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REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001
CIVIL PROCEDURE RULE 1 GENERAL PROVISIONS 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; may be ordinary or special Criminal action – one by which the state prosecutes a person for an act or omission punishable by law Special proceeding – remedy by which a party seeks to establish a status, a right, or a particular fact 2. Rules of Court shall NOT be applicable to the following, except by analogy or in a suppletory character, and whenever practicable and convenient a. b. c. d. e. Election cases; Land registration; Cadastral proceedings; Naturalization proceedings; and Insolvency proceedings
RULE 2 CAUSE OF ACTION 1. Cause of action – an act or omission by which a party violates the right of another 2. REQUISITES OF JOINDER OF CAUSES OF ACTION: a. The party joining the causes of action shall comply with the rules on joinder of parties; b. The joinder shall NOT include special civil action or actions governed by special rules; c. Where the causes of action are between the same parties but pertain to different venues or jurisdiction, the joinder may be allowed in the RTC provided one of the causes of action falls within the jurisdiction of the RTC and the venue lies therein; 3. Where the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. 4. Misjoinder of causes of action NOT a ground for dismissal; the action may, on motion or motu proprio, be severed and proceeded with separately. RULE 3 PARTIES TO CIVIL ACTIONS 1. CLAIMS THAT SURVIVE THE DEATH OF A PARTY: a. Actions to recover real and personal property against the estate; b. Actions to enforce liens thereon; c. Actions to recover for injury to persons or property by reason of tort; d. Actions to recover money arising from contract, express or implied. 2. Death of defendant in action on contractual money claims before judgment of RTC NOT ground for dismissal. Action continues until entry of final judgment. Any judgment against estate of deceased will be enforced as money claim. Writ of preliminary attachment, if any, not dissolved. 3. REQUISITES OF PERMISSIVE JOINDER OF PARTIES: a. Right to relief arises out of the same transaction or series of transactions, whether jointly, severally, or in the alternative; b. There is a question of law or fact common to all the plaintiffs and defendants; c. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue.
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001
4. REQUISITES OF A CLASS SUIT: a. Subject matter of the controversy is one of common or general interest to many persons; b. Parties affected are so numerous that it is impracticable to bring them all to the court; c. Parties bringing the class suit are sufficiently numerous or representative of the class and have the legal capacity to file the action. 5. TRANSFER OF INTEREST Action may be continued by or against the original party, unless the court, on motion, directs the transferee to be substituted in the action or joined with the original party; however, if transfer is made before commencement of the action, the transferee must necessarily be the party, since only he is the real party in interest. RULE 4 VENUE OF ACTIONS * Uniform rule on venue in RTC and MTC 1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area wherein real property involved or a portion thereof is situated. 2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city wherein the real property or a portion thereof is situated. 3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. NOTE: “residence” means place where party actually resides at time of action; does NOT mean permanent home or domicile.
4. Action against non-resident not found in the Philippines
a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the place where the
b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where the property
or any portion thereof is situated or found. 5. Rules on Venue shall NOT apply:
a. In those case where a specific rule or law provides otherwise (e.g., civil case for
damages in cases of libel, where Article 360 of RPC provides specific rules on venue); OR b. Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof. In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real property involved. RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS 1. The procedure in the MTCs shall be the same as that in the RTC. 2. Uniform Procedure shall NOT be applicable: a. Where a particular provision expressly or impliedly applies only to either of said courts. b. In civil cases governed by the Rule on Summary Procedure.
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001
RULE 6 KINDS OF PLEADINGS 1. Negative Defense – specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause of action. 2. Affirmative defense – an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. Includes: a. Fraud b. Statute of limitations c. Release d. Payment e. Illegality f. Statue of frauds g. Estoppel h. Former recovery i. j. a. Discharge in bankruptcy Any other matter by way of confession or avoidance. Arises out of or is necessarily connected with the transaction or occurrence which is the subject matter of the opposing party’s claim;
3. Compulsory counterclaim – REQUISITES:
Does not require for its adjudication the presence of 3rd parties of whom the court cannot acquire jurisdiction; and Must be within the jurisdiction of the court both as to the nature and the amount, except that in an ORIGINAL action in the RTC, the counterclaim may be considered regardless of the amount. Agustin vs. Bacalang A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court’s jurisdiction may only be pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s claim, but NOT to obtain affirmative relief. MOREOVER, the amount of judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the counterclaim in excess of the jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess of the jurisdiction of the trial court is void. Calo vs. Ajax A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of the inferior court, will only be considered permissive. Hence, fact that it is not set-up in the inferior court will not bar plaintiff from instituting a separate action to prosecute it. RULE 7 PARTS OF A PLEADING
1. FORMAL REQUIREMENTS OF PLEADINGS:
a. Caption b. Title c. Body divided into headings and paragraphs d. Body divided into headings and paragraphs e. Signature and address f. Verification in some cases
REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001
2. Signature of the lawyer constitutes a certification by him that:
a. He has read pleading b. To the best of his knowledge, information, and belief, there is good ground to support it c. It is not interposed for delay. 3. HOW A PLEADING IS VERIFIED: By an affidavit stating that a. Affiant (person verifying) has read the pleading
b. Allegations therein are true and correct as of his personal knowledge or based
on authentic records. (SC Circular 48-2000, effective May 1, 2000) 4. A pleading required to be verified which: a. Contains a verification based on “information and belief”, OR b. Contains a verification based on “knowledge, information and belief,” OR c. Lacks a proper verification Shall be treated as an unsigned pleading.
5. What pleadings have to be verified:
a. Petition for relief from judgment (38.3) b. Appeal by certiorari from CA to SC (45.1) c. Complaint with prayer for preliminary attachment (57. 3) d. Complaint for injunction (58.4) e. Complaint for replevin (60.2) f. Petition for certiorari (65.1) g. Petition for prohibition (65.2) h. Petition for mandamus (65.3) i. j. l. Complaint for forcible entry or unlawful detainer (70.4) Petition for appointment of general guardian (93.2) Petition for declaration of competency of the ward (97.1)
k. Petition for leave to sell or encumber property of estate or guardian (95.1)
m. Petition for habeas corpus (102.3)
n. Petition for change of name (103.2) o. Petition for voluntary dissolution of a corporation (104.1) p. Petition for cancellation or correction of entries in the civil registry (108.1)
q. Petition to take deposition in perpetuam rei memoriam (before action or pending
appeal) (24.2) r. Motion to set aside a default order of an inferior court s. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the movant while the adverse party can be fully compensated t. Petition for appointment of receiver u. Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction of the inferior court, by and elevated to the CA. v. Pleadings that need not be verified but must be under oath: w. Denial of the genuineness and due execution of an actionable document (8.8) x. Denial of allegations of usury (8.11) y. Answer to written interrogatories (25.2) z. Answer to request for admission (26.2) aa. Notice of appeal from administrative tribunals to the CA
30) h. That he has not commenced any action or filed any claim involving the same issues in any court. Substance of such document set forth in the pleading.3.2. Motion for dissolution of preliminary injunction (58. Same essential facts and circumstances. Supporting affidavits of merit required: a. ii. and iii.5 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 6.3) i.3) f. To raise an issue as to the legal existence of a party or the capacity of a party in a representative capacity. . Motion to postpone for absence of evidence (30. Motion for summary judgment or opposition thereto (35. Actions raise identical cause of action. b.5) d. Petition for relief from judgment (38. Claim against the estate of the decedent (86. there must be: i. Copy may be set forth in the pleading with like effect. b. Motion for preliminary attachment (57. Motion for new trial on the ground of FAME or opposition thereto (37.9) 7.1. including such supporting particulars as are peculiarly within the pleader’s knowledge. he shall report the same within 5 days therefrom to the court where he filed his complaint. c. tribunal or quasi-judicial agency. If there is such other pending action. Allegations of capacity a. Original or copy attached to the pleading as exhibit and deemed to be part of the pleading. Capacity of party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association that is made a party must be averred. and issues RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS 1. If he should thereafter learn that same or similar action or claim is filed or pending.3) b. 2.16) g. NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE. j. Third-party claim (39. subject matter.4) c. Motion to postpone for illness of a party or counsel (30.2) Motion for new trial based on newly discovered evidence in criminal cases (121. a complete statement of the present status thereof.6) Application for writ of replevin (60. Proof required of a redemptioner (39. Same transactions involved.4) k. GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT. IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING. l. do so by specific denial. OR c.2) e. to the best of his knowledge no such other claim or action pending. CERTIFICATION AGAINST FORUM-SHOPPING: Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification annexed and filed therewith: a. For Forum-Shopping to exist. b. Action or defense based on document a.
Action barred by statute of limitations. Exception: Court shall dismiss the claim. or that it was signed by another with his authority ii. General Rule: Defenses and objections not pleaded in answer or motion to dismiss are deemed waived (Omnibus Motion Rule). If denying only part of an averment. if any of the following appear from the pleadings or the evidence on record: a. Party charged signed the instrument in some other capacity than that alleged in the pleading setting it out v. c. Party whose signature appears admits that he signed it. When compliance with an order for an inspection of the original instrument is refused. Sets forth what he claims to be the facts. whenever practicable. b. Defendant must specify each material allegation of fact the truth of which he does not admit. Res judicata d. Litis pendentia between same parties for the same cause. b. Allegations not specifically denied. Requirement of an oath does NOT apply: i. b. Specifically denies them under oath. he shall specify so much of it as is true and material and shall deny the remainder. Admission of genuineness and due execution: i. d. If defendant does not have knowledge or information sufficient to form a belief as to the truth of a material averment. c. other than those as to amount of unliquidated damages deemed admitted. even without allegation in answer or motion to dismiss. Document was never delivered. Defendant must set forth the substance of the matters upon which he relies to support his denial. How to contest actionable document: Genuineness and due execution of instrument deemed admitted unless adverse party: a. RULE 9 EFFECT OF FAILURE TO PLEAD 1. waived by him Was in words and figures as set out at the time it was signed Document was delivered Any formal requisites required by law which it lacks are The following defenses are cut-off by admission of genuineness and due execution of the document: i. he shall so state and this has effect of denial. .6 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 3. Lack of jurisdiction over the subject matter. iv. Corporation is not authorized under its charter to sign the instrument iv. When diverse party does not appear to be a party to the instrument. or ii. SPECIFIC DENIAL a. Signature is a forgery Signature is unauthorized iii. iii. Negative pregnant – a denial which at the same time involves an admission of the substantial facts in the pleading responded to. 4. ii. 5.
10 days from notice of order admitting the same . DECLARATION OF DEFAULT a. At any time before responsive pleading is served b. Amendments of pleadings may be made once as a matter of right: a. b.” 2. unless different period fixed by the Always filed with leave of court courts. Plaintiff may amend complaint as a matter of right even after defendant files a Motion to Dismiss. Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived. 3. In the case of a reply. Answer to complaint – 15 days from service. and does NOT result in pleading the withdrawal of. Answer of defendant foreign private juridical entity – when service of summons is made on the government official designated by law. g. Substantial amendments may be made only with leave of court. answer to be filed within 30 days from receipt of summons by such entity. Motion to set aside order of default may be filed after notice and before judgment. under oath. Effect of order of default – party in default entitled to notice of subsequent proceedings but not to take part in trial. the court shall try the case against all upon the answers thus filed and evidence presented. e. (NOT judicial admissions anymore. d. An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. 3. RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS 1. No defaults in action for annulment or declaration of nullity of marriage or for legal separation. c.7 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 2. 2. Judgment against party in default shall not exceed the amount or differ in kind from that prayed for nor award unliquidated damages. Answer to amended complaint – if amended as a matter of right. the original pleading Can sometimes be made as a matter of right RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS 1. 5. to set aside order of default upon proper showing that failure to answer was due to FAME. Amended and Supplemental pleadings distinguished: AMENDED Refers to facts existing at the time of the commencement of the action SUPPLEMENTAL Refers to facts arising after the filing of the original pleading Results in the withdrawal of the original Merely an addition. thus. since the same is not a “responsive pleading. except as provided above. After declaration of default. court may render judgment on the basis of the complaint or require claimant to submit evidence. h. Party may make motion. 15 days from being served with copy thereof If amended not as a matter of right. Partial default – if several defending parties and not all in default. must be formally offered) 4. anytime within 10 days after service. Defendant entitled to notice of motion to declare him in default and of order of default. f.
Personal b. containing a full statement of the date. Kinds of service of final orders: a. plaintiff will take judgment by default 2. Kinds of service of pleadings: a. Affidavit of party serving. Direction that the defendant answer within the time fixed by these rules d. JUDGMENTS AND OTHER PAPERS 1. 5. Contents of summons a. Answer to counterclaim or cross-claim – within 10 days from service. Order for bill must be complied with in 10 days from notice OR period fixed by court c. RULE 14 SUMMONS 1. place and manner of service. cross. 2. Period of filing motion – before responding to a pleading. Thus. Kinds of service of summons: a. Bill of particulars a. PERSONAL: . Proof of personal service a. a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. but not less than 5 days Motion for Bill of Particulars may NOT call for matters which form part of the proof of the complaint. Signed by the clerk under the seal of the court b. etc. Personal service – to be done whenever practicable (Most preferred mode) b. 4. After service of bill or denial of motion – party has balance of time he was entitled to file responsive pleading. b. Service by mail (ordinary if no registered mail) c. RULE 13 FILING AND SERVICE OF PLEADINGS. Notice that unless defendant so answers. Registered mail c. b. nonetheless already states a sufficient cause of action. Official return of the server. within 10 days from service thereof. Reply – may be filed within 10 days from service of the pleading responded to RULE 12 BILL OF PARTICULARS 1.8 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Answer earlier filed may be answer to amended complaint. if pleading is a reply. or c. motion should not be granted if the complaint. Publication (if summons by publication) 3. Name of the court and that parties to the action c. Substituted service (delivering copy to clerk of court with proof of failure of 1 st 2 modes) Except with respect to papers emanating from the court. third. Answer to 3rd party complaint – 15 days from service 6. if no new answer is filed Applicable to amended counterclaim. Violation of rule may be cause to consider the paper as not filed. Written admission of party served. while not very definite.
If no such agent. Leave copies at defendant’s office/regular place of business. On any of its officers or agents within the Phils NOTE: IF NO RESIDENT AGENT. General manager d. SERVICE OF SUMMONSES AND PROCESSES ON THE SEC. even actions in personam c. Personal service b. If he refuses to receive and sign for it. Managing partner c. Any suitable person specially authorized by the judge 4. When service by publication in a newspaper of general publication allowed: a. Corporate secretary e. Handing a copy to the defendant in person. When extraterritorial service allowed: a. Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s personal status b. with person of suitable age and discretion residing therein. by tendering it to him SUBSTITUTED: i. Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry (a) and (b). Other proper court officer c. Laws with a juridical personality: a. Leave copies at his residence. applies to ANY action. Identity of defendant unknown b. on government official designated by law OR c.9 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 i. . or association organized under Phil. Subject of action is property within the Philippines in which the defendant has or claims a lien or interest c. By whom served: a. Kinds of extra territorial service a. Treasurer f. Sheriff b. Defendant is temporarily out of the country and the suit is quasi in rem 7. President b. By publication 3. In-house counsel 8. Where relief demanded consists in whole or in part in excluding the defendant from any interest in such property d. When property of defendant has been attached within the Philippines 5. Service upon private foreign juridical entity transacting business in the Phils: a. Service upon private domestic juridical entity – refers to corporation. Any other matter the court may deem sufficient 6. with competent person in charge thereof. OR ii. OR ii. c. Defendant is non-resident and the suit is quasi in rem d. Resident agent designated in accord with Law b. B. Publication and summons sent by registered mail to last known address c. partnership.
Mere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for the purpose of sumons. i. § 6. inclusion in motion to dismiss of other grounds aside from lack of jurisdiction over the person does NOT constitute a waiver of the said ground or voluntary appearance. Must have been regularly published for at least 2 years before the date of the publication in question. Published at regular intervals d. Motion to Dismiss must be filed within the time for and before the filing of an answer to complaint. a contentious motion should be considered a mere scrap of paper which should not have even been received for filing. 2. Those made in open court. Identity of rights asserted and prayed for/relief founded on the same facts. Grounds for motion to dismiss: a. Court has no jurisdiction over the person of the defendant. OR b. c. e. Requisites of litis pendentia: i. 2. Has a bona fide subscription list of subscribers c. Newspaper of general circulation (RA 4883.e. Urgent motion c. Venue is improperly laid. it cannot be considered as an appearance in court. RULE 15 MOTIONS 1. Exceptions to the three-day notice rule: a. Those made in the course of a hearing or trial. The judge must demand what the rule requires.unlike old rule. All motions must be in writing except: a.10 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 9. Not published for nor devoted to the interest of a particular group of persons e. in the absence of the opposing party in the hearing of a motion. There is another action pending between the same parties for the same cause. Motion for summary judgment (must be served at least 10 days before the hearing) A prudent judge would. d. inquire from the other party or inquire from the records the proof of the service of notice rather than proceed with the hearing. Published for the dissemination of local news and general information b. Failure to attach to the motion proof of service thereof to the adverse party is not fatal when the adverse party had actually received a copy of the motion and was in fact present in court when the motion was heard. RULE 16 MOTION TO DISMISS 1. Identity of parties/interest ii. It should be noted that when the appearance of the defendant is precisely to object to the jurisdiction of the court over his person.. Court has no jurisdiction over the subject matter of the claim. Otherwise. PD 1079) a. Subsequent service of the motion on the adverse party may be considered substantial compliance with the Rule 15. He should not rely on a party’s undertaking to notify the adverse party of a scheduled hearing. Ex parte motion b. . When court sets hearing on shorter notice for good cause d. b. Plaintiff has no legal capacity to sue. proof of such notice on the adverse party.
nor matters of evidence. On the merits (even without trial. Cause of action is barred by a prior judgment or by statute of limitations. h. which operates as adjudication on the merits when filed by same plaintiff who has once dismissed an action based on or including said claim. Identity of the 2 cases (such that judgment in one would amount to res judicata in the other) f. Res judicata Extinguishment of claim or demand Prescription Unenforceability under the Statute of Frauds 6. however. Subject to the right to appeal. Rendered by court of competent jurisdiction iii. Identity of the parties g. nor an erroneous statement of law. but may avail of certiorari. The demurrer does not admit the truth of mere epithets charging fraud. or failure to make attempts to reach a compromise in cases between members of the same family) The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. . defendant must file answer within the balance of the 15-day period. If denied. Dismissal by the plaintiff a. Grant it – remedy: appeal b. Final judgment or order ii. extinguished. Actions that court may take on a Motion to Dismiss: a. The dismissal of the complaint shall be without prejudice to the prosecution in the same or separate action of a counterclaim pleaded in the answer. dismissal based on the following grounds will be bar to refiling: a. Dismissal is without prejudice EXCEPT on 2nd notice of dismissal. 3. Order amendment of the pleading 4. 5. but not less than 5 days from the time he received notice of the denial. prohibition and mandamus c. i. A motion to dismiss on the ground of failure to state a cause of action in the complaint must hypothetically admit the truth of the facts alleged in the complaint. Deny – NOT appealable. Requisites of res judicata: i. Condition precedent for filing has not been complied with (this includes prior recourse to barangay conciliation. such as cases decided by Judgment on the Pleadings. The admission. c. abandoned. Claim on which action is founded is unenforceable under the statute of frauds. d. Summary Judgment. Notice of dismissal any time before service of the answer or a motion for summary judgment. Claim or demand in the plaintiff’s pleading has been paid. or dismissed for failure to prosecute or for refusal to obey an order of the court) iv. nor to legally impossible facts. is limited only to all material and relevant facts which are well pleaded in the complaint. Pleading asserting claim states no cause of action. j.11 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 iii. b. waived. nor allegations of legal conclusions. RULE 17 DISMISSAL OF ACTIONS 1.
Limitation of number of witnesses f. 3. b. cross-claim. Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial.12 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 b. before the introduction of evidence. 5. What to consider in pre-trial (with notice to counsel or party without counsel) a. Failure of plaintiff to appear shall be cause for dismissal of the action. or if there is none. to prosecute CC in same action. RULE 18 PRE-TRIAL 1. 3. . Amendments to the pleadings d. Other matters for the prompt disposition of the action 2. A valid cause is shown therefor OR b. However. 2. Dismissal of counterclaim. and to enter into stipulations or admissions of facts and of documents. dismissal is limited to the complaint. Dismissal due to plaintiff’s fault . if plaintiff answers the defendant’s counterclaim. If plaintiff fails to appear on the date of presentation of his evidence in chief. Propriety of judgment on the pleadings. Non-appearance of party excused only if: a.the following must be without justifiable cause a. It is the duty of the plaintiff to move ex parte for the setting of the case for pre- trial. and court shall issue an order reciting in detail matters taken up. summary judgments. 6. If answer or motion for summary judgment already served. If representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement. dismissal by a Motion for Dismissal. dismissal has effect of adjudication upon the merits. defendant is also given option to prosecute the same in same or separate action. if he makes a manifestation within 15 days from notice of the motion. Possibility of amicable settlement or arbitration b. RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal action upon plaintiff’s motion or due to plaintiff’s fault does not necessarily carry with it the dismissal of the compulsory CC. dismissal is without prejudice to defendant’s right to prosecute counterclaim in a separate action or. shall be without prejudice unless otherwise specified by the court If counterclaim has been pleaded by a defendant prior to the service upon him of plaintiff’s motion to dismiss. Proceedings recorded. or dismissal of action h. it will be the latter’s duty to set the pre-trial. Nonappearance of defendant is cause to allow plaintiff to present evidence ex parte and the court to render judgment on basis thereof. to submit to alternative modes of dispute resolution. 4. Preliminary reference of issues to a commissioner g. which shall require approval of the court. Simplification of the issues c. or 3rd-party complaint – must be made by claimant before a responsive pleading or a motion for summary judgment is served. Failure to file brief has same effects as failure to appear at pre-trial. Stipulations or admissions of facts and documents e. Plaintiff fails to prosecute claim for an unreasonable length of time c. Unless otherwise declared by the court. Plaintiff fails to comply with the Rules of Court or any order of the court Complaint may be dismissed upon defendant’s motion or motu proprio.
it will be dismissed if main action is dismissed. Party is so situated as to be adversely affected by the distribution of the court d. Grounds for quashing subpoena duces tecum a. Interest in the success of either or both parties or interest against both c. A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the main action. or if he is a detention prisoner and no permission is obtained from the court in which his case is pending This is known as the “viatory right” of the witness. Service of subpoena made in the same manner as personal or substituted service of summons. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative relief. The witness is not bound thereby – if witness resides more than 100 km from the place where he is to travel by the ordinary course of travel. Calendar of cases to be kept by clerk of court for cases set for pre-trial. 2. Hence. Preference given to habeas corpus. Subpoena issued by: a. 6. or life imprisonment and who is confined in any penal institution shall be brought outside said institution for appearance or attendance in any court unless authorized by the SC. reclusion perpetua. 4. The petition will be preserved and heard regardless of the disposition of the main action. b. Disposition of property in the custody of the court or of an officer thereof. d. Person asking for subpoena does not advance cost of production 4. NOTE. Legal interest in the matter in litigation b. No prisoner sentenced to death. that the right is available only in CIVIL cases b. Motion may be filed at any time before rendition of judgment. however. It is unreasonable or oppressive b. The officer or body authorized by law to do so in connection with its investigations. special civil actions and those so required by law. Motion for intervention will be granted if it will not unduly delay or prejudice adjudication of rights or original parties and if the intervenor’s rights may be fully protected in separate proceedings.13 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 RULE 19 INTERVENTION 1. The court of the place where the deposition is to be taken. Complaint in intervention is merely collateral to the principal action. c. Any Justice of the SC or CA in any case or investigation pending within the Phils 2. . Witness fees and kilometrage allowed by rules not tendered when subpoena served. Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint. those whose trials adjourned or postponed and those with motions set for hearings. Ground for quashing subpoena ad testificandum a. trial. 3. RULE 20 CALENDAR OF CASES 1. 5. The court before whom witness is required to attend. 3. 2. RULE 21 SUBPOENA 1. election cases. The articles sought to be produced do not appear to be relevant c. 5. Grounds for intervention a.
2. 7. in advance of trial and hearing Opportunity for cross-examination Can be competent testimonial evidence 5.14 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 6. May be deposition upon oral examination or written interrogatories 2. The day of the act that caused the interruption is excluded in the computation of the period. RULE 23 DEPOSITIONS PENDING ACTION DEPOSITIONS DE BENE ESSE – taken for purposes of pending action 1. Use of depositions No cross-examination Little probative value (hearsay) Any part or all of a deposition which is admissible in evidence may be used against any party who was present or represented during the taking of the deposition or who had notice thereof as follows: DEPOSITION OF A witness MAY BE USED BY Any party PURPOSE To contradict or impeach the deponent’s testimony as a witness For any purpose Any party. Taken without leave after an answer has been served c. Witness resides at a distance more than 100 km from place of trial. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which subpoena issued. director. Depositions pending action a. b. If there is effective interruption of period. or anyone who An adverse party at the time of taking the deposition was an officer. Taken by leave of court after court obtains jurisdiction over any defendant or property subject of the action b. Person present in court before a judicial officer may be required to testify as if he were in attendance upon a subpoena. Depositions and Affidavits distinguished DEPOSITIONS AFFIDAVITS Written testimony of witness in course of Mere sworn written statements judicial proceedings. whether a Any party party or not For any purpose. RULE 22 COMPUTATION OF TIME 1. it shall start to run on the day after notice of the cessation of the cause of the interruption. or managing agent of a public or private corporation Of any witness. IF court finds that: a. the time shall not run until the next working day. If last day of period falls on Saturday. 3. Witness is dead. Examination and cross-examination proceeds as in trials 4. Sunday or legal holiday in place where court sits. Scope of examination – deponent may be examined regarding any matter not privileged relevant to the subject of the action 3. Upon the instance of any party d. UNLESS absence . Computing for any period of time: day of the act or event from which designated period of time begins to run is to be excluded and the date of performance included.
Employee of any party c. d. OR Other exceptional circumstances make it desirable to allow deposition to be used. sickness. If only part of the deposition is introduced. Employee of party’s counsel f. Counsel of any party d. Witness is unable to testify because of age. Persons disqualified to take depositions a. or imprisonment. e.15 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 procured by party offering the deposition c. before a secretary of any embassy or legation. Deponent is made the witness of the party offering the deposition. Depositions upon written interrogatories Party desiring to take such deposition shall serve them upon every other party with a notice stating the name and address of the person who is to answer them and the name and descriptive title of the officer before whom the deposition is to be taken. Judge ii. Before such person or officer as may be appointed by commission or under letters-rogatories iii. Party offering the deposition has been unable to procure the attendance of the witness by subpoena. the taking of the depositions is subject to the rules laid down by such foreign judicial authority. consul. Relative within 6th degree of consanguinity or affinity of any party b. Within the Philippines i. Commission – addressed to any authority in a foreign country authorized therein to take down depositions. Party so served may serve cross-interrogatories upon the proponent within 10 days thereafter Re-direct interrogatories served within 5 days Re-cross interrogatories served within 3 days 9. Any person authorized to administer oaths if the parties so stipulate in writing b. 6. the taking of such depositions is subject to the rules laid down by the court issuing the commission Letters Rogatory – addressed to judicial authority in the foreign country. 7. On notice. Persons before whom depositions may be taken a. Anyone financially interested in the action 8. consul-general. vice-consul. adverse party may require that all of it which is relevant to the part introduced be introduced. infirmity. consular agent of the Phils ii. In foreign countries i. Relative within the same degree of party’s counsel e. Any person authorized to administer oaths if the parties so stipulate. Effects of errors and irregularities in the depositions . Notary public iii.
RULE 24 DEPOSITIONS PENDING ACTION DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal. c. signed. transmitted. Depositions before action A person desiring to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Phils may file a verified petition in the court of the place of the residence of any expected adverse party. As to disqualification of officer – waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence c. The name and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each.waived unless served in writing upon 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. the rules on criminal practice – particularly on the defense of alibi – states that when a person intends to rely on such a defense. so that the answers may constitute judicial admissions. should be taken before and not during trial. As to form of written interrogatories . Use of deposition If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in evidence may be used in any action involving the same subject matter subsequent brought in accordance with the provisions of Rule 23. in the form of questions and answers. ascertained. 2. As to notice – waived unless written objection is promptly served upon the party giving the notice b.NOT waived by failure to make them before or during the taking of the deposition. A deposition. that person must move for the taking of the deposition of his witness within the time provided for filing a pre-trial motion. which petition shall be entitled in the name of the petitioner and shall show: a. and errors of any kind which might be obviated. The subject matter of the expected action and his interest therein. f. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it. 1. As to competency or relevancy of evidence . . in oath or affirmation. The names or description of the persons he expects will be the adverse parties and their addresses so far as known. 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. or in conduct of parties. unless ground is one which might have been obviated or removed if presented at that time d. That petitioner expects to be a party to an action in a court of the Phils but is presently unable to bring it or cause it to be brought. e. removed. As to oral exam and other particulars .16 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 a. e. IN fact. b. cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition.Errors occurring at the oral exam in the manner of taking the deposition. indorsed. certified. Interrogatories and the answers thereto should be filed in court and served on adverse parties.errors as to manner in which the testimony is transcribed or the deposition is prepared. in keeping with its nature as a mode of discovery. As to manner of preparation . or with due diligence might have been. d. sealed. RULE 25 INTERROGATORIES TO PARTIES 1.
Effect of admission Admission is only for the purpose of the pending action and shall NOT constitute an admission for any other person nor may it be used against him in any other proceeding. Permit entry upon designated land or other property in his possession or control for the purpose of inspecting. Request for admission A written request for the admission of the other party of the genuineness of any material or document or request for the truth of any material and relevant matter of fact set forth in the request may be filed and served upon the other party at any time after issues have been joined. Produce and permit the inspection and copying or photographing of any designated documents. b. measuring. surveying. RULE 29 REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY . If the mental or physical condition of a party is in controversy. accounts. RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS 1. Constitute or contain evidence material to any matter involved in the action AND ii. Implied admission Each of the matter requested to be admitted shall be deemed admitted within a period designated in the request. Any party may move for the court in which the action is pending to order any party to: a. UNLESS. Effect of failure to serve written interrogatories – a party not served with such may NOT be compelled by the adverse party to give testimony in open court or deposition pending appeal. party requested serves upon the party requesting a sworn statement either specifically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. 2. RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS 1. 2. books. place and manner of making the inspection and taking copies AND b. b. custody or control. photographs. papers. The party examined waives any privilege he may have in that action regarding the testimony of the person who has examined or may examine him with respect to that same mental or physical examination by: a. which shall not be less than 15 days after service thereof or within such further time as the court may allow on motion. letters. which: i. Requesting and obtaining a report of the examination so ordered OR Taking the deposition of the examiner. Are in his possession. May prescribe such terms and conditions which are just. A party who fails to file and serve a request for admission on the adverse party of material facts within the personal knowledge of the latter shall not be permitted to present evidence thereon. the court may order him to submit to a physical or mental examination by a physician. not privileged. 3. objects or tangible things. RULE 26 ADMISSION BY ADVERSE PARTY 1. Shall specify the time. 4.17 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 2. 2. or photographing the property or any designated relevant object or operation thereon. The order: a.
including the attorney’s fees (if it finds the refusal to answer without substantial justification) The court may then order: ii. or the physical and mental condition of the party be taken to be established. Strike out all or any part of any pleading of that party. That the matters regarding which the questions were asked. 4. If a party/deponent refused to answer: a. vi. shall adduce evidence of his defense. If a party/officer or managing agent of a party refuses to obey an order requiring him: a. cross-claim. Enter a judgment by default against that party. Order of trial Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows: a. To produce a thing for inspection or to permit entry upon property c. c. b. 5. If a party refuses to attend or serve answers. i. . To answer designated questions b. evidence iv. To submit to a physical or mental examination the court may order: i. The plaintiff shall adduce evidence in support of his complaint. If a party/witness refuses to be sworn or to answer after being directed to do so by the court. b. and third-party complaint. c. counterclaim.18 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 1. disobedient party OR The disallowance of the disobedient party’s claims The prohibition of the disobedient party to present The striking out of the pleadings or parts thereof The dismissal of the action or parts thereof Rendering judgment by default against the vii. Order that party to pay reasonable expenses incurred. counterclaim. 3. The proponent or his counsel to pay the expenses incurred in opposing the application. Dismiss the action or any part thereof. c. OR/AND d. including attorney’s fees. The 3rd-party defendant. the refusal may be considered a contempt of that court. the court may: a. ii. b. The defendant shall adduce evidence in support of his defense. The Republic of the Philippines cannot be required to pay expenses and attorney’s fees under this Rule. including attorney’s fees (if it finds the application to be without substantial justification) 2. iii. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination. The examination may be completed on other matters The examination may be adjourned The proponent may apply to the court for order to compel answer The refusing party or his counsel to pay the expenses incurred in obtaining the order. v. and 4th party complaint. or the character of the land or the thing. if any. RULE 30 TRIAL 1. cross-claim.
cross-claim. for good reasons and in the furtherance of justice. RULE 32 TRIAL BY COMMISSIONER Trial by commissioner: 1. If answer fails to tender an issue. Trial requires examination of a long account of either side b. arises upon motion or otherwise. 2. Upon admission of the evidence. the material facts alleged in the complaint shall always be proved in actions for: . If motion granted. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect c. e. RULE 33 DEMURRER TO EVIDENCE Demurrer to evidence 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 the plaintiff has shown no right to relief. Question of fact. BUT the court may order a separate trial of any claim. Reference by motion of one of the parties or motu proprio: a. shall adduce evidence in support of their defense.19 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 d. The 4th party and so forth. on motion of that party. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case where the parties so agree in writing. which objections shall be resolved by the court upon submission of his report and the transcripts within 10 days from the termination of the hearing. Judgment on the Pleadings is proper: a. If answer otherwise admits the material allegations of the adverse party’s pleading Then court may. CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue when actions involving a common question of law or fact are pending before the court. permits them to adduce evidence upon their original case. and g. If motion denied – defendant has the right to present evidence 2. in the order to be prescribed by the court. RULE 34 JUDGMENT ON THE PLEADINGS 1. or third-party complaint. unless the court. 2. in furtherance of convenience or in the interest of justice. direct judgment on the pleadings 2. if any. or b. The parties against whom any counterclaim or cross-claim has been pleaded. The clerk shall have no power to rule on objections to any question or to the admission of exhibits. the court may delegate the reception of evidence to its clerk of court who is a member of the bar. in any stage of the case. counterclaim. shall adduce evidence of the material facts pleaded by them. unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. but reversed on appeal – defendant deemed to have waived the right to present evidence. other than upon the pleadings. Reference by consent of both parties 2. RULE 31 CONSOLIDATION OR SEVERANCE 1. 1. However. f. The parties may then respectively adduce rebutting evidence only. the case shall be deemed submitted for decision.
depositions and admissions of the parties Available in any action. Several Judgments In action against several defendants. except the 3 Proper only in actions to recover a debt. pursuant to Rule 35. 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 consideration is filed within 15 days 2. which terminates such claim. Based not only on pleadings but also on affidavits. and admissions of the parties showing that. Motion for new trial or reconsideration filed within 15 days from notice of judgment and resolved by the court within 30 days from submission for resolution. RULE 36 JUDGMENTS. the court may render judgment against one or more of them. counterclaim. Action shall proceed as to other claims RULE 37 NEW TRIAL OR RECONSIDERATION 1. 1 refers to actions “to recover upon a claim”. or exceptions for a liquidated sum of money.” 6. 3. Declaration of nullity of marriage b. or for declaratory relief Motions for summary judgment may be filed by the claimant or by the defending party. FINAL ORDERS AND ENTRY THEREOF 1. §2“at any time”. Legal separation RULE 35 SUMMARY JUDGMENTS Summary judgment: 1. except as to the amount of damages. 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. 5. Judgment on the pleadings and summary judgment distinguished: Judgment on the pleadings Summary judgment Proper when there is no genuine issue Proper even if there is an issue as to the between the parties damages recoverable Based exclusively on the pleadings without Based not only on pleadings but also on introduction of evidence affidavits. Motion shall be served at least 10 days before the time specified for the hearing. deposition. Separate judgments Judgment rendered to dispose of one of the several claims for relief presented in an action. 4.20 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 a. there is no genuine issue. The date of the finality of the judgment or final order shall be deemed to be the date of its entry. 3. leaving the action to proceed against the others. The defending party may file such motion. Although Rule does not specifically provide. . also unavailable in actions for annulment of and declaration of nullity of marriage. or to recover a debt or a liquidated demand for money. Annulment of marriage c. cross-claim or to obtain a declaratory relief. Proper if no genuine issue as to any material fact (except as to damages recoverable) and if moving party is entitled to a judgment as a matter of law 2. and for legal separation since Sec. as distinguished from §1 where the claimant may file the motion at any time after the answer is filed. made at any stage. or “to obtain declaratory relief. May be asked for by a party seeking to recover upon a claim.
Damages awarded are excessive b.21 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 2. RULE 39 EXECUTION. for newly-discovered evidence. 3. ORDERS. Could not have been discovered and produced at trial despite the exercise of reasonable diligence iii. Pro forma motion for new trial or reconsideration shall not toll the period for appeal. Fraud. After answer is filed or expiration of period therefor. Motion for new trial shall be in writing. Execution as a matter of right On motion with notice. Grounds: Motion for Reconsideration a. Grounds: a. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal For fraud to be extrinsic. b. Decision is contrary to law 4. mistake. the losing party must never have had a chance to controvert the adverse party’s evidence. Second motion for new trial must be based on a ground not existing or available when the first motion was made. or b. Party who has filed a timely motion for new trial cannot file a petition for relief after the former is denied. if granted against denial of appeal. The two remedies are exclusive of one another. Motion for reconsideration shall specifically point out the findings or conclusions of the judgment which are unsupported by evidence or contrary to law. and supported by affidavits of merit if the ground is FAME. If granted. Grounds: Motion for New Trial a. Uniform procedure for relief from judgments of MTC and RTC 4. 5. SATISFACTION AND EFFECT OF JUDGMENTS 1. judgment set aside and court shall proceed as if timely motion for new trial has been granted. . court shall give due course to appeal. Evidence is insufficient to justify the decision or final order c. which may be filed during the remainder of the 15-day period. RULE 38 RELIEF FROM JUDGMENTS. with express reference to the testimonial or documentary evidence or the provisions of law alleged to be contrary to such findings. court shall order adverse parties to answer within 15 days from receipt. it must be supported by affidavits of witnesses by whom such evidence is expected to be given. upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected. could probably alter the result of the action 3. OR OTHER PROCEEDINGS 1. accident. Newly discovered evidence Requisites: i. Judgment or final order entered against a party by FAME. If presented. court shall hear the petition. No second motion for reconsideration allowed. 5. After petition is filed. or excusable negligence. 6. Discovered after trial ii. or by duly authenticated documents to be introduced. Petition for relief from judgment filed within 60 days after learning of judgment and not more than 6 months after such judgment Must be supported by affidavit showing the FAME and the facts constituting the petitioner’s good or substantial cause of action or defense 2.
trial court loses jurisdiction on that date. 3. Death of judgment obligor - i. 4/18/94) 4. it may be sold for satisfaction of the obligation. upon motion of the prevailing party with notice to the adverse party b. if judgment is for a . Actions for injunction b. execution may already be issued by the court of origin or directed to do so by the CA. as the amounts remain uncertain and indefinite pending resolution. If death after execution is actually levied upon his property. Appellate court – after the TC has lost jurisdiction Example: P receives judgment: June 3 D receives judgment: June 1 D files notice of appeal: June 5 When does trial court lose jurisdiction? June 18 BUT. Against his executor. Execution with respect to consequential and exemplary damages should be postponed until such time as the merits of the case have been finally determined in the regular appeal. Execution with respect to appealed cases. Motion for execution of final and executory judgment should be served on adverse party and set for hearing. Receivership c. may issue only upon good reasons to be stated in a special order after hearing. Support e. If the judgment obligor dies after the entry but before levy. Judgments declared immediately executory 5. Death of judgment obligee . a.22 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 For so long as there is a certificate of entry of judgment. Execution in case of party’s death: a. Appellate court may on motion order court of origin to issue writ of execution (SC Circular No. ii.application of his executor or administrator or successor-in-interest b.there is no need to await remand of the records. 6. Discretionary execution – pending period to appeal or during appeal. Revived judgment may be enforced by motion within 5 years from entry and thereafter by action before barred by statute of limitations – file motion within 10 years from the finality of the revived judgment. a. Judgments NOT stayed by appeal (immediately executory. By trial court – even after the perfection of the appeal for so long as the motion for execution was filed while the TC has jurisdiction over the case and is in possession or the records. 2. if the judgment be for recovery of real or personal property or the enforcement of a lien thereon. 24-94. c. unless court provides otherwise) a. A final and executory judgment may be executed on motion within 5 years from entry. b. if P also files a notice of appeal on June 10. execution will issue if it be for the recovery of real or personal property. etc. In case of appeal. However. May be revived and enforced by action after lapse of 5 years but before 10 years from entry. Accounting d. motion is filed with court of origin supported by certified true copies of final judgment of appellate court.
e. or livelihood. and to satisfy any costs.000. Exemption does not apply if execution upon a judgment for its purchase price or for foreclosure of mortgage. rents. l. describing it and apply the proceeds in conformity with judgment. or profits due as of date of issuance of writ. legatees. with interest c. g. and the judgment obligor dies before levy. f. In all cases. Right of Exemption is a personal right granted to the judgment creditor. Lettered gravestones. lawyers. Property exempt from execution a. The sheriff may thus not claim it. Necessary clothing and articles for ordinary personal use. Right to receive legal support or any pension or gratuity from the government. or earnings for personal services within the 4 months preceding the levy which are necessary for the support of the family.000. such judgment cannot be enforced by writ of execution but must be filed as a claim against his estate. Writ of execution: a. or trustees of the judgment obligor – out of that property. cows. annuities accruing or in any manner growing out of any life insurance. Manner of executing writ: a. employment. Family home as provided by law. dispositive portion of the judgment order c. Properties especially exempted by law. Judgment obligor is given option to choose which property may be levied on sufficient to satisfy the judgment.000 owned by a fisherman and by which he earns his living. e. State the name of the court. i. 7. If judgment against property of the judgment obligor – out of real or personal property with interest b. Tools and implements used in trade. or profits covered by the judgment out of the personal property of the person against whom it was rendered. homestead in which he resides. wages. c. damages. excluding jewelry. Household furniture and utensils necessary for housekeeping not exceeding P3. d. Professional libraries and equipment of judges. If for delivery of possession of property – deliver possession of the same to the party entitled to it. not exceeding P300.23 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 sum of money. or carabaos or other beasts of burden used in his ordinary occupation. aside from principal obligation. If for sale of real or personal property – to sell property. . writ of execution shall specifically state the amount of the interest. tenants. case number and title. benefits. describing it. d. damages. Require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms 8. devisees. etc. One fishing boat and accessories not more than P100. Money. j. physicians. and land necessarily used in connection therewith. k. rents. heirs. 3 horses. and out of real property if sufficient personal property cannot be found. costs. If against his real or personal property in the hands of the personal representatives. 9. b. h. Shall issue in the name of the Republic of the Phils from court which granted the motion b. Salaries.
In case of judgment against a specified thing. When foreign judgment may be repelled a. Requisites for res judicata a. it is conclusive on the title or condition. beyond which he can no longer redeem. in preliminary attachment and replevin. Judgment obligee or plaintiff may claim damages against third-party claimant in the same or a separate action. Clear mistake of law. status. c. Effect of judgment or final orders a. Collusion d. Judgment obligor has one year from the date of the registration of the certificate of sale to redeem property sold by paying the purchaser the amount of his purchase. 15. Purchaser or redemptioner not entitled to receive rents and income of property sold inasmuch as these belong to the judgment obligor until the expiration of the period of redemption. Want of notice to party c. 11. Judgment is on the merits . 16. In any other litigation. Amount of bond not less than value of property levied on. b. Final former judgment b. 13. d. that only is deemed to have been adjudged in a former judgment or which was actually and necessarily included therein. If against a person. (Redeeming creditor is termed a redemptioner). e. Fraud e. Judgment upon a specific thing. judgment. or administration of estate or legal condition or status. or matters relating thereto that could have been raised subsequent to commencement of action. Evidence of want of jurisdiction b. They may also redeem beyond one-year period within 60 days after the last redemption. judgment is conclusive between parties and their successors in interest. judgment is presumptive evidence of a right as between the parties and their successors in interest. Who may redeem real property sold: a.24 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 10. conclusive upon title to the thing. c. Sheriff not liable for damages if bond is filed. The judgment obligor’s right to redeem within 60 days from last redemption is limited to the one-year period. relationship. Purpose of bond filed by judgment obligee or plaintiff is to indemnify third-party claimant. 14. In other cases/matters directly adjudged. Creditor having lien by virtue of an attachment. Redemptioners have one year to redeem from the date of registration of the certificate of sale. Third party claims: a. b. 12. will or administration. b. with 2 % interest on the sum to be paid on the last redemption. Judgment obligor or his successor in interest in the whole or any part of the property. 3rd party claimant may vindicate his claim to the property by intervention since the action is still pending. Effect of foreign judgment a. or mortgage on the property sold subsequent to the lien under which the property was sold. probate of will. not the sheriff or officer. 3rd Party claimant may vindicate his claim to property levied in a separate action because intervention is no longer allowed since judgment already executory. b. with 1% per month interest plus any assessments or taxes which he may have paid thereon after purchase with interest on said amount at 1% per month.
17. . parties and cause of action. Writ varies the terms of the judgment i. Improperly issued b. identity of subject matter. Issued against the wrong party d. Change of the situation of the parties renders execution inequitable g.25 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 c. Issued without authority f. Rendered by a court of competent jurisdiction d. Between first and second actions. When quashal of writ of execution proper a. Judgment was already satisfied e.requires the performance of any other act than the payment of money or the sale or delivery of real or personal property. Writ sought to be enforced against property exempt from execution Ambiguity in the terms of the judgment 18. j. SPECIAL JUDGMENT . Controversy was never validly submitted to the court h. Defective in substance c.
and other officers and employees connected with the administration of justice. prosecuting attorneys. Order granting writ of execution ONLY appealable when: a. merely sets apart such funds but does not constitute the creditor the owner of the garnished property. b. Appeal from judgment or final order of MTC taken to RTC exercising jurisdiction over the area to which MTC pertains. Movants were in extreme need of the premises subject of the suit and the bond to answer for damages in case of reversal on appeal (supersedeas bond) was posted by them. Persons disqualified from participating in the execution sale: a. Justices. RULE 40 APPEAL FROM MTC TO RTC 1. the administration of which has been entrusted to them. c. Judgment is for support and the beneficiary is in need thereof. c. Direct attack c. Lawyers. e.26 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 19. g. judges. f. clerks of courts. d. h. e. the property of the estate under administration. File notice of appeal with the MTC which rendered decision appealed from within 15 days after notice of such judgment. Appeal is clearly dilatory.judgment is null on its face or court had no jurisdiction 20. stocks. or any GOCC. .g. Officer conducting the execution sale or his deputy. Others specifically disqualified by law. or other incorporeal property in the hands of third persons. b. Executors and administrators. When vague and court renders what is believed to be wrong interpretation. Guardian with respect to the property under his guardianship. d. (e. 23. Lapse of time would make the ultimate judgment ineffective. unless with principal’s consent. Remedies against executory judgments or orders: a. the property and rights which may be the subject of litigation in which they take part by virtue of their profession. Prevailing party posts sufficient bond to answer for damages in case of reversal of judgment But in most cases. f. When court may order execution even before an executory judgment and pending an appeal a. g. the property entrusted to them. seller of goods who exercise right of resale of goods). Articles subject of the case are perishable. Prevailing party is of advanced age and in a precarious state of health and the right in the judgment is non-transmissible being for support. Garnishment – act of appropriation by the sheriff if the property involved is money. the property of the State or any subdivision thereof. 21. Agents. Defendants are exhausting their income and have no other property aside from the proceeds from the subdivision of lots subject of the action. the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions. Judgment debtor is in imminent danger of insolvency. Petition for relief b. Collateral attack . Order varies terms of the judgment b. the mere filing of a bond is not sufficient justification for discretionary execution. i. Public officers and employees. h. 22.
remedy is certiorari under Rule 65. Include judgment or final order from which appeal taken. If order of execution is not in accord with the dispositive portion. c. Order of execution. b. 4. RULE 41 APPEAL FROM THE RTC 1. c. mistake. Record on appeal is filed within 30 days and required only for special proceedings 3. 5. In all these cases.27 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 2. unless the court allows an appeal therefrom. Appellate docket fees paid to clerk of court of MTC . 3. c. confession. aggrieved party may file an appropriate civil action under Rule 65. compromise on the ground of fraud. Interlocutory order. b. f. Appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein. Court to which the appeal is being taken. Order dismissing an action without prejudice. If reversed. 6. Order disallowing or dismissing an appeal. Contents of Record on appeal: a. g. Order denying a petition for relief or any similar motion seeking relief from judgment. Record on appeal required only for special proceedings and where multiple appeals allowed filed within 30 days. If the first level court tried the case on the merits without jurisdiction. the RTC should not dismiss the case but shall decide it in the exercise of original jurisdiction. d. b. 2. No appeal may be taken from: a. Motion for extension of time to file a motion for new trial or reconsideration is prohibited. Order denying a motion to set aside a judgment by consent. or any other ground vitiating consent. Full names of all parties to the proceedings shall be stated in the caption. If affirmed because the MTC has no jurisdiction. Contents of Notice on appeal: a. . while the main case is pending. b. h. Ordinary appeal from RTC (in the exercise of original jurisdiction) to CA is by filing notice of appeal with the RTC within 15 days from notice of its judgment. Order denying a motion for new trial or recon. Not appealable because execution is only the result of the judgment. d. Names of the parties to the appeal. 4. Judgment or final order for or against one or more of several parties or in separate claims. Procedure for appeal from cases dismissed without trial for lack of jurisdiction: a. Material dates showing timeliness of appeal. e. the case shall be remanded to the MTC. Specify judgment or final order or part thereof appealed from.payment not a condition precedent for perfection of appeal but must nonetheless be paid within the period for taking appeal. or duress. RTC will try case on the merits as if it has original jurisdiction.
and all interlocutory orders as are related to the appealed judgment. c. State whether or not appellee accepts the statement of matters involved in the petition. 8. b. Data showing that appeal perfected in time . 11. State reasons why petition should not be give due course. Executions pending appeal c. Cases covered by Summary Procedure RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA 1. or b. In chronological order. 10. 3. oral or documentary. Indicate specific material dates showing it was filed on time. Require respondent to file a comment. copies of only such pleadings. Form and contents of petition for review (from RTC to CA) In 7 legible copies: a. Point out such insufficiencies or inaccuracies as he believes exists in petitioner’s statement of matters. c. etc. accompanied by certified true copies of material portions of record and other supporting papers: a. Accompanied by clearly legible duplicate originals or true copies of the judgments or final order of both MTC and RTC. Concise statement of matters involved. d. If an issue of fact is to be raised. Decisions of quasi-judicial body appealed to the CA b. 7. CA may: a. 9. include by reference all the evidence. or both allegedly committed by the RTC. issues raised. petitions. 2. Certification under oath of non-forum shopping.material data rule. and the reasons or arguments relied upon for the allowance of the appeal. specification of errors of fact or law. without impleading the lower courts or judges thereof. General Rule: An ordinary appeal stays the execution of a judgment Exceptions: a. Notice of Appeal and Record of Appeal distinguished: Notice of Appeal Record of Appeal Party’s appeal by notice of appeal deemed Deemed perfected as to appellant with perfected as to him upon the filing of the respect to the subject matter upon the notice of appeal in due time approval of the record on appeal filed in due time Court loses jurisdiction over case upon perfection of the appeals filed in due time and expiration of time to appeal of other parties Court loses jurisdiction only over subject matter upon approval of records on appeal filed in due time and expiration of the time to appeal of other parties.28 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 c. Full names of parties to case. b. Contents of comment In 7 legible copies. by petition for review on certiorari with SC. e. Appeal from decision of RTC in appellate jurisdiction is by petition for review filed with CA. Where only questions of law are raised. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of appeal. Dismiss the petition if it finds: . d. taken upon the issues involved. e.
Prosecuted manifestly for delay iii. c. final resolution or order of the Ombudsman. h. National Telecommunications Commission. k. absurd. any appeal by way of petition for review from a decision. g. There is grave abuse of discretion. Patently without merit ii. Insurance Commission. Office of the President. Question of Law – exists when doubt or difference arises as to what the law is. Civil Service Commission.29 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 i. Martin’s Funeral Home vs. m. surmises. d. Securities and Exchange Commission. based on a certain state of facts Question of Fact – exists when doubt or difference arises as to the truth or the falsehood of alleged facts 2. Appeals from judgments and final orders of the Court of Tax Appeals and quasi- judicial agencies in exercise of quasi-judicial functions (unless otherwise provided by law and the Labor Code [NLRC decisions]) shall be by petition for review to the CA. e. i. Employees Compensation Commission. or impossible. Land Registration Authority. Trademarks and Technology Transfer. ∅ According to A. National Electrification Administration. q. . Only 1 Motion for reconsideration allowed 2. p. l. Social Security Commission. 6657. 1999 shall no longer be referred to the CA. The conclusion is a finding grounded entirely on speculations. RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT 1. 1999). Desierto – Appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the CA under Rule 43. Agricultural Inventions Board. Quasi-judicial agencies covered: a. Voluntary arbitrators St. Construction Industry Arbitration Commission. but shall be dismissed. r. Questions raised are to insubstantial to require consideration RULE 43 APPEALS FROM THE CTA AND QUASI-JUDICIAL AGENCIES TO THE CA 1. NOT SC Fabian vs. NLRC . Findings of fact of the CA may be reviewed by the SC on appeal by certiorari when: a. or conjectures. GSIS. n. Central Board of Assessment Appeals. Energy Regulatory Board. j. Department of Agrarian Reform under RA No. to be taken within 15 days from notice of award or judgment or from notice of the denial of the motion for reconsideration. o. The inference made is manifestly mistaken.M. Civil Aeronautics Board. or special civil action relative to such decision.DECISIONS OF THE NLRC – ORIGINAL ACTION FOR CERTIORARI UNDER RULE 65 FILED WITH THE CA. f. c. Bureau of Patents. 99-2-02-SC (promulgated February 9. b. no. b. filed with the SC after March 15.
or other courts whenever authorized by law. RTC on pure questions of law. Lack of jurisdiction. Certiorari as mode of appeal: From judgment or final order of the CA. in making its findings. by filing a petition for review on certiorari with the SC within 15 days from notice of judgment. 4. 3. Extrinsic fraud – not available as a ground if availed of earlier in a motion for new trial or petition for relief b. For extrinsic fraud – four years from discovery. went beyond the issues of the case and the same is contrary to the admissions made. Failure to file the notice of appeal or record on appeal within the period. and that the mode of appeal is erroneous. That is the prerogative of the CA. Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided. Rule 45 and Rule 65 distinguished: Rule 45 No need for Motion for Recon Relates to final judgments An appeal 15 days from notice of judgment Rule 65 Motion for Recon generally required Applies to interlocutory orders rendered in excess/lack of jurisdiction Not an appeal in the strict sense 60 days from notice of judgment Kho vs. f. Lack of jurisdiction – must be filed before action barred by laches. unlike a record on appeal. Grounds for dismissal of appeal by the CA: a. Effects of judgment of annulment – gives the CA authority to order the trial court on motion to try the case if the ground for annulment is extrinsic fraud. e.30 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 d. d. Petition for annulment available only if ordinary remedies of new trial. appeal. b. Prescriptive period for refiling the original action is suspended unless the extrinsic fraud is attributable to the plaintiff in the original action. g. 2. or additions in the approved record on appeal. c. petition for relief or other appropriate remedies no longer available through no fault of the Petitioner. Sandiganbayan. The CA. not the RTC judge. A notice of appeal need not be approved by the judge. Failure of the appellant to pay the docket and other lawful fees. RULE 50 DISMISSAL OF APPEAL 1. Grounds for annulment of judgment of RTC in civil cases: a. RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS 1. Camacho: An RTC judge has no right to disapprove a notice of appeal on the ground that the issues raised involve a pure question of law. e. if properly considered. The judgment is based on misapprehension of facts. would justify a different conclusion. CA manifestly overlooked certain relevant facts not disputed by the parties and which. but not if it is lack of jurisdiction. Findings of fact of trial court and CA are conflicting. omissions. . Periods: a. Unauthorized alterations. 4. Failure of the record on appeal to show on its face that the appeal was taken within the reglamentary period. 3. b.
Disciplinary proceedings against judges and attorneys. are signed by the Justices taking part. prohibition. 5. h. 3. and consuls. Date when judgment or final resolution becomes executory shall be deemed as date of entry. An appeal to SC can only be taken by petition for review on certiorari. RULE 56 PROCEDURE IN THE SUPREME COURT 1. e. except in criminal cases where the penalty imposed is death. 3. Failure to pay the requisite docket fee and other lawful fees or to make deposit for costs. Memorandum decisions are permitted in the CA. b.31 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 f. c. Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision or appropriate action. other public ministers. or directives of the court without justifiable cause i. or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Section 3. 2. Error in choice or mode of appeal 4. quo warranto. PROVISIONAL REMEDIES Provisional remedies (ancillary/auxiliary) g. mandamus. or life imprisonment. 2. directive or order of the SC without justifiable cause. Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition. habeas corpus. Case is not appealable to the SC. Judgment or order appealed from is not appealable. Original cases cognizable – exclusive list: a. Failure to comply with any circular. RULE 51 JUDGMENT 1. circulars. Lack of merit in the petition. b. Petitions for certiorari. Absence of specific assignment of errors in appellants brief or page references to the record. g. General Rule: Appeal to SC by notice of appeal shall be dismissed. Grounds for dismissal of appeal by SC a. Exception: In criminal cases where the penalty imposed is life imprisonment. c. Rule 122) 6. Failure of appellant to appear at the preliminary conference or to comply with orders. f. Cases affecting ambassadors. . reclusion perpetua. Failure of the appellant to take necessary steps for the completion or correction of the record within the time limited by the order. without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 45. they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies to be served upon parties or counsel. After judgment or final resolution of the CA and dissenting or separate opinions if any. d. Failure to take appeal within the reglementary period. Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial.
c. as long as the property belongs to the defendant. or the defendant is a resident of the Phils temporarily absent therefrom. PROVISIONAL . Extends to all kinds of property. e. amount of counterbond should be equal to the amount fixed in the order of attachment. c. Recovery of possession of property (both real and personal) unjustly detained. When preliminary attachment is discharged a. presupposes that the same is being concealed. e. BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts. Recovery of specified amount of money and damages. d. Action for money or property embezzled or for willful violation of duty by public officers. Attachment was improperly or irregularly issued. or fiduciary. or is about to do so. b.constituting temporary measures availed of during the pendency of the action. where party is about to depart from the Phils with intent to defraud creditors. ANCILLIARY . in all other cases. and for the purpose of ultimately affecting a final judgment in the case. removed. May be resorted to even if the personal property is in the custody of a third person. or is one in which he has proprietary interests. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION: Enforcement of writ of preliminary attachment must be preceded by or simultaneously accompanied by service of summons. officers of corporation.if attachment to be discharged is with respect to particular property. real or personal or incorporeal. counterbond or deposit shall be equal to the value of the property as determined by the court.incidents in and dependent on the result of the main action. or disposed of to prevent its being found or taken by the applicant. Can still be resorted to even if the property is in custodia legis. c. Preliminary Attachment a. application and affidavits for the attachment and the bond upon the adverse party. RULE 57 PRELIMINARY ATTACHMENT 1. agent. 3. . f. AND with permission of the court 2. copy of complaint. with intent to defraud creditors.32 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect rights and interests therein pending rendition. Action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof. Action against party who is not a resident of the Phils and cannot be found therein or upon who service by publication can be made. b. or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem. when the property is concealed or disposed of to prevent is being found or taken. Action against party who is concealing or disposing of property. Debtor posts a counterbond or makes requisite cash deposit. Applicant’s bond is insufficient or sureties fail to justify. CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER b. d. Available even if the recovery of personal property is only an incidental relief sought in the action. To recover possession of personal property unjustly detained. 4. except moral or exemplary. Grounds a.
Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment. When to apply for damages against the attachment bond a. Property attached is exempt from execution. 3. No Preliminary Injunction or TRO may be issued without posting of bond and notice to adverse party and hearing. Plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction). May be main action itself or just a Always a main action provisional remedy in the main action 2. In the appellate court for damages pending appeal. When damages sustained by a third person not a party to the action. When principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages. 8. b. b. RULE 58 PRELIMINARY INJUNCTION 1. Judgment is rendered against attaching party. Claims for damages cannot be subject of independent action except: a. Attachment is excessive – discharge is with respect to the excess 5. before judgment becomes executory. Before appeal perfected. Before judgment becomes executory. Injunction may be refused or dissolved when: a. Plaintiff’s bond is insufficient or defective 4.33 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 d. There is no need to first execute judgment against the judgment obligor before proceeding against sureties. 7. f. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION: . Defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated. Preliminary injunction distinguished from Prohibition Preliminary Injunction Prohibition Generally directed against party to the Directed against a court. e. sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing. 5. The commission of acts or non-performance during pendency of litigation would probably work injustice to the plaintiff. or person action but may be against any person exercising judicial powers Does NOT involve the jurisdiction of the May be on the ground that the court court against whom the writ is sought acted without or in excess of jurisdiction. Grounds for Preliminary Injunction a. b. Before trial. b. c. c. 6. When judgment becomes executory. d. Defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual. c. Complaint is insufficient. tribunal.
and hold summary hearing to determine whether TRO should be extended for 20 days. until further orders from SC. Applicant or receiver’s bond is insufficient. 8. the case. BUT the requirement of prior or contemporaneous service of summons shall NOT apply where the summons could not be served despite diligent efforts.1999) RULE 59 RECEIVERSHIP 1. or materially injured. Party has an interest in the property or fund subject of the action and such is in danger of being lost. or to aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment. In any event. no longer need to file a separate action). affidavit and bond. TRO good for only 20 days from service. administer. or to dispose of it. c. d. 6. within which judge must comply with service of summons. When receivership may be denied/lifted a. the principle applies only in the implementation of the writ. 4. upon the adverse party in the Phils. Appointment sought is without sufficient cause. or dispose of the property in litigation. Burgos. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt. removed. In claims against the bond. such notice shall be preceded. When appointing one is the most convenient and feasible means to preserve. TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury.34 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading. 799. Adverse party files sufficient bond for damages. RULE 60 REPLEVIN 1. 2. Replevin . or contemporaneously accompanied by service of summons. or the defendant is a resident of the Phils temporarily absent therefrom. ascertained and granted under the same procedure as Section 20. preliminary injunction or preliminary mandatory injunction may issue against the government in cases involving implementation of government infrastructure projects. or the defendant is a non-resident of the Phils Difference with principle in preliminary attachment – In attachment. this principle applies before the raffle and issuance of the writs or TRO. if filed in a multiple-sala court. it shall be filed. 3. Rule 57. 7. b. whether is be damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the latter case. b. reiterated in Administrative Circular no. OR that the parties have stipulated in the contract of mortgage. or to carry out the judgment. to preserve the property during the pendency of the appeal. together with a copy of the complaint and the applicant’s affidavit and bond. promulgated June 25. Good for 72 hours from issuance. (Garcia vs. Both the applicant for the receivership and the receiver appointed must file separate bonds. 60 days for CA. while in applications for injunction or TRO. In no case can TRO be longer than 20 days including 72 hours. complaint. shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. c. No TRO. When receiver may be appointed: a. After judgment.
SPECIAL CIVIL ACTIONS 1. or ordinance. as where is it under attachment. Contempt e. Declaratory Relief h. Quo warranto i. or disposed of. Available only where the principal relief sought in the action is the recovery of possession of personal property. Property is not delivered to plaintiff for any reason. removed. e. j. or was seized under a search warrant or distrained for tax assessment. . Certiorari d. Cannot be availed of if property is in custodia legis. in whole or part. Plaintiff’s bond is insufficient or defective c. Can be sought only where the defendant is in the actual or constructive possession of the personal property involved. Available to recover personal property even if the same is NOT being concealed. c. Complaint in interpleader must be answered 15 days from service of summons RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES 1. Requisites for action for declaratory relief: a. Subject matter of controversy is a deed. surety not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaintiff. Mandamus b. Types of Special Civil Actions a. Interpleader c. Interpleader a. Prohibition f. d. b. Extends only to personal property capable of manual delivery. l. He seasonably posts redelivery bond b. Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein which. or other written instrument. Original action b. is not disputed by the other parties to the action. Eminent Domain g. Replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. 2. c. Unlawful detainer RULE 62 INTERPLEADER 1. executive order. contract. Thus. Partition of real estate Foreclosure of mortgage Forcible Entry k. will. statute. Defendant entitled to return of property taken under writ if: a.35 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 a. or regulation.
and he should not seek the reversal of a decision that is unfavorable to the action taken by him. a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be a plain. Adequate relief is not available through other means or other forms of action or proceeding. b. e. In . Professional Regulation Commission vs. There is an actual justiciable controversy between persons whose interests are adverse. The same is ripe for adjudication. Terms and validity thereof are doubtful and require judicial construction. Parties are the aggrieved parties against the lower court or quasi-judicial agency and the prevailing parties. i. subject to certain exceptions. Motion for reconsideration is a condition precedent. Generally directed against an interlocutory order of the court prior to appeal from the judgment in the main case. order. Must be before breach is committed. c. d. He is merely a nominal party. Respondent – one who exercises judicial functions and acted with grave abuse of discretion or in lack or excess of jurisdiction. Certiorari a. or proceedings. the period to file petition is merely interrupted by the filing of the Motion for Reconsideration and continues to run again for the remaining period which shall not be less than 5 days from notice of denial. Unless a writ of preliminary injunction shall have issued. b. Purpose – to correct an act performed by respondent. No breach of the document.36 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 Court may refuse to adjudicate where decision would not terminate the uncertainty or controversy which gave rise to the action OR where the declaration is not necessary and proper at the time. otherwise ordinary civil action is the remedy. Need merely be filed seasonably (within 60 days). h. CA – It is well settled that the remedies of ordinary appeal and certiorari are mutually exclusive. sought to be reviewed or set aside has become fait accompli such that any reversal thereof shall have become academic. Higher court exercises original jurisdiction under its power of control and supervision over the orders of lower courts. REVIEW OF JUDGMENTS AND FINAL ORDERS ELECTIONS AND THE COMMISSION ON AUDIT OR RULE 64 RESOLUTIONS OF THE COMMISSION ON For petition for review of judgments and final orders of the COMELEC and COA – period to file is 30 days to be counted from notice of the judgment or final order or resolution sought to be reviewed and not from the receipt of the denial of the Motion for Reconsideration. does NOT stay the challenged order. f. Declaratory relief still proper because the applicability of the ordinance to future transactions still remains to be resolved. without undue delay and before the act. speedy and adequate remedy. However. as in the case where the petitioner paid under protest the fees imposed by an ordinance. If CA reverses the judge. c. although the matter could be threshed out in an ordinary suit for the recovery of the fees paid. not alternative or successive. the latter may not go the SC via a petition for certiorari. f. RULE 65 CERTIORARI. e. g. it has also been held that after a judgment has been rendered and an appeal therefrom had been perfected. d. Act sought to be controlled – discretionary acts. PROHIBITION AND MANDAMUS 1.
Thus. both the CA and SC are reviewing the same decision of the RTC at the same time. they did not see fit to withdraw or abandon said appeal after filing the petition. Such a situation would lead to absurdity and confusion in the ultimate disposition of the case. speedy and adequate remedy. the SC noted that. while petitioners tried to justify their recourse to both an appeal and to a petition for certiorari by claiming that their appeal would not constitute a plain.37 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 this case. .
The period for filing any of the 3 actions is not later than 60 days from notice of judgment. or are the same as those raised and passed upon in the lower court. Appeal does not constitute a speedy and adequate remedy. or resolution sought to be reviewed. i. order. Proceeding was ex parte or in which petitioner had no opportunity to object. 2000) No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding 15 days. When SC allows the writ of certiorari even when appeal is available and proper: a. the 60-day period shall be counted from notice of the denial of said motion. b. Where in a criminal case. f. h. Questions raised in the certiorari proceeding were duly raised and passed upon by the lower court. In case a motion for reconsideration or new trial is timely filed. c. Urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government. respondent is ousted but Successful protestant will assume office if petitioner shall not automatically assume he had obtained plurality of valid votes the office vacated . Order is a patent nullity. Purpose – to prevent the commission or carrying out of an act. Where the order is a patent nullity. Issue raised is one purely of law or where public interest is involved. 3. e. Where the decision in the certiorari case will avoid future litigation. Under the circumstances. Cases where Motion for Reconsideration is NOT condition precedent for certiorari: a. whether such motion is required or not. b. Purpose – to compel the performance of the act desired. d. f. Proceedings in the lower court are null for lack of due process. Act sought to be controlled – discretionary and ministerial acts. g. Mandamus a. (SC Circular 56-2000) RULE 66 QUO WARRANTO 1. Prohibition a. such as public welfare or policy. 5. 6.38 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 2. b. d. as in acquittal. For certain special considerations. c. Quo Warranto distinguished from Election Contest: Quo Warranto Election Contest Basis is that occupant is disqualified from Challenge rights of a person to hold office holding office by reason of ineligibility or on the ground of irregularities in the disloyalty conduct of the election If successful. relief from order or arrest is urgent and the granting of such relief by the trial court is improbable. e. b. effective September 1. c. c. Respondent – one who performs judicial or non-judicial functions. the court rejects rebuttal evidence for the prosecution. a motion for recon would be useless. (SC Circular 56-2000. Petitioner was deprived of due process and there is extreme urgency for relief. Orders were issued either in excess of or without jurisdiction. 4. Where in criminal actions. Respondent – one who exercises judicial or non-judicial functions. Act sought to be controlled – ministerial act.
The power of eminent domain is exercised by the filing of a complaint which shall join as defendants all persons owning or claiming to own. and the latter. RULE 71 CONTEMPT . intimidation. the complaint must be verified. When defendant is not a tenant but a pure intruder In all other cases. RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER 1. lawful but becomes illegal by reason of strategy or stealth termination of right of possession No requirement of previous demand for Demand is jurisdictional defendant to vacate premises Plaintiff must prove that he was in prior Plaintiff need not have been in prior physical possession until he was deprived physical possession thereof by defendant 1-year period counted from date of actual 1-year period from date of last demand entry or when plaintiff learned thereof. The defendant can only file an answer instead of a motion to dismiss 3. To vacate by written notice on the person in the premises or by posting such notice on the premises if no person is found thereon and this is a condition precedent to the filing of the case. Purpose of suit is not for ejectment but for enforcement of terms of contract. When the defendant raises the issue of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership. he may maintain an independent suit for damages. or if he is joined but not served with process and the proceeding is already closed before he came to know of the condemnation. If a known owner is not joined as defendant. c. If demand is in the alternative (pay OR vacate). When prior demand in unlawful detainer actions not required. nor will it preclude execution of judgment in the ejectment case where the only issue involved is material possession. ownership. ORAL demand is not permitted. Forcible entry distinguished from Unlawful detainer Forcible entry Unlawful detainer Possession of land is unlawful from the Possession of defendant is inceptively beginning due to force. iii. 2. 3. 2. threat. the latter issue shall be resolved only to determine the issue of possession. this is NOT the demand contemplated by the Rules. When purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract. or occupying. The former involves material possession. a. AND ii. b. Thus. The final order of expropriation is appealable. A forcible entry/unlawful detainer action has an entirely different subject matter from that of an action for reconveyance. the pendency of an action for reconveyance does not divest the MTC of its jurisdiction over an action for FE/UD. To pay or to comply with the conditions of the lease.39 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 RULE 67 EXPROPRIATION 1. he is entitled to intervene in the proceedings. but the lower court may determine the just compensation to be paid. there must be a demand: i. In expropriation. any party of the expropriated land or interest therein.
b. b. 3. Indirect Contempt a. Criminal contempt a. b.40 REMEDIAL LAW (CIVIL PROCEDURE) MEMORY AID ATENEO CENTRAL BAR OPERATIONS 2001 1. provided a bond fixed by the court is filed. c. Punished summarily without hearing. Committed in the presence of or so near a court or judge. No appeal may be taken but the party adjudged in contempt may avail himself of actions of certiorari or prohibition which shall stay the execution of the judgment. opportunity to appear and show cause. Not committed in the presence of the court. Conduct directed against the dignity or authority of the court. Purpose is to vindicate public authority. Purpose is to protect and enforce civil rights and remedies for the litigants. Civil Contempt a. 2. Punished only after hearing – complaint in writing or motion or party or order of court requiring person to appear and explain. . Direct Contempt (contempt in facie curiae) a. b. 4. Failure to do something ordered by the court for the benefit of a party.