF AFFIDAVIT OF APPLICANT [Rule 57. there is no other sufficient security for the claim sought to be enforced by the action 4. or by the Court of Appeals or the Supreme Court. Action against a party who has removed or disposed of his property. or any part thereof. also known as ancillary or auxiliary remedies. Action for recovery of a specified amount of money or damages EXCEPT moral and exemplary. or on whom summons may be served by publication. or in the performance thereof. or disposed of to prevent its being found or taken by the applicant or an authorized person. • PURPOSES 1. 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. CA.3] 1. or by any other person in a fiduciary capacity. [Cuartero vs. a sufficient cause of action exists 2. supra] • • I. broker. not exempt from execution. or for a willful violation of duty. the case is one of those mentioned in sec. The writ of attachment issues pursuant to the order granting the writ 3. once the implementation of the writ commences. The writ is implemented • For the first two stages. 1 (grounds) 3. 5. for the purpose of preserving or disposing of the subject matter. PRELIMINARY ATTACHMENT DEFINITION • A provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein. 2. agent.CIVIL PROCEDURE PART 3: PROVISIONAL REMEDIES DEFINITION • 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.4] • Applicant must give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ conditioned that the applicant will pay: 100% UP LAW UP BAROPS 2008 Page 69 of 95 . or an attorney. 129] Orders granting or denying provisional remedies are merely interlocutory and cannot be the subject of an appeal. 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. factor. Roldan. in the course of his employment as such. with intent to defraud his creditors. the amount due to the applicant or the value of the property the possession of which he is entitled to recover. on a cause of action against a party who is about to depart from the Philippines with intent to defraud his creditors. as may be sufficient to satisfy the applicant's demand o EXCEPT if such party makes deposit or gives bond in an amount equal to that fixed in the order. They are applied to a pending litigation. must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued. or clerk. [Quasha vs. and for purposes of the ultimate effects. GROUNDS [Rule 57. Action to recover the possession of property unjustly or fraudulently taken. 2. The court issues the order granting the application 2. Action against a party who does not reside and is not found in the Philippines.2] • may be issued ex parte upon motion with notice and hearing by the court in which the action is pending. Juan. has been concealed.P. or is about to do so. They may however be challenged before a superior court through a petition for certiorari under Rule 65. 4. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer. [Cuartero. is as much as the sum for which the order is granted above all legal counterclaims. or an officer of a corporation. [B. However. detained or CONDITION OF APPLICANT'S BOND [Rule 57. or 6.1] 1. • The affidavit and the bond must be filed with the court before the order issues.
a copy of the writ of attachment shall be filed with the proper court or quasijudicial agency. Stocks or shares. [Perla Compania v. including bank deposits. all the costs which may be adjudged to the adverse party and 2. at the time of service upon them of the copy of the writ of attachment and notice shall be liable to the applicant for the amount of such credits. are attached in pursuance of such writ.9] . debts or other similar personal property. until the attachment is discharged. Real property. REMEDIAL LAW credits or other personal property.The attachment of the interest of an heir. and the registered owner or owners thereof. or 3.by leaving with the person owing such debts. and notice that the debts owing by him to the party against whom attachment is issued. together with a description of the property attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir.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 applicant’s demand. and a notice that it is attached. unless such property is delivered or transferred. and notice of the attachment served upon the custodian of such property. attachment of debts. royalties. All that is necessary is the service upon him of the writ of garnishment. 4. and the credits and other personal property in his possession.7]: 1. and notice with the occupant of the property. the volume and page in the registration book where the certificate is registered. Defendant is a non-resident. legatee. sheriff.CIVIL PROCEDURE 1. however. to the clerk. or any judgment recovered by him is satisfied. • Service of summons upon the garnishee is not necessary. and other personal property not capable of manual delivery . with a full statement of his proceedings under the writ and a complete inventory of the property attached. or owing any debts to him. commissions. copy of complaint 3. credits and all other similar personal property [Rule 57.by leaving with the president or managing agent thereof. or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor. the notice shall contain a reference to the number of the certificate of title.8] . or 2. as a consequence of which he becomes a virtual party or a forced intervenor in the case. Interest of the party whom attachment is issued in property belonging to the estate of the decedent . such • • • • EFFECTS OF ATTACHMENT 1. Debts and credits. and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ.All persons having in their possession or under their control any credits or other similar personal property belonging to the adverse party. administrator. or growing crops thereon. If the property sought to be attached is in custodia legis. affidavit and bond of applicant 5. The action is in rem or quasi in rem. [Rule 57. legatee or devisee concerned. or with such other person or his agent if found within the province. The levy on attachment shall be preceded or contemporaneously accompanied by service on the defendant within the Philippines of: 1. 2. after issuing the corresponding receipt therefor. all damages which the adverse party may sustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree. order and writ of attachment. Personal property capable of manual delivery . or other proper officer of the court issuing the attachment. Such personal representative. or that such real property and any interest therein held by or standing in the name of such other person are attached. the sheriff must make a return thereon to the court from which the writ issued. Ramolete. together with any counter-bond given by the party against whom attachment is issued. and in the order made upon 100% UP LAW UP BAROPS 2008 Page 70 of 95 . belonging to said party.by filing with the registry of deeds a copy of the order. and by leaving a copy of such order. Manner of attachment of real and personal property [Rule 57. and serve copies thereof on the applicant. or having in his possession or under his control. description. • Garnishment .6] MANNER OF ATTACHING PROPERTY [Rule 57. attachment of interest in property belonging to the estate of a decedent [Rule 57. if any. application for attachment 4. or other personal representative of the decedent over such property for the purpose of administration. Summons could not be served personally or by substituted service despite diligent efforts. Defendant is a resident of the Philippines temporarily absent therefrom. a copy of the writ. a copy of the writ. or under his control. or with his agent.by taking and safely keeping it in the sheriff’s custody. of any corporation or company . o EXCEPT if: 1. summons 2. 5. After enforcing the writ. shall report the attachment to the court when any petition for distribution is filed.by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. 1991] 2. financial interest.a species of attachment for reaching the property or credits pertaining or payable to a judgment debtor. or such debts are paid. or any interest therein . 3. or 4. or an interest in stocks or shares.
CA. and 2.11] IMPROPER.17] Where the party against whom attachment had been issued has deposited money instead of giving counter-bond. Attachment is excessive but the discharge shall be limited to the excess [Rule 57. legatee. or affidavit and/or bond filed therefore are defective or insufficient. 5.19] • SALE OF ATTACHED PROPERTY • Whenever it shall be made to appear to the court in which the action is pending. and the proceeds of such sale to be deposited in court to abide the judgment in the action. it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party. subject to the claim of such heir. the court may order such property to be sold at public auction in such manner as it may direct. and after satisfying the judgment the balance shall be refunded to the depositor or his assignee.5]. [Rule 57. [Santos v. the whole sum deposited must be refunded to him or his assignee. Debtor has posted a counter-bond or has made the requisite cash deposit [Rule 57.13]. o EXCEPTIONS: 1. 3. and all property attached remaining in any such officer's hands. and the order of attachment discharged. [Rule 57. Such damages may be awarded only after hearing and shall be included in the judgment on the main case. or devisee. shall be delivered to the party against whom attachment was issued. • 100% UP LAW UP BAROPS 2008 Page 71 of 95 .13] as where there is no ground for attachment. distribution may be awarded to such heir.20] Procedure for claiming damages is EXCLUSIVE.12]. but the property attached shall be ordered delivered to the sheriff making the levy. Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. Attachment was improperly or irregularly issued [Rule 57. which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. Judgment is rendered against the attaching creditor [Rule 57. or the person appearing on his behalf. the surety or sureties on any counter-bond given to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment. or that (2) the interests of all the parties to the action will be will be subserved by the sale thereof. Where the principal case was dismissed for lack of jurisdiction by the trial court without giving opportunity to the party whose property was attached to apply for and prove his claim. or any person claiming under him. may move for the discharge of the attachment wholly or in part on the security given. • PROCEEDINGS WHERE ATTACHED PROPERTY CLAIMED BY THIRD PERSON [Rule 57. DISPOSITION OF DEPOSIT/ATTACHED PROPERTY AFTER JUDGMENT • When the judgment has become executory. 95 Phil 360] • DISCHARGE OF ATTACHMENT • • After a writ of attachment has been enforced. or devisee. 2. or before appeal is perfected.19].14] • The same procedure as Rule 39. [Rule 57. Property attached is exempt from execution [Rules 57.CIVIL PROCEDURE such petition. [Rule 57. upon hearing with notice to both parties. or before the judgment becomes executory. • REMEDIAL LAW If the judgment is in favor of the party against whom attachment was issued. Grounds for discharge: 1.2 and 57. all the proceeds of sales and money collected or received by the sheriff. legatee. under the order of attachment. that (1) the party attached is perishable. [Rule 57. 4. RECOVERY UPON THE COUNTER-BOND. IRREGULAR OR EXCESSIVE ATTACHMENT • An application for damages must be filed before the trial. the party whose property has been attached. Such claims for damages cannot be the subject of an independent action.18] If judgment be rendered against the attaching party.16 (execution).
To stop the execution of judgment where the judgment was already executed. [Commissioner of Customs v. 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. and tending to render the judgment ineffectual. Vasquez. Invasion of the right is material and substantial 2. or just a provisional remedy in the main action PURPOSE • To prevent future injury and maintain the status quo (i. the last actual. except where there are special circumstances that bear the existence of irreparable injury. 100 Phil 1078] 4. to compel cohabitation [Arroyo v. 1988) 7.2] When preventive injunction does not lie: 1. 2. and must show facts entitling the applicant to the relief demanded. or in requiring performance of an act or acts. 1974] INJUNCTION Generally directed against a party in the action Does not involve the court’s jurisdiction PROHIBITION Directed against a court/tribunal/person exercising judicial powers may be on the ground that the court against whom the writ is sought acted without/in excess of jurisdiction Always a main action • • May be the main action itself.1 and 58. 1915) 2. or is procuring or suffering to be done. Lacson. PRELIMINARY INJUNCTION DEFINITION • An order granted by the court where the action/proceeding is pending at any stage of an action/proceeding prior to the judgment requiring a party or a court. or is attempting to do. disposing and encumbering their property just because the respondents had executed Deeds of Assignment in favor of petitioner. A party. (Cereno vs Dictado. (GSIS vs Florendo) “Preliminary mandatory injunction” . (Saavedra vs Estrada.e. 1989. [Rule 58. and the relief consists in restraining the commission or continuance of the acts or acts complained of.1921] 2. (Meneses vs Dinglasan) 8. 1982] Mandatory injunction does not lie in the following instances: 1. such as the husband’s obligation to give support. To restrain the sale of conjugal properties where the claim can be annotated on the title as a lien. agency or a person is doing. Zapata. Sr. The effect would not be to create a new relation between the parties [Alvaro v. To restrain registered owners of the property from selling. (Tayag vs. Urgent and paramount necessity for the writ to prevent serious damages [Bautista v. Zabal vs CA) EXCEPTION: If the act is of continuing nature and in derogation of plaintiff’s right at the outset.15] b) Property covered by Torrens Title when there is a clear finding of ownership and possession of the land. 1940] 3. agency or a person to refrain from a particular act or acts (“preliminary preventive injunction”).3] REQUIREMENTS 1) The application for injunction must be verified. or 3.requires the performance of a particular act or acts.1] • REMEDIAL LAW Requisites of mandatory injunction: 1.CIVIL PROCEDURE II. Commission. v. the applicant must file with the court where the action/proceeding is pending a bond executed • 100% UP LAW UP BAROPS 2008 Page 72 of 95 . Applicant is entitled to the relief demanded. To restrain collection of taxes (Valley Trading vs CA). But where the lower court enforced its judgment before a party against whom the execution was enforced could elevate her appeal in an injunction suit. 1967] 4. 2) Unless exempted by the court. uncontested status which preceded the pending controversy. 1967) 9. release imported goods pending hearing before the Commissioner of Customs. The CFI has no power to issue a writ of injunction against the Register of Deeds if its effect is to render nugatory a writ of execution issued by the National Labor Relations Commission. Rivera v. 6. Florendo. court. 1978) 10. which was instituted to prevent said execution. To restrain a mayor proclaimed as duly elected from assuming his office. 2004) 5. Barcelona. [Rule 58. Transfer of possession of property to party with disputed legal title via preliminary injunction EXCEPTIONS: a) Forcible entry and unlawful detainer cases in which the court may issue preliminary mandatory injunction [Rule 70. CA. Lacson. (Ambrosio vs Salvador. continuance or non-performance of the acts complained of during the litigation would probably work injustice to the applicant. 1931) 3. Against consummated acts. Right of the complainant is clear and unmistakable 3. Against disposing of the case on the merits (Ortigas and Company Limited Partnership vs CA. 1993] GROUNDS 1. (PNB vs Adi. (Manila Surety and Fidelity vs Teodoro. Marcos. Cloribel. peaceable. some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding. [Rule 58. an independent petition for injunction in the Court of Appeals is justified. Ramos.) [Kencht vs CA. 1986. (Churchill & Tait vs Rafferty. cancellation of attachment [Levy Hermanos v. threatening. 1988) 4.
file only with CA. b) Matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury i) Judge may issue ex parte a TRO effective for 72 hours from issuance. A TRO is intended as a restraint upon the defendant until the propriety of granting an injunction pendente lite can be determined. 4 provisions on service of summons and documents. o If petition involves QJA’s act/omission. absent a TRO or preliminary injunction. and issue the corresponding order. Sec. o If petition relates to the act of a MTC/corporation/board/officer/person.4] • • OBJECTION TO/MOTION FOR DISSOLUTION OF INJUNCTION/RESTRAINING ORDER • Grounds: 1. must comply with Rule 58. i) The court may issue a TRO effective for 20 days from service on the party sought to be enjoined.6] • EXPEDITING PROCEEDINGS [Rule 58. or the time for their filing has expired. 8 as amended by AM 07-7-12-SC (December 4. Sec. EXCEPTIONS: a) Great or irreparable injury would result to the applicant before the matter can be heard on notice. in an amount to be fixed by the court. other grounds (e. Public respondent shall proceed with the principal case within 10 days from the filing of a certiorari petition with a higher court/tribunal. [Rule 58. petition shall be filed within 60 days from denial of the MFR/MNT. ii) Injury is “irreparable” if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by which their amount can be measured with reasonable accuracy. 2007): o Petition must be filed within 60 days from notice of the judgment/order/resolution. Within the same period. [Rule 58. o If election cases involving act/omission of MTC/RTC. [Rule 58. and it goes no further than to preserve the status quo until such determination. A TRO issued by the Supreme Court or a member thereof shall be effective until further orders. it may be modified. court shall determine WON preliminary injunction shall be granted. if it appears after hearing that although the applicant is entitled to the injunction or restraining order. May also file with the CA/Sandiganbayan. o REMEDIAL LAW However. o However. If court finds that the petition’s allegations are true. 2007)] o If the application for preliminary injunction is denied or not resolved within the said period. iii) Maximum period of effectivity of TRO=20 days. o o PROCEEDINGS AFTER COMMENT IS FILED [Rule 58. court must order the restrained party/person to show cause at a specified time and place. 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. Sec. 7 as amended by AM 07-7-12-SC (December 4. applicant’s bond is insufficient/defective). 3) Hearing and prior notice to the party/person sought to be enjoined. [Anglo-Fil Trading v. unless otherwise provided by law/ROC. the issuance or continuance thereof would cause irreparable damage to the party/person enjoined. file exclusively with COMELEC in aid of its appellate jurisdiction. file with the RTC exercising jurisdiction over the territorial area. Petition shall not interrupt the principal case. 2007)] o After comment/pleadings are filed. Lazaro. 4 as amended by AM 07-7-12-SC (December 4. provided the former files a bond If it appears that the extent of the preliminary injunction or restraining order granted is too great. why the injunction should not be granted. or upon its expiration.CIVIL PROCEDURE to the party or person enjoined.4] o Note: Rule 58. 1983] Same requirements for application as preliminary injunction. if issued by the Court of Appeals or a member thereof. the TRO shall be effective for 60 days from service on the party or person sought to be enjoined. WON in aid of appellate jurisdiction. Injunction. o The effectivity of a TRO is not extendible and no court shall have authority to extend or renew the same on the same ground for which it was issued. it shall 100% UP LAW UP BAROPS 2008 Page 73 of 95 . judge shall conduct a summary hearing to determine whether the TRO shall be extended until the application for preliminary injunction can be heard. 2007)] ii) Within 72 hours. 2007)] o Court may issue orders expediting the proceedings. An application for a TRO shall be acted upon only after all parties are heard in a summary hearing. Insufficiency of application 2. o If MFR/MNT is timely filed (WON such MNT/MFR is required). [Rule 58. while the applicant can be fully compensated for such damages as he may suffer. Sec. court may require parties to submit memoranda. May also grant TRO or writ of preliminary injunction.5] o TEMPORARY RESTRAINING ORDER (TRO) • TRO vs. [AM 07-7-12-SC (December 4. the TRO is deemed automatically vacated. [as amended by AM 07-7-12-SC (December 4.g. upon affidavits of the party or person enjoined 3. unless TRO or writ of preliminary injunction was issued. o Within the 20-day period.
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. or to dispose of it according to the judgment. 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. 3. removed. or otherwise to carry the judgment into effect. court may motu propio impose disciplinary measures for patently dilatory and unmeritorious petitions. RECEIVERSHIP NATURE • A receiver is 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. It depends upon the sound discretion of the court and is based on facts and circumstances of each particular case. REMEDIAL LAW III. the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin. SC 4. or that the parties have so stipulated in the contract of mortgage. court where the action is pending 2. verified application [Rule 59. Homes. During the pendency of an appeal. [Rule 59. existing rights.1] When receiver can be appointed: 1. CA.F. 2000) o o • • • APPOINTMENT OF RECEIVER • Requirements: 1. After judgment. CA 3. (Arranza v. or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment. [Rule 59. 2. and at making more secure. does not require such protection or preservation. bond [Rule 59.1] • • 100% UP LAW UP BAROPS 2008 Page 74 of 95 . or disposing of the property in litigation. or materially injured unless a receiver be appointed to administer and preserve it. But court may dismiss petition (and award respondent treble costs solidarily against petitioner and counsel) if: Based on res ipsa loquitur. said remedy cannot be applied for and granted. and that such property or fund is in danger of being lost. it cannot be used as an instrument for the destruction of those rights.2 and 59. B. administering. and that its value is probably insufficient to discharge the mortgage debt. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving. 4. 1997) Receivership is aimed at the preservation of.CIVIL PROCEDURE render judgment for such reliefs to which petitioner is entitled. to preserve the property during the pendency of an appeal. If an action by its nature.5] Who appoints: 1. if it were left in the possession of any of the parties. (Commodities Storage v. The guiding principle is the prevention of imminent danger to the property.1] 2. The appointment of a receiver is not a matter of absolute right.
1971) 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. as when it is reasonably necessary to secure and protect the rights of the real owner. If a spouse without just cause abandons the other or fails to comply with his/her obligations to the family. (Dolar v. The court may appoint a receiver of the property of the judgment obligor. ONLY by order of the court upon the written consent of all the parties.CIVIL PROCEDURE • Specific situations when a receiver may be appointed 1. Abbas. Bond posted by the applicant for grant of receivership is insufficient 4. 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. Generally. REMEDIAL LAW LIABILITY FOR REFUSAL OR NEGLECT TO DELIVER PROPERTY TO RECEIVER 1. and it may also forbid a transfer or other disposition of. 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. Contempt 2. or corporation of which he is the receiver 5. Adverse party files a sufficient bond to answer for damages [Rule 59. Make transfers 7. (Alcantara v. Receive rents 4.7] TERMINATION OF RECEIVERSHIP • • • motu proprio or on motion of either party when court determines that the necessity for a receiver no longer exists requires notice to all interested parties and hearing [Rule 59.6] 100% UP LAW UP BAROPS 2008 Page 75 of 95 . Caluag. a receiver may be appointed as an aid to the execution of judgment. to do such acts respecting the property as the court may authorize 10.3] 3.9. Pay outstanding debts 8. Invest funds in his hands. Santamaria. [Rule 41. After the perfection of an appeal. the aggrieved spouse may petition the court for receivership. [Rule 59. (Philippine Trust Company v. 1929) 5. or any interference with. Divide the money and other property that shall remain among the persons legally entitled to receive the same’ 9. Compound for and compromise the same 6. Collect debts due to himself as receiver or to the fund. Bring and defend in such capacity actions in his own name with leave of court 2. Acuña v. Sundiam. Appointment of a receiver over the property in custodia legis may be allowed when it is justified by special circumstances. person.8] • • DENIAL OF APPLICATION OR DISCHARGE OF RECEIVER 1. Kayanan. [Family Code. 1963) A clerk of court should not be appointed as a receiver as he is already burdened with his official duties.41] 3. Take and keep possession of the property in controversy 3. Bond of receiver is insufficient GENERAL POWERS OF RECEIVER 1. Article 101] 2. property. [Rule 59. If the appointment sought or granted is without sufficient cause 2. 1957] 4. the property of the judgment obligor not exempt from execution. estate. [Rule 39. After final judgment. (Abrigo v. 1983).
14 (preliminary attachment).2] ORDER OF REPLEVIN • Upon the filing of affidavit and approval of the bond. REPLEVIN Available only where the principal relief sought in the action is recovery of personal property.16 (execution) and 57. Can be sought only where the defendant is in actual or constructive possession of the personalty involved. seized under a search warrant).2] 2. DISPOSITION OF PROPERTY BY SHERIFF • The sheriff shall retain the property for 5 days. injunction and support pendent elite (anytime before final judgment) and receivership (anytime even after final judgment)]. removed or disposed of. (b) That the property is wrongfully detained by the adverse party. application • Who may apply: party praying for the recovery of possession of personal property. and belief. 1991) and b. REPLEVIN NATURE • Available where the principal action is to recover possession of personal property. executed to the adverse party in double the value of the property as stated in the affidavit.6] • • WHERE PROPERTY CLAIMED BY THIRD PERSON • The same procedure as Rules 39.CIVIL PROCEDURE IV. and (d) The actual market value of the property. the sheriff shall deliver the property to the applicant. alleging the cause of detention thereof according to the best of his knowledge. [Rule 60. bond • The applicant must also give a bond. that it is exempt from such seizure or custody. Can still be resorted to even if the property is in custodia legis. REMEDIAL LAW seized. CA. Plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond 3. He seasonably posts a redelivery bond [Rule 60. the other reliefs (e. [Rule 60. PRELIMINARY ATTACHMENT Available even if the recovery of personal property is only an incidental relief sought in the action.3] A writ of replevin may be served anywhere in the Philippines. (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law. or otherwise placed under custodia legis. After 5 days and the adverse party failed to object or his redelivery bond is insufficient. information.g. May be resorted to even if the personalty is in the custody of a third person. removed or disposed of to prevent its being found or taken by the applicant. where there is reason to believe that the seizure will not anymore be followed by the filing of the criminal action in court or there are conflicting claims. damages) being merely incidental thereto. 1993) Extends to all kinds of property. particularly describing it. (Chua v. under attachment. [Rule 60.5] 2. REQUIREMENTS 1. or if so 100% UP LAW UP BAROPS 2008 Page 76 of 95 . Property is not delivered to the plaintiff for any reason [Rule 60. when the seizure is illegal. (Bagalihog v. The adverse party may object to the sufficiency of the bond or surety or he may file a redelivery bond. [Rule 60. whether real. personal or incorporeal.1] • When: (1) at the commencement of the action or (2) before the answer [unlike attachment.6] The defendant is entitled to the return of the property under a writ of replevin if: 1. • Cannot be availed of if the property is in custodia legis (e. EXCEPT: a. To recover the possession of personal property unjustly detained (presupposed that the same is being concealed. or seized under a writ of execution or preliminary attachment. Available to recover personal property even if the same is not concealed.g. Extends only to personal property capable of manual delivery. the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. • The applicant must show by his own affidavit or that of some other person who personally knows the facts: (a) That the applicant is the owner of the property claimed. [Rule 60. or is entitled to the possession thereof. Fernandez.
unless such restitution is already included in the judgment. Zandueta.1] • Who may apply: any party • When: (1) at the commencement of the proper action or proceeding. ORDER OF SUPPORT • If the application is granted. [Rule 61. for during the entire period that a needy party is entitled to support. and the terms of payment or mode for providing the support. and with the means of the giver. 2. civil action for support. after due notice and hearing in • • • 100% UP LAW UP BAROPS 2008 Page 77 of 95 . any third person who furnished that support to the applicant may. verified application [Rule 61. SUPPORT PENDENTE LITE NATURE • Support pendente lite can be granted by the court in two (2) instances: 1. Failing therein. motu proprio or upon motion. The right to support is of such nature that its allowance is essentially provisional. depositions or other authentic documents in support thereof. If the application is denied. his or her alimony may be modified or altered. the court shall. or (2) at any time prior to the judgment or final order • Contents: o Grounds for the claim o Financial conditions of both parties o Affidavits. file a separate action for reimbursement against the person legally obliged to give support. or 2.3] • Within 3 days after the comment is filed or after the expiration of the period for its filing. who shall have 5 days to comment thereon.7] • • REQUIREMENTS 1. taking into account the necessities of the applicant and the resources or means of the adverse party. Where the right to support is put in issue by the pleadings or the fact from which the right to support arises is in controversy or has not been established.2] • A copy of the application and all supporting documents shall be served upon the adverse party. in accordance with his increased or decreased needs. Chua. without prejudice to his liability for contempt. the principal case shall be tried and decided as early as possible. 1929) Judgment for support does not become final. (Lam v. unless a different period is fixed by the court upon his motion.4] If the adverse party fails to comply with an order granting support pendente lite. 3. [Rule 61. When the person ordered to give support pendente lite refuses or fails to do so. It cannot be regarded as subject to final determination. hearing [Rule 61. the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided.CIVIL PROCEDURE V. and 2. obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support. issue an order of execution against him.5] REMEDIES OF A PARTY WHO WAS ERRONEOUSLY COMPELLED TO GIVE SUPPORT 1. [Rule 61. 2004) REMEDIAL LAW the same case. verified comment [Rule 61. criminal action where civil liability includes support for the offspring as a consequence of the crime. Apply for an order for such reimbursement by the recipient on motion in the trial court in the same case. the court cannot grant support pendente lite (Francisco v.
CIVIL PROCEDURE PART 4: SPECIAL CIVIL ACTIONS • Rules on ordinary civil actions shall apply to special civil actions insofar as they are not inconsistent with or may supplement the rules governing the latter. the court may direct that the subject matter be paid or delivered to the court. Writs of injunction. contempt [Rule 71] REMEDIAL LAW which should be resolved in an ordinary action for specific performance or other relief [Beltran. copy of complaint and order served upon the conflicting claimants. without claiming any right in both. serving a PURPOSE • To compel conflicting claimants to interplead and litigate their several claims among themselves. Complaint filed by the person against whom conflicting claims are or may be made. and costs and litigation expenses shall constitute a lien or charge upon the subject matter of the action. supra]. expropriation c.P.3] 4. etc. [Rule 62. 129] 3 special civil actions within the jurisdiction of inferior courts: 1. PHHC. prohibition. mandamus. prohibition e. [ibid] o The docket and other lawful fees paid by the complainant. certiorari d. petition a. paid by complainant ? Y Order to interplead • • Service of summons Motion to Dismiss 15 days MTD granted? • Y Dismissed N I. [R62. • 100% UP LAW UP BAROPS 2008 Page 78 of 95 . PROCEDURE Complaint • Is it filed within a reasonable time after the dispute arose? N Dismissed – barred by laches (Wack Wack Golf vs.1] To protect a person against double vexation in respect of one liability [Beltran. provided the amount involved is within its jurisdiction [Makati Development Corp. [Rule 1. [Rule 62. unless otherwise ordered by the court.1] Cannot be availed of to resolve the issue of breach of undertakings made by defendants. 1969] Filing of answer and other pleadings Service of pleadings to co-defendants Pre-trial Decision 1. forcible entry and unlawful detainer 2. interpleader. review of adjudications of Constitutional commissions c. declaratory relief b. partition e. quo warranto g. complaint a. INTERPLEADER DEFINITION A remedy whereby a person who has property in his possession or has an obligation to render wholly or partially. Summons. [Rule 62. 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. 1969] 2. supra] • WHEN PROPER • Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest in the subject matter or an interest which is not disputed by the claimants.7] 2. Each claimant shall file his answer within 15 days from service of the summons. Court order requiring the conflicting claimants to interplead with one another. If the interests of justice so require. contempt Venue is governed by the general rules on venue. Tanjuatco. Lee Won 1976) Y Are the docket fees.2] 3. v. ejectment suits [Rule 70] 3. quo warranto and habeas corpus issued by RTCs are enforceable within their respective judicial regions. except as otherwise indicated in the particular rules for special civil actions. [Rule 62. certiorari. [B. foreclosure of real estate mortgage d. mandamus f. interpleader b.3] How commenced: 1.
4] Subject Matter Validity of a statute. 99 Phil 675] adverse interests between the parties A declaratory relief is not available for a declaration of citizenship (Villa-Abrille vs. the Solicitor General shall be notified. or any governmental regulation Validity of a local government ordinance Constitutionality of a local Notice Given To Sol Gen • • Prosecutor or attorney of the LGU Sol Gen 100% UP LAW UP BAROPS 2008 Page 79 of 95 . WHO MAY FILE 1. 90 Phil 83] adequate relief is not available through other means or other forms of action or proceedings.2] If action involves the validity of a statute/executive order/regulation/other governmental regulation. Edades. o o 4. or ordinance [Rule 63. [Rule 63. contract or other written instrument. Board of Accountancy. EO or regulation. crossclaims. [Rule 63. o The period to file the answer shall be tolled. a person whose rights are affected by a statute.1] PARTIES • all persons who have or claim any interest which would be affected by the declaration [Rule 63. [Reparations Commission v. o Grounds: a. If before the final termination of the case. ordinance or any other governmental regulation [Rule 63. Aldaya. the action may be converted into an ordinary action. Aquino. etc. Northern Lines. a) If claimant fails to plead within the time herein fixed. 1953) as they are unilateral in nature and without conflicting adverse interests. a person interested under a deed. impropriety of the interpleader action. will. executive order or regulation. o If the motion is denied. DECLARATORY RELIEF REQUISITES 1. The parties may file counterclaims. 94 Phil 65] no breach of the documents in question.1]. an ordinary civil action is the remedy.4]. issue must be ripe for judicial determination [Tolentino v. in no case less than 5 days (reckoned from notice of denial) [Rule 62. Republic. Republic. declare him in default and render judgment barring him from any claim in respect to the subject matter. who may file their reply thereto. 7. i. 1956) or the validity of a registration certificate (Obiles vs. Court shall determine conflicting claimants’ respective rights and adjudicate their several claims. [Rule 62.6] actual justiciable controversy [Edades v. 1956) 2. contract or other written instrument 2.6] REMEDIAL LAW II. third-party complaints and responsive pleadings thereto. the court may. on motion. will. appeal or a motion for clarificatory judgment (Tanda vs. a breach or violation of an instrument or a statute. statute. [Rule 62. b) Within the time for filing an answer. o 6..3] If action involves the validity of a local government ordinance. Central Bank. 5. 5. Pre-trial 7. should take place. the prosecutor/attorney of the LGU involved shall be notified. Concept of a cause of action in ordinary civil actions does not apply. 1962] o A court decision cannot be the subject of a declaratory relief since there exists other remedies. the terms of said documents and the validity thereof are doubtful and require judicial construction [Santos v.5] 6. 1970] Otherwise. executive order or regulation. [Rule 63.CIVIL PROCEDURE copy thereof upon each of the other conflicting claimants. an answer may be filed within the remaining period. or b. [Ollada v. 3. subject matter of the controversy must be a deed.e. each claimant may file a motion to dismiss. other appropriate grounds specified in Rule 16.
1) Parties .1] not within the original jurisdiction of the Supreme Court. Cloribel. or any other governmental regulation (SEC. executive order or regulation. Action for reformation of instrument (Arts. Rights of persons NOT parties shall NOT be prejudiced. Action to consolidate ownership (Art. 4) Prosecutor or LGU attorney – shall be notified and heard in any action involving the validity of local ordinance. 1607 Civil Code) [Rule 63. or (2) any persn whose rights are affected by a statute. but persons not joined shall not be prejudiced in their interests unless otherwise provided by the Rules (R63. ordinance or any other governmental regulation When – BEFORE breach or violation thereof Where – RTC Why – (1) to determine any question of construction or validity arising. or 2. motu proprio or upon motion. 1967] Filing of Petition WHEN COURT MAY REFUSE TO DECLARE RIGHTS/CONSTRUE INSTRUMENTS 1. 5) NO YES When – a breach or violation should take place BEFORE the termination of the case (SEC. 4) WHERE FILED • • in the proper RTC [Rule 63. [Remotigue vs. CityCouncil of Baguio. Reparations Commission. 476-481 Civil Code) 2. 2) Solicitor General – shall be notified and be heard whenever: (1) an action involves the validity of a statute. 6) Conversion into ordinary action Termination of Case RULE 63 – DECLARATORY RELIEF AND SIMILAR REMEDIES 100% UP LAW UP BAROPS 2008 Page 80 of 95 .5] Exercise of Court’s power SIMILAR REMEDIES COVERED BY RULE 63 1. 1987) Action for Declaratory Relief By whom filed – (1) any person interested under a deed. but a compulsory counterclaim may be set up (Visayan Packing vs. [Rule 63. thereunder Action for Reformation/Quiet Title/Consolidate Ownership (SEC. 2] Court. Osmeña. 1977). will. (SEC. even if pure questions of law are involved. Action to quiet title (Arts. (SEC. and (2) for a declaration of rights or duties. contract or other WRITTEN instrument. 3) (2) an action alleges a LGU ordinance to be unconstitution al (SEC. Baguio Citizens Action vs. 1983) third-party complaint not available in a declaratory relief (Commission of Customs vs. where a decision would not terminate the uncertainty or controversy which gave rise to the action.1 par. 1359-1369 Civil Code) 3. may refuse to exercise the power to declare rights and to construe instruments – grounds (1) where it would not terminate the uncertainty or controversy which gave rise to the action (2) where it is not necessary and proper under the circumstances EXCEPTION: action for reformation/quiet title/consolidate ownership (SEC.all persons who have or claim any interest which would be affected by the declaration. where the declaration or construction is not necessary and proper under the circumstances. executive order or regulation.2.CIVIL PROCEDURE government ordinance REMEDIAL LAW • • Non-joinder of interested persons is not a jurisdictional defect.
Petition not sufficient in form and substance b. Order to Comment [Rule 64. b. proof of service of a copy of the petition on the Commission and the adverse party 5. etc. • 3.5]: a. certification against non-forum shopping • Findings of fact of the Commission supported by substantial evidence shall be final and nonreviewable. SC Revised Administrative Circular No. • REMEDIAL LAW Failure to comply with foregoing requirements shall be sufficient ground for dismissal.3]: o Within 30 days from notice of judgment/final order/resolution sought to be reviewed o Filing of motion for reconsideration/new trial with Constitutional commission interrupts the 30-day period. [RA 7902.7] Requirements: a. etc.5]: a. REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMELEC AND COA SCOPE • • Applicable only to judgments and final orders of the COMELEC and COA [Rule 64. If motion is denied. respondents: Commission concerned and person(s) interested in sustaining the judgment a quo c. 1-95] An aggrieved party may bring the questioned judgment. filing of the comments on the petition. certified true copies of such material portions of the record referred to in the petition 3. a copy of the comment shall be served on the petitioner. File petition for review. name of aggrieved party (petitioner) b.1] 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). grounds and brief arguments relied upon for review f. material dates showing that it was filed on time h.6] If the SC finds the petition sufficient in form and substance. 18 legible copies with plain copies of all documents attached to the original. verified and accompanied by (annexes): 1.9] Case is deemed submitted for decision upon: a. and such other pleadings or papers as may be required or allowed. issues involved e. o EXCEPTIONS: SC sets case for oral argument or requires parties to submit memoranda. Comments of Respondents [Rule 64. proof of the timely payment of the docket and other lawful fees b. Decision [Rule 64. • • • 4. • Form [Rule 64.8] • 2. sought to be reviewed unless otherwise directed by the Supreme Court [Rule 64. 2. a clearly legible duplicate original or certified true copy of the subject judgment. Petition was filed manifestly for delay c. prayer for judgment annulling or modifying the question judgment. • When [Rule 64. • PROCEDURE 1. 18 legible copies (containing plain copies of all documents attached to the original copy of the petition) • Contents [Rule 64. it shall order the respondents to file their comments on the petition within 10 days from notice thereof. etc. g. the questions raised are too unsubstantial to warrant further proceedings. other documents relevant and pertinent to the petition 4. Grounds for dismissal: a. facts d. 100% UP LAW UP BAROPS 2008 Page 81 of 95 . [Rule 64. etc.CIVIL PROCEDURE III. directly to the SC on certiorari under Rule 65. original copy with 1) certified true copies of such material portions of the record as are referred to in the comment 2) certified true copies of other supporting papers b. aggrieved party may file petition within remaining period.2] o such petition for certiorari shall not stay the execution of the judgment. expiration of the period to file the pleadings. which shall not be less than 5 days from notice of denial.
are a. immediately or some other time to be specified by the court. the appeal is not a speedy and adequate remedy (Salvadores vs. However. or any plain. tribunal. the decision in the certiorari case will avoid future litigations (St. unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled AND there is no other plain. Sundiam 1983). Zulueta 1961) d. and adequate remedy in the ordinary course of law (R65. -accompanied by a certified true copy of the subject judgment. the person or persons interested in sustaining the proceedings in the court. as private respondent or respondents with such public respondent or respondents. special considerations. or b.3) Those Those exercising exercising judicial and/or judicial or non-judicial quasi-judicial functions functions FORM OF PETITION -verified -verified -alleging the facts with certainty -PRAYER: that judgment be rendered annulling / modifying the proceedings of such tribunal.. board. trust or station. PROHIBITION AND MANDAMUS Certiorari GROUNDS When any tribunal. or b. copies of all relevant pleadings and documents. i. -alleging the facts with certainty -PRAYER: that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein. officer or person. whimsical. and a certification of non-forum shopping. CERTIORARI. Exceptions: a. and adequate remedy2 in the ordinary course of law (R65.. officer or person. etc. Campos 1975) A remedy is plain. corporation. unless otherwise specifically directed by the court. whether exercising judicial. speedy. court.e. REMEDIAL LAW Those exercising judicial and/or non-judicial functions -verified -alleging the facts with certainty -PRAYER: that judgment be rendered commanding the respondent. speedy.CIVIL PROCEDURE IV. [Rule 65. the order is a patent nullity (Marcelo vs. quasijudicial. etc. and granting such incidental reliefs as law and justice may require. and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office. Ministerial acts • Aggrieved person Without jurisdiction Excess of jurisdiction Grave abuse of discretion If respondent do not have the legal power to determine the case If respondent has the legal power to determine the case but oversteps such power If respondent has the legal power to determine the case but acts in a capricious. (Silvestre vs. board or officer exercising judicial or quasi-judicial functions has acted: Prohibition When the proceedings of any tribunal. board..5] 100% UP LAW UP BAROPS 2008 Page 82 of 95 . or ministerial functions. or b. Tan 1970) c. both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. Pajarillo 1947) b. arbitrary or despotic manner in the exercise of his judgment The original action of certiorari not a substitute for appeal (Lobite vs. with grave abuse of discretion amounting to lack or excess of its or his jurisdiction Mandamus When any tribunal. the petitioner shall join. to do the act required to be done to protect the rights of the petitioner. corporation. they shall not appear or participate in the proceedings therein. De Guzman 1982) e. a. the public respondents shall be included therein as nominal parties. the orders were issued either in excess of or without jurisdiction (Aguilar vs. or otherwise granting such incidental reliefs as law and justice may require. and a certification of non-forum shopping.. copies of all relevant pleadings and documents. speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. etc. without or in excess of its or his jurisdiction . with grave abuse of discretion amounting to lack or excess of its or his jurisdiction 1 AND there is no appeal. quasi-judicial agency. 1946) 3 2 When the petition filed relates to the acts or omissions of a judge. -contains a certificate of non-forum shopping. public welfare or public policy (Jose vs. xxx If the case is elevated to a higher court by either party. board. and it shall be the duty of such private respondents to appear and defend. Torres.2) PURPOSE To correct an To prevent the act performed commission or by the carrying out of respondent an act ACT SOUGHT TO BE CONTROLLED Discretionary Discretionary acts and ministerial acts PETITIONER Aggrieved Aggrieved person person RESPONDENT 3 1 To compel the performance of the act desired -accompanied by a certified true copy of the subject judgment. without or in excess of its jurisdiction. officer or person a.1) AND there is no appeal or any other plain. speedy and adequate remedy in the ordinary course of law (R65. corporation. Peter Memorial Park vs.
for the writ cannot be used as a writ of error or other mode of direct review.9] • • • • • • • PROCEDURE 100% UP LAW UP BAROPS 2008 Page 83 of 95 .4] • Where filed: 1) Supreme Court 2) Court of Appeals o If it involves the acts of a quasi-judicial agency. o Extension may be granted for compelling reasons. together with a copy of the petition and any annexes thereto. [Rule 65. Public Service Commission 1964) b. • The court. [Rule 65. [Rule 65. it is sufficient to show that the petitioner is a citizen. Only established or admitted facts may be considered. • A certified copy of the judgment rendered shall be served upon the court. • Such order shall be served on the respondents in such manner as the court may direct. such official can only be directed by mandamus to act but not to act in one way or the other. and disobedience thereto shall be punished as contempt. the 60-day period shall be counted from notice of denial of motion. [Regalado] General Rule: In the performance of an official duty or act involving discretion. the issue raised is purely a question of law or where the public interest is involved (PALEA vs. or that (3) the questions raised therein are too unsubstantial to require consideration. board. 3) Regional Trial Court. it it relates to acts / omissions of a lower court / corporation / board / officer / person. HOWEVER. may dismiss the petition if it finds the same to be (1) patently without merit. officer or person concerned in such manner as the court may direct. 1998] Findings of fact of CA are not binding upon SC in an original action for certiorari (Medran vs. Order to comment • If the petition is sufficient in form and substance to justify such process. PAL 1982) Questions of fact cannot be raised in an original action for certiorari. CA. the court finds that the allegations of the petition are true.8] 5. if it is in aid of its appellate jurisdiction. it shall render judgment for the relief prayed for or to which the petitioner is entitled. [Tanada v. Hearing or Memoranda • After the comment or other pleadings required by the court are filed. there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government (Vivo vs. 4) Sandiganbayan. Pineda 1982) Exceptions: a. however. the petition shall be filed only in the CA. [Rule 65.Cloribel 1966) d. manifest injustice. Ago 1960) c. 84 Phil 674] A writ of mandamus will not issue to control the exercise of official discretion or judgment. However. the court may hear the case or require the parties to submit memoranda. [Rule 65. in extreme situations generally in criminal cases. the questions raised in the certiorari have been duly raised and passed upon by the lower court (Fortich-Celdran vs. the court shall issue an order requiring the respondent(s) to comment on the petition within 10 days from receipt of a copy thereof. [Rule 65. 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. EXCEPTION: gross abuse of discretion. [Enriquez v. 1987] Mandamus can be availed of only by the party who has direct legal interest in the right sought to be enforced. • An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. [Regalado] Prohibition is the remedy where a motion to dismiss is improperly denied. the petitioner was deprived of due process and there is extreme urgency for relief (Luzon Surety vs. to prevent the respondent from performing the act sought to be prevented during the pendency of the proceedings for the writ. Palacio 1960) e.8] 4. palpable excess of authority [Kant Wong v.6] 3. corporation.4] 2. File petition for certiorari / prohibition / mandamus. the order is a patent nullity (Vigan Elec. Marbella 1960) f. However. Judgment • If after such hearing or submission of memoranda or the expiration of the period for the filing thereof. Maglanoc 1963) g. the petitioner should obtain a restraining order and/or writ of preliminary injuction. PCGG. • When filed: o Not later than 60 days from notice of judgment/order/resolution o If a motion for reconsideration/new trial is filed. not exceeding 15 days. quasi-judicial agency. Light vs. 1949) Prohibition is a preventive remedy. tribunal. Macadaeg. NLRC.CIVIL PROCEDURE • A motion for reconsideration must first be availed of before certiorari – to enable the lower court to correct its mistakes without the intervention of the lower courts (BA Finance vs. [Suarez v. unless otherwise provided by law or the Rules. the proceeding was ex parte in which the petitioner had no opportunity to object (Republic vs. if the question is one of public right. Service and enforcement of order or judgment. 1985] REMEDIAL LAW 1. or to alter or review the action taken in the proper exercise of the discretion of judgment. (2) prosecuted manifestly for delay. Tuvera. the MR would be useless (People vs. Celdran 1967) or are the same as those raised and passed upon in the lower court (Pajo vs. or the time for the filing thereof has expired.
All persons who claim to be entitled to the public office/position/franchise may be made parties.11] The one-year period is not interrupted by the prosecution of any administrative remedy as. RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides 4. [Rule 66. 1 can be established by proof. QUO WARRANTO Basis: the occupant is disqualified from holding the office by reason of ineligibility or disloyalty If proceeding succeeds. judgment shall be rendered that such respondent be ousted and altogether excluded therefrom. brought in his own name. when directed by the President of the Phils.CIVIL PROCEDURE V. position or franchise. position or franchise (1) name of the person who claims to be entitled thereto (2) averment of his right to the same and that the respondent is unlawfully in possession thereof. in quo warranto proceedings. intruding into. or unlawfully holds or exercises a public office. he has good reason to believe that any case specified in Sec. after taking the oath of office and executing any official bond required by law. [Rule 66. An association which acts as a corporation within the Phils without being legally incorporated or without lawfully authority so to act [Rule 66. [Rule 66. against another who usurped or unlawfully held or exercised such public office or position [Rule 66.7] QUO WARRANTO ACTIONS ELECTIVE OFFICE APPOINTIVE OFFICE Issue: eligibility of the Issue: validity of the respondent appointment Occupant declared Court will oust the person ineligible/disloyal will be illegally appointed and will unseated but petitioner order the seating of the will not be declared the person who was legally rightful occupant of the appointed and entitled to office the office. arose action for damages sustained by reason of usurpation – within one year after the entry of the judgment establishing the petitioner’s right to the office in question [Rule 66. QUO WARRANTO • Quo warranto is the remedy to try disputes with respect to the title to a public office.1] • BY WHOM/AGAINST WHOM a. CA or SC [Rule 66. 2. or unlawfully holding or exercising a public office.10] • 100% UP LAW UP BAROPS 2008 Page 84 of 95 . intrudes into. Where Sol Gen commences action– RTC in Manila. Court of Appeals 3. Dela Paz.1] 3. no one is compelled to resort to administrative remedies since public interest requires that the right to public office should be determined as speedily as possible. Supreme Court 2. A public officer who does not or suffers an act which. and that the petitioner or relator recover his costs. and may immediately thereafter demand of the respondent all the books and papers in the respondent's custody or control appertaining to the office to which the judgment relates. at the request and upon the relation if another person (ex relatione). position or franchise b.1] • When Solicitor General or public prosecutor MUST commence action: 1. when upon complaint or otherwise.9] If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may. [Rule 66. 1988] HOW COMMENCED • By a verified petition [Rule 66. By a person claiming to be entitled to a public office or position. brought in the name of the Republic of the Philippines. against: a. or the right of the petitioner to hold office or position. take upon himself the execution of the office. [Rule 66. By Government. A person who usurps. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation. but leave of court must first be obtained. WHEN FILED • action against a public officer or employee for his ouster from office – within one year after the cause of such ouster. by the provision of law. constitutes a ground for the forfeiture of his office c. respondent will be ousted but petitioner will not assume the office ELECTION CONTEST Challenges the right of a person to hold office on the ground of irregularities in the conduct of the elections Successful protestant will assume the office if he obtained a plurality of the valid votes REMEDIAL LAW CONTENTS OF PETITION • Action against a person for usurping a public office. [Fernandez v.6] • VENUE 1. [Rule 66.3] 2.3] • When Solicitor General or public prosecutor MAY commence action: o with permission of the court o at the request and upon the relation of another person o officer bringing such action may first require an indemnity for the expenses and costs of the action in an amount approved by and deposited in court.5] • JUDGMENT • When the respondent is found guilty of usurping.
b. But the judgment shall require the payment of the sum(s) awarded to either the defendant or the court before the plaintiff can enter upon the property. These orders are final and therefore appealable. (Municipality of Biñan v. et al. private property for a public use without the owner’s consent. if applicable: a. PROCEDURE • See appended flowcharts.A. (Barangay Sindalan etc. or to authorize the taking of. conditioned upon payment of just compensation. although occupied by private individuals. Garcia. 1989) 2. (Bardillon v. o If personal property is involved. or property without due process of law under Art. it falls within the jurisdiction of RTCs. Tantuico. Just compensation is to be determined as of the date of the taking of the propriety or the filing of the complaint. o After deposit. [Rule 67. CONTENTS: 1. The complaint shall join as defendants all persons owning or claiming to own. or 100% UP LAW UP BAROPS 2008 Page 85 of 95 . 3. The following must be clearly stated in the complaint . 1990) An expropriation suit is incapable of pecuniary estimation. If the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners. This is done with the assistance of not more than three (3) commissioners. v. and (2) that no person shall be deprived of his/her life. regardless of the value of the subject property. when there is a practical destruction or a material impairment of the value of his property or when he is deprived of the ordinary use thereof.CIVIL PROCEDURE VI.. COMPLAINT FOR EXPROPRIATION • • The complaint for expropriation must be VERIFIED. The order fixing just compensation is also final and appealable. (Ibid). or retain it for the public use or purpose if entry has already been made. Masili. Thereafter. 4. 2007) Rule 67 primarily governs the exercise of the right of eminent by the State acting through the national government. CA et al. Bgy. service of notice to the defendant 3. showing as far as practicable the separate interest of each defendant. liberty. [Rule 67. the court may order any sum(s) awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. the defendant IF THE PLAINTIFF HAS OBJECTION OR DEFENSE TO THE EXPROPRIATION OR TAKING OF THE PROPERTY Defendant shall serve his ANSWER within the time stated in the summons. [Rule 67.2] If the ownership of the property taken is uncertain. 2003) REMEDIAL LAW occupying any part thereof or any interest therein. 7160) Two stages in expropriation proceedings: 1. There is taking when the owner is actually deprived or dispossessed of his property. Deposits shall be in money (legal tender) or. The right and purpose of expropriation 2. Deposit with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Determination of just compensation. or there are conflicting claims to any part thereof. III. Sec. specifically designating or identifying the property in which he claims to be interested within the time stated in the summons. filing of complaint for expropriation 2. 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. certificate of deposit of a government bank payable on demand to the authorized government depositary. 1. Description of the real or personal property sought to be expropriated. whichever comes first. the court shall order the sheriff or other proper officer to place the plaintiff in possession of the property and promptly submit a report thereof to the court with service of copies to the parties. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines. EXPROPRIATION CONCEPT AND BASIS OF EXPROPRIATION • Eminent domain is defined as the power of the nation or a sovereign state to take. Section 9. if the court authorizes it.9] • • • ANSWER IF THE PLAINTIFF HAS NO OBJECTION OR DEFENSE TO THE EXPROPRIATION OR TAKING OF THE PROPERTY Defendant may file and serve notice of appearance and a manifestation that he has no objection or defense.1] • ENTRY OF PLAINTIFF UPON PROPERTY • The plaintiff shall have the right to take or enter upon the possession of the real property involved upon: 1. This stage is terminated by either an order of dismissal of the action or order of the condemnation declaring that expropriation is proper and legal. Accordingly. The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation under Article III (Bill of Rights). its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. (Ansaldo v. (Regalado) Expropriation by local government units is governed by the Local Government Code of 1991 (R.
CA. 2. ACCEPT the report and render JUDGMENT in accordance therewith. and the nature of the public use or purpose for which it is expropriated. and he may share in the distribution of the award. would agree on as a price to be given and received therefor. may allow the answer to be amended not later than 10 days from filing. after due notice to the parties to attend. 2004) Upon the rendition of the order of expropriation. When real estate is expropriated. [Rule 67. [Rule 67. full. view and examine the property sought to be expropriated and its surroundings and may measure the same. or the owner be deprived of the actual value of his property so taken. after hearing. a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated.8] • • • • GENERAL RULE: All defenses or objections not alleged in the answer are deemed waived. and an owner willing but not compelled to sell. whether or not the defendant has previously appeared or answered.6] 4. [Rule 67. The measure is not the taker’s gain. [Rule 67. the plaintiff shall have the right to • 100% UP LAW UP BAROPS 2008 Page 86 of 95 . 3. the commissioners cannot view and examine the property 3. The report shall be filed within 60 days from the date the commissioners were notified of their appointment. cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. if the parties desire. Adduce all of defendant’s objections or defenses to the taking of his property No counterclaim. with notice that they are allowed ten (10) days within which to file objections to the findings of the report. RECOMMIT the report to the commissioners for further report of facts. the operation of its franchise by the corporation or person taking the property.13] Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment. The commissioners shall make full and accurate report to the court of all their proceedings. It is issued by the court in which the complaint for expropriation is filed when: o objections or defenses of the defendant have been overruled. In eminent domain or expropriation proceedings. Upon filing of the report.5] JUDGMENT • The judgment entered in expropriation proceedings shall state definitely. ample. EXCEPTION: when the parties agrees otherwise. [Rule 67.4] • COMPENSATION Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. by an adequate description. to convey the idea that the equivalent to be rendered for the property taken shall be real. Market value is “that sum of money which a person desirous but not compelled to buy. ACCEPT the report IN PART and REJECT it IN PART. and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose.CIVIL PROCEDURE shall be entitled to notice of all proceedings affecting the same. upon payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint whichever is earlier.3] ORDER OF EXPROPRIATION • It declares that the plaintiff has a lawful right to take the property sought to be expropriated for the public use or purpose described in the complaint. in the interest of justice. and 3. 2. the general rule is that the just compensation which the owner of condemned property is entitled to is the market value. the court shall appoint not more than 3 competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. with legal interest thereon from the taking of the possession of the property. or after tender to him of the amount so fixed and payment of the costs. In no case shall the consequential benefits assessed exceed the consequential damages assessed. To compensate is to render something which is equal in value to that taken or received. At the trial of the issue of compensation. They can. but the owner’s loss. 4. Specifically designate or identify the property in which he claims to have an interest. the court. Parties can present evidence before the commissioners and the latter have the power to administer oaths or hearings before them. or o no party appears to defend. the particular property or interest therein expropriated. State the nature and extent of the interest claimed. [Rule 67. the clerk of court shall serve copies thereof on all interested parties. Make such order or render judgment s shall secure to the plaintiff the property essential to the exercise of his right of expropriation and to the defendant just compensation for the property so taken. The word “just” is used to intensify the meaning of the word “compensation”. substantial. o EXCEPTION: The court. he may present evidence as to the amount of the compensation to be paid for his property.7] After the 10-day period for objecting to the commissioners’ report. or o the defendant raised no such defense or objection. 2. SET ASIDE the report and APPOINT new commissioners. may: 1. The answer to the complaint for expropriation shall: 1.” (BPI v. The commissioners shall assess the consequential damages to the property taken and deduct from such consequential damages the consequential benefits derived by the owner from the public use or purpose of the property taken. REMEDIAL LAW Powers and duties of commissioners: 1. [Rule 67. 5.
3135. it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation. Date and due execution of the mortgage. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof.2] When the defendant. 3. judgment shall be rendered ordering the RTC to forthwith enforce the restoration to the defendant of the possession of the property. Foreclosure may be made: 1. [Rule 68. 5.M. and costs. But if the appellate court determines that plaintiff has no right of expropriation. upon motion.11] REMEDIAL LAW VII. all of whom shall be made defendants in the action. if any. after being directed to do so. shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. 2. FORECLOSURE OF REAL ESTATE MORTGAGE • The cause of action in a foreclosure suit is generally the non-payment of the mortgage loan. 2. Description of the mortgaged property. and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. Rodrigo. such as the violation of the other conditions therein. The names and residences of the mortgagor and mortgagee.10] The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. [Rule 68. and when confirmed by an order of the court.1] JUDGMENT • If upon the trial. fails to pay the amount of the judgment within the period specified therein. 4. Date of assignment of mortgage. and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment (“equity of redemption”). 9910-05-0. it shall operate to divest the rights in the property of all the parties to the action and to vest their • • • 100% UP LAW UP BAROPS 2008 Page 87 of 95 . including interest and other charges as approved by the court. If a mortgage contract covers several distinct parcels of land situated in different provinces. [Rule 67. judicially – governed by Rule 68 2. [Monte de Piedad v. 7. the court shall find the facts set forth in the complaint to be true. governed by A. also upon motion. the action may be brought in the RTC of any of the provinces and the judgment will be enforceable against any of the parcels of land involved. extrajudicially – proper only when so provided in contracts in accordance with Act. A foreclosure action must be brought in the RTC of the province where the land or any part thereof is situated. Statement of the date of the note or other documentary evidence of the obligation secured by the mortgage. 56 Phil 301] • • • COMPLAINT’S CONTENTS 1. No. but it may be on other grounds which under the contract warrant the foreclosure. [Rule 67. No. or to retain it should he have taken immediate possession thereof under Sec. 6. In default of such payment the property shall be sold at public auction to satisfy the judgment. Amount claimed to be unpaid.CIVIL PROCEDURE enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment. the court. The names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage.
(Black’s Law Dictionary) Sec. the purchaser at the auction sale or last redemptioner. o In extrajudicial foreclosure. CA. [PNB v. A judgment against a debtor for the unpaid balance of the debt if a foreclosure sale or a sale of repossessed personal property fails to yield the full amount of the debt due. under which the property is sold. v. Echaus Tan Siua. the mortgagor has the “equity of redemption. Claims of junior encumbrancers in the order of their priority If proceeds of the sale exceeds the cost of the sale as well as the claims of the person foreclosing the property and junior encumbrancers. Intermediate Appellate Court. Intermediate Appellate Court. subject to such rights of redemption as may be allowed by law. [Rule 68. when the foreclosure sale did not produce proceeds sufficient to satisfy the judgment. the deficiency may be filed as a claim against his estate. (De Castro v. unless a third party is actually holding the same adversely to the judgment obligor. 1929) If the debtor dies. The said purchaser or last redemptioner may secure a writ of possession. 1935) No deficiency judgment may be rendered against the owner who is not a mortgagor and has not assumed personal liability for the debt.3] • REMEDIAL LAW A CERTIFIED COPY of the final order confirming the sale shall be registered in the Registry of Deeds. Inc. [Rule 68. • • DISPOSITION OF THE PROCEEDS OF THE SALE • Claims to be satisfied by the proceeds of the public sale of mortgaged property (in order): 1. It exists only in the case of the extrajudicial foreclosure of the mortgage. on motion.7] 100% UP LAW UP BAROPS 2008 Page 88 of 95 . except only where the mortgagee is the Philippine National Bank or a bank or banking institution. but the Certificate of Sale and the order confirming the sale shall be registered and a brief memorandum thereof shall be made by the Registrar of Deeds upon the certificate of title IF THE PROPERTY IS NOT REDEEMED The FINAL Deed of Sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the Registry of Deeds. 2000) However. the mortgagee can also recover by action any deficiency in the mortgage account which was not realized in the foreclosure sale. (Governor of the Philippine Islands v.7) • • • • Right of redemption is the right granted to the debtor-mortgagor. Claim of the person foreclosing the property 3. CA. Costs incurred in the sale of property 2. IF A RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall NOT be cancelled.” Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the amount fixed in the decision of the court within 90 to 120 days after entry of judgment or even after the foreclosure sale but prior to its confirmation. upon motion. IF THE PROPERTY IS REDEEMED The Deed of Redemption shall be registered with the Registry of Deeds and a brief memorandum thereof shall be made by the Registrar of Deeds on said certificate of title. Torralba Vda. and a new one issued in the name of the purchaser. shall be entitled to the possession of the property. • • • DEFICIENCY JUDGMENT • Definition.CIVIL PROCEDURE rights in the purchaser. 1988) The right of redemption in relation to a mortgage is understood in the sense of a prerogative to re-acquire mortgaged property after registration of the foreclosure sale. also termed a deficiency decree. (Rule 86. IF NO RIGHT OF REDEMPTION EXISTS The Certificate of Title in the name of the mortgagor shall be cancelled. No such right is recognized in a judicial foreclosure. The remedy is an ordinary action against the debtor. 6 provides for a deficiency judgment which shall be rendered.4] If the proceeds of the sale is less than the amount of the claims to be satisfied the person foreclosing the property may move for a DEFICIENCY JUDGMENT from the court confirming the foreclosure sale. his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person having a lien in the property subsequent to its mortgage or deed of trust. if any the residual amount shall be given to the mortgagor or his agent. (Huerta Alba Resort. to recover the amount of the deficiency in his claim. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law. 1988) • • REGISTRATION [Rule 68. or to the person entitled to it. de Santos. The Certificate of Title in the name of the mortgagor shall be cancelled and a new one shall be issued in the name of the purchaser. v. 1999] A motion for deficiency judgment may be made only after the sale and after it becomes known that a deficiency exists. if any. (Limpin v. (Philippine Trust Co. to redeem the property within one (1) year from the registration of the sheriff’s certificate of foreclosure sale. from the court which ordered the foreclosure.
the order of accounting may in the meantime be executed. 100% UP LAW UP BAROPS 2008 Page 89 of 95 . If several dintinct parcels of land are situated in different provinces. then the parties may partition the common property in the way they want. supra) • COMPLAINT • • Filed by person having the right to compel the partition of real estate. v. 2 and 12] Rule 69 applicable to partitions of estates composed of personal property. CA. or of both real and personal property. which had been lost and were not recorded. Nature and extent of the complainant’s title 2. if the court finds that the plaintiff has the right to the property subject of partition. (De Mesa v. However. 99 Phil 611] WHEN TO FILE • The right of action to demand partition does not prescribe [De Castro v. which is prescriptible. The order may also require an accounting of rents and profits recovered by the defendant. This order of partition is appealable. PARTITION • Partition of property may be: 1. Villanueva. then partition is no longer a proper remedy of the aggrieved co-owner. Extrajudicial – by agreement 2. (Crucillo v. and repudiate it in part. who elected to take under partition. 2000) Partition may be inferred from circumstances sufficiently strong to support the presumption. Adequate description of the real estate of which the partition is demanded 3. Pelaez. If a co-owner repudiates the co-ownership and makes known such repudiation to the other coowners. 1976) If not appealed. acquisitive prescription may set in. [Sec. and they cannot accept the decree in part. If they cannot agree. Judicial – compulsory. furnish sufficient evidence that there was an actual partition of land either by deed or by proceedings in the probate court. (Miranda v. Thus. Determination of the propriety of partition. There can be no partition again because there is no more common property. are estopped to question title to portion allotted to another party. 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. When there was a prior partition. it may fairly be inferred that there has been a partition and that such lot was set off to him whose name it bears. Maglucot et al. After the execution of instruments of conveyance. 2005) Parties to a partition proceeding. Court of Appeals. (Maglucot-aw et al. The actual partitioning of the subject property. Parties who had received the property assigned to them are precluded from subsequently attacking its validity of any part of it. and there is no evidence of any subsequent claim of a tenancy in common. after a long possession in severalty. proper instruments of conveyance will be executed to effect the partition. and acquiescence for 60 years. 1999) Oral partition of land when the same is fully consummated is valid and binding upon the parties thereto. In other words. 102 Phil 1182] in which case. A person cannot claim both under and against the same instrument. (Noceda v. venue may be laid in the RTC of any of said provinces. [Secs. EXCEPT where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership [Cordova v. the parties will then be asked if they agree to make partition of the property among themselves.CIVIL PROCEDURE VIII. • PARTITION BY AGREEMENT After the issuance of the order of partition. they may still make an amicable partition of the property. 1999) All persons considered as co-owners and interested in the property to be partitioned are indispensable parties to the action and must be impleaded. improvements made thereon for a long series of years. a deed of partition may be presumed. Contents: 1. then the case goes into the second stage. it shall issue an order demanding the partition of the real estate among all the parties in interest. 13] Stages in an Action for Partition: 1. [Rule 69. (Sepulveda v. IAC. v. This is also a complete proceeding and the order or decision is appealable. IAC. 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. Cordova. He should file an accion reivindicatoria. 20 Phil 23]. All other persons interested in the property must be impleaded. Maglucot et al. governed by Rule 69 Even if the parties resorted to judicial partition. the court shall confirm the partition through a final order. 1988) • • • • ORDER OF PARTITION • After trial.. Echarri. (Maglucot-aw et al. 1994) 2. They must accept all or none.1] • • VENUE • Actions for partition should be filed in the RTC of the province where the property or part thereof is situated. CA. • If they agree. possession and occupation of land.. and who took possession of the portion allotted to them. they accepted the lands awarded them by its provisions. And where a tract of land held in common has been subdivided into lots. (Roque v. [Pancho v. and one REMEDIAL LAW of the lots has long been known and called by the name of one of the tenants in common. It has been held that recitals in deeds.
Make such order and render such judgment as shall effectuate a fair and just partition of the real estate or of its value. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court accepts the commissioners’ report and rendered judgment thereon.7] • • A party shall recover from another his just share of rents and profits received by such other party from the real estate in question. if they so desire. If the commissioners should determine that the real estate cannot be divided without prejudice to the interests of the parties.5] The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition. the particular portion of the real estate assigned to each party.4]: 1. RECOMMIT the report to the commissioners for further report of facts if there is cause to do the same 3. [Rule 69.CIVIL PROCEDURE The final order of partition and the instruments of conveyance shall be registered with the Registry of Deeds where the property is situated. Upon filing the report. ACCEPT the report IN PART and REJECT it IN PART 5. [Rule 69. the court. then the court shall ORDER the commissioners to sell the real estate at pubic sale under such conditions and within such time as the court may determine. having due regard to the improvements. the clerk of court shall serve copies thereof on all interested parties with notice that they are allowed 10 days within which to file objections to the findings of the report. Judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment. situation and quality of the different parts thereof.2] REMEDIAL LAW 2.11] • • • • 100% UP LAW UP BAROPS 2008 Page 90 of 95 . or the assignment of real estate to one of the parties or the sale of the same. view and examine the real estate.2] JUDGMENT PARTITION BY COMMISSIONERS • If the parties are unable to agree upon the partition. 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 O EXCEPTION: if one of the parties asks that the property be sold instead of being so assigned. [Rule 69. [Rule 69. or even before the expiration of such period but after the interested parties filed their objections to the report/statement of agreement. if the property is assigned or sold between the several owners thereof. and the judgment shall include an allowance for such rents and profits.8] A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. by metes and bounds and adequate description. upon hearing. commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. SET ASIDE the report and APPOINT new commissioners 4. [Rule 69. set apart the same to the parties in lots or parcels as will be most advantageous and equitable. making the payment(s) free from the claims of any parties to the action. hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof 3. Judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser EFFECTS OF JUDGMENT Judgment shall vest in each party to the action in severalty the portion of the real estate assigned to him. [Rule 69. Judgment shall vest the real estate in the purchaser(s). the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition. [Rule 69. ACCEPT the commissioners’ report and render JUDGMENT based upon it. after due notice to the parties to attend at such view and examination 2. IF ACTUAL PARTITION IS PROPERLY MADE CONTENTS OF JUDGMENT Judgment shall state definitely. • IF THE WHOLE PROPERTY IS ASSIGNED TO ONE OF THE PARTIES AFTER PAYMENT IF PROPERTY IS SOLD AND SALE IS CONFIRMED BY THE COURT • Judgment shall vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties. • 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.3] Duties of Commissioners [Rule 69.6] Upon the expiration of the 10-day period. may: 1. [Rule 69.
or accion de reivindicacion. (FISTS) must be brought at any time within 1 year after such unlawful deprivation in the proper Municipal Trial Court against the person unlawfully depriving him of possession or against any person or persons claiming under them. (Jakihaca v. Florendo. in case of unlawful detainer. 2.2] o EXCEPTIONS (prior demand not required): a. 1990) A person who occupies the land of another at the latter's tolerance or permission. 3.1] The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. Where purpose of the action is to terminate the lease by reason of the expiry of its term. Abreu. (Dakudao v. 2.CIVIL PROCEDURE IX. in the proper municipal trial court or metropolitan trial court. [Rule 70. [Javier v. Consolacion. They must file the appropriate action in court and should not take the law into their own hands. nature of the action is determined by the allegation of the complaint and the character of the relief sought. under the original exclusive jurisdiction of first level courts. (3) strategy. after the expiration or termination of the right to hold possession by virtue of an express or implied contract.is a plenary action for recovery of the right to possess and which should be brought in the proper regional trial court when the dispossession has lasted for more than one year. Campos. (Rivera v. 1994] • • • • • FORCIBLE ENTRY • resorted to when a person is deprived of possession of any land or building by (1) force. must be brought at any time within 1 year after the unlawful withholding of possession in the proper Municipal Trial Court against the person unlawfully withholding possession or persons claiming under them. but the lawful possessor did not attempt to oust the intruder for over 1 year. and is not for failure to pay rentals or comply with the terms of the lease contract. Ban. or (5) stealth. Yap v. an action for unlawful detainer may be instituted against him. Veridiano. CA. 1991) e. CA. subject to the Rules on Summary Procedure. action must be for the restitution of possession of property together with damages and costs. or the summary action for unlawful detainer (desahucio) where the defendant’s possession was originally lawful but ceased to be so by the expiration of his right to possess. 1996) When failure to pay rent or comply with the condition of lease is the ground for ejectment. [De Santos v. 1992) An alternative demand to either renew the expired lease contract at a higher rental rate or vacate is not a definite demand to vacate and ACTIONS FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY 1. and only thereafter filed forcible entry suit following demand to vacate. (Refugia v. b. may also be brought by the legal representative or assigns of any such lessor. [Guanson v. one co-owner may institute the action. Vivas. and prevent an implied renewal of the lease. failing which. Cruz. plaintiff should give 2 demands (which may be embodied in 1 demand letter): 1. Accion Reivindicatoria .3] c. (Muñoz v. (2) intimidation. which must be brought in the proper regional trial court. or other persons. Aquino. vendee. demand to pay rental or comply with conditions of the lease. Sterling Technopark. It is thus an action whereby plaintiff alleges ownership over a parcel of land and seeks recovery of its full possession. [Rule 70. 1983) This rule as to tolerance does not hold true in a case where there was forcible entry at the start. (Abrin v. [id] Demand upon a tenant may be oral. Accion Publiciana . and from the date of last demand. special civil action involving realty. vendor. or other person against whom the possession of • 100% UP LAW UP BAROPS 2008 Page 91 of 95 . d. When the purpose of the suit is not for ejectment but for the enforcement of the terms of the contract. or (3) by posting such notice on the premises if no person be found thereon. and the lessee fails to comply therewith after 15 days in the case of land or 5 days in the case of buildings. 1956) Notice and demand to vacate is required on a lease on a month-to-month period to render effective the termination of the lease upon the expiration of the month. FORCIBLE ENTRY AND UNLAWFUL DETAINER • REMEDIAL LAW any land or building is unlawfully withheld. vendor. (4) threat.1] commenced by lessor only after (1) demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. 1992) Tolerance must be presented right from the start of possession sought to be recovered to categorize a cause of action as one of unlawful detainer. When the defendant is not a tenant but a mere intruder. [Rule 70. seeks the recovery of ownership and includes the jus utendi and the jus fruendi. (Laurora v. 77 Phil 7] c. without any contract between them is necessarily bound by an implied promise that he will vacate upon demand. and if this is not complied with. action must be for the restitution of possession of property together with damages and costs. Accion Interdictal –the summary action for forcible entry (detentacion) where the defendant’s possession of property is illegal ab initio. vendee. in case of forcible entry. Nature: a. demand to vacate (Zobel v. 96 Phil 538] b. 2003) • • • • • • • UNLAWFUL DETAINER • resorted to when a lessor. [Rule 70. both of which must be brought within one year from the date of actual entry to the land. or (2) by serving written notice of such demand upon the person found on the premises.
o Answers to the counterclaims or crossclaims shall be served and filed within 10 days from service of the answer in which they are pleaded. and may be revived only after that requirement have been complied with. CA. [Rule 70. The plaintiff must allege and prove that he was in prior physical possession of the premises until deprived thereof. 1-year period counted from date of actual entry on the land.CIVIL PROCEDURE therefore. Previous demand upon defendant to vacate not required. • Cross-claims and compulsory counterclaims not pleaded in the answer shall be barred.12] 3. a PRELIMINARY CONFERENCE shall be held. All cross-claims shall be dismissed. 1994) Refusal to collect or accept rentals is not a defense. There must be consignation. WHEN THE DEFENDANT DOES NOT APPEAR • 1-year period counted from date of last demand or last letter of demand. o EXCEPTION: lack of jurisdiction over the subject matter. Jr. Memoranda 9.4]: 1. Natino. The court shall issue an ORDER stating matters taken up during the preliminary conference 100% UP LAW UP BAROPS 2008 Page 92 of 95 . shall be dismissed without prejudice. Previous demand to vacate required (jurisdictional). Compulsory Counterclaim pleaded in the answer 3. [Rule 70. the court should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB). [Rule 70. 1987) 4. motu propio or on motion. The defendant who appears in the absence of the plaintiff shall be entitled to the judgment on his counterclaim. [Rule 70. After the court has examined the allegations in the complaint and supporting evidence attached to the same. Dilatory motion for postponement 12. (This is true when there is only one defendant or when all of the defendants did not appear. Motion to declare defendant in default 11. [Rule 70.) • PROCEDURE 1. Motion to dismiss EXCEPTIONS: a.13]: 1. from the time of entry) as he acquires possession by FISTS. 1989) FORCIBLE ENTRY Possession becomes unlawful right from the very start (i. [Rule 70. and the question of possession cannot be resolved without deciding the issue of ownership. v. strategy.e. Petition for relief from judgment 7. threat or stealth (FISTS). or b. where there is no showing of compliance with such requirement. 1996) If there is a prima facie showing of tenancy.4] Allowed pleadings [Rule 70. (Uy v. DISMISS the case outright based on the grounds for dismissal for ordinary civil actions apparent in the complaint.7] • Affirmative and negative defenses not pleaded in the answer are deemed waived. Motion for a Bill of Particulars 3. The plaintiff need not be in prior physical possession. UNLAWFUL DETAINER Possession was lawful at first but later becomes illegal. affidavits or other papers 8. Motion for extension to file pleadings.6] • Failure of the defendant to answer within the period provided above shall give power to the court. (Bayog v. Interventions • The plaintiff shall be entitled to judgment. Reply 13. (Penas. [Rule 70. insufficient basis for the filing of an action for unlawful detainer. express or implied. o EXCEPTION: Highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. (Baranda v. Motion to dismiss for failure to comply with section 12 (referral to conciliation) 2.8] 5. the court may: a. The unlawful withholding of possession is made after the expiration or termination of the right to hold possession under any contract. Motion to dismiss based on lack of jurisdiction over the subject-matter b. Not later than 30 days after the last answer is filed. Complaint 2. Padios.16] • Where there is a defense of tenancy. • When the defendant raises the defense of ownership in his pleadings. The issue centers on whether the defendant’s right to possess has expired or not. Motion for reopening of trial 6. to render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. PLEADINGS • • Must be verified. Petition for Certiorari. intimidation. • Effects of failure to appear: WHEN THE PLAINTIFF DOES NOT APPEAR It shall be a cause for the dismissal of his complaint. if the no ground for dismissal is found. The deprivation of physical possession of land and building is effected through force.5] • Cases requiring referral to conciliation. REMEDIAL LAW 2. there must be a preliminary hearing on the question of tenancy relations. The defendant shall file his ANSWER and serve a copy of it to the plaintiff within 10 days from service of summons. the issue of ownership shall be resolved ONLY to determine the issue of possession. as when the lease contract has expired and the lessee refuses to vacate the premises despite demand. • Rule 18 applicable. Cross-claim pleaded in the answer 4. Motion for New Trial 4. The issue centers on who was in prior possession de facto. GENERAL RULE: No postponement of the preliminary conference shall be granted. Answer Prohibited pleadings and motions [Rule 70. Mandamus or Prohibition against any interlocutory order issued by the court 10. Filing of complaint. ISSUE SUMMONS. Third-party complaints 14. CA. Motion for reconsideration of a judgment 5.
18] Execution of judgment GENERAL RULE: If judgment is rendered against a defendant. or that the appeal of the plaintiff is prima facie meritorious. and shall show their competence to testify to the matters stated therein. 2000) There must be notice of the judgment (Dy v. defendant perfects his appeal in due time. [Rule 70. • Contents of the Order: a. in which event the judgment shall b rendered within 30 days from issuance of the order.20] • • PRELIMINARY INJUNCTION • The court may grant preliminary injunction in accordance with Rule 58 to prevent the defendant from committing further acts of dispossession against the plaintiff.21] o EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted. The court then shall decide the motion within 30 days from the filing thereof. Such other matters intended to expedite the disposition of the case. such judgment shall not bar an action between the same parties with respect to the title of the land or building. Hence. and if so. [Rule 70. he deposits with the appellate court the amount of rent due from time to time under the contract. • Violation of this requirement may subject the party or the counsel who submits the same to disciplinary action and shall be cause to expunge the inadmissible affidavit or portion thereof from the records. e. [Rule 70. (Lu v. [Rule 70. Anunciacion.19 and 70. b. Although immediately executory. and c. [Rule 70. judgment may be rendered without the need of further proceedings. defendant files a sufficient supersedeas bond approved by the Municipal Trial Court. the judge should not order immediate execution in his decision. [Rule 70. 1991) and a motion with notice to the adverse party.9] 6. Siapno.CIVIL PROCEDURE within 5 days after the termination of the same. restitution of the premises. [Rule 70. and it shall not in any way affect the title or ownership of the land or building.] • If the trial court finds that the allegations of the complaint are TRUE. The parties shall submit affidavits of their witnesses and other evidence on the factual issues defined in the order. b. • REMEDIAL LAW The judgment or final order shall be appealable to the appropriate RTC.] • The judgment rendered in an action for forcible entry shall be conclusive with respect to the possession only. A possessor deprived of his possession may moved for a preliminary mandatory injunction within 5 days to restore him in hi possession of the property. [Rule 70. the just sum due as arrears of rent or reasonable compensation for the use and occupation of the premises.19] o BUT upon motion of the plaintiff within 10 days from the perfection of the appeal to the RTC. c. [Ibid. A clear specification of material facts which remain controverted. during the pendency of the appeal.14] 7. terms thereof.17] • If the court finds that the allegations of the plaintiffs are NOT TRUE. it may during the 30-day period issue an ORDER specifying the matters to be clarified and require the parties to submit affidavits or other evidence on the said matters within 10 days from receipt of said order. [Id.10] • Affidavits required to be submitted shall state only facts of direct personal knowledge of the affiants which are admissible in evidence. (Kaw v. Whether. on the basis of the pleadings and the stipulations and admissions made by the parties. it shall render judgment in favor of the plaintiff for the: a. the court may still issue a preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or dilatory. [Rule 70. • 8. on or before the 10th day of each succeeding month. [Ibid. d. attorney’s fees and costs. Whether the parties have arrived at an amicable settlement. Judgment shall be rendered within 15 days after receipt of the last affidavit or the expiration of the period for filing the same. b. The stipulations or admissions entered into by the parties. c. execution shall issue immediately. [Rule 70.15] • 100% UP LAW UP BAROPS 2008 Page 93 of 95 . it shall render judgment for the defendant to recover his costs. Judgment • GENERAL RULE: The court shall render judgment within 30 days from the date of its receipt of the affidavits and position papers OR the expiration of the period for filing the same. 1995) Procedure for staying the execution of judgment: a. if any.] o The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. CA. together with their position papers setting forth the law and the facts relied upon by them within 10 days from receipt of the order.11] o EXCEPTION: Should the court find it necessary to clarify certain material facts.
such conduct as tends to bring the authority and administration of the law into disrespect of. c. justice or dignity of the court. or prejudice parties litigant or their witnesses during litigation. Court of Appeals. or both If the contempt is directed against a lower court: If contempt is directed against a lower court: • FINE = not FINE = not exceeding P200. obstruct or degrade the administration of justice. [Rule 71. or both IMPRISONMENT = not exceeding 6 months. d. It is defined as a disobedience to the court by setting up an opposition to its authority.1] How proceedings commenced Summarily adjudged by the court against which the contempt is directed and punished there and then. and an opportunity given to the accused to be heard by himself or counsel [Rule 71. – Acts of indirect contempt: a. National Bookstore. It is conduct directed against or assailing the authority and dignity of the court or a judge. Suplico. de Ramos v. process.3] If the contempt is directed against an RTC. justice and dignity. [Rule 71. Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt. b. including: o disrespect toward the court o offensive personalities toward others o refusal to be sworn or to answer as a witness or to subscribe an affidavit/deposition when lawfully required to do so. can be punished summarily without hearing.000. a court of equivalent or higher rank: • FINE = not FINE = not exceeding P2. It signifies not only a willful disregard or disobedience to the court’s order but such conduct as tends to bring the authority of the court and the administration of law into disrepute or in some manner to impede the due administration of justice. e. or in any manner disturbs the possession given to the person adjudged to be entitled thereto. order.1] The person guilty of misbehavior may be punished only after charge in writing has been filed. for the purpose of executing acts of ownership or possession. or in the doing of a forbidden act. a court of equivalent or higher rank: DEFINITION • Contempt of court is a defiance of the authority. g. Assuming to be an attorney or an officer of the court. to interfere with. or IMPRISONMENT = IMPRISONMENT = not exceeding 1 day. or judgment of a court.1] a.000.1] Indirect Contempt (Constructive Contempt) – a misbehavior perpetrated outside of the sitting of the court [Patricio v. The person guilty of misbehavior is summarily adjudged by the court against which the contempt was committed at the very moment of the perpetration. Rule 71. not exceeding 1 or both month. or both [Rule 71. f. and acting as such without authority. or exceeding P30. Misbehavior of an officer of the court in the performance of his official duties or in his official transactions. or exceeding P5. (Heirs of Trinidad de Leon Vda. after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction. CONTEMPT How Committed DIRECT CONTEMPT REMEDIAL LAW INDIRECT CONTEMPT Can be committed Can be committed only in the presence anywhere as long as of or so near a court the acts mentioned or judge.000. [Rule 71. Failure to obey a subpoena duly served. to impede. The rescue or attempted rescue.3] Nature of Proceedings Punishment If the contempt is directed against an RTC. 2004) Direct Contempt (Contempt In Facie Curiae) – a misbehavior committed in the presence of or so near a court or judge so as to obstruct or interrupt the proceedings before the same.) By the court motu propio thru an ORDER or any FORMAL CHARGE 100% UP LAW UP BAROPS 2008 Page 94 of 95 . Disobedience of or resistance to a lawful writ.7] [Rule 71. directly or indirectly. 1991]. Any improper conduct tending. in Sec. enters or attempts to or induces another to enter into or upon such real property. 2005. [Encinas v.CIVIL PROCEDURE X. 3 are done. or IMPRISONMENT = not exceeding 10 days. including the act of a person who. of a person or property in the custody of an officer by virtue of an order or process of a court held by him.
[LandBank v. The power to determine the existence of contempt of court rests exclusively with the court contemned. 1999] A writ of execution issued by a court after 5 years from entry of final judgment is void. unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. Meralco.2] May be appealed to the proper court as in criminal cases. But this must be wielded sparingly. • • Where it is initiated When the contempt is directed against an RTC or equivalent or higher rank: Same court When the contempt is directed against a lower court: (1) RTC of the place where the lower court is sitting. [SEC v. 2. IAC. Criminal Contempt is conduct directed against the authority and dignity of a court or of a judge. Civil Contempt is the failure to do something ordered to be done by a court or 100% UP LAW UP BAROPS 2008 Page 95 of 95 . 1995].) [Rule 71. the petition for contempt shall allege that fact. 200)] Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant to Rule 71 can only do so by initiating them in the proper RTC.) In all other cases. heard and decided separately. It is not within their jurisdiction and competence to decide the indirect contempt cases. the proceedings are to be conducted in accordance with the principles and rules applicable to criminal cases [SEC v. but execution shall not be suspended until BOND is filed. or (2) in same lower court subject to appeal to higher court Hearing and Bail If hearing is not immediately conducted. and disobedience thereto does not constitute indirect contempt. by a VERIFIED PETITION. Recto. [People v. (If the contempt charges arose out of or are related to a principal action pending in the court.CIVIL PROCEDURE b.11] REMEDIAL LAW a judge for the benefit of the opposing party therein. CA. For this power should be exercised on the preservative and not on the vindictive principle. remedial or compensatory in nature. [Rule 71. These matters are still within the province of the RTCs. [Igot v. Recto. By a VERIFIED PETITION with supporting particulars and certified true copy of documents or papers involved and full compliance with the requirements for filing initiatory pleadings in ordinary civil actions. 4-6] Who initiates court motu propio party How it is initiated By ORDER or any WRITTEN CHARGE requiring respondent to show cause why he should not be held in contempt. punitive in nature. respondent may be released upon filing of BOND in the amount fixed by the court. thus. 1999]. [Crucillo v. Execution of judgment shall not be suspended even by appeal UNLESS bond is filed conditioned upon the performance by the respondent of that judgment should it be decided against him on appeal. The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal contempt so that acquittal of the respondents is unappealable. [Rule 71. or whether a sufficient reason has been given for non-compliance. No court is authorized to punish a contempt against another. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. 1999] The power to declare a person in contempt of court serves to protect and preserve the dignity of the court. whether a contempt has been committed. as in unlawfully assailing or discrediting the authority and dignity of a court or a judge or in doing a forbidden act [People v. 2003] • • • Procedure for Indirect Contempt [Secs. but subject to certiorari or prohibition.4] Remedy No appeal. the solemnity of the proceedings therein and the administration of justice. but said petition shall be docketed. Appeal Execution of Judgment • Two Aspects of Contempt of Court: 1. 1998] Only the court which rendered the order commanding the doing of a certain act is vested with the right to determine whether or not the order has been complied with. and. Appeal may be taken in proper courts as in criminal cases. [Panado v. Godoy. 1995]. instituted for the benefit of private party. therefore. Listana. Godoy.