ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

3. Special Proceedings – remedy by which a party seeks to establish a status, a right, or a particular fact.

CIVIL PROCEDURE

CLASSIFICATION OF ACTIONS (A) As to nature
ORDINARY ACTION Governed by rules. CIVIL ordinary SPECIAL CIVIL ACTION Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71). Special features not found in ordinary civil actions.

RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are not penal statutes. They cannot be given retroactive effect. They can, however, be made applicable to cases pending at the time of their passage and therefore are retroactive in that sense. Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations: 1. It must provide a simplified and inexpensive procedure for the speedy disposition of cases; 2. Uniform for all courts of the same grade; and 3. Shall not diminish, increase or modify substantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed by one court of justice. against another. One party prosecutes The moment said claim is another for the filed before a court, the enforcement or claim is converted into an protection of a right or action or suit. QuickT the prevention or redress ime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. of a wrong. APPLICABILITY: 1. Civil Action – one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong. 2. Criminal Action – one by which the Stake prosecutes a person for an act or omission punishable by law.

Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court for by the law.

(B) As to object
ACTION IN REM Direct against the thing itself. Jurisdiction over the person of the defendant is NOT required. ACTION IN PERSONAM Directed against particular persona 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 or lien burdening it.

A proceeding to determine the state or condition of a thing.

An action to impose a responsibility or liability upon a person directly.

Judgment is binding on the whole world.

Ex. Probate proceeding; cadastral proceeding.

Judgment is binding only upon parties impleaded or their successors in interest. Ex. Action for specific performance; action for breach of contract.

Judgment binding upon particular persons.

Ex. An action for partition; action to foreclose real estate mortgage.

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan—

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
The distinction is important in determining whether or not jurisdiction over the persons of the defendant is required. (C) As to cause REAL ACTION PERSONAL ACTION Ownership or Personal possession of property is real property is sought to be involved. recovered or where damages for breach of contract are sought. Founded on Founded on privity of real privity of estate. contract. Filed in the Filed in the court where the court where the property or any plaintiff or any part thereof is of the situated defendants resides, at the option of the plaintiff Ex. Accion Ex. Action for a reinvidicatoria sum of money. MIXED ACTION Both real and personal properties are involved. The Rules of Court are applicable by analogy or in a suppletory character and whenever practicable and convenient. Section 5. Commencement of action A civil action is commencement by: 1. The FILING OF THE COMPLAINT (when an additional defendant is impleaded in a later pleading, the action is commenced with regard to him on the date of the filing of such LATER PLEADING); and Cabrera v. Tiano 8 SCRA 54 (1963) Civil actions are deemed commenced from the date of the filing and docketing of the complaint, without taking into account the issuance and service of summons 2. The PAYMENT OF DOCKET FEES (determined not only in the amount of the claim but also by the amount of damages). NOTE: The amount of damages should be specified not only in the body of pleading but also in the prayer. Ex. Accion publicana with a claim for damages The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive or reglementary period. An action can be commenced by filing the complaint by registered mail. In which case, it is the date of mailing that is considered as the date of filing and not the date of the receipt thereof by the clerk of court. Section 6. Construction GENERAL RULE: Liberal construction EXCEPTIONS: 1. reglementary periods; 2. rule on forum shopping.

Founded both.

on

The rules on venue of real actions shall govern.

The distinction is significant in determining the venue of an action. (D)As to place of filing LOCAL ACTION TRANSITORY ACTION Must be brought in a Dependent on the place particular place where the party resides where the subject regardless of where the property is located, cause of action arose subjec unless there is an to Section 4, Rule 4. agreement to the contrary (Section 4, Rule 4). Ex. Action to recover QuickTime™ and a to recover sum Ex. Action decompressor real property. TIFF (Uncompressed) this picture. of money are needed to see Section 4. In what cases not applicable

RULE 2 CAUSE OF ACTION Section 1. Ordinary Civil Actions, basis of

NOT APPLICABLE TO: 1. Election Cases; 2. Land registration/cadastral cases; 3. Naturalization; 4. Insolvency proceedings; 5. Other cases not provided in the Rules of Court.

Section 2. Cause of action defined CAUSE OF ACTION – is the act or omission by which a party violates the right of another.

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
The essential requisite of a cause of action 1. LEGAL RIGHT of the plaintiff. 2. CORRELATIVE OBLIGATION of the defendant to respect plaintiff’s right; and 3. Act or omission of the defendant in VIOLATION of the plaintiff’s legal right. RIGHT OF ACTION – right of a person to bring and prosecute action to obtain judgment. The essential requisites of a right of action: 1. There must be a GOOD CAUSE; 2. Compliance with all the CONDITONS PRECEDENT; and 3. Action, must be instituted by the PROPER PARTY. CAUSE OF ACTION Delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. The reason action. for the RIGHT OF ACTION Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him. The remedy or means afforded or the consequent relief. The remedial right given to a person because of the occurrence of the alleged facts. A matter of right and depends on substantive law. Affected by defenses. affirmative Section 3. One suit for a single cause of action Section 4. Splitting a cause of action, effect of SPLITTING OF CAUSE OF ACTION – is the act of dividing a single or indivisible cause of action into several parts or claims and bringing several actions thereon. It is NOT ALLOWED. PURPOSE: To avoid multiplicity of suits and unnecessary vexation and harassment of defendants. Applies NOT only to complaints counterclaims and cross-claims. but also to

Remedies against splitting a single cause of action: A. Motion to dismiss on the ground of: 1. Litis pendentia (Rule 16, Section 1 [e]); or 2. Res judicata (Rule 16, Section 1 [f]). B. An answer alleging either as affirmative defense. (Rule 16, Section 6) GENERAL RULE: A contract embraces only one cause of action even if it contains several stipulations. EXCEPTION: A contract to do several things at several times is divisible, and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. (e.g., promissory not payable in several installments so long as there is no acceleration clause) Blossom & Co. v. Manila Gas Corp., 55 Phil.226 (1930) DOCTRINE OF ANTICIPATORY BREACH An UNQUALIFIED and POSITIVE REFUSAL to perform a contract, though the performance thereof is not yet due, may, if the renunciation goes into the whole contract, be treated as a complete breach which will entitle the injured party to bring his action at once. Section 5. Joinder of causes of action Joinder of causes of action is purely permissive. The plaintiff can always file separate actions for each cause of action.

The formal statement of the operative facts that gives rise to remedial right. A matter of procedure and depends on the pleadings filed by the parties. Not affected by affirmative defenses (fraud, prescription, estoppel, etc.). RELIEF REMEDY

SUBJECT MATTER The procedure The thing The redress, or appropriate wrongful act, protection, legal form of contractor award or relief QuickTime™ and a property which is of action coercive TIFF (Uncompressed) decompressor which maythis picture. directly involved measure are needed to see be availed of by in the action, which the the plaintiff as concerning which plaintiff prays the means to the wrong has the court to obtain the been done and render in his desired relief. with respect to favor as which the consequence controversy has of the delict arisen. committed by the defendant.

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One necessary to a complete determination or settlement of the questions involved therein: Section 2. and b. They are those with such an interest in the 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. NECESSARY PARTIES Should be joined whenever possible.A right to relief in respect to or arising out of the same transaction or series of transaction and . The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined. and 3. provided that: a. The term defendant may include: 1. DEFENDANT . 2. Misjoinder of causes of action Not a ground for dismissal of an action. It multiplicity of suits and minimizes multiplicity of double vexation on the suits and inconvenience QuickTime™ and a TIFF (Uncompressed) decompressor part of the defendant ed to seeonpicture. irrespective of whether the causes of action arose out of the same or different transaction. parties. the amount of the demand shall be the totality of the claims in all causes of action. Parties in interest REAL PARTY IN INTEREST – the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit. They are those whose presence is necessary to Page 6 of 289 . A misjoined case of action may be severed and proceeded with separately. PROHIBITED. A natural person 2. the aggregate amount claimed shall be the test of jurisdiction. PLAINTIFF – one having an interest in the matter of the action or in obtaining the relief demanded. their presence being a sine qua non for the exercise of judicial power. RULE 3 PARTIES TO CIVIL ACTIONS Section 1. . An unwilling plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto (Section 10. plaintiff and defendant PARTIES TO A CIVIL ACTION 1. (Totality Rule) NOTE: The following are the elements for a joinder of parties (Section 5. Where the causes of action are between the same parties but pertain to different venues or jurisdiction is with the Regional Trial Court. Rule 3). 4. INDISPENSABLE PARTIES Must be joined under any and all conditions. An entity authorized by law. the are need this Section 6. the action can proceed even in their absence. causes of action. Who may be parties. NOTE: We will follow the totality rule in BP 129 because it is elementary in statutory construction that in case of conflict. The party joining the causes of action must comply with the rules on joinder of parties. substantive law prevails over procedural laws. No valid judgment if indispensable party is not joined. Where the claims in the causes of action are principally for recovery of money.A common question of law TOTALITY RULE UNDER BP129 [Section 33(1)] Where there are several claims or causes of actions between the same or different parties. The original plaintiff becoming a defendant to original defendant’s counterclaim.one claiming an interest in the controversy or the subject thereof adverse to the plaintiff. venue lies thereon. 3.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REQUISITES FOR JOINDER OF CAUSES OF ACTION: 1. It causes ENCOURAGED. Rule 3). embodied in the same complaint. One of the causes of action falls within the jurisdiction of the RTC. The joinder shall not include special and actions or actions governed by special rules. or 3. 2. SPLITTING OF A JOINDER OF CAUSES CAUSE OF ACTION OF ACTION There is a single cause Contemplate several of action. A juridical person.

those who are required to be joined as co-parties in suits by or against another party as may be provided by the applicable substantive law or procedural rule such as in the case of spouses under Section 4.the rule on permissive joinder of parties is that they can be joined in one single complaint or may themselves maintain or be sued in separate suits. Pro forma parties. Minor or incompetent Under the present rules. or administrators. it may order the inclusion of the omitted necessary party if jurisdiction over his person may be obtained by ordering plaintiff to file an amended complaint impleading the necessary party therein as co-defendant. Representative parties – those acting in fiduciary capacity such as trustees. executors. A person NEED NOT be judicially declared incompetent.e. the practice is for an attorney in fact to bring the action. and 3. Section 9.. Necessary (or proper) parties – those who are not indispensable but ought to be joined as parties if complete relief is to be accorded as to those already parties. Non-joinder of necessary parties to be pleaded Duty of a pleader whenever a necessary party is not joined or impleaded: 1. it Page 7 of 289 . Permissive joinder of parties PERMISSIVE JOINDER . 2. The beneficiary shall be included in the title of the case and shall be deemed to be real part in interest.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 controversy that a final would necessarily affect their rights so that the court cannot proceed without their presence. Section 6. In fact. to file the complaint in the name of the plaintiff. Unwilling co-plaintiff Tuason v. Indispensable parties-those without whom and final determination can be had of an action (must be joined under all conditions). if known. Representative this picture. NOTE: The failure to comply with the court’s order to include or join a necessary party without justifiable cause shall be deemed a waiver of the claim against such party. guardians. 2. SERIES OF TRANSACTIONS – transactions connected with the same subject matter of the suit. Compulsory joinder of Indispensable parties Section 8. Spouses as parties Section 5. Such joinder is not otherwise prescribed by the provisions of the rules on jurisdiction and venue. Necessary party JOINT DEBTORS – indispensable party in a suit against him but necessary party in a suit against his co-debtor. Section 10. Quasi parties – those in whose behalf a class or representative suit is brought. TIFF (Uncompressed) decompressor Section 3. State why said necessary arty is omitted in the pleading Should the court find the reason for the omission unmeritorious. Bolanos 95 Phil 06 (1954) Section 2. There is a question of law or fact common to all the plaintiffs or defendants. i. Requisites of permissive joinder of parties: 1. and 2. 5. adjudicate the whole controversy but whose interests are so far separable that a final decree can be made in their absence without affecting them. are needed to see as parties QuickTime™ and a Section 4. of for a complete determination or settlement of the claim subject of the action (may or may not be joined) 3. being sufficient that his incompetency be alleged in the corresponding pleadings. State the name of the necessary party. CLASSIFICATION OF PARTIES IN INTEREST: 1. a suit may be brought by or against a minor or incompetent but with the assistance of his parents or his guardian. 4. Right to relief arises out of the same transaction or series of transactions. Section 7. Rule 3 of the Rules of Court requires that an action must be brought in the name but not necessarily by the real party in interest.

PERMISSIVE JOINDER OF PARTIES There are multiple causes of action separately belonging to several perons. implying that if the parties are numerous and it is impracticable to bring them to court. and 6. sued as unknown owner. he may join any OR all of them in the alternative. NOTE: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known. Parties bringing the class suit are SUFFICIENTLY NUMEROUS AND REPRESENTATIVE of the class and can fully QuickTime™ protect the TIFF (Uncompressed)alland a interests of decompressor concerned. Objections to misjoinder cannot be raised for the first time on appeal. and 3. 4. Section 13. are needed to see this picture. heir. and 3. His identity or name is unknown. The representative sues or defends for the benefit of all. he may be made a defendant and the reason therefore shall be stated in the complaint. A wrong or delict is committed against a third person in the course of such transaction. NOTE: Any party in interest shall have the right to intervene to protect his individual interest. i. Section 11. one or more may sue for their benefit. Alternative Defendants Where the plaintiff is uncertain against who of several persons he is entitled to relief. Amendment to the pleading when identify of true name is discovered. not a mere additional defendant. There are two or more persons not organized as a juridical entity. Subject matter of the controversy is one of common or GENERAL INTEREST to many persons. devisee. Defendant is the defendant being sued. (This is an instance when a person may intervene as a matter of right. Entity without juridical personality as defendant REQUISITES: 1.) CLASS SUIT There is one single action pertaining to numerous persons. They enter into a transaction. Class suit CLASS SUIT An action where one or more may sue for the benefit of all. Section 12. 2001). The non joinder of an indispensable or a necessary party is not by itself ipso facto a ground for the dismissal of the action. The court should order the joinder of such party and non compliance with the said order would be a ground to the dismissal of the action (Feria. Section 14. Whether the suit is or is not a class suit depends upon the attending facts. 2. There is a defendant 2. The service of summons may be effected upon all the defendants by serving upon any of them. Community of interests. 5. 2. NOTE: An action does not become a class suit merely because it is designated as such in the pleadings. but they cannot sue under such name. NOTE: Service of summons upon a defendant whose identify is unknown may be made by publication in a newspaper of general circulation in accordance with Section 14of Rule 14. or upon the Page 8 of 289 . 4. by a MOTION TO STRIKE THE NAMES OF THE PARTIES impleaded. Fictitious name may be used because of ignorance of defendant’s true name an said ignorance is alleged in the complaint. REQUISITES OF A CLASS SUIT: 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 If the consent of any party who should be joined as plaintiff can not be obtained. although a right to relief against one may be inconsistent with a right to relief against the other. 3. The persons are so NUMEROUS that it is impracticable to join them all as parties. or other designation. defendant Unknown identity or name of REQUISITES: 1. Misjoinder and non-joinder of parties Neither misjoinder nor non-joinder of parties is a ground for dismissal of the action NOTE: Objections to defects in parties should be made at the earliest opportunity. The action must however be converted into an action in rem or quasi by attaching the defendant’s property in the Philippines. Section 15.e. Identifying description may be used.. the moment such defect becomes apparent.

Section 17. GENERAL RULE: The rule does not consider the transferee an indispensable party. within 30 days after the successor takes office. the court may appoint a guardian ad litem for them. C. That the successor ADOPTS ORCONTINUES OR THREATENS TO ADOPT OR CONTINUE QuickTime™ and a TIFF (Uncompressed) decompressor the action of are needed to see this picture. Section 16. the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an executor or administrator for the estate of the deceased. It should be filed as a claim against the estate of the decedent without need of proving the claim. The deceased shall be substituted by his legal representatives in the manner provided for in Section 16 of Rule 3 and the action continues until the entry of final judgment. Section 18. and his predecessor. The party or officer affected has been given REASONABLE NOTICE of the application therefore and accorded an opportunity to be heard. Indigent party B. During the pendency of the action. duty of counsel This provision applies where the claim is NOT thereby extinguished as in cases involving property and property rights such as: 1. 2. D. Page 9 of 289 . RESIGNS. The transferor would no longer be the real party in interest if the transfer is made before the commencement of the suit. The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there are several plaintiffs. OR OTHERWISE CEASES to hold office. AROSE FROM CONTRACT. the death of the defendant will not result in the dismissal of the action. Rule 14). It is satisfactorily shown to the court by any party. Section 20. Recovery of real and personal property against the estate. the remaining plaintiffs can processed with their own cause of action. Transfer of Interest NOTE: The transfer of interest that is obviously referred to in this section is a transfer that occurs during the pendency of the action. Defendant dies BEFORE THE ENTRY OF FINAL JUDGMENT in the court in which the action was pending NOTE: Under this section. 3. Section 21. subject of the action. In case of minor heirs. Death or separation of a party who is a public officer REQUISITES: 1. The action must primarily be for RECOVERY OF MONEY. and 3. 5. OR INTEREST thereon. The claim. The ORDER OF SUBSTITUTION shall be served upon the parties substituted for the court to acquire jurisdiction over the substitute party. 2. Incompetency or Incapacity In case a party becomes incompetent or incapacitated. However. 3. Recover for an injury to person or property by reason of tort or delict committed by the deceased. The substitute defendant need not be summoned. the action may proceed without the need to implead him. 8. the action survives and may be continued by against the incompetent incapacitated assisted by his legal guardian or guardian ad litem who is his legal representative. Death of party. he either DIES. express or implied. Action on contractual money claims REQUISITES 1. Enforcement of client on such properties and. Section 19. Public officer is a PARTY TO AN ACTION in his official capacity. EXCEPTION: When the substitution by or joinder of the transferee is ordered by court. Hence. In this case. DEBT. 2. the there is a SUBSTANTIAL NEED for continuing or maintaining the action. INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER: A. 4. in which case. execution shall not issue in favor of the winning party.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 person in charge of the office or place of business maintained under such name (Sec.

VENUE Place where the action is instituted.e. or 3. An exemption from the payment of transcript of stenographic notes. Venue of personal actions Raymond v. Substantive. Where a specific rule or law provides otherwise (i. If case involves two properties located in two different places: 1. May be changed by the written agreement of the parties. If property is located at the boundaries of two places: File case in either place at the option of the plaintiff. v. 2. Means of waiving venue: 1. separate actions should be filed in each place unless property joined. if the properties are the object of the same transaction. actual residence or place of abode. If one is authorized to litigate as an indigent. 2. Polytrade Corp. shelter. Notice to the Solicitor General In the absence of qualifying or restrictive words. Section 2. Banco 30 SCRA 187 (1969) TIFF (Uncompressed) decompressor are needed to see this picture. file it in any of the two places. venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rules. an action for damages arising from libel). and basic necessities. it may be contested by the adverse party at any time before judgment is rendered. Procedural. meaning the personal. Failure to object via motion to dismiss. actual. Page 10 of 289 . or 2. 2. 3. Court of Appeals 166 SCRA 50 (1988) RESIDENCE –should be viewed or understood in its popular sense. Affirmative relief sought in the court where the case is filed. NOTE: ALL AT THE ELECTION OF THE PLAINTIFF. and 3. 2. The parties have validly agreed in writing before the filing of the action in the exclusive venue thereof (Section 4). Were the defendant or any of the principal defendants resides. 2. If they are the subjects of two distinct transactions. Venue of real actions The venue is the place where the real property or any portion thereof is located. He need not be a pauper to entitle him to litigate in forma pauperis While the authority to litigate as an indigent party may be granted upon an ex parte application and hearing. In the case of a non-resident defendant. Section 22. Section 3. Examples of qualifying or restrictive words: ‘’Only’’ ‘’Solely’’ ‘’Exclusively in this court’’ Section 1. QuickTime™ and a REQUISITES FOR VENUE TO BE EXCLUSIVE: 1. Where the plaintiff or any of the principal plaintiffs resides. or physical habitation of a person. such authority shall include: 1. VENUE OF PERSONAL ACTIONS: 1. Laches. An exemption from the payment of docket fees. or 4. Maybe waived JURISDICTION Power of the court to hear and decide a case. A valid written agreement. Jurisdiction over the subject matter over the nature of the action is conferred by law and cannot be waived. the action may be brought in the place where he may be found. Voluntary submission to the court where the case is filed. The rule on VENUE IS NOT APPLICABLE in cases: 1. Venue of actions against non-residents RULE 4 VENUE OF ACTIONS VENUE – the place trial or geographical location in which an action or proceeding should be brought.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Indigent – one who has no money or property sufficient and available for food. Executed by the parties before the filing of the action. Exclusive nature of the venue. Cannot be the subject of the agreement of the parties.

Meaning of terms QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. where a particular provision expressly or impliedly applies only to either of said courts or. Uniform Procedure The procedure in the MTC shall be the dame as in the RTC. All crossclaim dismissed RULE 5 UNIFORM PROCEDURE IN TRIAL COURT Section 1. Section 4. b. NON-RESIDENT NOT FOUND IN THE PHILIPPINES – An action may be filed only when the case involves: a.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. for real actions – where the property is located. plaintiff entitled to judgment based on complaint and what is proved therein Within 5 days after conference. and b. When Rule not applicable Preliminary conference within 30 days after last answer is filed RULES ON SUMMARY PROCEDURE SUMMARY PROCEDURE IN CIVIL CASES Filing of verified complaint with the MTC Court may summon the defendant Court may dismiss the case outright Within 10 days from receipt of summons defendant answers incorporating compulsory counterclaims or crossclaim & serves a copy on plaintiff If Defendant fails to answer in 10 days—the court motu propio or on plaintiffs own motion. An exception is provided in Section 4 of the Rule on summary Procedure. Personal status of plaintiff – venue: where plaintiff resides. Defendant entitle to decision based on his counterclaim. (). If sole defendant fails to appear. NON-RESIDENT FOUND IN THE PHILIPPINESa. except: 1. for personal actions – where the plaintiff resides. IAC 195 SCRA 641 (1991) The Court may not motu proprio dismiss a complaint on the ground of improper venue. court issues record of preliminary conference Within 10 days from receipt of order submission by the parties of affidavits and position papers Rendition of judgment within 30 days from receipt of last affidavit or within 15 days after last clarificatory paper Page 11 of 289 . may render judgment based on facts alleged in the complaint without prejudice to RULE 9 Sec 3 (c) Answer to counterclaim and crossclaim within 10 days If plaintiff fails to appear n preliminary conference. complaint may be dismissed. 2. in civil cases governed by the Rule on Summary Procedure Section 2. The Supreme Court has the power to order a change of venue to prevent miscarriage of justice. Any property of said defendant located in the Philippines – venue: where the property or any portion thereof is situated or found. 2. Dacoycoy v.

Motion for extension of time to file pleadings. The court may. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay. or proceeding involving any matter within the authority of the lupon shall be fired or instituted directly in court or any other government office for adjudication UNLESS 1. 8. together with TIFF (Uncompressed) decompressor are needed to see this picture. Dilatory motions for postponement. 9. the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon. The decision of the RTC (on appeal) in civil cases under this rule. Third party complaints. All that is required is that within (10) days from receipt by the parties of the court’s pre-trial order.e. and the disputer relates to the performance of his official functions. Motion for a new trial or for reconsideration of a judgment or for reopening of trial. motu proprio refer the case concerned to the lupon for amicable settlement. and other TRIAL PROCEDURE IN CIVIL CASES No testimonial evidence is required nor cross examination of witnesses allowed. and b. non criminal cases Page 12 of 289 . 7. 3. RA 7160) No complaint petition. Motion for a bill of particulars. Petition for certiorari.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 their position papers setting forth the law and the facts relied upon by them. at any time before trial. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5. The affidavits of their witnesses.000. the plaintiff may nevertheless file a motion to render judgment as may be warranted when the defendant fails to file an answer. genocide). are IMMEDIATELY EXECUTORY. 6. Interventions. Disputes involving parties who actually reside in barangays of different cities or municipalities. That no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto. Judgments of inferior courts in cases governed by summary procedure are applicable to the RTC. Motion to declare defendant in default. 8. EXCEPT: a. and 2. its filing after the answer had already been submitted does not constitute a pleading prohibited by the summary rules. CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW (SUBSTANTIVE EXCEPTIONS): 1. Where the dispute involves real properties located indifferent cities or municipalities UNLESS the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon.00. 4. 12. The issuance of the pre-trial order is an important part of the summary procedure because it is its receipt by the parties that begins the ten0day period to submit the affidavitsQuickTime™ and a evidence. action. Book III. PROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE 1. Such other classes of disputes which the President may determine in the interest of justice. and 2. including ejectment cases. Where one party is the government or any subdivision or instrumentality thereof. 2. 6. 10. 3. affidavits. mandamus. The filing of a prohibited pleading will not suspend the period to file an answer or to appeal Heirs of Olivas v. they shall submit: 1. where such barangay units adjoin each other. 5. or prohibition against any interlocutory order issued by the court. 2. 5. 7. Petition for relief from judgment. NOTE: While a motion to declare the defendant in default is prohibited by the rules on summary procedure. Other evidence on the factual issues set forth in the pre-trial order. Motion to dismiss the complaint or to quash the complaint or information except on the ground of lack of jurisdiction over the subject matter or failure to comply with prior barangay conciliation (referral to the Lupon). Memorandum. Offenses where there is no private offended party (i. Flor 161 SCRA 393 (1988) Although a motion to dismiss is a prohibited pleading. There has been CONFRONTATION BETWEEN THE PARTIES before the lupon chairman or pangkat. 11. Where one party is a public officer or employee. or any other paper. KATARUNGANG PAMBARANGAY LAW (Title One. Reply. 4.

CARL disputes. or arbitration. Many kinds of motion are allowed. 1. Pleadings allowed 1. Disputes involving real property or any interest therein – where real property or larger portion thereof is situated. 2. 4. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint in court or any government office for adjudication. Where the ACTIONS are coupled with provisional remedies such as preliminary injunction. Disputes arising at the WORKPLACE where the contending parties are employed or at the INSTITUTION where such parties are enrolled for study – in the barangay where such workplace or institution located. Disputes between residents of the same barangay shall be brought for settlement before lupon of said barangay. Escayo 171 SCRA 442)). 4. Cannot be initiatory as they are always made in a case already filed in court. 3. NOTE: HOWEVER. Residents of different barangays within the same city or municipality – in the barangay where the respondent or any of the respondents reside at the election of the complainant. Where the action may otherwise be barred by the STATUTE OF LIMITATIONS. NOTE: A motion to dismiss is not pleading. PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. Counterclaim. and 8. and 9. violence. Complaint. 6. or intimidation. 7. LABOR Disputes (Montaya v. 2. Section 2. Tupac. 3. the prescriptive periods for offenses and cause of action under existing laws shall be interrupted upon filing or the complaint with the punong barangay. THE PARTIES MAY GO DIRECTLY TO COURT IN THE FOLLOWING INSTANCES (PROCEDURAL EXCEPTIONS): 1. Where the person has otherwise been deprived of personal liberty calling for HABEAS CORPUS proceeding. Page 13 of 289 . PLEADING The purpose is to submit a claim or defense for appropriate judgment. 158 SCRA 459) The parties may at any stage of the proceeding AGREE IN WRITING to have the matter in dispute DECIDED by ARBITRATION either the LUPONG BARANGAT or PANGKAT. May be initiatory Always filed before judgment Only 9 kinds of pleading are allowed by the rules MOTION The purpose is to apply for an order not included in the judgment. Such interruption shall not exceed 60 days from the time of the filing of the complaint with the punong barangay. While the dispute is under mediation. Pleadings defined PLEADINGS – the written statements of the respective claims and defenses of the parties submitted to the court for appropriated judgment. 5. May be filed even after judgment.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 not falling within the authority of the latter. delivery of personal property. Disputes involving the TRADITIONS of indigenous cultural community. and support pendente lite. there are motions that actually seek judgment like a motion for judgment on pleadings (Rule34) and motion for summary judgment (Rule 35). conciliation. attachment. Where the accused is under police CUSTODY or detention. Any CLASS OF DISPUTE which the President may determine in the interest of justice or upon recommendation of the secretary of Justice. 2. 9. The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud. RULES ON VENUE UNDER THE KATARUNGAN PAMBARANAGAY LAW QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Actions to ANNUL JUDGMENT upon a compromise (Sanchez v. In such case arbitrational hearings shall follow order of adjudicative trials. Where one of the parties is a juridical entity.

it must be answered within ten (10) days from service. release payment. the same proceedings are had as in the original complaint.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. 2. 8. Complaint COMPLAINT – is the pleading alleging the plaintiff’s cause or causes of action. Section 6. Section 5. Section 4. ULTIMATE FACTS – essential facts constituting the plaintiff’s cause of action. Agustin v. Answer. TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE COMPLAINT: Determine whether upon the averment of facts. it is not part of the answer. Upon its filing. 2. Defenses QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. conclusions or inferences of facts not stated. It should contain a concise statement of the ultimate facts constituting the plaintiff’s cause of action. Enumeration is not exclusive Section 3. and any other matter by way of confession and avoidance. not evidently facts or legal conclusions. Permissive NOTE: In an original action before the RTC. Counter-counterclaim. prescription. 2 kinds of defenses that may be set forth in the answer: 1. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action insufficient. Cross-claim. Reply. 7. 2. Bacalan 135 SCRA 340 (1985) If a counterclaim is filed in the MTC in excess of its jurisdictional amount. Section7. inferences and arguments. What are NOT ultimate facts: 1. Third-party Complaint. NEGATIVE DEFENSES . Counterclaims may either be: 1. Ajax International 22 SCRA 996 (1968) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the claims and file a separate action to collect the balance. or incorrect inferences or conclusions from facts stated. Page 14 of 289 . Denial in the form of a negative pregnant. the counterclaim may be considered compulsory regardless of the amount (Section 7. Counter-Cross claim. Although it may be alleged in the answer. Evidentiary or immaterial facts. General denial. statements of law. Affirmative defenses include fraud. while hypothetically admitting the material allegations in the pleading of the claimant. 9. Compulsory Counterclaim A counterclaim before the MTC must be within the jurisdiction of said court. Legal conclusions. 4. Complaint-in-intervention. Nature of counterclaim: A counterclaim is in the nature of a cross-complaint.allegation of anew matter which. would nevertheless prevent or bar recovery by him. COMPULSORY COUNTERCLAIM One which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of PERMISSIVE COUNTERCLAIM It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim. 5. The details of probative matter or particulars of evidence. It may likewise be the response to a counterclaim on a cross claim. Rule 6). or 2. the excess is considered waived Calo v. AFFIRMATIVE DEFENSES. Counterclaim COUNTERCLAIM – any claim which a defending party may have against an opposing party. Insufficient denial or denial amounting to admissions: 1.specific denial of the material facts or facts alleged in the pleading of the claimant essential to his cause of action. An allegation that a contract is valid or void is a mere conclusion of law. 3. both as to the amount and nature thereof. a valid judgment may be properly rendered. Answer ANSWER – the pleading where the defendant sets forth his affirmative or negative defenses. 4. Compulsory. For this reason. 6.

Section 10. REQUISITES OF A COMPULSORY COUNTER CLAIM: 1. to be no 1. or it may not. he may so plead his ground for dismissal as an affirmative defense in his answer. 3. he on remedy. default. the transaction or occurrence that is the subject matter of the opposing party’s claim. 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. Gojo v. otherwise. It must arise out of the subject matter of the complaint or of the counterclaim. It must be within the jurisdiction of the court. If he decide to file must a motion dismiss . it is barred except: 1. or be necessarily connected with. In the event that a defending party has around forQuickTime™ and a and a compulsory dismissal counterclaim at TIFF (Uncompressed) this picture. May arise out of or be necessarily connected with the transaction or that is the subject matter of the opposing party’s claim in which case. the cross-claim is considered permissive. Need not answered. If it is not set up in the action. he will lose his counterclaim. It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. but if he opts to set up his counterclaim. (Section 9. it is called a compulsory counterclaim. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Counter-counterclaims and counter cross-claims Counter-Counterclaims – is a claim asserted against an original counterclaimant Counter-Crossclaims – is a claim filed against an original cross-claimant. It must arise out of. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Reply Page 15 of 289 . Section 8.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the opposing party’s claim. and 3. 3rd party Complaint Against a person not a party to the action. 2. or 2. It is barred it not set up in the action. When. GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred. In which case. it is outside the jurisdiction of the court. It is NOT barred even if not set up in the action. If the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. A claim by one party against a co-party. In this case. Must be answered. but not a cross-claim seeking an affirmative relief. it may be pleaded by filing a supplemental answer or pleading before judgment. principally because the issued raised in the counterclaim are deemed automatically joined by the allegations of the complaint. Must be in respect of the opponent’s claim (Plaintiff). in which case it is called a permissive counterclaim. The dismissal f the complaint carries with it the dismissal of a cross-claim which is purely defensive. EXCEPTION: If it is a counterclaim which either matured or was acquired by party after serving his answer. 2. Goyola 35 SCRA 557 (1970) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default . Cross-claim REQUIREMENTS FOR A CROSS-CLAIM: Section 9. Rule 11) NOTE: the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible remedies. the defendant can be declared in default. must choose only the needed to see decompressor are same time. The cross-claimant is prejudiced by the claim against him by the opposing party.

party complaint THIRD – PARTY COMPLAINT – a claim that a defending party may. it also has jurisdiction over the third party complaint. The allegation of the party’s claims and defenses. Page 16 of 289 TESTS to determine whether the third-party complaint is in respect of plaintiff’s claim: 1. Central Surety & Insurance 25 SCRA 641 (1968) . New facts that were alleged in the answer are deemed controverted should a party fail o reply thereto. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s claim against the original defendant. Rule 8. 2. The relief prayed for: and 4. then the other necessary parties may be brought in under this section. . 2. EXCEPTION: Reply is required Where the answer is based on an ACTIONABLE DOCUMENT (Sec. Whether it arises out of the same transaction on which the plaintiff’s claim is based. There could also be a fourth.party complaint with the same purpose and function. etc. Where the trial court has jurisdiction over the main case. Bringing New Parties Distinguish from a 3rd party complaint: A 3rd party complaint is proper when not one of the third party defendants therein is a party to the main action. Third (fourth. The date of the pleading Section 3.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REPLY – the response of the plaintiff to the defendant’s answer the function of which is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. 2. there is good ground to support it. 3. with leave of court. THIRD-PARTY COMPLAINT Brings into the action a third person who was not originally a party. The name of the court. If one or more of the defendants in a counterclaim or cross-claim is already a party to the action. COMPLAINT IN INTERVENTION Same. is connected with the plaintiff’s claim. fourth etc-party defendant must be served for the court to obtain jurisdiction over his person. Initiative is with the person already a party to the action. subrogation or any other relief. It is not interposed for delay. Initiative is with a nonparty who seeks to join the action. since he is not an original party. Whether theare needed to see this picture. Republic v.) Section 11. and 3. EFFECT OF FAILURE TO REPLY GENERAL RULE: Filing a reply is merely optional. 2. That to the best of his knowledge. Signature and address The signature of the counsel is a certification: 1. The docket number if assigned.). in respect of his opponent’s claim. the court may. Caption Section 2. and QuickTime™ and a TIFF (Uncompressed) decompressor 3. etc. and 3. third party defendant may assert any defenses which the third-party plaintiff has or may have to plaintiff’s claim Summons on third. Section 12. NOTE: A third party complaint is no proper in an action for declaratory relief. That he has read the pleading. RULE 7 PARTS OF A PLEADING Section 1. 8. Its designation. The title of the action. The Body sets forth: 1. file against a person not a party to the action for contribution. or although arising out of another or different transaction. in its discretion. indemnity. information or belief. NOTE: An UNSIGNED PLEADING produces no legal effect. allow such deficiency to be remedied if it shall appear that the same was due to inadvertence and not intended for delay. regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the man action. The Body PARTS OF A PLEADING The Caption contains the following: 1. However.

HOW A PLEADING IS VERIFIED By an affidavit that the affiant: 1. If the ultimate facts are NOT alleged. UST Hospital v. Surla 294 SCRA 382 (1998) Certificate of non-forum shopping is not required in a compulsory counterclaim. EVIDENTIARY FACTS – those which are necessary to prove the ultimate fact or which furnish evidence of the existence of some other facts. 2. Deliberately filing an unsigned pleading. and 2. That the allegations therein are true and correct of his personal knowledge or based on authentic documents. In general Every pleading shall contain in a methodical and logical form a plain. Without prejudice to the filing administrative and criminal actions of EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING: 1. Section 5. Direct contempt. concise and direct statement of the ultimate facts. or 4. the cause of action would be insufficient. Failing to promptly report a change of his address. Indirect Contempt 2. The certificate is to be executed by petitioner. 2. Has read the pleading. involving the same parties. to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief. omitting the statement of mere evidentiary facts. as well as its applicability to him Section 2. omitting statement of mere evidentiary facts If defense relied is based on law. RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING Section 1. Alternative causes of action or defense PLAINTIFFS Alternative allegations – cases where the facts essential to the plaintiff’s cause are within the knowledge of the defendant. unless otherwise provided upon motion and after hearing EFFECT OF SUMBISSION FO FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UNDERTAKINGS THEREIN: QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Certification against forum-shopping FORUM SHOPPING – consists of filing multiple suits in different courts. cite the pertinent legal provisions thereof. as well as a cause for administrative sanctions. 3. without prejudice. Alleging scandalous or indecent matter in the pleading. COMPLAINT Filed by plaintiff ANSWER Filed by defendant Must contain a direct statement of the ultimate facts. and (c) relief sought. (b) rights or causes of action. cross-claim. Deliberately signing a pleading in violation of the Rules. 1. Section 4. there is identity of (a) parties. ULTIMATE FACTS – those which directly form the bases of the right sought to be enforced or the defense relied upon. Test to determine the presence of forumshopping: Whether in the two (or more) cases pending. Shall be ground for summary dismissal of the case with prejudice. and not by counsel. Required ONLY for complaints or initiatory pleadings such as permissive counterclaim. either simultaneously or successively. yet the plaintiff is so imperfectly informed that he can’t state them with certainty Plaintiff should state the DEFENDANT Defendant may state hypothetical allegations (affirmative defense) Defendant may also Page 17 of 289 .Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 DISCIPLINARY ACTION ON COUNSEL IN THE FOLLOWING CASES: 1. A counterclaim is not an initiatory pleading EFFECT OF FAILURE TO COMPLY: Not curable by mere amendment of the pleading but shall be cause for dismissal of the case. etc. Verification Pleadings need NOT be verified EXCEPT when otherwise provided by the law or rules.

it may still be a ground for dismissal on reason of non-compliance with condition precedent. NOTE: Compliance with conciliation process is a condition precedent but not a jurisdictional requirement. 4. it is sufficient to aver the decision or judgment without setting forth matter showing jurisdiction to render it. etc. if the defendant wants to raise an issue of his legal capacity to be sued. or other condition of the mind. Conditions Precedent Pleading must state conditions precedent to the cause of action. 5. Judgments of domestic or foreign courts. even on appeal. -foreign corporation must also aver its capacity to sue or be sued -Example of what the defendant must plead: -if the defendant wants to raise an issue as to the plaintiff’s legal capacity to sue. knowledge. Capacity to sue or be sued in a representative capacity. Legal existence of an organization. IN SUMMARY: FACTS THAT MAY BE AVERRED GENERALLY: 1. however. intent. failure to compromise. Judgment The jurisdiction of the court a quo is presumed. If after the granting the motion for bill of particulars. (BUT there must still be an allegation that the specific condition precedent has been complied with. Section 7. compliance with conciliation process at the barangay level. on ground of lack of cause of action. Capacity Facts showing the capacity to sue and be sued must be averred. and are without statement of the facts to which such terms have reference. be they compatible with each other or not plead as many defenses and counterclaims he may have -on the other hand. boards. Capacity to sue or be sued. are merely conclusions of law. -Example of what must be pleaded: -that a foreign corporation (generally not allowed to sue. Official document or act. but to plead in alternative the doubtful facts which are wholly within the defendant’s knowledge and call upon the defendant to make full disclosure of these facts Plaintiff may state alternative causes of action. 6. mistake. otherwise. Failure to state the conditions precedent will make the complaint defective and vulnerable to dismissal.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 facts within his knowledge with certainty.e. the plaintiff still refuses to do so. FACTS THAT MUST BE AVERRED PARTICULARLY: Circumstances showing fraud or mistake in all averments of fraud or mistake. Section 6. A party desiring to raise the issue of lack of capacity to sue must do so by specific denial. tribunals. Malice. he should question the jurisdiction of the court over his person Section 5. 3. Section 4. Inconsistency does not operate as waiver or withdraw of defense in another portion of his answer It is sufficient that each is consistent with itself The defendant may move for a bill of particulars when the allegations of fraud. Action or defense based on document Section 3. (no need to show jurisdiction) 7. or officers. but can be sued) has license to do business in the and a country or is not doing QuickTime™ TIFF (Uncompressed) decompressor business are neededcountry in the to see this picture. he should file a motion to dismiss on that ground or set it up as affirmative defense in the answer Page 18 of 289 . it will be dismissed for lack of cause of action) 2. Fraud. i. Conditions precedent. condition of the mind Fraud or mistake must be stated with particularity while malice or intent must be averred generally. NOTE: 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. the court may simply dismiss the complaint.

The corporation was not authorized under its charter to sign the instrument. 4. GENUINENESS means nothing more than that the instrument is not spurious. 3. 2. Hodges 38 SCRA 159 (1971) Failure to specifically deny under oath the genuineness and due execution of an actionable document generally implies an admission of the same by the other party. By setting forth what is claimed to be the facts. Statute of Limitations. OR b. and that the formalities were complied. Minority or imbecility failure to The aforementioned defenses are not inconsistent with the genuineness and due execution of the document. Where the actionable document is properly alleged. 9. do not put evidence yet. it was in words and figures exactly as set out in the pleadings. Two permissible ways of pleading an actionable document: 1. 6. Section 8. attach an original or copy of the document as an exhibit 3. Demand letter An actionable document is the main object of the action. How to contest such document HOW TO CONTEST AN ACTIONABLE DOCUMENT: 1. or 2. At the time the document was signed. Defenses not waived despite specifically deny under oath: 1. Payment. present the substance of the document in the pleading 2. Unauthorized signature. EXCEPT than an oath is not required: a. When compliance with an order for an inspection was refused. Mistake. 3. counterfeit. Duress. When the adverse party was not a party to the instrument. Estopped. as in the case of an agent signing for his principal. or 5. Want of delivery. Compromise. the failure to specifically deny under oath the same results in. execution of said document. QuickTime™ and a 1. 2. The admission of thedecompressor genuineness and due TIFF (Uncompressed) are needed to see this picture. Central Surety v. By setting forth the substance of such document in the pleading and attaching said document thereto as an exhibit (contents of the document annexed are controlling. By setting forth said document verbatim in the pleading. 8. Fraud. deed of mortgage. What to do? 1. 5. such IMPLIED ADMISSION IS DEEMED WAIVED if the party asserting the same has allowed the adverse party to present evidence contrary to the contents of such document without objection Section 9 Official document or act Section 10 Specific Denial Page 19 of 289 . Want or illegality of consideration. ex.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Applies to a cause of action or defense that relies on written document. and 2. that it was duly delivered. Forgery in the signature. BUT the following defenses are waived: 1. DUE EXECUTION mean that the document was signed voluntarily and knowingly by the party whose signature appears thereon. Promissory note. but. 7. However. written contract ACTIONABLE DOCUMENT – written instrument upon which the action or defense is based. By specific denial under oath. 4. 2. in case of variance in the substance of the document set forth in the pleading and in the document attached). mail) they have no place in a pleading A non-actionable document is some other extraneous document which is not the main object of the action. ex. The document need not be formally offered in evidence. or of different import on its face from the one executed by the party or that the party whose signature it hears has signed it and that at the time it was signed. even if in writing (ex letters. it was not in words and figures exactly as set out in the pleading. that if signed by somebody else such representative had the authority to do so.

QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Interlocutorynot appealable JUDGMENT BY DEFAULT Rendered by the court following a default order or after it received. inadvertence. Defenses and objections not pleaded GENERAL RULE: Defenses and objections not raised in MOTION TODISMISS or in the ANSWER are deemed waived. 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. 2. A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-clam matures or is acquired after the answer is filed. whenever practicable. Res Judicata Prescription of the action. Section12. it was not set up. Section 3. Final . to the knowledge of the court. Part admission and part denial. 2. Section 11. Allegation not specifically denied deemed admitted GENERAL RULE: allegations denied are deemed admitted. or Crossclaim not set-up barred An AMENDED ANSWER is proper if the counterclaim or cross claim already existed at the time the original answer was filed. Section 2. on plaintiff’s motion for failure of the defendant to failure his responsive pleading seasonably. setting forth the substance of the matters relied upon for such denial. but due to oversight. Default. and 4. There must be PROOF of such failure to answer. ex parte. There must be a MOTION to declare the defendant in default. Allegations immaterial as to the cause of action. 3. WHERE NO DEFAULTS ARE ALLOWED: Page 20 of 289 . and 3. Striking out of pleading or matter contained therein Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may be stricken out on motion. plaintiff’s evidence. an admission of the averment to pregnant with an admission of the substantial facts in the pleading responded to. REQUISITES FOR A DECLARATION OF DEFAULT: 1. 2. NOT specifically EXCEPTIONS: 1. 2. Lack of jurisdiction over the subject matter Litis pendentia. There must be NOTICE to the defendant by serving upon him a copy of such motion. it is in effect. and 3. Sibonghanoy 23 SCRA 29 (1968) The court shall dismiss the claim if any of these grounds appears from the pleadings or the evidence on record. ORDER OF DEFAULT Issued by the court. or excusable neglect. so plain and necessarily within the defendant’s knowledge that his averment of ignorance must be palpable untrue. Tijam v. NOTE: this does not apply where the fact as to which want of knowledge is asserted is. RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. By specifically denying the averment and. Allegations as to he amount of unliquidated damages. Defendant FAILS TO ANSWER within the time allowed therefore. NEGATIVE PREGNANT – a form of denial which at the same time involves an affirmative implication favorable to the opposing party. declaration of DEFAULT – the failure of the defendant to answer within the proper period. 4.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. Conclusion of law.appealable EXCEPTIONS: 1. These defenses may be raised at any stage of the proceedings even for the first time on appeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches. Compulsory Counterclaim. 3. It is not his failure to appear nor failure to present evidence.

Florendo 154 SCRA 610 (1987) 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. in which case. Section 3. REMEDIES FROM JUDGMENT BY DEFAULT Judgment by default TIFF (Uncompressed) decompressor Motion for new trial or to see this picture. and Failure to file a motion for new trial/ denial of said motion Perfect appeal from said judgment by default within the balance of said 15/30 day period Page 21 of 289 . Summary procedure EFFECT OF AN ORDER OF DEFAULT: entitled to notice of 1. Section 2. Subsequent amendments should be made only by leave of court even if the other party has not yet served a responsive pleading. and 3. an amendment AFTER the denial of a motion to dismiss is still considered as a matter of right. Such rights can only be exercised ONCE. the filing of the amended complaint resulted in the withdrawal of the original complaint. 2. PARTIAL DEFAULT: 1. Some of the defending parties answer and the others fall to do so. it will not benefit those who did not answer.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. 4. Motion to declare him in default. Correcting a mistake in the name of a party. 2. The default asserting a claim states a common cause of action against several defending parties. AND 2. Special civil actions of certiorari. and 4. Amendments by leave of court Leave of court is required: 1. and 5. Correcting a mistake in the name of a party. within 10 days after it was SERVED. and 6. NOTE: a motion to dismiss is not a responsive pleading. Amendments in general Pleadings may be amended: 1. Striking out the name of a party. it may be done without leave of court. 3. Adding the name of a party. or in case of a REPLY. Service of final orders and judgments Cavili v. Declaration of nullity of marriage. Order declaring him in default. Notice to the adverse party. RULE 10 AMENDED AND SUPPLEMENTAL Section 1. A responsive pleading had already been served. As such. Adding an allegation of a party. 3. 3. If the amendment is substantial. Legal Separation. If the defendant was declared in default upon an original complaint. 2. Annulment of marriage. 4. Correcting a mistake or inadequate allegation or description in any other respect. Requisites: 1. reconsideration at any time are needed after service of judgment by default and within 15/30 days therefrom QuickTime™ and a Failure to appeal without defendants fault Petition for relief from judgment within 60 days from notice of the judgment but within 6 months from entry thereof Annulment of Judgment under RULE 47 EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT B DEFAULT: Shall not exceed the amount OR be different in kind from that prayed for NOR award unliquidated damages. Hence. 2. Amendments as a matter of right Amendment is a matter of right before a responsive pleading is SERVED. Subsequent proceedings. The answer interposes a common defense. There must be a motion filed in court. 2. hence the defendant was entitled to file the answer to the amended complaint as to which he was not in default. EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the one who answered. prohibition and mandamus where comment instead of an answer is required to be filed 5.

Admissions in the superseded pleading can still be received in evidence against the pleader. 3. When cause of action. CA 229 SCRA 627) AMENDED PLEADING SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading. it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. Amendment to cure a premature or non-existing cause of action. anew does not require the filing copy of the entire of a new copy of the pleading must be filed. a. 3. original pleading. Within 15 days after service of summons. Formal Amendments Section 5. Amendment for purposes of delay.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. 3. if it has a resident agent. 2. Instances when amendment by leave of court may not be allowed: 1. c. and 4. Section 6.193) RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1.sor are needed to responsive pleading has yet been filed. Filing of amended pleadings Page 22 of 289 . NOTE: The cause of action stated in the supplemental complaint must be the same as that stated in the court should not admit the supplemental complaint (Asset Privatization Trust v. Answer to the complaint Section 2. Supplemental pleadings SUPPLEMENTAL PLEADINGS – is one which sets forth transactions. Opportunity to be heard afforded to the adverse party. UNLESS a different period is fixed by the court. Can be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) court decompres of right as when nosee this picture. Pleadings may be amended to conform to the evidence. Section 7. Amendment to conform to or authorize presentation of evidence When issues NOT RAISED in the pleadings are tried with the express implied consent of parties 1. They shall be treated as if raised in the pleading. 2. EFFECT OF AMENDED PLEADING 1. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by Refers to facts existing at the time of the commencement of the action. Failure to amend does not affect the result of the trial of these issues. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived.within 15 days after service of summons to him. entire pleading. occurrences. defense or theory of the case is changed. p. In case the defendant is a foreign private juridical entity. When an amended A supplemental pleading pleading is filed. An amended pleadings supersedes the pleading that it amends. if it has no resident agent. and 3. Take the place of the Taken together with the original pleading. Section 4. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may be proved by the party relying thereon by formal offer in evidence. Answer of a defendant foreign private juridical entity Answer to a complaint 1. b. 2. but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer. Amendment is intended to confer jurisdiction to the court. 2. 2002. (Regalado. NOTE: Some authors are of the opinion that admissions in superseded pleadings need not be offered in evidence pursuant to Section 4 of Rule 129. or events which have happened since the date of the filing of the complaint.

NOTE: The rule shall apply to the answer to an amended counterclaim. The defects complained of: 2. which shall NOT be less than 60 days after notice (rule 14. Answer to supplemental complaint Answer to a supplemental complaint must be filed within 10 days from notice of the order admitting the same. Section 8. amended cross-claim. Section 4. Galeon v. answering the supplemental complaint in lieu of the10-day reglementary period. answer to original pleading shall be deemed as answer to the amended pleading. to file his answer. As in the case of the filing of an amended pleading with leave of court. Galeon 60 SCRA 234 (1976) An action cannot be dismissed on the ground that the complaint is vague or indefinite. Section 6. he also has 15. The paragraphs wherein contained. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. Existing counterclaim or cross-claim Section 9. etc. amended third (fourth. the court may fix a different period for QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Extension of time to plead REQUISITES: 1. Answer to amended pleadings 1. Section 7. The court may extend the time to file the pleadings but may not shorten them. Answer to counterclaim or cross-claim Section 1. the filing of supplemental complaint requires leave of court. hence. 30. or excusable neglect or when justice requires may be set up by the pleader BEFORE JUDGMENT. There must be a motion. With service of such motion to other party. and 3. Counterclaim or cross-claim arising after answer Section 10. 2. If the filing of an amended complain is NOT a matter of right—within 10 days counted from notice of the court order admitting the same. The motion shall point out: 1. In the filing of an amended complaint is a matter of right—within 15 days from service of amended complaint 2. Omitted counterclaim or cross-claim Counterclaims or cross-claims omitted through oversight. On such terms as may be just. unlike the former. 60 days from service of summons. it must be filed within the period granted by the Rules (Rule 11) for the filing of a responsive pleading. Answer to third (fourth. Section 15) 4. they are Page 23 of 289 . PURPOSE: to aid in the preparation of a responsive pleading. the period to answer should be at least 60 days. Hence. and amended complaint-in-intervention) If no new answer is filed.)-party complaint The third party defendant is served with summons just like the original defendant. The details desired. purpose A counterclaim or cross-claim must be answered within 10 days from service.. Section 5. When applied for. and 3. etc. Section 3. However.party complaint. The motion for bill of particulars shall be filed before responding to a pleading. as the case may be. Section 11. in case of a non-resident defendant on whom extraterritorial service of summons is made. inadvertence. Leave of court is necessary.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 publication. RULE 12 BILL OF PARTICULARS BILL OF PARTICULARS – a more definite statement of any matter which is not averred with sufficient definiteness or particularity. Reply A reply may be filed within 10 days from service of the pleading responded to.

If his motion is denied. Sec. It becomes part of the pleading sought to be clarified. Compliance with order EFFECTS OF MOTION 1. he shall have not less than 5 days to file his responsive pleading. Stay of period to file responsive pleading QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 2. If the motion is granted. or Page 24 of 289 . 2. notice may be made either upon both or either of them MODES OF SERVICE a) personally b) mail c) substituted service Section 3. counted from service of the order denying his motion. or b. serving a copy thereof on the adverse party. Section4. Section 4. NOTE: If ether case. Action by court The court may either: 1. Where party is represented by more than one counsel of record. Section 3) 3. pleadings and orders are served to counsel. may order the striking out of the pleading or the portion thereof to which the order is directed. unless service thereof on the party himself was ordered by the court or the technical defect was waived. 4. Section 6. Rule 17. hi answer will be stricken off and his counterclaim dismissed. Filing and service. if the plaintiff fails to obey. and he will be declared in default upon motion of the plaintiff. If defendant fails to obey. If the order is not obeyed or in case of insufficient compliance therewith. The bill of particulars may be filed either in a separate or in an amended pleading. he will still have such balance of the reglementary period to file his responsive pleading. his complaint may be dismissed with prejudice UNLESS otherwise ordered by the court. JUDGMENTS AND OTHER PAPERS Note: This rule is not arranged per section but per topic. service of notice on any of the latter is sufficient. Manner of Filing FILING – act of presenting the pleasing or other paper to the clerk of court Manner of filing 1. the court: a. Grant it outright: or 3. make such order as it may deem just. Section 1. except: 1) when he has no counsel 2) when counsel of record can’t be located 3) when party himself is directed by court to show cause (ex. Contempt) -if represented by 2 counsels. Rule 17. Coverage Notice given to a party who is represented by counsel is a nullity. Effect of non-compliance Effect of non-compliance: 1. 2. defined FILING OF PLEADINGS -Act of presenting the pleading or other paper to the clerk of court a) personally to the clerk of court b) sending them by registered mail SERVICE OF PLEADINGS Act providing a party with a copy of the pleading or paper concerned -judgment. Allow the parties the opportunity to be heard. Section 2. (Rule 12. Section 4. in whole or in part. the movant can wait until the bill of particulars is served on him by the opposing party and then he will have the balance of the reglementary period within which to file his responsive pleading. Deny: or 2. Personal Service. (Rule 12. Bill a part of pleading RULE 13 FILING AND SERVICE OF PLEADINGS. Section3. Rule 9. Section 3) Section 5.

PERSONALLY TO THE CLERK OF COURT Clerk of court endorse the date and hour of the filing SENDING THEM BY REGISTERED MAIL Date of mailing shall be considered as the date of filing Registered mail only -reason: government postal service enjoys the presumption of regularity -date of mailing = date of filing Private letter couriers -not recognized because you can’t apply the presumption of regularity to private entity -nevertheless. Rule 14) Section 4.Actual delivery of the processes to him (includes service at the residence or his attorney) Section 7. This simply means that defendant’s answer can’t be filed at once to the Page 25 of 289 . 7. Papers required to be filed and served 1. 8. Offer of judgment. 6. RESOLUTIONS a) personal service b) registered mail c) publication a) personal service b) registered mail c) ordinary mail Promulgation of decision in criminal cases = reading of judgment Promulgation of decision in civil cases = date when the copy was served on the counsel by registered mail 3 KINDS OF SERVICE: PERSONAL SERVICE BY SERVICE MAIL Depositing Deliver copy in the personally: 1) party or post office. 7. Inc. because you must first serve a copy thereof to the plaintiff. Judgment. service may be done by ordinary mail. If registry service is not available in the locality of either sender or addressee. a QuickTime™ and TIFF (Uncompressed) d 9. the date of actual receipt by the court of such pleading and not the date of delivery to the private carrier. to see thiecompressor are needed or s picture. Modes of Service SERVICE OF PAPERS SERVICE OF JUDGMENTS. Benguet Electric Cooperative. v. Substituted Service SUBSTITUTED SERVICE Delivering copy to the clerk of court with proof of failure of both personal and service by mail (different from substituted service under Sec. or counsel residence. 2. Written Motion. with a person of sufficient age and discretion residing therein Section 6. Demand.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. Personal Service PERSONAL SERVICE. Resolution. 5. Section 5. Order. Notice. Pleadings subsequent to original complaint and written motions should first be served on the parties before they are filed with court. signed by him –only then can you file an answer with proof of service. NLRC 209 SCRA 55 (1992) If a private carrier is availed of by the party. Registered mail Filing by mail should be through the registry service which is made by deposit of the pleading in the post office. 3. the date of actual receipt is the one counted clerk of court. and not through other means of transmission. 4. Service by mail Section 8. with 2) by leaving it instructions of in his office return to with clerk or sender if person undelivered having within 10 days charged thereof 3) leaving it at the residence of either. is deemed to be the date of the filing of that pleading. Appearance. FINAL ORDERS. Similar papers Papers subsequent to complaint must be filed with court and served upon parties. 10. Pleading subsequent to the complaint.

Delivering personally a copy to the party or his counsel. If filed TIFF (Uncompressed) decompressor proved by the by registered mall: are needed to see this picture. and 2. or b. Leaving the copy between 8 a. Page 26 of 289 . and Completeness begins the running of the period for filing of the responsive pleadings Section 11. Official return of the server. or 2. PERSONAL SERVICE (SECTION 6) a. Notice of lis pendens LIS PENDENS – a notice of a pendency of the action between the parties involving title to or right of possession over real property. containing the date. Proof of service by ordinary mail: Affidavit of the person mailing showing compliance of Section 7 Rule 13. or c. Affidavit of the party serving. registry receipt and the affidavit of the person who did the mailing with a full statement of: a. 2. if known. Written admission of the party served. 1.Act of providing a party with a copy of the pleading of paper concerned SUMMARY OF MODES OF SERVICE 1. or if his office is unknown. and. Registry receipt issued by the mailing office Section 14. With instructions to the postmaster to return the mail to the sender after 10 days if undelivered. Proof of service by registered mail: 1.m. Affidavit of maller showing compliance of Section 7 Rule 13. Final Orders or Resolutions Service by publication = only when he absconds and defendant’s address is unknown Section 10. REQUISITES: 1. b. If it is not in the record.m. of either sender or addressee. service may be done by ordinary mail. Completeness of Service Service is completed when: Personal Registered service mail Upon actual Upon actual delivery receipt by the addressee or 5 days from the date he received 1st notice from postmaster -1st notice from postmaster needs conclusive proof Ordinary mail Upon expiration of 10 days after mailing SERVICE. with a person of sufficient age and discretion then residing therein—if no is person found in his office.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 9 Service of Judgments. Leaving a copy in counsel’s office with his clerk or with a person having charge thereof. Priorities in modes of service and filing Personal service is preferred and written explanation is needed why such was not taken Service by registered mail may be done if the distance from the court to the adverse party is considered Section 12. Section 13 Proof of Service Proof of personal service: 1. SUBSTITUTED SERVICE (SECTION 8) Delivering the copy to the clerk of court with proof of failure of both personal and service by mail. and 6 p. If filed personally: proved by the written or stamped acknowledgement of its filing by the clerk of court on a copy of the same: or QuickTime™ and a 2. and c. 2. or 3. Proof of filing Filing is proved by its existence in the record of the case. Action affects the title or the right of possession of the real property. With postage fully paid. SERVICE BY MAIL (SECTION 7) If no registry service is available in the locality. 3. Affirmative relief is claimed. at the party’s or counsel’s residence. or if he has no office. place and manner of service. The date and place of depositing the mail in the post office in a sealed envelope addressed to the court.

The notice is for the purpose of molesting the adverse party. Inc. Other proper court officers. v. as the original complaint was deemed withdrawn upon such amendment. Return EFFECT OF NON-SERVICE: Unless the defendant voluntary submits to the jurisdiction of the court. Notice of lis pendens 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. by any suitable person authorized by the court issuing the summons. When the administrator of a deceased party defendant substitutes the deceased. Enumeration is EXCLUSIVE Section 4. CA 214 SCRA 242 (1992) Jurisdiction over the person of the defendant in a civil case is acquired either by his VOLUNTARY APPEARANCE or SERVICE OF SUMMONS upon him. It s not necessary to protect the rights of the party who caused it to be recorded. 2. Section 1. Clerk to issue summons Summons to be issued: 1. case. Action in rem (AFP Mutual Benefit Association . AND 2. Where upon the death of the original defendant his infant heirs are made parties. Upon the filing of the complaint. or 2. Issuance of Alias Summons ALIAS SUMMONS – is one issued when the original has not produced its effect because of a defect in Page 27 of 289 RULE 14 SUMMONS Minucher v. and defendantsee decompressor in a civil are needed to 2. or 4. EXCEPTION: 1. . GENERAL RULE: When an additional defendant is joined. One Peng v. Domingo 44 Phil 680 (1923) But where the defendant was declared in default on the original complaint and the plaintiff subsequently filed an amended complaint. nonservice 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 Section 5. Custodio 1 SCRA 780 (1961) Where the defendant has already been served with summons on the original complaint. For justifiable reasons. the service of the deceased under Section 16 of Rule 3. 327 SCRA 203) NOTE: This serves as a warning to all persons. The defendant may also record a notice of lis pendens when he claims an affirmative relief in his answer. NOTE: In these instances. new summons must served on the defendant on the amended complaint. Notice shall contain the name of the parties and the object of the action or defense an a description of the property affected thereby. By whom served Summons may be served by: 1. Sheriff’s deputy. 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. Section 2. 4. Sheriff.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. SUMMONS – is the writ by which he defendant is notified of the action brought against him. as section 14 provides that such cancellation may be authorized ONLY upon order of court after proper showing that: 1. including the judgment by default and the order of execution. and 3. CA. Payment of the requisite legal fees. To give notice to the defendant than an action has been commenced against him (right to due process). In cases of substitution of the deceased under Section16 of Rule 3. To acquire jurisdiction over the person of QuickTime™ and a the TIFF (Uncompressed) this picture. 2. no further summons is required on the amended complaint if it does not introduce new cause of action Atkins v. Contents Section 3. summons must be served upon him. or 3. PURPOSE OF SUMMONS: 1.

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
form or in the manner of service, and when issued, superseded the first writ. Section 6. Service in person on defendant Section 7. Substituted Service Section 8. Service upon entity without juridical personality Section 9. Service upon prisoner Section 10. incompetents Service upon minors and Citizen Surety v. Melencio-Herrera 38 SCRA 369 (1971) In action in personam where the defendant cannot be served with summons personal or by substituted service, the case must first be converted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. If no property can be found, the action shall be archived but shall not be dismissed, SERVICE ENTITIES OF SUMMONS ON DIFFERENT C. Publication (Section 14) Requisites: 1. The action is in rem or quasi in rem; 2. Defendant’s identity and whereabouts are unknown and cannot be ascertained or diligent inquiry and 3. there must be leave of court

Section 11. Service juridical entity

upon

domestic

private

Section 12. Service upon foreign private juridical entity Section 13. Service upon public corporations Section 14. Service upon defendant whose identity or whereabouts are unknown Section 15. Extraterritorial Service Section 16. Residents temporarily outside the Philippines MODES OF SERVICE OF SUMMONS: A. Service in person on defendant (Section 6) 1. By handling a copy of summons to him, OR of he refuses to receive it; 2. By tendering it to him. B. Substituted Service (Section 7) For substituted service of summons to be valid, it is necessary to establish the following: 1. The impossibility of the personal service of summons within a person reasonable time; 2. The efforts exerted to locate the person to be served; and 3. Service upon a person of sufficient QuickTime™ and a Tage and discretion residing in the IFF (Uncompressed) decompressor are needed to see this picture. same place as defendant OR some competent person in charge of his office or regular place of business. Spouses Venturanza v. CA 156 SCRA 305 (1987) In substituted service, the sheriff’s return must show that an effort or attempt was exerted to personally serve the summons on the defendant and that the same had failed.

Service on entity without juridical personality (Section 8) Upon any or all the defendants being sued under common name; or person in charge of the office Service upon minors and incompetents (Section 10) In case of minors: by serving upon the minor regardless of age, AND upon his legal guardian, or also upon either of his parents In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless they are his legal guardians In any event, if the minor or incompetent has no legal guardian the plaintiff must obtain the appointment of a guardian ad litem for him. Service upon prisoner (Section 9) Serve on officer having management of the jail or prisoner (warden) Service upon domestic private juridical entity (Section 11) To the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.
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NOTE: Service upon a person other than those mentioned is invalid and does not bind the corporation. The enumeration is EXCLUSIVE. c) any other manner the court may deem sufficient Service upon a resident temporarily outside the Philippines (Section 16) Substituted service or with leave of court, personal service out of the Philippines as under extraterritorial service. Service upon an unknown defendant or whose whereabouts are unknown (Section 14) with leave of court, by publication in a newspaper of general circulation Montalban v. Maximo 22 SCRA 1070 (1968) Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant’s residence, even if defendant was abroad at that time. The fact that defendant did not actually receive the summons did not invalidated the service of such summons. Section 17. Leave of Court Section 18. Proof of Service Section 19. Proof of Service by Publication Section 20. Voluntary Appearance Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the court over the person of the defendant. NOTE: Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall NOT be deemed a voluntary appearance.

Service upon foreign private juridical entity (Section 12) Serve on resident agent; or if none; on government official designated by law; or any officer or agent of the corporation within the Philippines Service upon public corporations (Section 13) In case defendant is the Republic of the Philippines: by serving upon the Solicitor General In case of province , city or municipality, or like public corporations: by serving on its executive head or on such other officer or officers as the law or the court may direct Extraterritorial Service (Section 15) Requisites 1. defendant does not reside or is not found the Philippines; 2. The action must be an action in rem or quasi in rem. It either: a) affects the personal status of plaintiff; b) relates to the subject which is property within the Philippines in which defendant has a lien or interest; c) demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Philippines; or d) property of defendant has been attached in the Philippines 3. Mode of Service a) with leave of court, serve outside QuickTime™ and a the Philippine by personal TIFF (Uncompressed) decompressor are needed to see this picture. service; or b) with leave of court, serve by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or

RULE 15 MOTIONS Section 1. Motion, defined Motion - is an application for relief other then by a pleading KINDS OF MOTIONS

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Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007
a. motion EX PARTE – made without the presence or a notification to the other party because the question generally presented is not debatable. (i.e. motion for extension of time to file pleadings) b. motion OF COURSE – where the movant is entitled to the relief or remedy sought as a matter of discretion on the part of the court. c. LITIGATED motion – one made with notice to the adverse party to give an opportunity to oppose. (i.e. motion to dismiss) d. SPECIAL motion – motion addressed to the discretion of the court. GENERAL judgment. RULE: A motion cannot pray for 4. Motion and notice of hearing must be served at least 3 DAYS BEFORE THE DATE OF HEARING; (Section 4) and 5. PROOF OF SERVICE.(Section 6) EXCEPTIONS TO THE 3 DAYNOTICE RULE: 1. Ex parte motions; 2. Urgent motions; 3. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties; and 4. Motions for summary judgment which must be served at least 10 days before its hearing. NOTE: Any motion that does not comply with Sections 4,5 and 6 of this Rule (requirements 4-5) is a mere scrap of paper. It does not interrupt the reglementary period for the filing of the requisite pleading. Section 7. Motion Day Friday afternoon Section 8. Omnibus Motion Omnibus Motion Rule – A motion attacking a pleading, order judgment or proceeding shall include all objections then available. Objections not included shall be deemed waived except the defense referred in Section 1 Section9. Motion for leave Contents: 1. The relief sought to be obtained; 2. The ground upon which it is based; and 3. If required by the Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers. Section 4. Hearing of Motion Section 5. Notice of Hearing Section 6. Proof of Service Necessary
QuickTime™ REQUISITES OF A MOTIONand a NOT TIFF (Uncompressed) decompressor MADE IN OPEN are needed to see this picture. COURT OR IN THE COURSE OF HEARING OR TRIAL: 1. it must be in WRITING; 2. HEARING OF MOTION set by the applicant; 3. NOTICE OF HEARING shall be addressed to all parties concerned not later than 10 days from the filing of the motion; (Section 5)

EXCEPTIONS: 1. Motion for judgment on the pleadings; 2. Motion for summary judgment; 3. Motion for judgment on demurrer to evidence. Section 2. Motion must be in writing GENERAL RULE: Motions must be in writing. EXCEPTIONS: Those made in OPEN COURT or in the COURSE OF HEARING or TRIAL. Section 3. Contents

Section 10. Form

RULE 16 MOTION TO DISMISS A MOTION TO DISMISS is NOT a responsive pleading. It is not a pleading at all. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all objections available at the time of the filing thereof. GENERAL RULE: A court may not motu propio dismiss a case unless a motion to that effect is filed by a party thereto. EXCEPTIONS: 1. Those cases where the court may dismiss a case motu proprio (Section 1, Rule 9); 2. Section2 Rule 17; (Upon the plaintiff’s own motion)
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or otherwise extinguished. A matter of equity. Motion to dismiss called a demurer to evidence after plaintiff has completed the presentation of his evidence under Rule 33. such as in a judgment on the pleadings (Rule 34). NOTE: There could be res judicata without a trial. No jurisdiction over the subject matter of the calm. 11. 4. or else he may present evidence may be declared in if granted. Rule on Summary Procedure (Section 4. May be filed by any defending party against whom a claim is asserted in the action. If denied. would amount to res judicata in the other case. Upon notice by plaintiff. 6. Jurisdiction over the subject matter and the parties by the court rendering it. Dismissal of an appeal Section 1. no legal capacity to sue. or an order of dismissal under Section 3 of Rule 17. 10. 2. 7. prior to to see decompressor the plaintiff has are needed the filing of the answer completed the of the defending party presentation of his to the pleading evidence. of subject matter and of cause of action between the first and second actions. plaintiff default. Based on fixed time. Motion to dismiss under Rule 17. No jurisdiction over the person of the defending party. May be filed only by the defendant against the complaint of the plaintiff. he may refile the case. However. defendant answers. Litis pendentia. If granted appeals and the order . defendant If denied. Due to fault of plaintiff. Prescription. Claim or demand has been paid. There is substantial identity in the cause of action and relief sought. 1991 Revised Rule on Summary Procedure) TYPES OF DISMISSAL OF ACTION: 1. 2. Improper venue. Failure to state a cause of action. MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) Based on insufficiency of evidence. Upon motion by plaintiff. Motion to dismiss may be filed in either suit. 3. Judgment upon the merits. Non-compliance with a condition precedent for filing claim. PRESCRIPTION A motion to dismiss on the ground of prescription will be given due course only if the complaint shows on its face that the action has already prescribed. REQUISITES OF LITIS PENDENTIA 1. There must be identity of parties. the relief being founded on the same facts. a summary judgment (Rule 35). of the dismissal is reversed. regardless of which party is successful. Applies at law. Should be filed within kTime™ and a filed only after May be Quic the time for but TIFF (Uncompressed) this picture. Motion to dismiss before answer under Rule 16. 4. Identify of parties or at least such parties representing the same interests in both actions. plaintiff may appeal or if subsequent case is not barred. 9. The identity in the two cases should be such that any judgment that may be rendered in one. NOTE: a motion to dismiss generally partakes the nature of a demurrer. the defendant loses his right to present evidence. waived. Previous final judgment. and 3. asserting the claim against him. 5. Statutory. Non-statutory Applies in equity. abandoned. Grounds 1. not necessarily in the one instituted first. It hypothetically admits the allegations stated in the complaint. Claim is unenforceable under the Statute of Frauds. the admission extends ONLY to material and relevant allegations. 3. A matter of time. PRESCRIPTION Concerned with the fact of delay. 2. 3. REQUISITES OF RES JUDICATA 1. Not based on fixed time Page 31 of 289 Grounded on preliminary objections.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. LACHES Concerned with the effect of delay. Res judicata. 8. 4. 2.

counted from his receipt o the denial order. FAILURE TO STATE A CAUSE OFACTION and NOT LACK ORABSENCE OFCAUSE OF ACTION is the ground for a motion to dismiss. any of the grounds for dismissal provided for in rule 16. Dismissal upon notice by plaintiff Page 32 of 289 . Section 5. the defendant can PROSECUTE his counterclaim. and in the event the complaint too dismissed. 6 clearly provides that the dismissal of the complaint without prejudice to the prosecution of the counterclaim. The former means there is insufficiency in the allegations in the pleading. Prescription. EXCEPTION: if the court acts without or in excess of jurisdiction or with grave abuse of discretion in denying the motion. NON-COMPLIANCE WITH A CONDITION PRECEDENT Non-compliance with P. may be pleaded as affirmative defenses and a preliminary hearing may be had thereon in the discretion of the court. b. CERTIORARI or PROHIBITON QuickTime™ and a TIFF (Uncompressed) decompressor lies. are needed to see this picture. The latter means that there is insufficiency in the factual basis of the action. or c. Resolution of Motion The court may order: a. Effect of dismissal GENERAL RULE: the action or claim may be re-filed EXCEPTION: the action cannot be re-filed if it was dismissed on any of these grounds: 1. Appeal Certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction under rule 65 Section 4. 3. such fact can be determined only from the facts alleged in the complaint. Time to plead Defendant is granted only the balance of the reglementary period to which he was entitled at the time he filed his motion to dismiss. INCLUDING IMPROPER VENUE. but not less than 5 days in any event. Deny the motion. GENERAL RULE: an order denying a motion to dismiss is interlocutory. Extinguishment of the claim or demand. The ordinary procedure is for the defendant to file hi answer and go to trial and if the decision is adverse. Res judicata. Amend the pleading. EFFECTS OF ACTION ON MTD Order granting motion to dismiss is final order (without prejudice) Order granting motion to dismiss (with prejudice) Order denying the motion to dismiss is interlocutory REMEDY Refile the complaint. he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a counterclaim. NOTE: if the defendant would want to file a counterclaim. A preliminary hearing mat be had thereon.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 COMPLAINT STATES NO CAUSE OF ACTION When the ground for dismissal is that the complaint states no cause of action. he can appeal from the judgment and assign as error the denial of the motion to dismiss. he should NOT file a motion to dismiss. Pleading grounds as affirmative defenses If no motion to dismiss had been filed. Section 2. The dismissal of the action. Section 6.D 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the ground on non-compliance with a condition precedent. The 2nd par. Hearing of Motion Section 3. In these instances. Instead. and 4. of Sec. 2. Unenforceability under the Statue of Frauds. the remedy of the plaintiff is APPEAL. RULE 17 DIMISSAL OF ACTIONS Section 1.

EXCEPT: 1. When stated to be with prejudice in the order of the court. the dismissal shall be limited to the complaint. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same separate action. Plaintiff fails to prosecute his action for an unreasonable length of time. without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint. Where the notice of dismissal so provides. If a counterclaim has been pleaded by the defendant PRIOR TO THE SERVICE upon hum of the plaintiff’s motion for dismissal. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless w/in 15 days from notice SECTION 3 Dismissal is not procured by plaintiff though justified by causes imputable to him. It is merely a waiver of his right to cross-examine and to object to the admissibility of evidence Complaint may be dismissed 1. Dismissal due to fault of plaintiff CAUSES FOR DISMISSAL 1. where such notice is premised on the fact of payment by the defendant of the claim involved Section 2.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Dismissal is effected not by motion but by mere NOTICE of dismissal which is a matter of right BEFORE the SERVICE of: 1. or 2. Cabrera 93 Phil. Upon motion of the defendant. A motion for summary judgment. TIFF remedies of decompressor These alternative (Uncompressed) this picture.the defendant are are needed to see available to him REGARDLESS OFWHETHER HIS COUNTERCLAIM IS COMPULSORY OR PERMISSIVE. Prosecute his counterclaim in a separate action. QuickTime™ and a 2. OR 2. In this case. SECTION 2 Dismissal is at the instance of the plaintiff. Dismissal is a matter of procedure. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint. The rule requires a COURT ORDER confirming the dismissal. When otherwise stated in the motion to dismiss. Such dismissal shall be without prejudice to the right of the defendant to either: 1. 2. Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA). Page 33 of 289 . defendant must manifest such preference to the trial court within 15 days from notice to him of plaintiff’s motion to dismiss. The approval of the court is necessary in the dismissal or compromise of a class suit. or 2. Upon the court’s own motion. GENERAL RULE: Such dismissal is WITHOUT PREJUDICE. Dismissal is a matter of evidence. To have the same resolved in the same action. EXCEPTION: 1. (NOLLEPRODEQU!) 3. The answer. Dismissal under this rule is WITHOUT PREJUDICE. Jalover v. an adjudication on the merits. Section 3. Dismissal upon motion of plaintiff Under this section. Ytoriaga 80 SCRA 100 (1977) 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. unless otherwise declared by the court. 2. Plaintiff fails to comply with these Rules or any order of the court. the dismissal of the complaint is subject to the DISCRETION of the court and upon such terms and conditions as may be just. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (TWO-DISMISSAL RULE) Serrano v. 774 (1953) The dismissal is still with prejudice even if the notice of dismissal does not so provide.

and this he must do upon the service and filing of the last pleading. Section 6. or of dismissing the action should a valid ground therefore be found to exist. UNLESS modified before trial to prevent manifest injustice. Notice of Pre-trial Section 4. Appearance of parties When non-appearance of a party may be excused: 1. The advisability of a PRELIMINARY REFERENCE of issues to a commissioner. 160 SCRA 133 (1988) QuickTime™ and a TIFF (Uncompressed) decompressor The process are needed to see this admissions.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the motion he manifests his intention to have his counterclaim resolved in the same action. with prejudice. For purposes of the pre-trial. Section 5. The advisability or necessity of SUSPENDING THE PROCEEDINGS. The possibility of obtaining STIPULATIONS or ADMISSIONS of facts and documents to avoid unnecessary proof. whether of of securing picture. Nature and purpose The court shall consider: 1. Section 2. Section 4. Enter into an amicable settlement. the expiration of the period for filing the last pleading is sufficient . EFFECT OF NON-APPEARANCE OF DEFENDANT: Cause the plaintiff to present evidence ex parte and for the court to render judgment on the basis thereof. The necessity or desirability of AMENDMENTS TO THE PLEADINGS. The property of RENDERING JUDGMENT on the pleadings. The SIMPLICATION OF ISSUES. the court must close the pre-trial and proceed with the trial of the case. Enter into stipulations or admissions of facts and of documents. unless otherwise ordered by the court. Effect of failure to appear EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal of the action. Sarmiento v. If a representative shall appear in his behalf fully authorized in writing to: a. Dy Pac & Co. but must be complemented by a showing of valid cause for the non-appearance of the party himself. Section 1. 7. Submit alternative modes of dispute resolution. 2. The possibility of an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resolution. b. is essentially voluntary. 4. facts or evidence. Whether of facts or evidence. 8. RULE 18 PRE-TRIAL PRE-TRIAL – a mandatory conference and personal confrontation before the judge between he parties and their respective counsel. or summary judgment. Juan 120 SCRA 403 (1983) The “last pleading” need not be literally construed as the actual filing of the last pleading. Filoil Marketing Corp. v. Such OTHER MATTERS as may aid in the prompt disposition of the case. Record of pre-trial The contents of the PRE-TRIAL order shall control the subsequent course of the action. When the parties are unable to arrive at a stipulation of agreed facts. 5. Dismissal of counterclaim. If a valid cause is shown therefore. cross-claim or third party complaint 6. is essentially voluntary. NOTE: the mere presentation of such written authority is not sufficient. Section 3. 2. When conducted The plaintiff should promptly file a motion ex parte that the case be set for pre-trial. of the number of Page 34 of 289 . and 9. The limitation WITNESSES. c. Section 7. 3. Pre-trial brief Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial.

QuickTime™ and a Section 2. a motion to intervene is barred. INTERVENTION An ancillary action Proper in any of the four situations mentioned in this Rule. TRIAL Court renders If evidence is sufficient to prove plaintiff’s cause of action or defendant’s counterclaim. NOTE: After rendition of judgment. an independent never are needed to proceeding but is ancillary and supplemental to an existing litigation. Section 3. Pleadings-in-intervention 1. Amendments to pleading. Whether the in intervenor’s rights may be fully protected in a separate proceeding. FACTORS TO BE CONSIDERED BY THE COURT 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the introduction of evidence on an issue outside of the pre-trial order. court may hear evidence of plaintiff ex parte PRE-TRIAL No settlement Amicable Settlement Failure to appear Agreements made by parties. Who may intervene 1. Time to intervene The motion to intervene must be filed at any time before the rendition of judgment by the trial court. and 2. Whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Answer-in-intervention Section 1. 2. 2. Schedule of trial If plaintiff is absent. One who has a legal interest in the success of either of the parties 3. even if the judgment itself recognizes the right of the movant. the court may dismiss the case The interest which entitles a person to intervene in a suit must be on 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. as well as in cross-examining the witness in regard to said evidence. Complaint-in-intervention if intervenor asserts a claim against either or all of the original parties. when so required to attend. If defendant is absent. One who is so situated as to be adversely affected by distribution of other disposition of property in the custody of the court or of an officer thereof.is a legal proceeding by which a third person is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirement set by the Rules of Court TIFF (Uncompressed) decompressor NOTE: Intervention is see this picture. court rules in favor of either one or dismisses the case Defendants are already original parties to the pending suit RULE 19 INTERVENTION Intervention . One who has legal interest in the matter in litigation Page 35 of 289 . One who has an interest against both parties or 4. Hence the final dismissal of the principal action results into dismissal of said ancillary action. Defendants are being sued precisely to implead them. INTERPLEADER An original action Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which in whole or in part is not disputed by the other parties to the action. The remedy of the movant is to file a separate action.

the judge or officer shall examine and study carefully such application to determine whether the same is made for a valid purpose. (Section 3) Page 36 of 289 Section 4. the title of the action or investigation 3. Section 4) Liebnow v. The officer or body authorized by law to do so in connection with its investigations conducted by said officer or body. reclusion perpetua or life imprisonment and (2) who is confined in any penal institution shall be brought outside the penal institution for appearance or attendance in any court unless authorized by the Supreme Court. any books. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. Assignment of cases. (Section 2) A subpoena is signed by the Clerk of Court. competent authority. other things under his control. for the taking of his deposition. Calendar of cases Section 2. RULE 20 CALENDAR OF CASES Section 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 if intervenor unites with the defendant in resisting a claim against the latter 1. or 4. b. the name of the court and 2. or c. It must contain a reasonable description of the books. Section1) FORM AND CONTENTS OF A SUBPOENA AD TESTIFICANDUM A subpoena shall state: 1. Subpoena ad testificandum – process directed to a person requiring him to attend and to testify a. (Rule 23. a proper remedy is motion to vacate or set aside the subpoena. (Section 1) 2. or QuickTime™ and a b. 3. Form and Contents WHO ISSUES A SUBPOENA . documents. Appeal 2. By who issued Section 3. (Section1) Section 2. The court of the place where the deposition is to be taken. the name of the court and 2. the remedy of the party is Certiorari. (Section 3) FORM AND CONTENTS OF A SUBPOENA DUCES TECUM 1. Mandamus. (and) shall be directed to the person required to attend. Subpoena duces tecum – process directed to a person which requires him to bring with him a. Philippine Vegetable Oil 39 Phil 60 (1918) If a subpoena duces tecum is improperly issued. documents or things demanded which must appear to the court prima facie relevant. (Rule 136. or c. Answer to a complaint-in-intervention Within 15 days from notice of the order admitting the same REMEDIES FOR THE DENIAL OF INTERVENTION 1. The court before whom witness is required to attend. IF SUBPOENA IS ISSUED TO A PRISONER When application for a subpoena to a prisoner is made. 2. TIFF (Uncompressed) decompressor conducted by at any investigation are needed to see this picture. (Section 2) No prisoner (1) sentenced to death. 4. (Section 2) The deposition of a prisoner confined in prison may be taken only by leave of court on such terms as the court prescribes. at the hearing or the trial of an action. if there is grave abuse of discretion If there is improper granting of intervention. Subpoena and subpoena duces tecum TWO KINDS OF SUBPOENA 1. RULE 21 SUBPOENA Section 1. (and) shall be directed to the person required to attend. the title of the action or investigation 3.

Subpoena duces tecum The court may a. if subpoena duces tecum. Witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. in cases where the money deposited or invested is the subject matter of the litigation. the original shall be exhibited and a copy thereof delivered to the person on whom it is served. if (grounds) It is unreasonable and oppressive. in cases of impeachment. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. The relevancy of the books. fees for one’s days attendance subject to the same exception as a subpoena ad testificandum the reasonable cost of producing the books. Service HOW IS SERVICE OF A SUBPOENA MADE? Service of a subpoena shall be made in the same manner as personal or substituted service of summons. for the court to acquire jurisdiction and for the issues to be joined SUMMONS Order to answer complaint a Served on the defendant Does not need tender of kilometrage and other fees Notice of the date of the hearing of which he is required to attend May be issued more than once at anytime Page 37 of 289 . However. the tender need not be made. (Section 6 SUBPOENA An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage. Subpoena ad testificandum a. or 2. (Section 4) 2. (Section 4) Section 2 of RA 1405 provides in summary that bank deposits can only be examined when there is: 1. or 3. violations of QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. if he is a detention prisoner and no permission is obtained from the court in which his case is pending. upon motion promptly made and. or The person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. b. The witness is not bound thereby When is witness not bound? if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel. Subpoena for deposition Section 6. b. b. 2. Section 5. tendering to him a. the fees for one day’s attendance and the kilometrage allowed by these rules EXCEPT THAT. if subpoena ad testificandum. a written permission of the depositor. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served. Quashing a Subpoena GROUNDS FOR QUASHING A SUBPOENA 1. or 4. 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. upon order of a competent court in cases of bribery or dereliction of duty of public officials. when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or agency thereof. in any event. at or before the time specified therein c. documents or things demanded if subpoena duces tecum 3. this is subject to the provisions of Section11 of the Anti-Money Laundering Act which gives the Anti-Money Laundering Council the right to examine any particular deposit or investment upon order of any competent court in cases of violation of the AMLA but there is no need for court order if such violation of the AMLA is related to kidnapping for ransom. documents or things does not appear. cost of production fees and attendance Notifies party that a complaint against him has been filed and that he should file an answer within a given period Issued only once at the start. the Comprehensive Dangerous Drugs Act of 2002 and hijacking.

Effect of Interruption WHAT IS THE EFFECT OF INTERRUPTION? If period is interrupted. How to compute time HOW IS TIME COMPUTED? In computing any period of time prescribed or allowed by these Rules. 1. applicable only in civil cases). The day of the act that caused the interruption shall be excluded in the computation of the period. No. it shall be deemed as contempt of the court from which the subpoena is issued (Section 9) What if the subpoena was not issued by the court? The disobedience to the subpoena shall be punished in accordance with the applicable law or Rule. and a party is granted an extension of time. or his deputy. may issue a warrant to the sheriff of the province. proof of the service thereof and 2. A. or legal holiday. In case of a failure of a witness to attend. (Section 1) Section 2. the allowable period after such interruption shall start to run after notice of the cessation of the cause of such interruption. Since the motion to dismiss filed interrupts the period to file the answer. if the witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel (known as viatory right. you exclude that day in the computation of the period and so the allowable period would be 11 days.M. (Section 9) ARE THERE ANY EXCEPTIONS TO COMPELLING ATTENDANCE OF WITNESSES ISSUED A QuickTime™ and a TIFF (Uncompressed) decompressor SUBPOENA AND FROM BEING HELD IN are needed to see this picture. or by any applicable statute. If the last day falls on a Saturday. time shall not run until the next working day. the cost of the warrant and seizure of such witness shall be paid by the witness (Section 8) 2. 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 or officer. 00-2-14-SC. Personal Appearance in court CAN A PERSON PRESENT IN COURT BE REQUIRED TO TESTIFY? YES. or Legal Holiday and a Motion for Extension Filed on Next Working Day is Granted. upon: 1. what is the balance of his allowable period? ANSWER: 11 days. to arrest the witness and bring him before the court or officer where his attendance is required. or by order of the court. the court or judge issuing the subpoena. Compelling Attendance Section 9. QUESTION: If the defendant files a motion to dismiss on the fifth day. Sunday. (Re: Computation of Time when the Last Day Falls on a Saturday. 2000) Page 38 of 289 . (Section 7) Section8. to a detention prisoner if no permission of the court in which his case is pending is obtained. Sunday or a nonworking legal holiday in the place where the court sits. Sunday. (Section 8) If the failure to attend was willful and without just cause. CONTEMPT OR PUNISHED FOR DISOBEDIENCE? YES. When the last day of the period falls on a Saturday. There are two instances: 1. or RULE 22 COMPUTATION OF TIME Section 1. the extension should be counted from the last day which is a Saturday. proof of the failure of the witness. a Sunday. the first day (or the day of the act or event from which the designated period is to run) shall be excluded while the last day (the date of performance) shall be included. (Section 10) Section 7.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Violation: default Violation: contempt indirect 2. or a legal holiday. Contempt CAN THE COURT COMPEL THE ATTENDANCE OF A PERSON TO WHOM A SUBPOENA HAS BEEN ISSUED? YES.

M. Aug. No. “A copy of the order of the court requiring the parties to avail of interrogatories to parties under Rule 25 Page 39 of 289 . Admission by adverse party (Rule 26) 5. A. as a device for ascertaining the facts relative to those issues 3. not to supply evidentiary matters To prepare for responsive pleading MODES OF DISCOVERY To discover evidentiary facts To prepare for (abbreviates trial) trial and request for admission by adverse party under Rule 26 or at their discretion make use of depositions under Rule 23 or other measures under Rule 27 and 28 within 5 days from the filing of the answer shall be served upon the defendant together with the summons and upon the plaintiff.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 MODES OF DISCOVERY (RULES 23-29) DISCOVERY – disclosure of facts resting in the knowledge of the defendant. 92 (1994)] PURPOSE OF THE MODES OF DISCOVERY 1. or aoppress the person are needed to see this picture. at a later date. [Insular Life Assurance Co. When it can be shown that the examination is being conducted in such a manner as to QuickTime™ and annoy. Interrogatories to parties (Rule 25) 4. 03-1-09-SC. c. or under a general law or court rule on the subject. (Rule 35) BILL OF PARTICULARS To make ultimate facts more definite. it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare his answers in advance. CA. It is of great assistance in ascertaining the truth and in checking and preventing perjury. 2004) RULE 23 DEPOSITIONS PENDING ACTIONS DEPOSITION – is the testimony of a witness taken upon oral examination or written interrogatories. A party or witness whose deposition has been taken at an early stage in the litigation cannot. to narrow and clarify basic issues between the parties. It is cumulative. It is a pre-trial discovery device by which one party (through his or her attorney) asks oral questions of the other party or of a witness for the other party. Webb. writings. Production or inspection of documents. but in pursuance of a commission to take testimony issued by a court. Irrelevant 4. (People v.” (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures.. TIFF (Uncompressed) decompressor embarrass. The witness (including a party) is examined while his memory is fresh: b. Denial of Bills of Particulars does not bar the use of the Modes of Discovery. or things (Rule 27) 6. 3. Physical and mental examination of persons (Rule 28) LIMITATIONS TO MODES OF DISCOVERY 1. 312 SCRA 573. to support a motion for summary judgment. and intended to be used in preparation and upon the trial of a civil or criminal prosecution. and reduced to writing and duly authenticated. 1999) PURPOSES OF TAKING DEPOSITIONS 1. The witness (including a party) is generally not coached in preparation for a pre-trial oral examination with the result that his testimony is likely to be more spontaneous. or things in his possession or power. not in open court. subject to the inquiry. Ltd. readily manufacture testimony in contradiction to his deposition. in a suit or proceeding. or as production of deeds. Privileged matters Using of the modes of discovery is highly encouraged by the court. The reasons for this are: a. Depositions pending action (Rule 23) 2. however. 2. Depositions before action or pending appeal (Rule 24) 3. When it can be shown that the examination is being conducted in bad faith 2. 238 SCRA 88. v. MODES OF DISCOVERY UNDER THE RULES OF COURT 1. in order to maintain the right or title of the party asking it. 16. Where the examination is upon written interrogatories.

Testimony is preserved. It facilitates both the preparation and trial of the cases. WHEN MAY DEPOSITIONS BE TAKEN? 1. Depositions upon Written Interrogatories (Secs. Deposition De Bene Esse – taken for purposes of pending action 2. the time and place for the taking of the deposition (upon motion of any party upon whom the notice is served. saves the time of the courts. 5. (Rule 24. a general description sufficient to identify him or the particular class or group to which he belongs. the name and address of each person to be examined. 25-28) GENERAL PROVISIONS ON DEPOSITIONS (Secs. fraudulent. For deposition upon written interrogatories a. (Fortune v. prevents delays. the court may for cause shown enlarge or shorten the time) and b. the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. Notice to take Oral Deposition or Written Interrogatories (Without Leave of Court) CONTENTS OF THE NOTICE 1. so that if a witness unexpectedly dies or becomes unavailable at the trial. Depositions in Perpetuam Rei Memoriam – those taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case on appeal KINDS OF DEPOSITIONS 1. 7. 3. 15-24) 2. After jurisdiction has been obtained over any defendant or over property which is the subject of the action but before answer. thereby encouraging settlements out of court. It safeguards against surprise at the trial. together with a copy of the petition stating the time and place. Depositions on Oral Examinations (Secs. when may be taken QuickTime™ and WHAT TO FILETIFF(SECTION 1) aressor (Uncompressed) decomp are needed to see this picture. For a deposition upon oral examination (Section 15) a. and often inexpensive way facts which otherwise could not have been proved. The name or descriptive title and address of the officer before whom the deposition is to be taken Proof of service of a notice to take a deposition as provided in Sections 15 and 25 of Rule 23 shall constitute sufficient authorization for the issuance of subpoenas for the persons named in Page 40 of 289 . 6. thereby expediting the trial. It educates the parties in advance of trial as to the real value of their claims and defenses. convenient. and narrows and simplifies the issues to be tried. Section 7) The party must make a motion for leave to take deposition in the court which rendered judgment and give notice in writing to every other party to the action 2. if known. and sham claims and defenses. It makes available in a simple. 1. Section 3) At least 20 days before the date of the hearing. If unknown. 2. Deposition pending appeal (Rule 24. his deposition is available. 1-14) Section 1. No.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 d. 108119. It is an effective means of detecting and exposing false. It expedites the disposal of litigation. 4. The names and address of the person who is to answer and b. G. Section 15) Deposition the petitioner shall serve a notice before upon each person named in the action petition as an expected adverse party. and clears the docket of many cases by settlements and dismissals which otherwise would have to be tried. Motion to Take Oral Deposition or Written Interrogatories (By Leave of Court) 2. Depositions pending action. except with great difficulty and sometimes not at all. After an answer has been served.R. 1994) NOTICE AND SERVICE Deposition a party desiring to take a deposition pending shall give reasonable notice in writing action to every other party to the action (Rule 23. IAC.

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 said notice by the clerk of court of the place in which the deposition is to be taken. relevant to the subject of the pending action. description. depositions may be used at the trial. nature. UNLESS it appears that absence of witness is procured by party offering the deposition. Examination and cross-examination may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. which is admissible in evidence. not privileged a. the deponent may be examined regarding ANY MATTER (should concur) 1. or upon application and notice. in advance of trial and hearing QuickTime™ and a TIFF (Uncompressed) decompressor parte Opportunity for neededcross. (Rule 21. examination without formal interrogation and cross-examination Can be competent Not admissible in testimonial evidence evidence except in cases governed by the Rule on Summary Procedure Section 4. Witness resides at a distance more than 100 km from place of trial or hearing. Section 6) For depositions pending action or pending appeal. that such exceptional circumstances exist as to make it desirable. DEPOSITION AFFIDAVIT Written testimony of witness Mere sworn written in course of judicial statements proceedings. to contradict or impeach the deponent’s testimony as a witness b. may be used against any party who was present or represented during the taking of the deposition or who had notice thereof in accordance with any one of the following provisions: 1. custody. Section 24) husband and wife attorney and client doctor and patient public officer priest and confessant b. for any purpose if the court finds that: Witness is dead. including the existence. or an interlocutory proceeding. (Rule 23. before action and pending appeal. 16 and 18) Section 3. privileged communication (Rule 130. Section 1) Any part or all of a deposition. Use of depositions WHAT ARE THE USES OF DEPOSITIONS? Rule 23 Section 4 is applicable in depositions pending action. it may be used in an action involving the same subject matter. or tangible things and the identity and location of persons having knowledge of relevant facts (Section 2) 3. or is out of the Philippines. to allow the deposition to be used. Section 5) Section 2. candidate voted for except in an election case 2. Ex : secrecy of bank deposits. deposition of a witness – may be used by any party a. infirmity. result of census. and with due regard to the importance of presenting the testimony of witnesses orally in open court. documents. (Cross reference to Rule 24 Section 6 and 7) For depositions before action. Scope of Examination WHAT IS THE SCOPE OF EXAMINATION? Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule. sickness. (Rule 24. and location of any books. upon hearing of a motion. The clerk shall not. condition. issue a subpoena duces tecum to any such person without an order of the court. or imprisonment. non-disclosure of trade secrets. Page 41 of 289 . Witness is unable to testify because of age. in the interest of justice. the list of privileged communication is not exclusive. Party offering the deposition has been unable to procure the attendance of the witness by subpoena. not restricted by protective order or motion to limit examination (Secs.pictEx statements are to see this ure. however. whether relating to the claim or defense of any other party.

Deposition of an officer of a corporation (par. director. Objections to admissibility WHEN ARE OBJECTIONS TO ADMISSIBILITY OF DEPOSITION MADE? Objection may be made at the trial or hearing to receive in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. or managing agent of a public or private corporation – may be used by an adverse party for any purpose 3. adverse party may require that all of it which is relevant to the part introduced be introduced. Effect of using depositions Section 9. If only part of the deposition is introduced.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. (Section 4) Where the witness is available to testify and the situation is not one of those excepted under Section 4. before action and pending appeal. Before such person or officer as may be appointed by commission or under letters rogatory Page 42 of 289 . Within the Philippines a. you do not make the deponent automatically your witness. consular agent of the Philippines. or anyone who at the time of taking the deposition was an officer. Deposition is used to impeach or contradict 2. Rebutting depositions WHAT IS THE EFFECT OF TAKING DEPOSITIONS? A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. In foreign countries a. (Section 9) Section 7. (Section 7) Deposition is a mode of discovery and so it is possible that you will not use the deposition as part of your evidence and so by taking depositions. consul. before a secretary of any embassy or legation. consul-general. Persons before who depositions may be taken within the Philippines Section 11. deposition of any party. and any party may introduce any other parts. Any person authorized to administer oaths if the parties so stipulate in writing (Section 10) 2. vice-consul. contained in a deposition whether introduced by him or by any other party. Section 10. Any Judge b. Section5. Effect of Substitution of Parties WHAT IS THE EFFECT OF SUBSTITUTION OF PARTIES TO DEPOSITIONS PREVIOUSLY TAKEN? Rule 23 Section 5 is applicable in depositions pending action. 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 notice. Persons before who depositions may be taken in foreign countries BEFORE WHOM MAY DEPOSITIONS BE TAKEN 1. (Cross reference to Rule 24 Section 6 and 7) Substitution of parties does not affect the right to use depositions previously taken. his deposition is inadmissible in evidence and he should be made to testify. A party may refuse to present witness even if his deposition was taken.(b) Section4) Defendant may present witness even if it was the plaintiff who took the witness’s deposition. Deposition of your opponent does not make him your witness 3. Effect of taking depositions ] Section 8. Notary public c. all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore. (Section 5) Section 6. and. BUT: the introduction in evidence of the deposition or any part thereof makes the deponent the witness of the party introducing the deposition (Section 8) EXCEPTIONS to Section 8: 1. (Section 6) And it is also at trial or hearing when any party mayQuickTime™ and a relevant evidence rebut any TIFF (Uncompressed) decompressor are needed to see this picture. Why is an ambassador not included? Because an ambassador is only concerned with political matters. b.

deposition shall not be taken 2. Section 15. Any person authorized to administer oaths if the parties so stipulate. embarrass. Anyoneare needed to see this picture. This is implicit in the provisions of the Rules of Court cited by appellants themselves. Relative within 6th degree of consanguinity or affinity of any party 2. to protect a party or witness from annoyance. on application and notice. embarrassment or opposition (Section 16 and 18) The court in which the action is pending Makes an order that: 1. 1 July 1993 The right of a party to take depositions as means of discovery is not exactly absolute. GR No. it may be taken only at Page 43 of 289 . Section 13. GROUNDS FOR NOT TAKING A DEPOSITION 1. Relative within the same degree of any party’s counsel 5. or oppress the deponent or party The court in which the action is pending or the RTC of the place where the deposition is being taken Orders the officer conducting the examination to Section 12. time and place Section 16. Employee of any party 3. these provisions expressly authorize the court to either prevent the taking of a deposition or stop one that is already being taken. Inc. Depositions upon oral examination. CA. Disqualification by interest WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS? 1. a witness who is within the jurisdiction of the judge or court to whom such letter is addressed Applicable rules of procedure are those of the requesting court Resorted to if permission of the foreign country is given Leave of court is not necessary. not relevant (Section 1) 2. notice. Counsel of any party 4.95863. Orders for the protection of parties and deponents PROTECTION ORDERS OF PARTIES AND DEPONENTS (Section 16 and Section 28) After notice is served for taking a deposition upon motion seasonably made by any party or by the person to be examined and for good cause shown (which means it will be done before the taking of the deposition) MOTION TO TERMINATE OR LIMIT EXAMINATION (Section 18) At any time during the taking of the deposition. In such instances. v.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 c. Applicable rules of procedure are those of the foreign court requested to act Resorted to if the execution of the commission is refused in the foreign country Leave of court is necessary. and on such terms and with such direction as are just and appropriate An instrument issued by Instrument sent in the the court of justice or name and by authority of tribunal to authorize a a judge or court to person to take another judge or court depositions or to do any requesting the latter to other act by authority of custody examine upon such court or tribunal interrogatories filed in a case pending in the former. Commission or letters rogatory COMMISSION LETTERS ROGATORY Issued only when necessary or convenient. Employee ofQuickTime™ and a party’s counsel TIFF financiallydecompressor (Uncompressed) interested in the action 6. sections 16 and 18 of Rule 24. on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy. (Section 11) Autographics.

developments. the deposition shall be submitted to the witness for examination and shall be read to or by him unless such examination and reading are waived by the witness and by the parties. the deposition shall be opened only by order of the court that secret processes. Section 19. or may limit the scope and manner of the taking of the deposition. 8. record the testimony of the witness. Submission to witness. Submission to witness. objections (Section 17) The officer before whom the deposition is to be taken shall put the witness on oath and shall personally. shall be noted by the officer upon the deposition. signing (Section 19) When the testimony is fully transcribed. oath. Furnishing Copies PROCEDURE FOR TAKING ORAL DEPOSITIONS 1. 10. or research need not be disclosed. If the deposition is not signed by the witness.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 some designated place other than that stated in the notice it may be taken only on written interrogatories or only upon oral examination certain matters shall not be inquired into the scope of the examination shall be held with no one present except the parties to the action and their officers or counsel that after being sealed. examination Record of Examination. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. In granting or refusing such order. The testimony shall be taken stenographically unless the parties agree otherwise. changes. and any other objection to the proceedings. oath. All objections made at the time of the examination to the qualifications of the officer taking the deposition. the taking of the deposition shall be suspended for the time necessary to make a notice for an order. Upon demand of the objecting party or deponent. the court may QuickTime™ and a TIFF (Uncompressed) decompressor impose upon either party or upon the witness the are needed to see this picture. 4. who shall propound them to the witness and record the answers verbatim. or to the manner of taking it. 5. signing Section 20. 7. the officer shall sign it and state on the record the facts of the waiver or of the illness or absence of the witness or the fact Page 44 of 289 3. Motion to terminate or limit . In lieu of participating in the oral examination. or to the conduct of any party. Certification and filing by officer Section 21. If the order made under Section 18 terminates the examination. embarrassment. 6. The deposition shall then be signed by the witness. requirement to pay such costs or expenses as the court may deem reasonable Section 17. unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. parties served with notice of taking a deposition may transmit written interrogatories to the officers. or that the parties shall simultaneously file specified documents or information enclosed in a sealed envelope to be opened as directed by the court. Record of examination. it shall be resumed only upon order of the court in which the action is pending. objections Section 18. Notice of Filing Section 22. or to the evidence presented. 2. changes. 9. or that it shall not be taken before the officer designated in the notice (Section 28) any other order which justice requires to protect the party or witness from annoyance. or by some one acting under his direction and in his presence. or oppression cease forthwith from taking the deposition. Evidence objected to shall be taken subject to the objections.

the party proposing to take the deposition may serve re-direct interrogatories upon a party who has served cross-interrogatories. 3. a party may serve recross-interrogatories upon the party proposing to take the deposition. the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. (Section 24) Section 25 interrogatories. if any. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as Page 45 of 289 . the officer shall furnish a copy of the deposition to any party or to the deponent. (Section 24) 4. Effect of errors and irregularities in depositions WHAT ARE THE EFFECTS OF ERRORS AND IRREGULARITIES IN THE DEPOSITIONS? 1. attaching thereto the copy of the said notice and the interrogatories received by him. Within 5 days thereafter. the court may order the party giving the notice to pay such other party the amount of the reasonable expenses incurred by him and his counsel in so attend. the party so served with the notice may serve cross-interrogatories upon the party proposing to take the deposition. unless a motion to suppress is filed. including reasonable attorney’s fees. Certification and filing by officer (Section 20) The officer 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. within 10 days thereafter. 4. Orders for the protection of parties an deponents PROCEDURE FOR DEPOSITION UPON WRITTEN INTERROGATORIES 1. SUBPOENA UPON THE WITNESS? If another party attends in person or by counsel because he expects the deposition of that witness to be taken and the witness fails to attend because of the failure of the party giving notice to serve a subpoena upon the witness. and may furnish copies to them or to the deponent upon payment of reasonable charges therefore. As to notice – waived unless written objection is promptly served upon the party giving the notice 2. Officers to take responses and prepare record Section 27. (Section 26) 5. Notice of filing and furnishing copies Section 28. (Section 24) 3. then the same consequence as above. and file or mail the deposition. interrogatories Deposition upon written service of notice and Section 26. Failure to attend of party giving notice WHAT HAPPENS IF A PARTY GIVING THE NOTICE OF THE TAKING OF THE DEPOSITION FAILS TO ATTEND AND PROCEED WITH THE TAKING OF DEPOSITION? If the party giving the notice fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice. 5. certify. Notice of filing (Section 21) The officer taking the deposition shall give prompt notice of its filing to all the parties. Furnishing copies (Section 22) Upon payment of reasonable charges therefor. the officer taking it shall promptly give notice thereof to all the parties. When a deposition upon interrogatories is filed. and 20 of this Rule. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “Deposition of (here insert the name of witness)” and shall promptly file it with the court in which the action is pending or send it by registered mail to the clerk thereof for filing. After service of notice. 19. in the manner provided by sections 17. (Section 27) Section 29. and the deposition may be used fully as though signed. Section 23. (Section 23) Section 24. to take the testimony of the witness in response to the interrogatories and to prepare.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the refusal to sign together with the reason given therefore. Within 3 days after being served with redirect interrogatories. (Section 24) 2. A copy of the notice and copies of all interrogatories served shall be delivered to the officer designated in the notice who shall proceed promptly. Failure of party giving notice to serve subpoena HOW ABOUT IF THEQuickTime™ and FAILS TO SERVE A PARTY a TIFF (Uncompressed) decompressor are needed to see this picture.

the reason for perpetuating their testimony (Section 7) What to file? a verified petition. cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition. removed. in oath or affirmation. subject are neede o see his interest therein. signed. in the form of questions and answers. and errors of any kind which might be obviated. and it is grave abuse of discretion for the Court to refuse to recognize and observe the effects of that refusal as mandated by law. 2. Objections to cross interrogatories can made within 5 days. be be be be 3. the names and addresses of the persons to be examined and the substance of the Page 46 of 289 . Objections to re-cross interrogatories can made within 3 days.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the disqualification becomes known or could be discovered with reasonable diligence As to competency or relevancy of evidence . d tthe this picture. As to form of written interrogatories waived unless served in writing upon the party propounding them within the time allowed for serving succeeding cross or other interrogatories and within 3 days after the service of the last interrogatories authorized. Objections to re-direct interrogatories can made within 3 days. the names and addresses of the persons to be examined and 2. transmitted. 5. the names or a description of the persons he expects will be adverse parties and their addresses so far as known. As to manner of preparation . unless ground is one which might have been obviated or removed if presented at that time As to oral examination and other particulars . contents of which are: 1. 27 Nov 1998 A trial court has no discretion to determine what the consequences of a party's refusal to allow or make discovery should be.NOT waived by failure to make them before or during the taking of the deposition. Alumbres. sealed. 4. or with due diligence might have been. contents of which are: The petition shall be entitled in the name of the petitioner and shall show: 1.errors as to manner in which the testimony is transcribed or the deposition is prepared.R. RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Who apply? can DEPOSITIONS BEFORE ACTION A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines (Section 1) DEPOSITIONS PENDING APPEAL Any person can perpetuate their testimony for use in the event of further proceedings in the said court (Section 7) motion upon notice and service. 3. ascertained. or in conduct of parties. the substance of the testimony which he expects to elicit from each. certified. it is the law which makes that determination. Hon. 3. filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after such defect is. the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. Diman v. 4. and 3. 131466. 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. indorsed. No. (Section 29) RULES ON OBJECTIONS 1. 6.Errors occurring at the oral examination in the manner of taking the deposition. and 5. Objections to direct interrogatories can made within 10 days. QuickTime™ and a TIFF (Uncompressed) decompressor matter of the expected action and 2. 4. G.

so that the answers may constitute judicial admissions. before the taking of an appeal if the time therefore has not expired (Section 7) If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice. as practicable.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 testimony which he expects to elicit from each. Section 4) Section 2. Depositions before action is only applicable in civil cases. In case objection is denied. (Section 1. answer HAS BEEN of court. specify whether the depositions shall be taken upon oral examination or written interrogatories. then you do not need leave of court. If the person served is a private or public corporation. QuickTime™ and a you need leave TIFF (Uncompressed) this picture. Page 47 of 289 . including the Court of Appeals in proper cases. Where to apply? When to file? Court order and examination the court in which the judgment was rendered (Section 7) At any time before judgment becomes final: 1. (Section 1 & 2) in the court of the place of the residence of any expected adverse party (Section 1) Before the action. (Section 3) 15 days to answer. signed and sworn to by the person making them. it may make an order allowing the depositions to be taken. 10 days to object. If an answer has NOT YET BEEN served. then it will be answered by any officer competent to testify in its behalf. which shall be set at an early time. partnership or association. and answers shall be deferred until the objections are resolved. service thereof WHO CAN APPLY? ANY PARTY desiring to elicit material and relevant facts FROM ANY ADVERSE PARTY shall file and serve upon the latter written interrogatories to be answered by the party served. and 6. cross refer to Rule 23 Section 1) Interrogatories and the answers thereto should be filed in court and served on adverse parties. designate or describe the persons whose deposition may be taken and 2. specify the subject matter of the examination and 3. (Section 2) Section 3. Objections to interrogatories WHEN DO YOU MAKE OBJECTIONS TO INTERROGATORIES? Objections to any interrogatories may be presented to the court within ten (10) days after service thereof. (Rule 129. 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. with notice as in case of a motion. answered fully in writing and 2. Answer to interrogatories WHAT IS THE FORM OF AN ANSWER TO INTERROGATORIES? 1. which shall: 1.tobutdecompressor if the are needed see served. If an appeal has been taken from a judgment of a court. or 2. (Section 1) DO YOU NEED LEAVE OF COURT FOR WRITTEN INTERROGATORIES? DEPENDS. you still have 5 days to file an answer. (Section 4 & 7) INTERROGATORIES Disclosure of matters of proof May be made part of the records as evidence BILL OF PARTICULARS Disclosure only of matters which define the issues Become a part of the pleadings RULE 25 NTERROGATORIES TO PARTIES Section 1 Interrogatories to parties.

UNLESS thereafter allowed by the court 1. compelled by the adverse party to give testimony in open court. serve more than one set of interrogatories to be answered by the SAME party. or copied therein. cross. and its genuineness and due execution is deemed impliedly admitted unless specifically denied under oath by the adverse party. Request for admission Purpose of written request for admission To expedite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry What request may include: 1. You just serve QUESTIONS Any person. Under this rule. If the document is actionable. Section 5) 15 days to answer unless extended or reduced by the RULE 26 ADMISSION BY ADVERSE PARTY Intervention by the Court With intervention of the office who is authorized to take the deposition court No intervention since interrogatories are directed to the party himself Section 1. or 2. Po v. Admission of the truth of any material and relevant matter of fact set forth in the request 3. particularly the adverse party Same (Rule 25. Section 5) Same (Rule 25. to give a deposition pending appeal. recross. the original or a copy should be attached to the complaint. (Section 4) Section 5. Court of Appeals 164 SCRA 668 (1998) A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting party’s pleading but should set forth relevant evidentiary matters of fact. a matter of fact not related to any documents may be presented to the other party for admission or denial Distinguished from Rule on Actionable Documents A request for admission is proper when the genuineness of an evidentiary document is sought to be admitted. whose purpose is to establish said party’s cause of action or defense. If not denied under oath in accordance with Section 2. for good cause shown and 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. Number of interrogatories HOW MANY INTERROGATORIES CAN YOU FILE? No party may. Scope and use of interrogatories Section 6. Admission of the genuineness of any material and relevant document described in and exhibited with the request 2. Section 4 No fixed time Interrogatories to Parties (Rule 25) File and serve questions and the party has to answer them Only a party to the case. without leave of court. either party or witness Any matter as long as relevant and not privileged Rule 23. or documents described in and exhibited with the request. Distinguished from Written Interrogatories Page 48 of Procedure Deponents Coverage Uses Interrogatories . to prevent a failure of justice (Section 6) WHAT IS THE EFFECT TO FAILURE TO ANSWER INTERROGATORIES? Case may be dismissed or a judgment by default may be given Depositions under Written upon Written Interrogatories (Rule 23) Direct. Effect of failure to serve written interrogatories WHAT IS THE EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES? A party not served with written interrogatories may not be 1. redirect. its genuineness it deemed admitted.

control. Page 49 of . Documents constitute or contain evidence material to any matter involved in the action. Documents should not be privileged 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WRITTEN INTERROGATORIES Adverse party or witness NOT required to deny or admit anything Written request must be filed in court and served on the adverse party Must be objected within 10 days (Rule 25) REQUEST FOR ADMISSSION Adverse party only Required to admit or deny something Written request must be filed in court and served on the adverse party Must be objected within 15 days RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1. Section 5. Effect of failure to make a reply to a request for admission Each of the matters of which an admission is requested is deemed admitted. place and manner of making the inspection and taking copies AND b. Paragraph (b) applies to Real/Personal property Distinguished from Subpoena Duces Tecum PRODUCTION OR SUBPOENA DUCES INSPECTION OF TECUM DOCUMENTS OR THINGS Essentially a mode of Means of compelling discovery production of evidence The Rules is limited to the May be directed to a parties to the action person whether a party or not The order under this Rule May be issued upon an is issued only upon motion ex parte application with notice to the adverse party Section 2. May prescribe such terms and conditions which are just. Implied admission The motion for extension of time to answer the request for admission should be served on the adverse party but need not be set for hearing. Rule only applicable to: a pending action and the documents or things subject of the motion must be only those within the possession. custody. or custody of a party Limitations of the Order 1. Withdrawal. a party may present evidence regarding said fact even if he failed to file a request for admission. The amendment of the complaint per se cannot set aside the legal affects of the request for admission since its materiality has not been affected by the amendment. or control Contents of the Order a. If facts are admitted or deemed admitted. Section 4. party may move for summary judgment. Shall specify the time. Effect of failure to file and serve request for admission. This rule is also not intended to open all of a party’s records to other party on vague chance than they might contain some material relevant to some theory advanced by the other party. Objections on the ground of irrelevancy or impropriety of the matter requested shall be promptly submitted to the court for resolution. Effect of admission Use of the admission An admission under this section is for the purpose of the pending action only and cannot be used in other proceedings. Section 3. and which are in his (the party ordered) possession. If an adverse party denies a fact within his personal knowledge. order Purpose of the rule This rule is not intended for use as a dragnet or any fishing expedition. Remedy of the party File a motion to be relieved of the consequences of the implied admission. Motion for production or inspection.

the physical condition of the plaintiff in controversy 2. Examples of Mental or Physical Condition of a party in controversy: 1. Rule 130 – Since the results of the examination are intended to be made public. Apply to court for order Section 2. The defendant seeking physical examination of a plaintiff has no absolute right to choose his own physician. including the attorney’s fees (if it finds the refusal to answer without substantial justification) ii. the mental condition of the ward is in controversy Section 24(b). Refusal to answer If a party or other deponent refuses to answer any question upon oral examination. Section 2. the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent or his counsel to pay the expenses incurred in opposing the application. Section 4. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Section 1. and upon notice to the party to be examined and to all other parties. In a petition for guardianship on the ground of insanity. In an action to recover damages for personal injury. then determine the physician who shall conduct the examination. The Court must first determine whether a physical examination is necessary. Adjourn 3. NOT witnesses. . Order for examination The order for examination may be made only: on motion for good cause shown. The refusing party or his counsel to pay the expenses incurred in obtaining the order. and shall specify the time. Section 3. the same are not covered by the physician-patient privilege. Report of findings Discretion of Court The Court exercises full discretion in regulating physical and mental examinations of a party to a controversy. conditions and scope of the examination and the person or persons by whom it is to be made. Waiver of privilege. place. Refusal to answer. Contempt of court Contempt of court: If a party or other witness: refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken Section 3. including attorney’s fees (if it finds the application to be without substantial justification) Where to file for the order to compel RULE 23 Depositions pending actions – application for an order must be filed with the court of the place where the deposition is being taken RULE 25 Interrogatories to parties – application for an order must be filed with the court where the action is pending Remedies 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 1. Other consequences Other consequences If a party/officer or managing agent of a party refuses to obey an order requiring him: Page 50 of . The court may then order: i. What is good cause When the ends of justice so require and the examination may be made without danger to the party’s life or health or the infliction upon him of serious pain. When examination may be ordered This applies only to parties. The proponent may apply to the court for an order to compel an answer. manner. Complete other matters 2.

The disallowance of the disobedient party’s claims c. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination If a party refuses to attend or serve answers. CA 238 SCRA 88 (1994) The matter of how. Judgment on the Pleading (Rule 34) 2. A decision should not be made without trial EXCEPTIONS: 1. OR/AND d. Pay expenses Arrest (Section3 par. Rendering judgment by default against the disobedient party OR e. Dismiss the action or any part thereof. To submit to a physical or mental examination The court may order: a. EXCEPT an order to submit to a physical or mental examination.(a)) 5. For while the modes of discovery are intended to attain the resolution of litigations with great expediency. the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the case pends. or fails to serve answers to interrogatories submitted under Rule 25 after proper service of such interrogatories. or enter a judgment by default against that party. SANCTIONS: 1.. however. including attorney’s fees. they are not contemplated. Section 6. or dismiss the action or proceeding or any part thereof. the court may: a. Facts will be deemed established (Section3 par. Summary Judgment (Rule 35) 3. or the physical and mental condition of the party be taken to be established. Judgment with Prejudice (Rule 17) Page 51 of . may: strike out all or any part of any pleading of that party. an order directing the arrest of any party or agent of a party for disobeying any of such orders. Judgment by Confession 5. after being served with a proper notice. c. Expenses on refusal to admit Failure of party to attend or serve answer If a party or an officer or managing agent of a party willfully: fails to appear before the officer who is to take his deposition. or the character of the land or the thing.(d)) 2. Affect disposition of the case (Section3 par. including attorney’s fees. Prohibiting from introducing evidence (Section3 par. That the matters regarding which the questions were asked. Insular Life Assuarance Co. having always in mind the paramount and overriding interest of justice. Enter a judgment by default against that party.(b)) 6. starting with the production of evidence by the plaintiff and ending with his closing arguments GENERAL RULE: There should be a trial when an issue exists. ultimately to be of injustice. In lieu of any of the foregoing orders or in addition thereto. b. and in its discretion. b. and when. v. Order that party to pay reasonable expenses incurred.(c)) Section 4. To answer designated questions b. (Section1) 3.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. The dismissal of the action or parts thereof d. Contempt (Section2) 4. The prohibition of the disobedient party to present evidence. The striking out of the pleadings or parts thereof d. The court on motion and notice. Strike out all or any part of any pleading of that party. To produce a thing for inspection or to permit entry upon property c. NOTE: Orders enumerated above are NOT exclusive. Expenses against the Republic of the Philippines RULE 30 TRIAL TRIAL It is the judicial process of investigating and determining the legal controversies. Judgment on Compromise 4. order him to pay reasonable expenses incurred by the other. Ltd.

submission of memoranda DECISION Reverse Order of Trial In this situation. Requisites of motion to postpone trial for absence of evidence There must be an affidavit showing: (1) materiality or relevance of evidence. such as Page 52 of . Order of trial Plaintiff presents evidence in support of his complaint If the adverse party admits the facts for which evidence is to be presented. continues with hearing After presentation of evidence. Section 4. 2. Adjournments and postponements Section 3. Rebuttal evidence by parties Third party defendant presents evidence. and 2. Notice of trial Notice at least 5 days before the trial date is a part of procedural due process. Section 2. Requisites of motion to postpone trial for illness of party or counsel REQUISITES An affidavit showing that: 1. the defendant presents evidence ahead of the plaintiff When Reverse Order of Trial Proper If the defendant in his/her answer relies upon an affirmative defense. The parties may also stipulate verbally in open court.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. and (2) due diligence in procuring it. the trial will not be postponed. That the presence of the party or counsel at the trial is indispensable. such Defendant presents evidence to support his defense/counterclaim/c ross-claim/third party complaint Defendant files: demurrer to evidence Section 5. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown. 1. That the character of his illness is such as to render non-attendance excusable. a reverse order of trial is proper Section 6.oral arguments. if any Court grants motion: renders dismissal Court denies motion. Agreed statement of facts This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial.

cross-claims. or an agreement in writing by the parties. If willingness to discuss a possible compromise is expressed by one or both parties. prevent delay. Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. By recasting the cases already instituted. EXCEPTIONS: Consolidation becomes a matter of duty when: 1. authorization from the SC is necessary. Section 7. etc. together with the objections to be resolved by the court. If the cases are pending before the same judge. But counsel cannot stipulate on what their respective EVIDENCE consists of and ask that judgment be rendered on the basis of such stipulation. within 10 days from the termination of the hearing. the case which was appealed later and bearing the higher docket number is consolidated with the case having the lower docket number. RULE 31 CONSOLIDATION OR SEVERANCE CONSOLIDATION Involves several actions having a common question of law or fact which may be jointly tried. Section 9. and 3. Contemplates a single action having a number of claims. Statement of judge Section 8. Separate trials on any claim. The actions are pending before the same court. offered to discuss a possible compromise but the other party refused the offer. (TEST-CASE METHOD) Section 2. REQUISITES FOR CONSOLIDATION: 1. (c) Said clerk shall have no power to rule on objections to any question or to admission of evidence or exhibits. • If filed with different courts. If filed with different branches of the same RTC and one of such cases has not been partially tried. By hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case. Consolidation GENERAL RULE: Consolidation is discretionary upon the court. conducting only one hearing and rendering only one decision. or issues which may be separately tried. Suspension of actions ART. simplify the work of the Trial Court and save unnecessary costs and expenses. third-party complaints. Generally. crossclaim. By consolidating the existing cases and holding only one hearing and rendering only one decision. and 2. EVERY CIVIL ACTION OR PROCEEDING SHALL BE SUSPENDED 1. OR 2. 3 WAYS OF CONSOLIDATING CASES: 1. SEVERANCE Page 53 of . Actions which involves a common question of law or fact. PURPOSE To avoid multiplicity of suits. If it appears that one of the parties. Section 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 error or fraud. clear congested dockets. (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar. counterclaims. and (d) He shall submit his report and transcripts of the proceedings. delegation to clerk of court GENERAL RULE: The judge must himself personally receive and resolve the evidence of the parties. Judge to receive evidence. 2. NOTE: Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAGE and for LEGAL SEPARATION. REQUSITES ON VALID DELEGATION OF POWER TO RECEIVE (a) The delegation may be made only in defaults or ex parte hearings. or 2. before the commencement of the action or proceeding. guard against oppression or abuse. 2030 OF THE CIVIL CODE.

Section 7. Section 8. It can be waived by consent of the parties expressly or impliedly. Objections to the report based upon grounds which were available to the parties during the proceedings before the Commissioner shall not be considered by the court. Report of Commissioner Section 10. Oath of Commissioner before he enters into his duties Section 5. it may render separate judgments on each claim. adjourn the proceedings to a future day. The parties shall be allowed 10 days within which to object to the findings of the report. only questions of law shall thereafter be considered. Hearing upon report Section 12. Section 1. for him to take testimony. powers of the Commissioner Order may specify or limit the powers of the Commissioner. Notice to parties of the filing of report UPON FILING OF THE REPORT OF THE COMMISSIONER: 1. judgment is rendered. Question of fact. he may rule upon the admissibility of evidence Section 4. The parties shall be notified by the clerk. arises upon motion or otherwise. UNLESS they were made before the Commissioner. Trial requires examination of a long account of either side 2. Stipulations as to findings When the parties stipulate that a commissioner’s findings of fact shall be final. or to receive and report evidence only 2. 3. Section 11. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect 3. hear the parties and report thereon to the court. in his discretion. Commissioner shall avoid delays Section 9. giving notice to the absent party or his counsel of the adjournment. Proceedings before Commissioner Section 6. Reference to Commissioner by consent of both parties Reference to a commissioner may be had by the written consent of both parties. An irregularity in the appointment of a commissioner must be seasonably raised in the trial court where the defect could still be remedied. includes a referee. or to do or perform particular acts. other than upon the pleadings. Swear witnesses 5. the commissioner may proceed ex parte or. and upon whose report. Issue subpoenas and subpoenas duces tecum 4. Report only upon particular issues. Unless otherwise provided in the order of reference. an auditor and an examiner.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 When the separate trial of claims is conducted by the court under this section. Refusal of witness to obey subpoena issued by Commissioner Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which appointed the latter. if confirmed. Cases when reference by motion of one of the parties or motu proprio SITUATIONS WHEN REFERENCE TO A COMMISSIONER MAY BE MADE ON MOTION 1. POWERS OF THE COMMISSIONER 1. Failure of parties to appear before Commissioner If a party fails to appear at the time and place appointed. Section 2. Order of reference. in any stage of the case Section 3. Compensation of Commissioner RULE 32 TRIAL BY COMMISSIONER COMMISSIONER A person to whom a case pending in court is referred. Exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties Page 54 of . AND 2. Section 13.

it will grant the demurrer by rendering judgment acquitting accused. the requirement in Section 1. 2 SCENARIOS: MOTION DENIED MOTION GRANTED BUT REVERSED ON APPEAL MOTION TO DISMISS Presented before a responsive pleading (answer) is made by the defendant. Demurrer to evidence DEMURRER TO EVIDENCE It is presented after the plaintiff has rested its case. Rule 36 should be complied with. CRIMINAL CASES May be filed with or without leave of court. The decision of the appellate court will be based only on the evidence of the plaintiff. If court denies the demurrer: a. if demurrer was with leave. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. If the motion is denied. JUDGMENT ON DEMURRER TO EVIDENCE It is a judgment rendered by the court dismissing a case upon motion of the defendant. the complaint may be re-filed. Leave of court is necessary so that the DEMURRER TO EVIDENCE It is made by the defendant after the plaintiff has completed the presentation of his evidence where the defendant moves for dismissal on the ground that upon the facts and the law. defendant will present his evidence. Denial is interlocutory. The denial is NOT appealable. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. Movant shall have the right to present his evidence. no res judicata in dismissal due to demurrer. if the demurrer was without leave. the plaintiff has shown no right to relief. Judgment of acquittal is not appealable. If court denies the demurrer: a. if demurrer was with leave. the defendant may present his evidence. double jeopardy sets in. If the motion is granted. RULE 33 DEMURRER TO EVIDENCE Section 1. Movant is deemed to have waived his right to present evidence. If court denies demurrer. Order of the court is an ADJUDICATION ON THE MERITS. Sec. If plaintiff appeals and judgment is reversed by the appellate court. accused may present evidence b.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 accused could present his evidence if the demurrer is denied. the complaint is dismissed and depending on the ground. if the demurrer was without leave. will not apply. The judgment of dismissal is appealable by the plaintiff. If court denies demurrer. It may be used on any of those enumerated in Rule 16. made after Page 55 of . The remedy of the plaintiff is to APPEAL. 1. The ground is based on insufficiency of evidence. hence. If the court finds plaintiff’s evidence insufficient. Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based). the complaint is dismissed. defendant will present his evidence. defendant may file his responsive pleading. If the motion is denied. it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. it will grant the demurrer by dismissing the complaint. accused may present evidence b. If the motion is granted. If the court finds the prosecution’s evidence insufficient. CIVIL CASES Defendant need not ask for leave of court. as the defendant loses his right to have the case remanded for reception of his evidence.

Claim for such damages must be alleged and proved. GROUNDS: 1. also unavailable in actions for annulment of a and declaration of nullity of marriage. it may render such judgment motu proprio. on the ground that upon the facts presented by the plaintiff and the law on the matter. b. or to obtain a declaratory relief. MOTION FOR JUDGMENT ON THE PLEADINGS Filed by the plaintiff if the answer raises no issue.” or to recover a debt or a liquidated demand for money. fictitious. plaintiff has not shown any right to relief. However. MOTION TO DISMISS Decision is based on the evidence presented. on the ground that upon the facts presented by the plaintiff and the law on the matter. and for legal separation since Section 1 refers to actions “to recover upon a claim. insufficient denial of the material allegations of the complaint or 2. the court finds that a judgment on the pleadings is proper. Although Rule does not specifically provide. Evidence is not received as the same is based on JUDGMENT BY DEFAULT The defendant did not file an answer. GENUINE ISSUE It is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is sham. Filed by defendant to a complaint. general denial of the material allegations of the complaint. crossclaim. How Suy Ching 91 Phil 456 (1952) One who prays for 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. Section 1. May be asked for by a party seeking to recover upon a claim. contrived. counterclaim. By moving for judgment on the pleading. If the complaint states no cause of action. or “to obtain declaratory relief”. plaintiff waives his claim for unliquidated damages. cross-claim or third-party complaint. made after plaintiff has rested his case. Legal separation JUDGMENT ON THE PLEADINGS The defendant answered. a motion to dismiss should be filed and no a motion for judgment on the pleading. Answer fails to tender an issue because of: a. When judgment on the pleadings is proper A judgment on the pleadings must be on motion of the claimant. Annulment of marriage 3. RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS It is a judgment rendered by the court dismissing a case upon motion of the defendant. plaintiff has not shown any right to relief. Falcasantos v.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 plaintiff has rested his case. ACTIONS WHERE THE MATERIAL FACTS ALLEGED IN THE COMPLAINT MUST ALWAYS BE PROVED 1. must be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings. Decision is based on the allegations in the pleadings. and patently unsubstantial so as not to constitute a genuine issue for trial. counterclaim. the pleadings alone. if at pre-trial. Declaration of nullity of marriage 2. Answer admits material allegations of the adverse party’s pleading. but did not tender an issue or admitted the material allegations in the complaint. RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Page 56 of Evidence is received. .

Affidavits made on personal knowledge. or patently unsubstantial. The motion shall be served at least 10 days before the time specified for the hearing. Form of affidavits and supporting papers Section 6. The answer fails to tender an issue or there is an admission of material allegations. further adjudge the offending party or counsel guilty of contempt. or solely for the purpose of delay. the court shall forthwith order the offending party or counsel to pay to the other party the amount of reasonable expenses which the filing of the affidavits caused him to incur. Summary judgment for defending party May be file at any time. and affidavits. This rule does not vest in the court summary jurisdiction to try the issue on pleadings and affidavits but gives the court limited authority to enter summary judgment only if it clearly appears that there is no genuine issue of material fact. This is intended to expedite or promptly dispose of cases where the facts appear undisputed and certain from the pleading’ admissions and affidavits. Page 57 of . Section 4. SUMMARY JUDGMENT Based on the pleadings. supporting affidavits. BASES OF SUMMARY JUDGMENT 1. there may be issues but these are irrelevant. the movant is entitled to a judgment as a matter of law. show that. except damages which must always be proved. set-up in bad faith. 2. Vergara v. Mallilin v. Suelto 156 SCRA 753 (1987) Even if the answer does tender an issue. Answers to interrogatories under Rule 25. the judgment sought shall be rendered forthwith if the pleadings. depositions. 3-day notice rule applies. except as to the amount of damages. Case not fully adjudicated on motion. On the merits. depositions. Section 5. or admissions at least 3 days before the hearing. After the hearing.e. a summary judgment may still be rendered if the issues tendered are NOT genuine. Available to both plaintiff and defendant. and b. there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. including attorney’s fees. On the merits. contrived. and therefore a judgment on the pleadings is NOT proper. 3-day notice required. The adverse party may serve opposing affidavits.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. CA 156 SCRA 753 (2005) Trial courts are authorized to grant relief by summary judgment. and patently unsubstantial.e. Available to plaintiff. fictitious. The trial shall be conducted on the controverted facts only. JUDGMENT BY DEFAULT (Rule 9) Based on the complaint and evidence. Velasco v. May be interlocutory or No issues as no answer is filed by the defending party. c. Castillo 156 SCRA 753 (2000) Where the pleadings under a genuine issue i. There is no genuine issue between the parties. Affidavits in bad faith Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith. and admissions on file. are sham. 10-day notice required. JUDGMENT ON THE PLEADINGS Based solely on the pleadings Generally available only to the plaintiff. i. summary judgment is not proper. depositions. as distinguished from an issue which is sham. an issue of fact the resolution of which calls for the presentation of evidence. Motion and proceedings thereon. Summary judgment for claimant May be filed at any time after the pleading in answer thereto has been served. all intended to show that: a. Depositions of the adverse party or a third party under Rule 23 3. unless the defendant presents a counterclaim. if presentation is required. It may. Section 2. contrived. Admissions of the adverse party under Rule 26. there is no genuine issue as to any material fact. after hearing. set-up in bad faith. admissions. 4. Section 3.

It should be in writing. Available only in actions to recover a debt. before finality 1. To clarify an ambiguity which is borne out by and justifiable in the context of the decision. made known to the public or delivered to the clerk of court for filing. after finality 1. Where the judgment is void. NOTE: A JUDGMENT is considered RENDERED: the filing of the signed decision constitutes the rendition of a judgment. officially announced. and 3. The process by which a decision is published. Available in any action except annulment of marriage or legal separation cases. or 4. Rule 38 2. JUDGMENT NON PRO TUNC A judgment intended to enter into the records acts which had already been done. 3. A judgment based on a compromise otherwise known as JUDICIAL COMPROMISE has the force of law and is conclusive between parties. Disposition of the case (dispositive portion) 3. upon matters submitted to it in an action or proceeding. RULE OF IMMUTABILITY OF JUDGMENT A final judgment cannot be modified.appeal b. Available in any action except annulment of marriage or legal separation cases. or for a liquidated sum of money or for declaratory relief. To make corrections of clerical errors. This includes an amended decision because an amended decision is a distinct and separate judgment and must follow the established procedural rule. NOTE: Attack of judgment maybe direct or collateral Direct attack a. Judgment is the result. annulment of judgment. 2.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 on the merits. but which do not appear in the records. coupled with notice to the parties or their counsel. or the dispositive part of the decision while the opinion gives the grounds for the decision. not substantial amendments.motion for new trial or reconsideration 2. FINAL ORDERS AND ENTRY THEREOF JUDGMENT Final consideration and determination by a court of the rights of the parties. Rendition of judgments and final orders REQUISITES OF A JUDGMENT 1. PROMULGATION Page 58 of . Must state clearly and distinctly the facts and the law on which it I based. it can always be amended from time to time. The judgment or final order shall be entered by the clerk in the book of entries of judgments if no appeal or motion for new trial or reconsideration is filed within 15 days. relief from judgment. as by an amendment nunc pro tunc. Section 1. Opinion of the court (findings of fact and conclusions of law) 2. 2. In judgments for support. Signature of the judge JUDGMENT UPON THE MERITS Judgment rendered after consideration of the evidence submitted by the parties during the trial of the case. It is NOT appealable. DATE OF FINALITY OF JUDGMENT/ORDER Date of the finality of the judgment or final order shall be deemed to be the date of its entry. MEMORANDUM DECISION The judgment or final resolution of the appellate court may adopt by reference the findings of facts and conclusions of law contained in the decision of the trial court. even if the purpose is to correct perceived erroneous conclusions of the facts or law. It should contain a dispositive and should be signed by the judge and filed with the clerk of court PARTS OF A JUDGMENT 1. The power to amend a judgment is inherent to the court before judgment becomes final and executory. Rule 47 RULE 36 JUDGMENTS. EXCEPTIONS: 1. personally and directly prepared by the judge.

Petition for Certiorari Losing party may appeal within the remaining period Section 2. upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim. made at any stage. Section 6. The action shall proceed as to the remaining claims. Relief from Judgment or Final Order. judgment becomes final and executory Court maintains decision Court grants motion: 1. It is not proper in actions against solidary debtors.modifies decision. and 3. or 2. 2. Separate judgments PROMULGATION OF JUDGMENT Court Renders Decision Losing Party Filing appeal within 15 days from notice of judgment SEPARATE JUDGMENT Judgment rendered to dispose of one of the several claims for relief presented in an action.grants new trial REMEDIES AGAINST JUDGMENTS OR FINAL ORDERS Before finality of judgment or final order: 1. Motion for New Trial. Judgment for or against one or more of several parties Section 4. Action shall proceed as to other claims.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 judgment for or against one of them will not necessarily affect the other. Several judgments is proper where the liability of each party is clearly separable and distinct from his coparties such that the claims against each of them could have been the subject of separate suits. Accepts decision without further contest Within 15 days from notice of judgment: Motion for reconsideration. Appeal After Finality of the judgment or final order: 1. Section 3. 2. Annulment of Judgment. which terminates such claim. If no appeal is taken or did not avail of remedies. Section 5. or motion for new trial It is proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. The date of finality of the judgment or final order shall be deemed to be the date of its entry if no appeal or MNT or MR The date of finality of the judgment or final order shall be the date of its entry. Judgment against entity without juridical personality The judgment shall set out their individual or proper names. and 3. Motion for Reconsideration. Several judgments SEVERAL JUDGMENT Judgment rendered by a court against one or more several defendants and not against all of them leaving the action to proceed against the others. and the Page 59 of . if known.

whereby errors of law or irregularities are expunged from the record.) duly authenticated documents to be introduced Required: 1. affidavit of the existence of FAME and newly discovered evidence. Fraud (Extrinsic). and which if presented would probably alter the result Required: 1. Grounds of and period for filing motion for new trial or reconsideration NEW TRIAL It is the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory. or new evidence is introduced. (b. Newly discovered evidence which could not. in case of newly discovered evidence. Absent the requirements above. will have to wait for the judgment and appeal therefrom GROUNDS: MOTION FOR NEW TRIAL Page 60 of . Accident. 2. 4. or 3. or 2. MOTION FOR A NEW TRIAL The grounds are: 1. have discovered and produced at the trial. The damages awarded are excessive. Must point out specifically the conclusion of judgment. the motion for new trial or reconsideration is considered PRO-FORMA or merely a scrap of scratch paper and will not toll the reglementary period for appeal Second motion may be allowed If a new trial is granted the trial court will set aside the judgment or final order Second motion from same party is prohibited If the court finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law. 2. 3.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 reasonable diligence. will have to wait for the judgment and appeal therefrom If denied. The decision or final order is contrary to law.) affidavit of new witnesses. with MOTION FOR RECONSIDERATION The grounds are: 1. (a. Order denying motion for new trial Second motion for new trial based on grounds not existing or available when 1st motion was filed Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new trial Order denying a motion for new trial is not appealable Section 1. express reference to testimonial or documentary evidence or to provisions of law RULE 37 NEW TRIAL OR RECONSIDERATION Filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution. not appealable. must be in writing 2. affidavit of merit setting forth the particular facts claimed to constitute a meritorious cause of action. The evidence is insufficient to justify the decision or final order. or both steps are taken. it may amend such judgment or final order accordingly If denied. not appealable. Mistake or Excusable Negligence (FAME).

REQUSITES TO BE CONSIDERED AS NEWLY DISCOVERED EVIDENCE 1. Discovered after trial 2. or for reopening of trial. amend such judgment or final order accordingly Section 4. "The motion prohibited by this Section is that which seeks reconsideration of the judgment rendered by the court after trial on the merits of the case." Section7.g. Decision is contrary to law Section 2. but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues. Effect of order for partial new trial EFFECTS OF AN ORDER FOR PARTIAL NEW TRIAL 1. Lucas v. Damages awarded are excessive 2. a second motion is allowed but must be based on a ground not existing or available when the first motion was made. Could not have been discovered and produced at trial despite the exercise of reasonable diligence 3. stay the enforcement of such judgment Section 9. enter a judgment or final order as to the rest of the issues. Effect of granting of motion for new trial When motion is granted. no second motion is allowed. is a prohibited pleading under Section 19 of the Revised Rule on Summary Procedure. This rule. Evidence is insufficient to justify the decision or final order 3. Newly discovered evidence FRAUD – Must be extrinsic fraud. in good faith. Fraud. GROUNDS FOR MOTION FOR RECONSIDERATION 1. applies only where the judgment sought to be reconsidered is one rendered on the merits. or for reconsideration of a judgment. Section 3. Action upon motion for new trial or reconsideration The Court may either:: 1. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. the defendant was mislead in the case. PRO-FORMA MOTION It is that which does not comply with Rule 15 and Rule 37. Fabros 324 SCRA 1 (2000) A Motion for new trial. Contents of motion for new trial or reconsideration and notice thereof A motion suspends or tolls the running of the reglementary period except when it is pro-forma. accident. Extrinsic fraud connotes any fraudulent scheme executed by the prevailing party outside the trial against the missing party who because of such fraud is prevented from presenting his side of the case. Resolution of motion Section 5. NOTE: Motion for reconsideration. deny the motion for new trial or motion for reconsideration 3. the original judgment is thereby vacated and the action stands for trial de novo. however. NOTE: New trial. set aside judgment or final order and grant new trial 2. and is merely intended to delay the proceedings or if there is no affidavit of merit. shall be used at the new trial taking the same. mistake. which may be filed during the remainder of the 15-day period. Second motion for new trial Section 6. Remedy against order denying a motion for new trial or reconsideration is appeal from the judgment Page 61 of . or 2. however. ACCIDENT – an event that takes place without one’s foresight or expectation. MISTAKE – generally refers to mistakes of fact or law where. e. it does not point out specifically the findings or conclusions of the judgment as are contrary to law.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. could probably alter the result of the action Otherwise it is called forgotten evidence. or excusable negligence (FAME). If presented. 2. Partial new trial or reconsideration when issues severable Section 8. EXCUSABLE NEGLIGENCE – depends upon the circumstances of the case.

2. the losing party must never have had a chance to controvert the adverse party’s evidence. if granted against denial of appeal. court shall order adverse parties to answer within 15 days from receipt. or other proceedings Section 2. After answer is filed or expiration of period therefore. CA 326 SCRA 768 (2000) In view of the peculiar circumstance of this case. Basco v. The two remedies are exclusive of one another. More on equity FAME only Relief from judgment/order on other proceeding A legal right FAME + Newly Discovered Evidence Judgment on final order Section 3. court shall give due course to appeal. counsel’s failure to specify the date and time for hearing of petitioner’s motion for reconsideration should rightly be deemed excusable negligence. An affidavit of merit serves as the jurisdictional basis for the court to entertain a petition for relief. Order to file an answer If petition is sufficient in form and substance to justify relief. Uniform procedure for relief from judgments of MTC and RTC After petition is filed. such that the defective notice of hearing on petitioner’s motion for reconsideration was due to the day-long brownouts that plagued the metropolis. order.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Not more than 6 months after such judgment FORM AND CONTENTS OF THE PETITION 1. Preliminary Injunction is granted upon filing of the petitioner of the BOND in favor of adverse party. It must be supported by affidavit showing the FAME relied upon. However. The petition for relief must be verified. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. RELIEF FROM JUDGMENT Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered. Judgment or final order entered against a party by FAME. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal For fraud to be extrinsic. court shall issue an order requiring adverse parties to file answer within 15 days from receipt of the notice. Section 6. contents and verification Filed within 60 days after learning of judgment Page 62 of . court shall hear the petition. Petition for relief from judgment. it is not a fatal defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. Section 4. NEW TRIAL/ RECONSIDERATION Must be filed within the appeal period. Preliminary injunction pending proceedings PURPOSE This is to preserve the rights of the parties. The affidavit of merit accompanying the petition must also show facts constituting the petitioner’s good or substantial cause of action or defense. and 3. If granted. Time for filing petition. Proceedings after answer is filed TWO HEARINGS: RULE 38 RELIEF FROM JUDGMENTS. or 2. judgment set aside and court shall proceed as if timely motion for new trial has been granted. ORDERS. Judgment not yet final. Such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired upon the property of the petitioner. Petition for relief from denial of appeal GROUNDS FOR PETITION FOR RELIEF 1. OR OTHER PROCEEDINGS Section 1. Section 5.

Procedure where the denial of an appeal is set aside The lower court shall be required to give due course to the appeal and to elevate the record of the appealed cases as if a timely and proper appeal had been made. Upon judgment or order that disposes of the action or proceeding. In the above exceptions. or resolution of quasi-judicial agencies appealable to CA INTERLOCUTORY ORDER EXECUTED Support pendente lite THAT MAY BE RULE 39 EXECUTION. Writ of execution improvidently issued. 3. Change in the situation of the parties which makes the execution inequitable or unjust.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 (a) Hearing to determine whether the judgment be set aside (b) If in the affirmative. direct the court of origin to issue the writ. receivership. Forcible entry and detainer 2. accounting and support 3. a hearing on the merits of the case WHEN TRIAL ON THE MERITS NOT NECESSARY 1. 4. 2. Conditional judgments 3. When relief sought may be the allowance of an appeal after the expiration of the period to appeal. Writ of execution varies judgment. defective in substance. Injunction. 6. On motion. Incomplete judgments GENERAL RULE: Trial Court has a ministerial duty to order execution of final and executory judgments. Attack against a judgment which is void for lack of jurisdiction. judgment. SATISFACTION AND EFFECT OF JUDGMENTS JUDGMENTS THAT ARE NOT APPEALABLE: 1. no further action can be had Page 63 of . WHEN EXECUTION OF FINAL AND EXECUTORY JUDGMENT MAY BE ENJOINED 1. remedy is certiorari under Rule 65. Sin perjuico judgments (judgment. Terms of the judgment not clear. leaves room for interpretation. Upon filing of a petition for relief from judgment 2. adjudicate. 2. Execution is sought against property exempt from execution 5. or obtained through fraud 3. 2. the appellate court may. EXCEPTIONS: 1. 3. 4. final order. Execution upon judgments or final orders WHEN EXECUTION IS A MATTER OF RIGHT 1. w/o any stated facts in support of the conclusion) 2. judgment debtor has been paid or otherwise satisfied. by filing a motion with the court of origin submitting true copies of the final judgment or final order sought to be enforced. When appeal has been duly perfected and resolved. on motion. On equitable grounds Section 1. writ has been issued w/o authority. or determine the rights of parties Still subject to appeal FINAL AND EXECUTORY JUDGMENTS Becomes final & excecutory by operation of law After lapse of period to appeal and no appeal was perfected. When relief sought may be the staying of immediate execution due to FAME. FINAL JUDGMENTS Dispose of. Upon expiration of the period to appeal therefrom and no appeal has been duly perfected. It cannot refuse execution and is compellable by Mandamus. If the court of origin refuses to issue a writ of execution. Award. issued against the wrong party. Controversy has never been submitted to the judgment of the court. Execution of judgment not a matter of right Execution of judgment a matter of right JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE EXPIRATION OF TIME TO APPEAL 1. Section 7.

but also upon the ever-changing needs of the beneficiary himself. to clarify ambiguity. the trial judge may not rightfully determine the same 3) Mere posting of a bond Award for actual and compensatory damages may be ordered executed pending appeal.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. separate or partial judgments SEVERAL JUDGMENTS Rendered against one or more of several defendants. leading the action to proceed against others DISCRETIONARY EXECUTION May issue before the lapse of period to appeal Discretionary upon the court. leaving the action to proceed as to the remaining claims EXECUTION AS A MATTER OF RIGHT Issued when period to appeal has already lapsed and no appeal has been perfected Ministerial duty of the provided there are no supervening events REQUISITES FOR EXECUTION PENDING APPEAL 1) On motion by the prevailing party. clerical errors or mistakes. In cases falling under the (6) exceptions above Judgment novated by a subsequent agreement cannot be executed. but not moral and exemplary damages.g. to enter nunc pro tunc orders . Execution of several. • Support depends not only on the varying conditions affecting the ability of the obligor to pay. A final and executory judgment can no longer be amended by adding thereto relief not originally included e. except when a co-defendant is solvent and his liability is subsidiary What are not good reasons: 1) the mere fact that a claim is not secured. (c) When trial court has lost jurisdiction and has transmitted records motion for execution pending appeal with appellate court 2. Discretionary execution WHEN ISSUANCE OF WRIT OF EXECUTION IS DISCRETIONARY 1. or 3. Examples of good reasons 1) Where education of a person to be supported would unduly be delayed 2) The immediate execution of an order to support is valid 3) The judgment debtor is insolvent. agreement entered into by the parties other than terms of payment Judgment for support is not final in a sense that it cannot be modified. GENERAL RULE: Final and executory judgment cannot be amended or modified • Any amendment w/c substantially affects a final and executory judgment is null and void for lack of jurisdiction EXCEPTION: JUDGMENT MAY BE MODIFIED AS TO: 1. Page 64 of 2. . w/o any allegation that the defendant is insolvent or is about to dispose of his properties 2) Where the reason given is that an appeal is frivolous or dilatory.to make a present record of an order w/c the court rendered at a previous term but. and 3) The good reasons must be stated in a special order. CLERICAL ERROR Errors not the result of exercise of judicial functions May be modified. or considered and erroneously decided Cannot be modified must be done in another case/suit (b) When trial court has lost jurisdiction but has not transmitted records of the case to the appellate court. with notice to the adverse party. there is inquiry on whether there is good reason for execution SEPARATE/PARTIAL JUDGMENTS Rendered at any stage of the action regarding a particular claim. award of ownership does not necessarily include possession Section 2. corrected even after judgment has become final and executory JUDICIAL ERROR Mistake relates to something the court did not consider or pass on. 2) Good reasons for issuing execution. Execution pending appeal (a) While trial court has jurisdiction over the case and is in possession of either the original record or record on appeal. • e. by inadvertence has not been entered.g.

Page 65 of . issue restitution or reparation in an event of a reversal after a petition for relief under Rule 38. not from the date of entry REVIVAL OF A JOINT AND SEVERAL JUDGMENT A judgment rendered against several defendants. jointly and severally. Such other judgments declared to be immediately executory unless otherwise ordered by the trial court. can be revived against one of them only. not the original judgment EXECUTION OF A JUDGMENT BY COMPROMISE WITH A TERM If a compromise agreement w/ a term suspends the enforceability of a final judgment. 3.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Moral and exemplary damages depends on actual result of the appeal Execution pending appeal is not applicable in land registration proceedings Section 3. unless writ of execution is absolutely void.execution levied on wrong party Sale of a creditor to himself in a public sale Sale to a creditor. COMPLETE SPECIFIC RESTITUTION Sale by sheriff to a 3rd person REVERSAL Modified judgment Creditor may not be compelled to make specific restitution. or annulment of judgment under Rule 47 is granted How restitution is made. except when there is want of jurisdiction over the subject matter He may be required to surrender the property Creditor may be required to account for the value received by virtue of the sale to the 3rd party. or 2) By filing another action w/in 10 years from entry Lifespan of writ of execution= 5 years A revived judgment is again enforceable by motion w/in 5 years and thereafter. A final and executory judgment or order may be executed: 1) On motion. Aside from the supersedeas bond. modification. unless otherwise ordered by the trial court: 1. the 5 year/10 year period must be counted from the end of such term. title of 3rd person is protected. w/in 5 years from entry. and 5. title of 3rd party is protected. 4. Support. an aggrieved party may file a special civil action of certiorari under Rule 65 against the order granting execution pending appeal where the same is not founded upon good reasons. Effect of reversal of executed judgment The trial court may. Judgments not stayed by an appeal The following judgments are immediately executory. The supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal. Injunction. on motion. Section 4. Receivership. where: . Effects of reversal. Accounting. not other things like damage to property pending the appeal. but subsequently sold to a 3rd party Section 6. Section 5.execution upon a void judgment . enforceable after their rendition and shall not be stayed by an appeal. by another action w/in 10 years from finality of the revived judgment. or 2) has filed a supersedeas bond. This remedy may be availed of notwithstanding the fact that 1) he has appealed from the judgment.judgment has been paid . Stay of discretionary judgment Stay of execution may be allowed at the discretion of the court by filing a supersedeas bond SUPERSEDEAS BOND It is one filed by a petitioner and approved by the court before judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. Execution by motion or by independent action. 2. He can be required to restore the excess realized upon the execution over and above the amount finally awarded Sale is not affected by reversal.

damages. at the election of the plaintiff. aside from the principal obligation Special sheriffs for the service of writ of execution are not authorized by law. rents.e. DEATH OF A OBLIGOR Section 7. the execution sale must take place w/in the 10 year period WHEN 5 AND 10 YEAR PERIODS NOT APPLICABLE 1) Judgment for support . Section 8. The writ of execution must conform to the judgment to be executed. Death After Levy: execution will issue since the property is already separated from the estate of the deceased and is deemed in custodia legis. ALTER. The motion for execution and the writ of execution must state specifically the amount of interest. or successorin-interest Death Before Levy: 1. Section 6 This section applies when a party dies after rendition of judgment. land registration proceedings NOTE: An action for support does not prescribe and may still be enforced by motion even after the lapse of 5 year period since the obligation is a continuing one. Page 66 of . real action where the property is located DEFENSES AVAILABLE IN AN ACTION FOR ENFORCEMENT OF JUDGMENT prescription satisfaction of claim counterclaims JURISDICTION TO CHANGE. for purposes of execution and enforcement Governed by Rule 39.execution will issue 2. Against his executor. before or after entry. The court never loses jurisdiction to enforce such.does not prescribe . administrator. or successorin-interest An appeal is the remedy for an order denying the issuance of a writ of execution.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WHEN 5/10 YEAR PERIOD SUSPENDED 1) When the enforceability of a final decision is suspended by the court. and contents of a writ of execution. form. MODIFY JUDGMENT Terminates when the judgment becomes final Governed by Rule 39. Action for a sum of money – execution will NOT issue. Issuance. otherwise it is null and void. A judgment of foreclosure of mortgage is enforceable by execution against the executor or administrator whether the judgment obligor died before or after entry of judgment. Execution in case of death of party. Section 1 JURISDICTION TO ENFORCE JUDGMENT Continues even after judgment has become final.may still be enforced by motion even after the 5 year period 2) Special proceedings . administrator. the judgment obligee should file claim against the estate of the judgment obligor under Rule 86. or profits due as of the date of issuance of the writ. DEATH OF A OBLIGEE Execution will issue in any case Upon application of his executor. 2) When the 5 year period is interrupted or suspended by agreement of the parties 3) When the judgment creditor institutes supplementary proceedings to the execution 4) When delays are caused by judgment obligor’s own initiatives and for her advantage A valid execution issued and levied w/in the 5 year period may be enforced by sale even after the lapse of the said period The levy is the essential act by which the property is set apart for satisfaction of judgment However. VENUE OF ACTION FOR ENFORCEMENT OF JUDGMENT personal action where plaintiff resides or defendant resides. In this case. costs. Action for recovery of real or personal property or any lien .g.

royalties. or remove improvements except upon special order of the court . The on execution creates a lien in favor of the judgment obligee over the right.if party fails to comply within the time specified. 3. then on real property The sheriff shall sell only property sufficient to satisfy the judgment and other lawful fees. 4) controversy has never been submitted to the judgment of the court. delivery of deeds. Execution of judgments for money. defective in substance. vesting title . mortgagee. or if not present. the court may direct the act to be done at the cost of the disobedient party . otherwise officer shall oust such persons 4) Removal of improvements on property subject of execution . 6) writ of execution is improvidently issued. 5) terms of judgment are not clear and there remains room for interpretation. not capable of manual delivery in the possession or control of 3rd parties Notice served on 3rd party (garnishee) ‐ GENERAL RULE: All property belonging to judgment obligor not exempt from execution may be attached. and restore possession to judgment obligee. or other specific acts. judgment debt has been paid. to the sheriff. Execution of judgments for specific act SPECIFIC ACTS 1) Conveyance. issued against the wrong party. to a fiduciary account 2. or otherwise 3) Unused balance of an overdraft account (credit not subject to garnishment) Levy on personal property may be actual or constructive e. commissions and other personal property. and interest of the judgment obligor in such property at the time of the levy.g. if not exercised. levy on a barge by registration w/ Philippine Coast Guard (constructive) Section 10. demolish. financial interests. The officer shall levy upon properties of the judgment obligor not otherwise exempt from execution Judgment obligor exercises option to chose w/c property levied upon. 3) execution sought to be enforced against property exempt from execution. subject to liens and encumbrances then existing. how enforced 3 WAYS TO ENFORCE A JUDGMENT FOR MONEY 1. title. certified bank check payable to the judgment obligee.officer shall demand person to peaceably vacate property w/in 3 working days. or other credits.Real or personal property situated w/in the Philippines: court in lieu of conveyance may give order divesting title and may vest it in others 2) Sale of real or personal property 3) Delivery or restitution of real property . ‐ The sheriff may levy on debts due to debtor. or if ‐ not practicable. officer shall levy 1st on personal property.officer shall not destroy.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 GROUNDS FOR QUASHING A WRIT OF EXECUTION: 1) writ of execution varies judgment. satisfaction by levy LEVY An act by which an officer sets apart or appropriates a part or whole of the property of the judgment debtor for purposes of the execution sale. EXCEPTIONS: 1) Usufruct 2) Ascertainable interest in real estate as mortgagor. including bank deposits. or writ issued without authority Section 9. garnishment of debts and credits Page 67 of GARNISHMENT An act of appropriation by the court when property of debtor is in the hands of third persons. Immediate payment on demand ‐ judgment obligor shall pay in cash. or any other form of payment acceptable to the latter ‐ payment made to the judgment obligee or his representative. 2) change in the situation of the parties making execution inequitable and unjust.

. CA 458) 2) Property taken over by Alien Property Administration (Section 9[f].3. F. 1. RA 6389) 7) Benefits from private retirement systems of companies and establishments. CIR L-17874 31 August 1963) (Regalado. 10 is not necessarily punishable by contempt. cows. Execution of special judgment SPECIAL JUDGMENT A special judgment is one that can be complied with only by the judgment obligor himself. A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. wages. except for debts incurred for food. 447-448). Page 68 of . subject to limitations (Section21. work animals. benefits. ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD but writ of execution must be served w/in 5 years order of demolition ancillary to writ Certiorari is available if requirements for issuance of order of demolition are not followed Section 11. US Trading With The Enemy Act) 3) Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4) Backpay of pre-war civilian employees (RA 304) 5) Philippine Government backpay to guerillas (RA 897) 6) Produce. NCC) 9) Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24. and medical attendance (Art. privileges. or other beast of burden necessarily used in his ordinary occupation 4) necessary clothing and articles for ordinary personal use. 2. It requires the performance of any other act than payment of money.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 special order issued upon motion. RA 8293) 11) Bonds issued under RA 1000 (NASSCO v. Section 239. after judgment obligor failed to remove the same 5) Delivery of personal property officer shall take possession of the same and deliver it to the judgment oblige • Failure to comply with specific acts under Rule 39 Sec. and farm implements of agricultural lessees. shelter. pp. and 177) 10) Copyrights and other rights in intellectual property under the former copright law (PD 49 cf. vacate the property – the sheriff must oust the party. or the sale or delivery of real or personal property Failure to comply with special judgment under Section 11 is punishable as contempt by imprisonment Section 12. Property exempt from execution PROPERTIES EXEMPT FROM EXECUTION 1) family home. or annuities accruing out of any life insurance 12) Properties specially exempt from execution OTHER PROPERTIES SPECIALLY EXEMPT FROM EXECUTION 1) Property mortgaged to DBP (Section 26. 3. clothing. except jewelry 5) household furniture and utensils necessary for housekeeping ≤ P100K 6) Provisions for individual or family use sufficient for 4 months 7) Professional libraries and equipment 8) One fishing boat and accessories ≤ P100K used in livelihood 9) Salaries. 65. defeated party is given reasonable period to look for another place. carabaos. deliver – the sheriff will take possession and deliver it to the winning party. if a party refuses to: 1. or livelihood 3) 3 horses. Remedial Law Compendium Vol. employment. or homestead. 8th ed. comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it • No time limit w/in which an order of demolition should be carried out. However. land necessarily used in connection therewith 2) ordinary tools and implements used in trade. or earnings as are necessary for support of family w/in 4 months preceding levy 10) Lettered gravestones 11) Monies. Effect of Levy on execution as to third persons Section 13. with limitations (RA 4917) 8) Labor wages. 1708.

Vindicate his claim in a separate action .If ≤ 50. INDEMNITY BOND FILED Action for damages brought against the principal and sureties on the bond Sheriff not liable for damages Sheriff bound to keep property on behalf of judgment obligee NO INDEMNITY BOND FILED Action for damages may be brought against sheriff himself Sheriff liable for damages Sheriff not bound to keep property under levy REMEDY OF THE CREDITOR 1.claim must be w/in 120 days from filing of bond Page 69 of . Liable in solidum because liability is joint and solidary Want of notice does not invalidate the execution sale where purchaser is innocent and no collusion appears (buyer in good faith) Section 16.If > 50.other personal notice posted in 3 public property: notice places for 20 days posted in 3 public places for not less than 5 days . at least 3 days before the sale. Return of writ of execution Writ of execution is returnable to the court after judgment it satisfied Sheriff shall report to the court w/in 30 days after receipt and every 30 days until the judgment is satisfied in full Lifetime of writ of execution – 5 years from entry of judgment The rules do not provide any lifetime for a writ of attachment unlike writ of execution Section 15. File a bond to indemnify 3rd party complainant . The sheriff may or may not require the judgment obligee to file a bond. written notice of the sale shall be given to the judgment obligor. and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligee. so as long as the sheriff has the possession of the property levied upon. Notice of sale of property on execution REQUISITES FOR REQUISITES FOR NOTICE OF SALE OF NOTICE OF SALE OF PERSONAL REAL PROPERTY PROPERTY . File a claim for damages against the bond .In all cases. or right of possession thereof.000: notice posted in 3 public notice posted in 3 places for 20 days public places for such time as may be reasonable considering the .sheriff not liable for damages if bond is filed 2. File a claim for damages against 3rd party in the same or separate action .amount of bond not less than value of property . or before the property is sold under execution WHAT IS THE PROCEDURE FOR A 3RD PARTY CLAIM 3rd party should make an affidavit of his title thereto. EFFECTS OF AN EXECUTION SALE WITHOUT THE REQUIRED NOTICE 1. Sheriff and creditor are joint tortfeasors 2.perishable property: .no intervention allowed since judgment final & executory 2. except as provided in paragraph (a) hereof where notice shall be given at any time.based on the ground that 3rd party claim is frivolous or plainly spurious REMEDY OF THE 3RD PARTY 1. Proceedings where property claimed by third persons 3RD PARTY CLAIM A claim by any person other than the judgment debtor or his agent on property levied on execution PURPOSE OF 3RD PARTY CLAIM 1) To recover property levied on by sheriff (although 3rd party can vindicate claim in a separate action) 2) To hold sheriff liable for damages for the taking or keeping of such property WHEN TO FILE A 3RD PARTY CLAIM At any time. File a separate action for damages against the sheriff (if no bond filed) 3.000: Publication once a week for 2 character & condition consecutive weeks and of the property .Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 14.

or 2. Adjournment of Sale If both obligee and obligor agree in writing. How property sold on execution.g. Section 20. actual damages Section 18. notice posted in 3 public places) What is the liability? 1. Adjournment = waiver of publication of another notice requirement Section 23. punitive damages to any person injured thereby = P5000. Penalty for selling without notice. a sale of less than whole would be sufficient to satisfy debt Mere inadequacy of price is not material if there is a right of redemption. when it appears that a larger sum would have been realized from a sale in parcels. Refusal of purchaser to pay Section 21. the sheriff acts at his own risk if he keeps the property (can be liable for damages). sale may be adjourned to any date and time agreed upon Without such agreement. no more sale shall be made and any excess shall be promptly delivered to the judgment obligor or his authorized representative. to the highest bidder 3. The judgment creditor cannot be compelled to file a bond because he is at complete liberty to do so. or removing or defacing notice PERSONS LIABLE UNDER SECTION 17 1) Officer selling without notice 2) Any person willfully removing or defacing notice posted (e. Without an indemnity bond. sale may be adjourned from day to day if it becomes necessary to o so for lack of time. Section 17. to start at the exact time fixed in the notice Sale of real properties must be made in the province where the same are situated Purpose is to obtain the best price PERSONS PROHIBITED FROM BUYING Judge. Shocking inadequacy of price may be ground for setting aside sale Who has jurisdiction to set aside execution sale? Court w/c rendered judgment that became final and executory has exclusive jurisdiction After sufficient property has been sold to satisfy the execution. at a public auction 2. 2. unless otherwise directed by the judgment or order of the court. Conveyance to purchaser of personal property capable of manual delivery After purchaser pays the purchase price. No sale if judgment and costs paid If judgment obligor paid the amount of judgment NO writ of execution may be issued or implemented. or his deputy EFFECT OF SALE OF REAL PROPERTY IN MASS GENERAL RULE: Valid EXCEPTION: 1. who issued the writ of execution Officer conducting sale. Judgment obligee as purchaser Officer may sell again the property to the highest bidder refusing purchaser may be liable for amount of loss occasioned by such refusal Refusing purchaser may be punished for contempt Officer may reject subsequent bid of refusing purchaser If judgment obligee is the successful bidder BID ≤ JUDGMENT IF BID > JUDGMENT Judgment obligee not required to pay bid Judgment obligee required to pay excess Section 22. who may direct manner and order of sale All sales of property under execution must be made: 1. the sheriff must deliver the property capable of manual delivery to the purchaser If desired the sheriff shall execute and deliver a certificate of sale No right of redemption in sales of personal property on execution Page 70 of . Section 19.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The sheriff is at complete liberty to suspend or not to suspend execution if the judgment creditor does not file a bond.

and amounts payable on. Auction sale retroacts to date of levy E.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 24. 2) Price paid (per lot) 3) Whole price paid 4) Statement of right of redemption 1 year from date of registration of certificate of sale ORDINARY SALE ON EXECUTION Need not be confirmed Right of redemption Purchaser acquires upon expiration redemption period title of EXECUTION IN JUDICIAL FORECLOSURE OF MORTGAGE Needs judicial confirmation No right of redemption (except where mortgagee is a bank) Purchaser acquires title after judicial confirmation of sale 2. A surety is NOT a successor in interest By paying the debt. a 3rd party claim was filed after the levy.g.g. The purchaser is not entitled to possession during the period of redemption. successive redemptions. or his successor in interest (e. no further even after lapse of 1 year. Section 27. Rule 39 allows certified bank check If check is dishonored. certificate thereof given to purchaser and filed with registry of deeds CERTIFICATE OF SALE MUST CONTAIN 1) Description of real property sold. notice to be given and filed PERIOD OF REDEMPTION JUDGMENT REDEMPTIONER OBLIGOR Judgment Obligor 1st redemptioner has 1 year to has 1 year from redeem registration of 2nd redemptioner has 60 to redeem after 1st redemption certificate of sale 3rd redemptioner has 60 days after 2nd. he stands in the place of the creditor. or mortgage on property SUBSEQUENT to the lien under which the property was sold When? 1. The auction sale retroacts to the date of the levy. Section 26. etc. not obligor Right of redemption cannot be levied on by judgment creditor The judgment debtor may. judgment. Once he redeems. joint debtors) When? Within 1 year from the date of registration of the certificate of sale REDEMPTIONER One who has a lien by virtue of another attachment. Within 1 year from the date of registration of the certificate of sale. as redemption is long as each redemption is allowed made w/in 60 days after the last Payment – how and to whom made Tender of redemption money may be made to purchaser or sheriff If tender to sheriff – duty to accept Medium of payment Cash. redemption valid Page 71 of Purchaser acquires only right. title. Further redemption allowed. interest and claim of judgment obligor. legally sell his right of redemption Section 28. Conveyance to purchaser of personal property not capable of manual delivery For personal property not capable of manual delivery. sale is absolute . Conveyance of real property. the sale is also valid. Certificate of sale where property claimed by 3rd person The certificate of sale to be issued shall make express mention of the existence of such third-party claim. assignee. redemption invalid If check became stale for not being presented. heirs. 9. transferee. the officer must execute and deliver to purchaser certificate of sale (symbolic delivery) Section 25. although Sec. Who may redeem real property so sold RIGHT OF REDEMPTION: 1. Within 60 days from the last redemption by another redemptioner. Real Property – there is a right of redemption WHO MAY REDEEM? JUDGMENT DEBTOR Judgment obligor. Personal Property – None. The fact that the 3rd party claim was presented 1 day before the execution sale is immaterial. of course. Time and manner of. or 2. Purchaser of property registered under Torrens system acquires the same free from liens or encumbrances not noted thereon. If the levy is valid. through no fault of redemptioner.

Same as judgment obligor redemptioner .Amount of lien.must serve copy of judgment or final order. the purchaser now has his own right and Page 72 of Section 29. reimbursement for improvements Section 33. income and fruits derived still belong to the debtor. and even checks. WHAT IS NOT COMMISSION OF WASTE 1) Use in the same a manner previously used. Effect of redemption by judgment obligor. 2) Use in the ordinary course of husbandry. the purchaser or redemptioner is not entitled to: 1.Amount of liens held by last redemptioner prior to price + 2% his own. Rents.Same as .Redemption . or any assignment.memorandum of record. Redemption can be paid in other forms than cash. title. Validity of redemption not affected by failure to present proof If person to whom redemption was offered accepts without requiring proof – redemption valid Section 31. Deed and possession to be given at expiration of redemption period. showing amount due on lien Failure to produce proof by redemptioner is waived by refusal on other grounds. waste restrained During the period pending the redemption.Purchase judgment obligor price + 1% . A formal offer to redeem is not necessary where the right to redeem is exercised through the filing of a complaint to redeem in the courts. If interest + purchaser also assessment creditor w/ prior or taxes lien If he redeems from If he redeems from redemptioner . to the purchaser. Payments may be made redemptioner. Proof required of redemptioner PROOF REQUIRED JUDGMENT OR FINAL ORDER No proof required Right of redemption appears on record REDEMPTIONER If based on judgment or final order: . receive the rents. Upon expiration when no redemption has been made within 6 months. Section 30. earnings. possession 2. to whom payments on redemption made If judgment obligor redeems. last redemptioner is entitled to conveyance and possession of property. purchaser is entitled to conveyance and possession of property. certified bank checks. earnings and income of property pending redemption During the period of redemption. interest and claim of judgment obligor to property. or sheriff. and a certificate to be delivered and recorded thereupon.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Amounts Payable On Redemption JUDGMENT REDEMPTIONER OBLIGOR If he redeems from the If he redeems from the purchaser: purchaser: . no further redemption is allowed. must serve: . After 1 year. w/ interest interest + assessment or taxes If based on Mortgage or other lien. Within 1 year purchaser acquires only the rights.affidavit. the court issues an order to restrain the commission of waste on the property by injunction. by whom executed or given Upon expiration when no redemption has been made within 1 year. 3) Make necessary repairs to buildings thereon Section 32. expenses. Manner of using premises pending redemption. all rents. certified by clerk of court . and income of property sold on execution. within the period to redeem. AND . The Person to whom redemption was made must execute and deliver to the judgment obligor a certificate of redemption. The rule is construed liberally in allowing redemption (aid rather than to defeat the right) and it has been allowed to in the case of a cashier’s check. 3. During the period of redemption.

property exempt from execution. Failure to obey such order or subpoena may be punished for contempt. evicted. It is at this time that the writ of possession is issued. or is indebted to the debtor court may order such person to be examined to bind the credits due to debtor CITATION The garnishee becomes a forced intervenor. and judgment is still unsatisfied. Enforcement of attendance and conduct of examination A party or other person may be compelled by an order of subpoena. on motion or in a separate action: 1) recover from creditor price paid w/ interest. 37 – examination of judgment obligor’s debtor (garnishee) 3) Sec. Writ of possession may be enforced against judgment obligor. Right to contribution or reimbursement If property is executed against several persons. Order for application of property and income to satisfaction of judgment. expenses. or so much w/c is not returned to judgment obligor.but NOT against persons whose right possession is adverse to the latter 5) Sec. court may order creditor to institute action against such person to pay debt Section 37. or money due him. 38 – enforcement of attendance and conduct of examination (punishable by contempt) 4) Sec. or 2) have original judgment revived for whole price w/ interest Section 35. the creditor may ask the court to require the debtor to appear and his property or income be examined . Section 38. purchaser may. successors-in-interest . It is to compel the disclosure of any property that is not exempt from execution 1) Sec. PROCEEDINGS SUPPLEMENTARY TO EXECUTION The proceedings are to aid judgment creditors in discovery of debtor’s property and its application to the satisfaction of judgment. revival of judgment If purchaser fails to recover possession. to be applied to the satisfaction of the judgment Investigation of income and expenses if it appears earnings more than necessary for support of family court may order that he pay judgment in fixed monthly installments otherwise contempt Page 73 of of Section 34. requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation). Section 39. 42 – sale of debtor’s interest in real estate 8) Sec. investigate income. Court may order property of judgment obligor. or 3rd party vindicated claim. Examination of judgment obligor when judgment unsatisfied Upon return of writ of execution. earnings order fix monthly payments 6) Sec. 41 – appoint receiver 7) Sec. to attend before the court or commissioner to testify as provided in Sections 36 & 37. Examination of obligor of judgment obligor Any person or corporation who has property of the debtor.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 acquires right to the property. and more than due proportion has been satisfied one who pays may compel contribution from the others If surety pays principal he may compel repayment from the Section 36. 36 – examination of judgment obligor’s property 2) Sec. judgment reversed. Recovery of price if sale not effective. 39 – judgment obligor’s debtor may pay sheriff Sheriff’s receipt shall mean a discharge for the amount paid and shall be credited by the obligee on execution Section 40. 43 – if garnishee denies debt. Obligor may pay execution against obligee Persons indebted to the debtor may pay sheriff. 40 – order to apply to obligor’s property in the hands of another. in the hands of either himself or another.

TENDER OF PAYMENT OF JUDGMENT TENDER OF PAYMENT OF CONTRACTUAL DEBT . But. may punish disobedience of such order as for contempt. he may set up defenses in a subsequent action PRINCIPAL AND SURETY JOINTLY SUED . or 3. Court cannot make a finding that 3rd person has in his possession property belonging to judgment debtor or is indebted to him and to order said person to pay amount to judgment creditor Execution may issue only upon an incontrovertible showing that 3rd party holds property of judgment obligor or is indebted to him Section 44.if principal not notified.If tender refused.principal has no cause of action against surety The principal is bound by the same judgment from the time he has notice of the action or proceeding and Page 74 of . Proceedings when indebtedness denied or another person claims property. or otherwise) Receiver may be ordered to sell and convey real estate or interest therein Section 43. 2.Court may direct money to be paid to the court. and order entry of satisfaction of judgment . claims an interest in property adverse to him or denies debt Court may: 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 41. the debtor who is compelled to pay does NOT lose right to appeal. not necessary to make consignation . Sale of ascertainable interest of judgment obligor in real estate. When principal bound by judgment against surety SURETY SUED ALONE . Person or corporation having property of obligor or indebted to him.surety should file cross-claim for reimbursem ent PRINCIPAL SUED ALONE . forbid transfer or other disposition of such interest or debt w/in 120 days from notice of order. Entry of satisfaction with or without admission Judgment obligee is obliged to execute and acknowledge admission of satisfaction of judgment only if judgment obligor demands ENTRY OF SATISFACTION OF JUDGMENT-WHEN MADE 1) upon return of execution satisfied 2) upon filing of admission of satisfaction by creditor 3) upon indorsement of such admission 4) upon order of the court Creditor who compels satisfaction of judgment loses right of appeal. authorize judgment obligee to institute action against person or corporation for recovery of such interest or debt.If tender refused.judgment may be rendered against them jointly & severally . Entry of satisfaction of judgment by clerk of court Section 45. Appointment of receiver The sheriff is not a proper person to be appointed as receiver.surety should notify principal and request him to join in defense. Section 42. Debtor who voluntary satisfies judgment loses right to appeal. If Judgment obligor has interest in real estate (as mortgagor or mortgagee. must consign payment w/ court Section 46.principal also bound by judgment . surety must still file separate action for reimbursement but principal can no longer set up defenses w/c he could have set up in the original action .

or clear mistake of law or fact. status. 3) Former judgment or order was on merits.Absolute bar to subsequent action . Effect of judgment or final orders. in all other actions or suits in the same or any other judicial tribunal. 2) Against a person – presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. claim or demand . political. the judgment may be repelled by evidence of want of jurisdiction. an existing final judgment or decree rendered on the merits is conclusive upon the rights of the parties or their privies.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 has been given an opportunity at the surety’s request. ENFORCEMENT OF FOREIGN JUDGMENTS By filing an action based on said judgment.Refers to another action between same parties but involves different claim . collusion.identity of parties. Test to determine IDENTITY OF CAUSE OF ACTION Whether the same evidence would sustain both causes of action NOTE: Res Judicata applies only between adverse parties in a former suit. or legal condition or status of a particular person EFFECT: CONCLUSIVE AS TO the title of the thing Will or administration. NOT between co-parties Paragraph (c) is known as “conclusiveness of judgment” or preclusion of issues or rule of AUTER ACTION PENDANT . on the points and matters in issue in the first suit. Effect of foreign judgments or final orders. JUDGMENT OR FINAL ORDER Against A specific thing Probate of a will or administration of the estate of a deceased person In respect to the personal. EFFECT OF A FOREIGN ORDER OR TRIBUNAL: 1) Against a specific thing – conclusive upon title to the thing.there is finality as to the claim or demand in controversy. Paragraph (a) refers to rule on Res Judicata in judgments IN REM. In both instances. RECOGNITION OF A FOREIGN JUDGMENT Raise the foreign judgment as res judicata in the defense (not in a separate action). 4) Identity of parties. SM only Section 48. It is based on the principle that parties should not litigate the same matter more than once. foreign judgment is presumed to be valid and binding. REQUISITES OF RES JUDICATA 1) Former judgment or order must be final and executory. SM. However.Refers to same action. 2) Court has jurisdiction over subject matter and parties. Section 47. to join the defense. RES JUDICATA OR BAR BY FORMER JUDGMENT . fraud. but as to any other admissible matter w/c might have been presented . and cause of action between first and second action. subject matter. only prima facie evidence of the death of the testator or intestate Condition. notice. not only to matters presented.identity of parties. Page 75 of . cause of action ESTOPPEL BY JUDGMENT OR CONCLUSIVENESS BY JUDGMENT .judgment merely an estoppel only as to those matters in issue or controverted Paragraph (b) refers to as “bar by former judgment or Res Judicata in judgments IN PERSONAM RES JUDICATA It is a matter adjudged. or relationship of the person CONCLUSIVENESS OF JUDGMENT Issues are actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action.

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