ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

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

CIVIL PROCEDURE

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

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

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

(B) As to object
ACTION IN REM Direct against the thing itself. Jurisdiction over the person of the defendant is NOT required. ACTION IN PERSONAM Directed against particular persona Jurisdiction over the person of the defendant IS required. ACTION QUASI IN REM Directed against particular persons. Jurisdiction over the person of the defendant is NOT required as long as jurisdiction over the res is acquired. A proceeding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it.

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

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

Judgment is binding on the whole world.

Ex. Probate proceeding; cadastral proceeding.

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

Judgment binding upon particular persons.

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

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

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

Founded both.

on

The rules on venue of real actions shall govern.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opportunity to be heard afforded to the adverse party. Can be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) court decompres of right as when nosee this picture. Section 6. original pleading.sor are needed to responsive pleading has yet been filed. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may be proved by the party relying thereon by formal offer in evidence. Answer to the complaint Section 2. 2. NOTE: Some authors are of the opinion that admissions in superseded pleadings need not be offered in evidence pursuant to Section 4 of Rule 129. NOTE: The cause of action stated in the supplemental complaint must be the same as that stated in the court should not admit the supplemental complaint (Asset Privatization Trust v. Amendment to cure a premature or non-existing cause of action. anew does not require the filing copy of the entire of a new copy of the pleading must be filed. and 4. a. An amended pleadings supersedes the pleading that it amends. it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. Formal Amendments Section 5. 2. 3. Amendment for purposes of delay. They shall be treated as if raised in the pleading. c. Failure to amend does not affect the result of the trial of these issues. In case the defendant is a foreign private juridical entity. When an amended A supplemental pleading pleading is filed. Section 4. When cause of action. entire pleading. EFFECT OF AMENDED PLEADING 1. and 3. UNLESS a different period is fixed by the court. 3. Take the place of the Taken together with the original pleading. defense or theory of the case is changed. Instances when amendment by leave of court may not be allowed: 1. CA 229 SCRA 627) AMENDED PLEADING SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading. Admissions in the superseded pleading can still be received in evidence against the pleader. b.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. 2002. p. (Regalado. Supplemental pleadings SUPPLEMENTAL PLEADINGS – is one which sets forth transactions. 2. 3. occurrences. Pleadings may be amended to conform to the evidence. but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer. if it has a resident agent. if it has no resident agent. Answer of a defendant foreign private juridical entity Answer to a complaint 1. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by Refers to facts existing at the time of the commencement of the action. Amendment is intended to confer jurisdiction to the court. 2.193) RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. Amendment to conform to or authorize presentation of evidence When issues NOT RAISED in the pleadings are tried with the express implied consent of parties 1. or events which have happened since the date of the filing of the complaint. Filing of amended pleadings Page 22 of 289 . Within 15 days after service of summons.within 15 days after service of summons to him. Section 7.

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

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

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

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

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

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

Section 11. Service juridical entity

upon

domestic

private

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

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

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

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

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

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

Section 10. Form

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

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

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

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

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

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

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

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

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

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

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

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

GR No. these provisions expressly authorize the court to either prevent the taking of a deposition or stop one that is already being taken. 1 July 1993 The right of a party to take depositions as means of discovery is not exactly absolute. a witness who is within the jurisdiction of the judge or court to whom such letter is addressed Applicable rules of procedure are those of the requesting court Resorted to if permission of the foreign country is given Leave of court is not necessary. it may be taken only at Page 43 of 289 . embarrassment or opposition (Section 16 and 18) The court in which the action is pending Makes an order that: 1. and on such terms and with such direction as are just and appropriate An instrument issued by Instrument sent in the the court of justice or name and by authority of tribunal to authorize a a judge or court to person to take another judge or court depositions or to do any requesting the latter to other act by authority of custody examine upon such court or tribunal interrogatories filed in a case pending in the former. Orders for the protection of parties and deponents PROTECTION ORDERS OF PARTIES AND DEPONENTS (Section 16 and Section 28) After notice is served for taking a deposition upon motion seasonably made by any party or by the person to be examined and for good cause shown (which means it will be done before the taking of the deposition) MOTION TO TERMINATE OR LIMIT EXAMINATION (Section 18) At any time during the taking of the deposition. deposition shall not be taken 2. Employee ofQuickTime™ and a party’s counsel TIFF financiallydecompressor (Uncompressed) interested in the action 6. Employee of any party 3.95863. embarrass. Relative within 6th degree of consanguinity or affinity of any party 2. Counsel of any party 4. Commission or letters rogatory COMMISSION LETTERS ROGATORY Issued only when necessary or convenient. sections 16 and 18 of Rule 24.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 c. Applicable rules of procedure are those of the foreign court requested to act Resorted to if the execution of the commission is refused in the foreign country Leave of court is necessary. to protect a party or witness from annoyance. This is implicit in the provisions of the Rules of Court cited by appellants themselves. v. Section 15. on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy. CA. Disqualification by interest WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS? 1. or oppress the deponent or party The court in which the action is pending or the RTC of the place where the deposition is being taken Orders the officer conducting the examination to Section 12. (Section 11) Autographics. Any person authorized to administer oaths if the parties so stipulate. Section 13. on application and notice. not relevant (Section 1) 2. Depositions upon oral examination. Anyoneare needed to see this picture. time and place Section 16. notice. Inc. GROUNDS FOR NOT TAKING A DEPOSITION 1. In such instances. Relative within the same degree of any party’s counsel 5.

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

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

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

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

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

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

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

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

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

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

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

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

but did not tender an issue or admitted the material allegations in the complaint. Annulment of marriage 3. plaintiff has not shown any right to relief. Falcasantos v. RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS It is a judgment rendered by the court dismissing a case upon motion of the defendant. counterclaim. By moving for judgment on the pleading. Declaration of nullity of marriage 2. also unavailable in actions for annulment of a and declaration of nullity of marriage. MOTION TO DISMISS Decision is based on the evidence presented. Answer fails to tender an issue because of: a. fictitious. cross-claim or third-party complaint. must be understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for judgment on those allegations taken together with such of his own as are admitted in the pleadings.” or to recover a debt or a liquidated demand for money. or “to obtain declaratory relief”. Page 56 of Evidence is received. Decision is based on the allegations in the pleadings. MOTION FOR JUDGMENT ON THE PLEADINGS Filed by the plaintiff if the answer raises no issue. b. the pleadings alone. general denial of the material allegations of the complaint. plaintiff has not shown any right to relief. a motion to dismiss should be filed and no a motion for judgment on the pleading. plaintiff waives his claim for unliquidated damages. When judgment on the pleadings is proper A judgment on the pleadings must be on motion of the claimant. made after plaintiff has rested his case. . counterclaim. ACTIONS WHERE THE MATERIAL FACTS ALLEGED IN THE COMPLAINT MUST ALWAYS BE PROVED 1. insufficient denial of the material allegations of the complaint or 2. Although Rule does not specifically provide. Section 1. Answer admits material allegations of the adverse party’s pleading. on the ground that upon the facts presented by the plaintiff and the law on the matter. on the ground that upon the facts presented by the plaintiff and the law on the matter. May be asked for by a party seeking to recover upon a claim. If the complaint states no cause of action. Evidence is not received as the same is based on JUDGMENT BY DEFAULT The defendant did not file an answer. RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prompt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Filed by defendant to a complaint. However. contrived. and patently unsubstantial so as not to constitute a genuine issue for trial. Legal separation JUDGMENT ON THE PLEADINGS The defendant answered. it may render such judgment motu proprio. and for legal separation since Section 1 refers to actions “to recover upon a claim.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 plaintiff has rested his case. GROUNDS: 1. or to obtain a declaratory relief. the court finds that a judgment on the pleadings is proper. GENUINE ISSUE It is an issue of fact which calls for the presentation of evidence as distinguished from an issue which is sham. How Suy Ching 91 Phil 456 (1952) One who prays for judgment on the pleadings without offering proof as to the truth of his own allegations and without giving the opposing party an opportunity to introduce evidence. crossclaim. Claim for such damages must be alleged and proved. if at pre-trial.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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