PART I.

CIVIL PROCEDURE Rules 1 71

I.

GENERAL PRINCIPLES

Concept of Reme !"l L"# Remedial Law is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion Su$st"nt!%e L"# "s D!st!n&u!s'e f(om Reme !"l L"# Substantive law creates, defines and regulates rights and duties regarding life, liberty or property which when violated gives rise to a cause of action (Bustos v. Lucero, 81 Phil. 640). Remedial law prescribes the methods of enforcing those rights and obligations created by substantive law by providing a procedural system for obtaining redress for the invasion of rights and violations of duties and by prescribing rules as to how suits are filed, tried and decided by the courts. As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from remedial law which provides or regulates the steps by which one who commits a crime is to be punished. Rule)*"+!n& Po#e( of t'e Sup(eme Cou(t Section 5 (5), Art. !!! of the "onstitution provides that the Supreme "ourt shall have the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the !ntegrated #ar, and legal assistance to the underprivileged. Such rules shall provide a simplified and ine$pensive procedure for the speed disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and %uasi&'udicial bodies shall remain effective unless disapproved by the Supreme "ourt. L!m!t"t!ons of t'e Rule)m"+!n& Po#e( of t'e Sup(eme Cou(t (() (*) (+) )he rules shall provide a simplified and ine$pensive procedure for the speedy disposition of cases )hey shall be uniform for all courts of the same grade )hey shall not diminish, increase, or modify substantive rights (Sec. 5[5], Art. VIII, o!stitutio!).

(,) )he power to admit attorneys to the #ar is not an arbitrary and despotic one, to be e$ercised at the pleasure of the court, or from passion, pre'udice or personal hostility, but is the duty of the court to e$ercise and regulate it by a sound and 'udicial discretion. (A!"res vs. #$rer#, 1%& S 'A 80%)

Po#e( of t'e Sup(eme Cou(t to "men "n suspen p(oce u("l (ules (() -hen compelling reasons so warrant or when the purpose of 'ustice re%uires it. -hat constitutes and good and sufficient cause that would merit suspension of the rules is discretionary upon courts. ( I' v. (i)r#!t P#)$il#o or*., +' 15,5,-, .ct. 1%, %006) . Reasons that would warrant the suspension of the Rules. (a) the e$istence of special or compelling circumstances (b) merits of the case (c) cause not entirely attributable to the fault or negligence of the party favored by the suspension of rules (d) a lac/ of ay showing that the review sought is merely frivolous and dilatory (e) the other party will not be un'ustly pre'udiced thereby (S#r/ie!to v. 0#r#t#!, +' 16&4&1, 1e$. 5, %00&) (*) )o relieve a litigant of an in'ustice commensurate with his failure to comply with the prescribed procedure and the mere invocation of substantial 'ustice is not a magical incantation that will automatically compel the "ourt to suspend procedural rules. ("u&0n'ieng v. "A, ,12 S"RA 52,) (+) (,) -here substantial and important issues await resolution. (3agbilao, supra) -hen transcendental matters of life, liberty or state security are involved. ((i!"#!#o S#vi!)s Lo#! Asso. V. Vice!t# V"#. 2e 1lores, 46, S 'A 416) .

(5) )he constitutional power of the Supreme "ourt to promulgate rules of practice and procedure necessarily carries with it the power to overturn 'udicial precedents on points of remedial law through the amendment of the Rules of "ourt (Pi!)# vs. 3eirs o4 S#!ti#)o, +' 1&0-54, 5u!e -0, %006) .

N"tu(e of P'!l!pp!ne Cou(ts

3hilippine courts are both courts of law and e%uity. 4ence, both legal and e%uitable 'urisdiction is dispensed with in the same tribunal. (6S v. 7#/*#ro!), -1 Phil. -%1)

,'"t !s " Cou(t (() !t is an organ of government belonging to the 'udicial department the function of which is the application of the laws to the controversies brought before it as well as the public administration of 'ustice. (*) !t is a governmental body officially assembled under authority of law at the appropriate time and place for the administration of 'ustice through which the State enforces its sovereign rights and powers (%1 5S 16). (+) !t is a board or tribunal which decides a litigation or contest (3i"#l)o v. (#!)l#*us, 64 .+ -18,) .

Cou(t !st!n&u!s'e f(om -u &e (() (*) (+) (,) (5) A court is a tribunal officially assembled under authority of law5 a 'udge is simply an officer of such tribunal5 A court is an organ of the government with a personality separate and distinct from the person or 'udge who sits on it5 A court is a being in imagination comparable to a corporation, whereas a 'udge is a physical person 5 A court may be considered an office5 a 'udge is a public officer5 and )he circumstances of the court are not affected by the circumstances that would affect the 'udge.

Cl"ss!f!c"t!on of P'!l!pp!ne Cou(ts (() Regular courts engaged in the administration of 'ustice are organi6ed into four (,) levels.

(a) 7irst Level (8)"s, 8e)"s, 8")"s) 9 which try and decide (() criminal actions involving violations of city or municipal ordinances committed within their respective territorial 'urisdiction and offenses punishable with imprisonment not e$ceeding si$ (:) years irrespective of the amount of fine and regardless of other imposable accessory or other penalties, and (*) civil actions including e'ectment, recovery of personal property with a value of not more than 3+;;,;;; outside 88 or does not e$ceed 3,;;,;;; in 885 (b) Second Level (R)"s, 7amily "ourts) 9 courts of general 'urisdiction5 among the civil actions assigned to them by law are those in which the sub'ect of litigation is incapable of pecuniary estimation, or involving title to or possession of real property where the assessed value of the property e$ceeds 3*;,;;; outside 88 or e$ceeds 35;,;;; in 88, e$cept actions for e'ectment (forcible entry and unlawful detainer), or where the demand e$clusive of interest, damages of whatever /ind, attorney<s fees, litigation e$penses, and cost, or the value of the personal property or controversy e$ceeds 3+;;,;;; outside 88 or e$ceeds 3,;;,;;; in 88. R)"s also e$ercise appellate 'urisdiction, to review cases appealed from courts of the first level5 (c) )hird Level ("ourt of Appeals, Sandiganbayan) 9 "A is an appellate court, reviewing cases appealed to it from the R)", on %uestions of fact or mi$ed %uestions of fact and law. Appeals to it decided by the R)" in the e$ercise of original 'urisdiction are a matter of right5 appeals with respect to cases decided by the R)" in the e$ercise of its appellate 'urisdiction are a matter of discretion. =ccasionally, "A may act as a trial court, as in actions praying for the annulment of final and e$ecutor 'udgments of R)"s on the ground of e$trinsic fraud subse%uently discovered, against which no other remedies lies. Sandiganbayan has 'urisdiction over all criminal and civil cases involving graft and corrupt practices act, and such other offenses committed by public officers and employees including those in >=""s in relation to their office. !t also has e$clusive appellate 'urisdiction over final 'udgments, resolutions, or orders of R)"s whether in the e$ercise of their own original or appellate 'urisdiction over criminal and civil cases committed by public officers or employees including those in >=""s in relation to their office. (d) 7ourth Level (Supreme "ourt)

Cou(ts of O(!&!n"l "n Appell"te -u(!s !ct!on (() A court is one with original 'urisdiction when actions or proceedings are originally filed with it. A court is one with appellate 'urisdiction when it has the power of review over the decisions or orders of a lower court (*) 8e)"s, 8")"s and 8)"s are courts of original 'urisdiction without appellate 'urisdiction. R)" is li/ewise a court of original 'urisdiction with respect to cases originally filed with it5 and appellate court with respect to cases decided by 8)"s within its territorial 'urisdiction. (Sec. **, #3 (*2) (+) "A is primarily a court of appellate 'urisdiction with competence to review 'udgments of the R)"s and specified %uasi&'udicial agencies (Sec. 2?+@, #3 (*2). !t is also a court of original 'urisdiction with respect to cases filed before it involving issuance of writs of certiorari, mandamus, %uo warranto, habeas corpus, and prohibition. "A is a court of original and e$clusive 'urisdiction over actions for annulment of 'udgments of R)"s (Sec. 2 ?(@,?*@, #3 (*2).

(,) )he S" is fundamentally a court of appellate 'urisdiction but it may also be a court of original 'urisdiction over cases affecting ambassadors, public ministers and consuls, and in cases involving petitions for certiorari, prohibition and mandamus (Sec. 5?(@, Art. !!!, "onstitution). )he Supreme "ourt e! $#!c is not an appellate court to which decisions or resolutions of a division of the Supreme "ourt may be appealed.

Cou(ts of Gene("l "n Spec!"l -u(!s !ct!on (() "ourts of general 'urisdiction are those with competence to decide on their own 'urisdiction and to ta/e cogni6ance of all cases, civil and criminal, of a particular nature. "ourts of special (limited) 'urisdiction are those which have only a special 'urisdiction for a particular purpose or are clothed with special powers for the performance of specified duties beyond which they have no authority of any /ind. (*) A court may also be considered Ageneral< if it has the competence to e$ercise 'urisdiction over cases not falling within the 'urisdiction of any court, tribunal, person or body e$ercising 'udicial or %uasi&'udicial functions. !t is in the conte$t that the R)" is considered a court of general 'urisdiction.

Const!tut!on"l "n St"tuto(. Cou(ts (() A constitutional court is one created by a direct "onstitutional provision. B$ample of this court is the S", which owes its creation from the "onstitution itself. =nly the S" is a "onstitutional court. (*) A statutory court is one created by law other than the "onstitution. All courts e$cept the S" are statutory courts. S# was not directly created by the "onstitution but by law pursuant to a constitutional mandate.

P(!nc!ple of -u !c!"l /!e("(c'. (() )his is an ordained se%uence of recourse to courts vested with concurrent 'urisdiction, beginning from the lowest, on to the ne$t highest, and ultimately to the highest. )his hierarchy is determinative of the venue of appeals, and is li/ewise determinative of the proper forum for petitions for e$traordinary writs. )his is an established policy necessary to avoid inordinate demands upon the "ourt<s time and attention which are better devoted to those matters within its e$clusive 'urisdiction, and to preclude the further clogging of the "ourt<s doc/et (Sec. ,[1], BP 1%,8 Sec. 5[1], Art. VIII, o!stitutio! o4 the Phili**i!es) . (*) A higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts. )he S" is a court of last resort. !t cannot and should not be burdened with the tas/ of deciding cases in the first instances. !ts 'urisdiction to issue e$traordinary writs should be e$ercised only where absolutely necessary or where serious and important reasons e$ist. (+) 3etitions for the issuance of e$traordinary writs against first level courts should be filed with the R)" and those against the latter with the "A. a direct invocation of the S"<s original 'urisdiction to issue these writs should be allowed only where there are special and important reasons therefor, clearly and specifically set out in the petition. (,) )he doctrine of hierarchy of courts may be disregarded if warranted by the nature and importance of the issues raised in the interest of speedy 'ustice and to avoid future litigations, or in cases of national interest and of serious implications. 0nder the principle of liberal interpretations, for e$ample, it may ta/e cogni6ance of a petition for certiorari directly filed before it.

Doct(!ne of Non)!nte(fe(ence o( Doct(!ne of -u !c!"l St"$!l!t. (() "ourts of e%ual and coordinate 'urisdiction cannot interfere with each other<s orders. )hus, the R)" has no power to nullify or en'oin the enforcement of a writ of possession issued by another R)". )he principle also bars a court from reviewing or interfering with the 'udgment of a co&e%ual court over which it has no appellate 'urisdiction or power of review. (*) )his doctrine applies with e%ual force to administrative bodies. -hen the law provides for an appeal from the decision of an administrative body to the S" or "A, it means that such body is co&e%ual with the R)" in terms of rand and stature, and logically beyond the control of the latter.

II.

-URISDICTION

Curisdiction 9 the power and authority of the court to hear, try and decide a case. -u(!s !ct!on o%e( t'e P"(t!es (() (*) (+) )he manner by which the court ac%uires 'urisdiction over the parties depends on whether the party is the plaintiff or the defendant Curisdiction over the plaintiff is ac%uired by his filing of the complaint or petition. #y doing so, he submits himself to the 'urisdiction of the court. Curisdiction over the person of the defendant is obtained either by a valid service of summons upon him or by his voluntary submission to the court<s authority.

(,) )he mode of ac%uisition of 'urisdiction over the plaintiff and the defendant applies to both ordinary and special civil actions li/e mandamus or unlawful detainer cases.

/o# 0u(!s !ct!on o%e( pl"!nt!ff !s "c1u!(e (() Ac%uired when the action is commenced by the filing of the complaint. )his presupposes payment of the doc/et fees

/o# 0u(!s !ct!on o%e( efen "nt !s "c1u!(e Curisdiction over the person of the defendant is re%uired only in an action in personam5 it is not a prere%uisite in an action in rem and %uasi in rem. !n an action in personam, 'urisdiction over the person is necessary for the court to validly try and decide the case, while in a proceeding in rem or %uasi in rem, 'urisdiction over the person of the defendant is not a prere%uisite to confer 'urisdiction on the court, provided the latter has 'urisdiction over the res. (() #y voluntary appearance of the defendant, without service of summons or despite a defective service of summons. )he defendant<s voluntary appearance in the action shall be e%uivalent to service of summons. (*) !nstances when appearance of defendant is not tantamount to voluntary submission to the 'urisdiction of the court. (a) when defendant files the necessary pleading5 (b) when defendant files motion for reconsideration of the 'udgment by default5 (c) when defendant files a petition to set aside the 'udgment of default5 (d) when the parties 'ointly submit a compromise agreement for approval of the court5 (e) when defendant files an answer to the contempt charge5 (f) when defendant files a petition for certiorari without %uestioning the court<s 'urisdiction over his person.

-u(!s !ct!on o%e( t'e su$0ect m"tte( (() !t is the power to deal with the general sub'ect involved in the action, and means not simply 'urisdiction of the particular case then occupying the attention of the court but 'urisdiction of the class of cases to which the particular case belongs. !t is the power or authority to hear and determine cases to which the proceeding is %uestion belongs. (*) -hen a complaint is filed in court, the basic %uestions that ipso facto are to be immediately resolved by the court on its own. (a) -hat is the sub'ect matter of their complaint filed before the courtD (b) Eoes the court have 'urisdiction over the said sub'ect matter of the complaint before itD Answering these %uestions inevitably re%uires loo/ing into the applicable laws conferring 'urisdiction.

-u(!s !ct!on %e(sus e2e(c!se of 0u(!s !ct!on (() Curisdiction if the power or authority of the court. )he e$ercise of this power or authority is the e$ercise of 'urisdiction.

E((o( of 0u(!s !ct!on %s. e((o( of 0u &ment (() An error of 'urisdiction is one where the act complained of was issued by the court without or in e$cess of 'urisdiction. !t occurs when the court e$ercises a 'urisdiction not conferred upon it by law, or when the court or tribunal although with 'urisdiction, acts in e$cess of its 'urisdiction or with grave abuse of discretion amounting to lac/ or 'urisdiction. (*) An error of 'udgment is one which the court may commit in the e$ercise of its 'urisdiction. As long as the court acts within its 'urisdiction, any alleged errors committed in the e$ercise of its discretion will amount to nothing more than mere errors of 'udgment. Brrors of 'udgment include errors of procedure or mista/es in the court<s findings. (+) Brrors of 'udgment are correctible by appeal5 errors of 'urisdiction are correctible only by the e$traordinary writ of certiorari. Any 'udgment rendered without 'urisdiction is a total nullity and may be struc/ down at any time, even on appeal5 the only e$ception is when the party raising the issue is barred by estoppel. (,) -hen a court, tribunal, or officer has 'urisdiction over the person and the sub'ect matter of the dispute, the decision on all other %uestions arising in the case is an e$ercise of that 'urisdiction. "onse%uently, all errors committed in the e$ercise of said 'urisdiction are merely errors of 'udgment. 0nder prevailing procedural rules and 'urisprudence, errors of 'udgment are not proper sub'ects of a special civil action for certiorari.

/o# 0u(!s !ct!on !s confe((e "n

ete(m!ne

(() Curisdiction is a matter of substantive law because it is conferred by law. )his 'urisdiction which is a matter of substantive law should be construed to refer only to 'urisdiction over the sub'ect matter. Curisdiction over the parties, the issues and the res are matters of procedure. )he test of 'urisdiction is whether the court has the power to enter into the in%uiry and not whether the decision is right or wrong.

(*) !t is the duty of the court to consider the %uestion of 'urisdiction before it loo/s at other matters involved in the case. !f the court finds that it has 'urisdiction, it is the duty of the court to e$ercise the 'urisdiction conferred upon it by law and to render a decision in a case properly submitted to it. !t cannot decline to e$ercise its 'urisdiction. 7ailure to do so may be enforced by way of mandamus proceeding.

Doct(!ne of p(!m"(. 0u(!s !ct!on (() "ourts will not resolve a controversy involving a %uestion which is within the 'urisdiction of an administrative tribunal, especially where the %uestion demands the e$ercise of sound administrative discretion re%uiring the special /nowledge, e$perience and services of the administrative tribunal to determine technical and intricate matters of fact. (*) )he ob'ective is to guide a court in determining whether it should refrain from e$ercising its 'urisdiction until after an administrative agency has determined some %uestion or some aspect of some %uestion arising in the proceeding before the court (./icti! vs. A, +' 148004, 5#!u#r9 %%, %00&).

Doct(!ne of " 'e(ence of 0u(!s !ct!on 3 cont!nu!t. of 0u(!s !ct!on (() !n view of the principle that once a court has ac%uired 'urisdiction, that 'urisdiction continues until the court has done all that it can do in the e$ercise of that 'urisdiction. )his principle also means that once 'urisdiction has attached, it cannot be ousted by subse%uent happenings or events, although of a character which would have prevented 'urisdiction from attaching in the first instance. )he court, once 'urisdiction has been ac%uired, retains that 'urisdiction until it finally disposes of the case. (*) Bven the finality of the 'udgment does not totally deprive the court of 'urisdiction over the case. -hat the court loses is the power to amend, modify or alter the 'udgment. Bven after the 'udgment has become final, the court retains 'urisdiction to enforce and e$ecute it (Bchegaray vs. Secretary of Custice, +;( S"RA 2:).

O$0ect!on to 0u(!s !ct!on o%e( t'e su$0ect m"tte( (() -hen it appears from the pleadings or evidence on record that the court has no 'urisdiction over the sub'ect matter, the court shall dismiss the same. (Sec. (, Rule 2). )he court may on its own initiative ob'ect to an erroneous 'urisdiction and may e: /ero /otu ta/e cogni6ance of lac/ of 'urisdiction at any point in the case and has a clearly recogni6ed right to determine its own 'urisdiction. (*) Curisdiction over the sub'ect matter may be raised at any stage of the proceedings, even for the first time on appeal. -hen the court dismisses the complaint for lac/ of 'urisdiction over the sub'ect matter, it is common reason that the court cannot remand the case to another court with the proper 'urisdiction. !ts only power is to dismiss and not to ma/e any other order. (+) 0nder the omnibus motion rule, a motion attac/ing a pleading li/e a motion to dismiss shall include all grounds then available and all ob'ections not so included shall be deemed waived. )he defense of lac/ of 'urisdiction over the sub'ect matter is however, a defense not barred by the failure to invo/e the same in a motion to dismiss already filed. Bven if a motion to dismiss was filed and the issue of 'urisdiction was not raised therein, a party may, when he files an answer, raise the lac/ of 'urisdiction as an affirmative defense because this defense is not barred under te omnibus motion rule.

Effect of estoppel on o$0ect!on to 0u(!s !ct!on (() )he active participation of a party in a case is tantamount to recognition of that court<s 'urisdiction and will bar a party from impugning the court<s 'urisdiction. Curisprudence however, did not intend this statement to lay down the general rule. (L#*#!"#9 A)ricultur#l ; 2evelo*/e!t or*. v. <stit#, 44, S 'A %408 (#!)#i#) v. #tu$i)=P#stor#l, 4&4 S 'A 15-). )he Sibonghanoy applies only to e$ceptional circumstances. )he general rule remains. a court<s lac/ of 'urisdiction may be raised at any stage of the proceedings even on appeal (1r#!cel 'e#lt9 or*. v. S9ci*, 46, S 'A 4%48 o!ce*cio! v. 'e)#l#"o, +' 16&,88, 1e$. 6, %00&). (*) )he doctrine of estoppels by laches in relation to ob'ections to 'urisdiction first appeared in the landmar/ case of 7i>#/ vs. Si$o!)h#!o9, %- S 'A %,, where the S" barred a belated ob'ection to 'urisdiction that was raised only after an adverse decision was rendered by the court against the party raising the issue of 'urisdiction and after see/ing affirmative relief from the court and after participating in all stages of the proceedings. )his doctrine is based upon grounds of public policy and is principally a %uestion of the ine%uity or unfairness of permitting a right or claim to be enforced or asserted. (+) )he S" frowns upon the undesirable practice of submitting one<s case for decision, and then accepting the 'udgment only if favorable, but attac/ing it for lac/ of 'urisdiction if it is not (BPI v. ALS ()t. ; 2evt. or*., 4%& S 'A 564).

-u(!s !ct!on o%e( t'e !ssues (() !t is the power of the court to try and decide issues raised in the pleadings of the parties.

(*) An issue is a disputed point or %uestion to which parties to an action have narrowed down their several allegations and upon which they are desirous of obtaining a decision. -here there is no disputed point, there is no issue. (+) >enerally, 'urisdiction over the issues is conferred and determined by the pleadings of the parties. )he pleadings present the issues to be tried and determine whether or not the issues are of fact or law.

(,) Curisdiction over the issues may also be determined and conferred by stipulation of the parties as when in the pre&trial, the parties enter into stipulations of facts and documents or enter into agreement simplifying the issues of the case. (5) !t may also be conferred by waiver or failure to ob'ect to the presentation of evidence on a matter not raised in the pleadings. 4ere the parties try with their e$press or implied consent issues not raised by the pleadings. )he issues tried shall be treated in all respects as if they had been raised in the pleadings.

-u(!s !ct!on o%e( t'e (es o( p(ope(t. !n l!t!&"t!on (() Curisdiction over the res refers to the court<s 'urisdiction over the thing or the property which is the sub'ect of the action. Curisdiction over the res may be ac%uired by the court by placing the property of thing under its custody ( custo"i# le)is). B$ample. attachment of property. !t may also be ac%uired by the court through statutory authority conferring upon it the power to deal with the property or thing within the court<s territorial 'urisdiction. B$ample. suits involving the status of the parties or suits involving the property in the 3hilippines of non&resident defendants. (*) Curisdiction over the res is ac%uired by the sei6ure of the thing under legal process whereby it is brought into actual custody of law, or it may result from the institution of a legal proceeding wherein the power of the court over the thing is recogni6ed and made effective (B#!co <s*#?ol 1ili*i!o vs. P#l#!c#, -& Phil. %,1) .

-u(!s !ct!on of t'e Sup(eme Cou(t (() (*) B$clusive original 'urisdiction in petitions for certiorari, prohibition and mandamus against the "A, "=8BLB", "=A, ")A, Sandiganbayan, FLR" "oncurrent original 'urisdiction

(a) -ith "ourt of Appeals in petitions for certiorari, prohibition and mandamus against the R)", "S", "entral #oard of Assessment Appeals, Guasi&'udicial agencies, and writ of /ali/asan, all sub'ect to the doctrine of hierarchy of courts. (b) -ith the "A and R)" in petitions for certiorari, prohibition and mandamus against lower courts and bodies and in petitions for %uo warranto, and writs of habeas corpus, all sub'ect to the doctrine of hierarchy of courts. (c) (d) -ith "A, R)" and Sandiganbayan for petitions for writs of amparo and habeas data "oncurrent original 'urisdiction with the R)" in cases affecting ambassadors, public ministers and consuls.

(+) Appellate 'urisdiction by way of petition for review on certiorari (appeal by certiorari under Rule ,5) against "A, Sandiganbayan, R)" on pure %uestions of law5 and in cases involving the constitutionality or validity of a law or treaty, international or e$ecutive agreement, law, presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a ta$, impost, assessment, toll or penalty, 'urisdiction of a lower court5 and ")A in its decisions rendered e! $#!c. (,) (a) (b) (c) (d) (e) (f) (g) (h) (i) (') (/) B$ceptions in which factual issues may be resolved by the Supreme "ourt. -hen the findings are grounded entirely on speculation, surmises or con'ectures5 -hen the inference made is manifestly mista/en, absurd or impossible5 -hen there is grave abuse of discretion5 -hen the 'udgment is based on misapprehension of facts5 -hen the findings of facts are conflicting5 -hen in ma/ing its findings the "A went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee5 -hen the findings are contrary to the trial court5 -hen the findings are conclusions without citation of specific evidence on which they are based5 -hen the facts set forth in the petition as well as in the petitioner<s main and reply briefs are not disputed by the respondent5 -hen the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record5 ad -hen the "ourt of Appeals manifestly overloo/ed certain relevant facts not disputed by the parties, which, if properly considered, could 'ustify a different conclusion.

-u(!s !ct!on of t'e Cou(t of Appe"ls (() B$clusive original 'urisdiction in actions for the annulment of the 'udgments of the R)".

(*)

"oncurrent original 'urisdiction

(a) -ith S" to issue writs of certiorari, prohibition and mandamus against the R)", "S", "#AA, other %uasi&'udicial agencies mentioned in Rule ,+, and the FLR", and writ of /ali/asan. (b) -ith the S" and R)" to issue writs of certiorari, prohibition and mandamus against lower courts and bodies and writs of %uo warranto, habeas corpus, whether or not in aid of its appellate 'urisdiction, and writ of continuing mandamus on environmental cases. (c) (+) (a) (b) -ith S", R)" and Sandiganbayan for petitions for writs of amparo and habeas data B$clusive appellate 'urisdiction by way of ordinary appeal from the R)" and the 7amily "ourts. by way of petition for review from the R)" rendered by the R)" in the e$ercise of its appellate 'urisdiction.

(c) by way of petition for review from the decisions, resolutions, orders or awards of the "S", "#AA and other bodies mentioned in Rule ,+ and of the =ffice of the =mbudsman in administrative disciplinary cases. (d) over decisions of 8)"s in cadastral or land registration cases pursuant to its delegated 'urisdiction5 this is because decisions of 8)"s in these cases are appealable in the same manner as decisions of R)"s.

-u(!s !ct!on of t'e Cou(t of T"2 Appe"ls 4un e( RA 5676 "n Rule 89 A* :8)11):7)CTA; (() B$clusive original or appellate 'urisdiction to review by appeal

(a) Eecisions of "!R in cases involving disputed assessments, refunds of internal revenue ta$es, fees or other charges, penalties in relation thereto, or other matters arising under the F!R" or other laws administered by #!R5 (b) !naction by "!R in cases involving disputed assessments, refunds of !R ta$es, fees or other charges, penalties in relation thereto, or other matters arising under the F!R" or other laws administered by #!R, where the F!R" or other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied denial5 (c) Eecisions, orders or resolutions of the R)"s in local ta$es originally decided or resolved by them in the e$ercise of their original or appellate 'urisdiction5

(d) Eecisions of the "ommissioner of "ustoms (() in cases involving liability for customs duties, fees or other charges, sei6ure, detention or release of property affected, fines, forfeitures or other penalties in relation thereto, or (*) other matters arising under the "ustoms law or other laws, part of laws or special laws administered by #="5 (e) Eecisions of the "entral #oard of Assessment Appeals in the e$ercise of its appellate 'urisdiction over cases involving the assessment and ta$ation of real property originally decided by the provincial or city board of assessment appeals5 (f) Eecision of the secretary of 7inance on customs cases elevated to him automatically for review from decisions of the "ommissioner of "ustoms which are adverse to the government under Sec. *+(5 of the )ariff and "ustoms "ode5 (g) Eecisions of Secretary of )rade and !ndustry in the case of non&agricultural product, commodity or article, and the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and counterveiling duties under Secs. +;( and +;*, respectively, of the )ariff and "ustoms "ode, and safeguard measures under RA HH;;, where either party may appeal the decision to impose or not to impose said duties. (*) B$clusive original 'urisdiction

(a) =ver all criminal cases arising from violation of the F!R" of the )"" and other laws, part of laws, or special laws administered by the #!R or the #=" where the principal amount of ta$es and fees, e$clusive of charges and penalties claimed is less that 3(8 or where there is no specified amount claimed (the offenses or penalties shall be tried by the regular courts and the 'urisdiction of the ")A shall be appellate)5 (b) !n ta$ collection cases involving final and e$ecutory assessments for ta$es, fees, charges and penalties where the principal amount of ta$es and fees, e$clusive of charges and penalties claimed is less than 3(8 tried by the proper 8)", 8e)" and R)". (+) B$clusive appellate 'urisdiction

(a) !n criminal offenses (() over appeals from the 'udgment, resolutions or orders of the R)" in ta$ cases originally decided by them, in their respective territorial 'urisdiction, and (*) over petitions for review of the 'udgments, resolutions or orders of the R)" in the e$ercise of their appellate 'urisdiction over ta$ cases originally decided by the 8e)"s, 8)"s, and 8")"s in their respective 'urisdiction5 (b) !n ta$ collection cases (() over appeals from the 'udgments, resolutions or orders of the R)" in ta$ collection cases originally decided by them in their respective territorial 'urisdiction5 and (*) over petitions for review of the 'udgments, resolutions or orders of the R)" in the e$ercise of their appellate 'urisdiction over ta$ collection cases originally decided by the 8e)"s, 8)"s and 8")"s in their respective 'urisdiction.

-u(!s !ct!on of t'e S"n !&"n$"."n (() (a) (b) =riginal 'urisdiction in all cases involving iolations of RA +;(2 (Anti&>raft and "orrupt 3ractices Act) iolations of RA (+12 (Anti&!ll&>otten -ealth Act)

(c) #ribery ("hapter !!, Sec. *, )itle !!, #oo/ !!, R3") where one or more of the principal accused are occupying the following positions in the government, whether in permanent, acting or interim capacity at the time of the commission of the offense (. *. +. ,. 5. (d) (e) (*) =fficials of the e$ecutive branch occupying the positions of regional director and higher, otherwise classified as >rade *1 and higher, of the "ompensation and 3osition "lassification Act of (2H2 (RA :15H) 8embers of "ongress and officials thereof classified as >&*1 and up under RA :15H 8embers of the Cudiciary without pre'udice to the provisions of the "onstitution "hairmen and 8embers of the "onstitutional "ommissions without pre'udice to the provisions of the "onstitution All other national and local officials classified as >rade *1 and higher under RA :15H

=ther offenses or felonies committed by the public officials and employees mentioned in Sec. ,(a) of RA 1215 as amended by RA H*,2 in relation to their office "ivil and criminal cases filed pursuant to and in connection with B= Fos. (, *, (,&A (Sec. ,, RA H*,2) "oncurrent original 'urisdiction with S", "A and R)" for petitions for writs of habeas data and amparo

-u(!s !ct!on of t'e Re&!on"l T(!"l Cou(ts (() (a) (b) (c) (d) (e) (f) (*) (+) B$clusive original 'urisdiction matters incapable of pecuniary estimation, such as rescission of contract title to, possession of, or interest in, real property with assessed value e$ceeding 3*;,;;; (outside 8etro 8anila), or e$ceeds 35;,;;; in 8etro 8anila probate proceedings where the gross value of the estate e$ceeds 3+;;,;;; outside 88 or e$ceeds 3,;;,;;; in 88 admiralty or maritime cases where the demand or claim e$ceeds 3+;;,;;; outside 88 or e$ceeds 3,;;,;;; in 88 other actions involving property valued at more than 3+;;,;;; outside 88 or more than 3,;;,;;; in 88 criminal cases not within the e$clusive 'urisdiction of the Sandiganbayan =riginal e$clusive 'urisdiction over cases not falling within the 'urisdiction of any court, tribunal, person or body e$ercising 'udicial or %uasi&'udicial functions =riginal and e$clusive 'urisdiction to hear and decide intra&corporate controversies.

(a) "ases involving devises or schemes employed by or any acts, of the board of directors, business associates, its officers or partnership, amounting to fraud and misrepresentation which may be detrimental to the interest of the public andIor of the stoc/holders, partners, members of associations or organi6ations registered with the SB" (b) "ontroversies arising out of intra&corporate or partnership relations, between and among stoc/holders, members or associates5 between any or all of them and the corporation, partnership or association of which they are stoc/holders, members or associates, respectively5 and between such corporation , partnership or association and the state insofar as it concerns their individual franchise or right to e$ist as such entity (c) "ontroversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations

(d) 3etitions of corporations, partnerships or associations to be declared in the state of suspension of payments in cases where the corporation, partnership of association possesses sufficient property to cover all its debts but foresees the impossibility of meeting them when they respectively fall due or in cases where the corporation, partnership of association has no sufficient assets to cover its liabilities, but is under the management of a Rehabilitation Receiver or 8anagement "ommittee. (,) (a) "oncurrent and original 'urisdiction with the Supreme "ourt in actions affecting ambassadors, other public ministers and consuls

(b) with the S" and "A in petitions for certiorari, prohibition and mandamus against lower courts and bodies in petitions for %uo warranto, habeas corpus, and writ of continuing mandamus on environmental cases (c) with the S", "A and Sandigabayan in petitions for writs of habeas data and amparo

(5) (:)

Appellate 'urisdiction over cases decided by lower courts in their respective territorial 'urisdictions Special 'urisdiction over CER", agrarian and urban land reform cases not within the e$clusive 'urisdiction of %uasi&'udicial agencies when so designated by the S".

-u(!s !ct!on of <"m!l. Cou(ts 0nder RA H+:2, shall have e$clusive original 'urisdiction over the following cases. (() (*) 3etitions for guardianship, custody of children and habeas corpus involving children 3etitions for adoption of children and the revocation thereof

(+) "omplaints for annulment of marriage, declaration of nullity of marriage and those relating to status and property relations of husband and wife or those living together under different status and agreements, and petitions for dissolution of con'ugal partnership of gains (,) (5) 3etitions for support andIor ac/nowledgment Summary 'udicial proceedings brought under the provisions of B= *;2 (7amily "ode)

(:) 3etitions for declaration of status of children as abandoned, dependent or neglected children, petitions for voluntary or involuntary commitment of children, the suspension, termination or restoration of parental authority and other cases cogni6able under 3E :;+, B= 5: ((2H:) and other related laws (1) (H) 3etitions for the constitution of the family home !n areas where there are no 7amily "ourts, the above&enumerated cases shall be ad'udicated by the R)" (RA H+:2)

-u(!s !ct!on of *et(opol!t"n T("!l Cou(ts3*un!c!p"l T(!"l Cou(ts (() (a) "riminal cases B$clusive original 'urisdiction (. *. Summary proceedings for violations of city or municipal ordinances committed within their respective territorial 'urisdiction, including traffic laws offenses punishable with imprisonment not e$ceeding si$ (:) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of the /ind, nature, value or amount thereof5 provided however, that in offenses involving damage to property through criminal negligence, they shall have e$clusive original 'urisdiction thereof (Sec. *, RA 1:2().

(*) (a)

"ivil actions B$clusive original 'urisdiction (. *. +. civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount the demand does not e$ceed 3*;;,;;; outside 88 or does not e$ceed 3,;;,;;; in 88, e$clusive of interest, damages of whatever /ind, attorney<s fees, litigation e$penses, and costs. Summary proceedings of forcible entry and unlawful detainer, violation of rental law title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not e$ceed 3*;,;;; outside 88 or does not e$ceed 35;,;;; in 88

(+)

Special 'urisdiction over petition for writ of habeas corpus and application for bail if the R)" Cudge in area is not available

(,) Eelegated 'urisdiction to hear and decide cadastral and land registration cases where there is no controversy provided the value of the lad to be ascertained by the claimant does not e$ceed 3(;;,;;;

-u(!s !ct!on o%e( sm"ll cl"!ms (() 8)"s, 8e)"s and 8")"s shall have 'urisdiction over actions for payment of money where the value of the claim does not e$ceed 3(;;,;;; e$clusive of interest and costs (Sec. %, A( 08=8=&=S , .ct. %&, %00,). (*) Actions covered are (a) purely civil in nature where the claim or relief prayed for by the plaintiff is soley for payment or reimbursement of sum of money, and (b) the civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule ((( (Sec. ,, A8 ;H&H&1&S"). )hese claims may be. (a) 7or money owed under the contracts of lease, loan, services, sale, or mortgage5

(b) (c)

7or damages arising from fault or negligence, %uasi&contract, or contract5 and )he enforcement of a barangay amicable settlement or an arbitration award involving a money claim pursuant to Sec. ,(1 of RA 1(:; (L>").

C"ses co%e(e $. Rules on Summ"(. P(oce u(e 4Sec. 19 RSP; (() "ivil "ases

(a) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered. -here attorney<s fees are awarded, the same shall not e$ceed 3*;,;;;5 (b) All other cases, e$cept probate proceedings where the total amount of the plaintiff<s claim does not e$ceed 3(;;,;;; (outside 88) or 3*;;,;;; (in 88), e$clusive of interest and costs. (*) (a) (b) "riminal "ases iolations of traffic law, rules and regulations5 iolation of the rental law5

(c) All other criminal cases where the penalty prescribed is imprisonment not e$ceeding si$ (:) months, or fine not e$ceedint 3(,;;;, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom, provided, that in offenses involving damage to property through criminal negligence, RS3 shall govern where the imposable fine does not e$ceed 3(;,;;;. (+) SR3 does not apply to a civil case where the plaintiff<s cause of action is pleaded in the same complaint with another cause of action sub'ect to the ordinary procedure5 nor to a criminal case where the offense charged is necessarily related to another criminal case sub'ect to the ordinary procedure.

C"ses co%e(e $. t'e Rules on ="("n&". Conc!l!"t!on (() )he Lupon of each barangay shall have the authority to bring together the parties actually residing in the same municipality or city for amicable settlement of all disputes e$cept. (a) (b) (c) (d) -here one party is the government or any subdivision or instrumentality thereof -here one party is a public officer or employee, and the dispute relates to the performance of his official functions =ffenses punishable by imprisonment e$ceeding one (() year or a fine e$ceeding 35,;;; =ffenses where there is no private offended party

(e) -here the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon (f) Eisputes involving parties who actually reside in barangays of different cities or municipalities, e$cept where such barangay units ad'oin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon (g) Such other classes of disputes which the 3resident may determine in the interest of 'ustice or upon the recommendation of the Secretary of Custice

(h) Any complaint by or against corporations, partnerships, or 'uridical entities. )he reason is that only individuals shall be parties to barangay conciliation proceedings either as complainants or respondents (i) Eisputes where urgent legal action is necessary to prevent in'ustice from being committed or further continued, specifically. (. *. +. ,. (') (/) (l) A criminal case where the accused is under police custody or detention A petition for habeas corpus by a person illegally detained or deprived of his liberty or one acting in his behalf Actions coupled with provisional remedies, such as preliminary in'unction, attachment, replevin and support pendente lite -here the action may be barred by statute of limitations

Labor disputes or controversies arising from employer&employee relationship -here the dispute arises from the "ARL Actions to annul 'udgment upon a compromise which can be directly filed in court.

Tot"l!t. Rule (() -here there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be the totality of the claims in all the claims of action, irrespective of whether the causes of action arose out of the same or different transactions (Sec. ++?(@, #3 (*2).

III. ACTIONS

Action (synonymous with JsuitK) is the legal and formal demand of one<s right from another person made and insisted upon in a court of 'ustice (Bouvier@s L#A 2ictio!#r9). )he /inds of actions are ordinary and special, civil and criminal, e$ contractu and e$ delicto, penal and remedial, real, personal, and mi$ed action, action in personam, in rem, and %uasi in rem,

O( !n"(. C!%!l Act!ons9 Spec!"l C!%!l Act!ons9 C(!m!n"l Act!ons (() =rdinary civil action is one by which one party sues another, based on a cause of action, to enforce or protect a right, or to prevent or redress a wrong, whereby the defendant has performed an act or omitted to do an act in violation of the rights of the plaintiff. (Sec. -#) )he purpose is primarily compensatory. (*) (+) Special civil action is also one by which one party sues another to enforce or protect a right, or to prevent or redress a wrong. A criminal action is one by which the State prosecutes a person for an act or omission punishable by law (Sec. +?b@, Rule (). )he purpose is primarily punishment.

C!%!l Act!ons %e(sus Spec!"l P(ocee !n&s (() )he purpose of an action is either to protect a right or prevent or redress a wrong. )he purpose of special proceeding is to establish a status, a right or a particular fact.

Pe(son"l Act!ons "n Re"l Act!ons (() An action is real when it affects title to or possession of real property, or an interest therein. All other actions are personal actions.

(*) An action is real when it is founded upon the privity of real estate, which means that the realty or an interest therein is the sub'ect matter of the action. )he issues involved in real actions are title to, ownership, possession, partition, foreclosure of mortgage or condemnation of real property. (+) Fot every action involving real property is a real action because the realty may only be incidental to the sub'ect matter of the suit. B$ample is an action for damages to real property, while involving realty is a personal action because although it involves real property, it does not involve any of the issues mentioned. (,) Real actions are based on the privity of real estates5 while personal actions are based on privity of contracts or for the recovery of sums of money.

(5) )he distinction between real action and personal action is important for the purpose of determining the venue of the action. A real action is JlocalK, which means that its venue depends upon the location of the property involved in the litigation. A personal action is JtransitoryK, which means that its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff.

Loc"l "n T("ns!to(. Act!ons (() A local action is one founded on privity of estates only and there is no privity of contracts. A real action is a local action, its venue depends upon the location of the property involved in litigation. JActions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has 'urisdiction over the area wherein the real property involved, or a portion thereof is situatedK (Sec. 1, 'ule 4). (*) )ransitory action is one founded on privity of contracts between the parties. A personal action is transitory, its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. A personal action Jmay be commenced and tried where the plaintiff or any of the principal plaintiffs resides or where the defendant or any of the principal defendants resides, or in the case of non&resident defendant, where he may be found, at the election of the plaintiffK (Sec. %, 'ule 4).

Act!ons in rem9 in personam "n quasi in rem (() An action i! re/, one instituted and enforced against the whole world.

(*) An action i! *erso!#/ is one filed against a definite defendant. !t is intended to sub'ect the interest of defendant on a property to an obligation or lien. Curisdiction over the person (defendant) is re%uired. !t is a proceeding to enforce personal rights and obligations brought against the person, and is based on the 'urisdiction of the person, although it may involve his right to, or the e$ercise of ownership of, specific property, or see/ to compel him to control or dispose of it in accordance with the mandate of the court. )he purpose is to impose through the 'udgment of a court, some responsibility or liability directly upon the person of the defendant. Fo other than the defendant is liable, not the whole world, as in an action for a sum of money or an action for damages. (+) An action %uasi i! re/, also brought against the whole world, is one brought against persons see/ing to sub'ect the property of such persons to the discharge of the claims assailed. An individual is named as defendant and the purpose of the proceeding is to sub'ect his interests therein to the obligation or loan burdening the property. !t deals with status, ownership or liability or a particular property but which are intended to operate on these %uestions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. B$amples of actions Bu#si i! re/ are action for partition, action for accounting, attachment, foreclosure of mortgage. (,) An action i! *erso!#/ is not necessarily a personal action. For is a real action necessarily an action i! re/. An i! *erso!#/ or an i! re/ action is a classification of actions according to foundation. 7or instance, an action to recover, title to or possession of real property is a real action, but it is an action i! *erso!#/, not brought against the whole world but against the person upon whom the claim is made. (5) )he distinction is important to determine whether or not 'urisdiction over the person of the defendant is re%uired and conse%uently to determine the type of summons to be employed. Curisdiction over the person of the defendant is necessary for the court to validly try and decide a case against said defendant where the action is one i! *erso!#/ but not where the action is i! re/ or Bu#si i! re/. (:) S" sums up the basic rules in Bi#co vs. Phili**i!e ou!tr9si"e 'ur#l B#!C, +' 16141&, 1e$ru#r9 8, %00& .

)he %uestion of whether the trial court has 'urisdiction depends on the nature of the action 9 whether the action is i! *erso!#/, i! re/, or Bu#si i! re/. )he rules on service of summons under Rule (, li/ewise apply according to the nature of the action. An action i! *erso!#/ is an action against a person on the basis of his personal liability. And action i! re/ is an action against the thing itself instead of against the person. An action Bu#si i! re/ is one wherein an individual is named as defendant and the purpose of the proceeding is to sub'ect his interest therein to the obligation or lien burdening the property. !n an action i! *erso!#/, 'urisdiction over the person of the defendant is necessary for the court to validly try and decide the case. !n a proceeding i! re/ or Bu#si i! re/, 'urisdiction over the person of the defendant is not a prere%uisite to confer 'urisdiction over the res. Curisdiction over the res is ac%uired either (() by the sei6ure of the property under legal process, whereby it is brought into actual custody of the law5 or (*) as a result of the institution of legal proceedings, in which the power of the court is recogni6ed and made effective. Fonetheless, summons must be served upon the defendant not for the purpose of vesting the court with 'urisdiction but merely for satisfying the due process re%uirements.

IV. CAUSE O< ACTION 4Rule 6; *e"n!n& of C"use of Act!on (() (*) (+) (a) (b) A cause of action is the act or omission by which a party (defendant) violates the rights of another (plaintiff). !t is the delict or wrong by which the defendant violates the right or rights of the plaintiff ((#=#o Su)#r e!tr#l v. B#rrios, &6 Phil. 666). )he elements are. A right in favor of the plaintiff by whatever means and under whatever law it arises or is created5 An obligation on the part of the named defendant to respect or not to violate such right5 and

(c) Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief. R!&'t of Act!on %e(sus C"use of Act!on (() (*) A cause of action refers to the delict or wrong committed by the defendants, whereas right of action refers to the right of the plaintiff to institute the action5 A cause of action is determined by the pleadings5 whereas a right of action is determined by the substantive law5

(+) A right of action may be ta/en away by the running of the statute of limitations, by estoppels or other circumstances which do not at all affect the cause of action ((#rBueD v. V#rel#, ,% Phil. -&-). <"!lu(e to St"te C"use of Act!on (() )he mere e$istence of a cause of action is not sufficient for a complaint to prosper. Bven if in reality the plaintiff has a cause of action against the defendant, the complaint may be dismissed if the complaint or the pleading asserting the claim Jstates no cause of actionK. )his means that the cause of action must unmista/ably be stated or alleged in the complaint or that all the elements of the cause of action re%uired by substantive law must clearly appear from the mere reading of the complaint. )o avoid an early dismissal of the complaint, the simple dictum to be followed is. J!f you have a cause of action, then by all means, state itLK -here there is a defect or an insufficiency in the statement of the cause of action, a complaint may be dismissed not because of an absence or a lac/ of cause of action by because the complaint states no cause of action. )he dismissal will therefore, be anchored on a Jfailure to state a cause of actionK.

(*) !t doesn<t mean that the plaintiff has no cause of action. !t only means that the plaintiff<s allegations are insufficient for the court to /now that the rights of the plaintiff were violated by the defendant. )hus, even if indeed the plaintiff suffered in'ury, if the same is not set forth in the complaint, the pleading will state no cause of action even if in reality the plaintiff has a cause of action against the defendant. Test of t'e Suff!c!enc. of " C"use of Act!on (() )he test is whether or not admitting the facts alleged, the court could render a valid verdict in accordance with the prayer of the complaint ((is#/is .cci"e!t#l II oo*er#tive, I!c. vs. 2#vi", 468 S 'A 6-8 S#!tos v. "e Leo!, 4&0 S 'A 455) . (*) )o be ta/en into account are only the material allegations in the complaint5 e$traneous facts and circumstances or other matter aliunde are not considered but the court may consider in addition to the complaint the appended anne$es or documents, other pleadings of the plaintiff, or admissions in the records (0e*e"# v. hi!# B#!Ci!) or*., +' 1&%1&5, .ct. ,, %006). (+) !n determining whether or not a cause of action is sufficiently stated in the complaint, the statements in the complaint may be properly considered. !t is error for the court to ta/e cogni6ance of e$ternal facts or to hold preliminary hearings to determine its e$istence (2i#D v. 2i#D, --1 S 'A -0%). )he sufficiency of the statement of the "=A must appear on the face of the complaint and its e$istence may be determined only by the allegations of the complaint, consideration of other facts being proscribed and any attempt to prove e$traneous circumstances not being allowed (VieA/#ster o!structio! or*. v. 'o:#s, --5 S 'A 540) . Spl!tt!n& " S!n&le C"use of Act!on "n Its Effects (() !t is the act of instituting two or more suits for the same cause of action (Sec. 4, 'ule %). !t is the practice of dividing one cause of action into different parts and ma/ing each part the sub'ect of a separate complaint (B#chr#ch vs. Ic#ri!)#l, 68 S 'A %8&) . !n splitting a cause of action, the pleader divides a single cause of action, claim or demand into two or more parts, brings a suit for one of such parts with the intent to reserve the rest for another separate action (Eu#"r# vs. A, +' 14&5,-, 5ul9 -1, %006). )his practice is not allowed by the Rules because it breeds multiplicity of suits, clogs the court doc/ets, leads to ve$atious litigation, operates as an instrument of harassment, and generates unnecessary e$penses to the parties. (*) )he filing of the first may be pleaded in abatement of the other or others and a 'udgment upon the merits in any one is available as a bar to, or a ground for dismissal of, the others (Sec. 4, 'ule %8 B#colo" it9 vs. S#! (i)uel, I!c., L=%51-, .ct. -0, 1,6,) . )he remedy of the defendant is to file a motion to dismiss. 4ence, if the first action is pending when the second action is filed, the latter may be dismissed based on litis *e!"e!ci#, there is another action pending between the same parties for the same cause. !f a final 'udgment had been rendered in the first action when the second action is filed, the latter may be dismissed based on res >u"ic#t#, that the cause of action is barred by prior 'udgment. As to which action should be dismissed would depend upon 'udicial discretion and the prevailing circumstances of the case. -o!n e( "n *!s0o!n e( of C"uses of Act!ons 4Secs. 8 "n >9 Rule 6; (() Coinder of causes of action is the assertion of as many causes of action as a party may have against another in one pleading alone (Sec. 5, 'ule %). !t is the process of uniting two or more demands or rights of action in one action, sub'ect to the following conditions. (a) (b) )he party 'oining the causes of action shall comply with the rules on 'oinder of parties5 )he 'oinder shall not include special civil actions governed by special rules5

(c) -here the cause of action are between the same parties but pertain to different venues or 'urisdictions, the 'oinder may be allowed in the R)" provided one of the causes of action falls within the 'urisdiction of said court and the venue lies therein5 and (d) -here the claims in all the causes of action are principally for recovery of money, the aggregate amount claimed shall be the test of 'urisdiction (totality rule).

(*) Restrictions on 'oinder of causes of action are. 'urisdiction, venue, and 'oinder of parties. )he 'oinder shall not include special civil actions or actions governed by special rules. (+) -hen there is a mis'oinder of causes of action, the erroneously 'oined cause of action can be severed or separated from the other cause of action upon motion by a party or upon the court<s own initiative. 8is'oinder of causes of action is not a ground for the dismissal of the case.

PARTIES IN CIVIL ACTION

Re"l p"(t!es !n !nte(est? !n !spens"$le p"(t!es? (ep(esent"t!%es "s p"(t!es? necess"(. p"(t!es? !n !&ent p"(t!es? "lte(n"t!%e efen "nts

(.

Real 3arty&in&!nterest is the party who stands to be benefited or in'ured by the 'udgment in the suit, or the party entitled to the avails of the suit (Sec. %, 'ule -). )he interest must be real, which is a present substantial interest as distinguished from a mere e$pectancy or a future, contingent subordinate or conse%uential interest (1ortich vs. oro!#, %8, S 'A 6%4) . !t is an interest that is material and direct, as distinguished from a mere incidental interest in %uestion (S#/#!ie)o vs. A)uil#, --4 S 'A 4-8) . -hile ordinarily one who is not a privy to a contract may not bring an action to enforce it, there are recogni6ed e$ceptions this rule. "ontracts containing stipulations *our #trui or stipulations e$pressly conferring benefits to a non&party may sue under the contract provided such benefits have been accepted by the beneficiary prior to its revocation by the contracting parties (Art. 1-11, ivil o"e). )hose who are not principally or subsidiarily obligated in the contract, in which they had no intervention, may show their detriment that could result from it. 7or instance, Art. (+(+, "", provides that Jcreditors are protected in cases of contracts intended to defrauded them.K 7urther, Art. (+(H, "", provides that contracts entered into in fraud of creditors may be rescinded when the creditors cannot in any manner collect the claims due them. )hus, a creditor who is not a party to a contract can sue to rescind the contract to redress the fraud committed upon him.

a. b.

*.

!ndispensable 3arty is a real party&in&interest without whom no final determination can be had of an action (Sec. &, 'ule -). -ithout the presence of his party the 'udgment of a court cannot attain real finality (2e #stro vs. A, -84 S 'A 60&). )he presence of indispensable parties is a condition for the e$ercise of 'uridical power and when an indispensable party is not before the court, the action should be dismissed. )he absence of indispensable party renders all subse%uent actions of the court null and void for want of authority to act, not only to the absent parties but even as to those present. )wo essential tests of an indispensable party. (a) "an a relief be afforded to the plaintiff without the presence of the other party5 and (b) "an the case be decided on its merits without pre'udicing the rights of the other partyD A person is not an !3 if his interest in the controversy or sub'ect matter is separable from the interest of the other parties, so that it will not necessarily be directly or in'uriously affected by a decree which does complete 'ustice between them. Also, a person is not an !3 if his presence would merely permit complete relief between him and those already parties to the action, or if he has no interest in the sub'ect matter of the action. Although normally a 'oinder of action is permissive (Sec. 6, 'ule -), the 'oinder of a party becomes compulsory when the one involved is an indispensable party. "learly, the rule directs a compulsory 'oinder of !3 (Sec. &, 'ule -). Fecessary 3arty is one who is not indispensable but ought to be 'oined as a party if complete relief is to be accorded as to those already parties, of for a complete determination or settlement of the claim sub'ect of the action. #ut a necessary party ought to be 'oined as a party if complete relief is to be accorded as to those already parties (Sec. 8, 'ule -). )he non&inclusion of a necessary party does not prevent the court from proceeding in the action, and the 'udgment rendered therein shall be without pre'udice to the rights of such necessary party (Sec. ,, 'ule -). !ndigent party is one who is allowed by the court to litigate his claim, action or defense upon e: *#rte application and hearing, when the court is satisfied that such party has no money or property sufficient and available for food, shelter, basic necessities for himself and his family (Sec. %1, 'ule -). !f one is authori6ed to litigate as an indigent, such authority shall include an e$emption from the payment of doc/et fee, and of transcripts of stenographic notes, which the court may order to e furnished by him. 4owever, the amount of the doc/et and other fees, which the indigent was e$empt from paying, shall be lien on the 'udgment rendered in the case favorable to the indigent. A lien on the 'udgment shall or arise if the court provides otherwise (Sec. %1, 'ule -). Representatives as parties pertains to the parties allowed by the court as substitute parties to an action whereby the original parties become incapacitated of incompetent (Sec. 18, 'ule -). )he substitution of a party depends on the nature of the action. !f the action is personal, and a party dies pendent lite, such action does not survive, and such party cannot be substituted. !f the action is real, death of the defendant survives the action, and the heirs will substitute the dead. A favorable 'udgment obtained by the plaintiff therein may be enforced against the estate of the deceased defendant (Sec. 1, 'ule 8&). !n case a party becomes incapacitated or incompetent during the pendency of the action, the court, upon motion, may allow the action to be continued by or against the incapacitated or incompetent party with the assistance of his legal guardian or guardian #" lite/ (Sec. 18, 'ule %0). !n case of transfer, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or 'oined with the original party Sec. 1,, 'ule -). Alternative defendants are those who may be 'oined as such in the alternative by the plaintiff who is uncertain from whom among them he is entitled to a relief, regardless of whether or not a right to a relief against one is inconsistent with that against the other. -here the plaintiff cannot definitely identify who among two or more persons should be impleaded as a defendant, he may 'oin all of them as defendants in the alternative. 0nder Sec. (+, Rule +, Jwhere the plaintiff is uncertain against who of several persons he is entitled to relief, he may 'oin any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other.K Cust as the rule allows a suit against defendants in the alternative, the rule also allows alternative causes of action (Sec. %, 'ule 8) and alternative defenses (Sec. 5[$], 'ule 6).

a. b.

+.

,.

5.

a. b.

:.

Compulso(. "n pe(m!ss!%e 0o!n e( of p"(t!es

(. *.

Coinder of parties is compulsory if there are parties without whom no final determination can be had of an action (Sec. &, 'ule -). Coinder of parties is permissive when there is a right or relief in favor of or against the parties 'oined in respect to or arising out of the same transaction or series of transactions, and there is a %uestion of law or fact common to the parties 'oined in the action (Sec. 6, 'ule -).

*!s0o!n e( "n non)0o!n e( of p"(t!es

(. *. +. ,.

A party is mis'oined when he is made a party to the action although he should not be impleaded. A party is not 'oined when he is supposed to be 'oined but is not impleaded in the action. 0nder the rules, neither mis'oinder nor non&'oinder of parties is a ground for the dismissal of an action. 3arties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are 'ust (Sec. 11, 'ule -). 8is'oinder of parties does not involve %uestions of 'urisdiction and not a ground for dismissal ('e*u$lic vs. 3er$ieto, 45, S 'A 18-). Bven if neither mis'oinder nor non&'oinder of parties is a ground for dismissal of the action, the failure to obey the order of the court to drop or add a party is a ground for the dismissal of the complaint under Sec. +, Rule (1. )he rule does not comprehend whimsical and irrational dropping or adding of parties in a complaint. -hat it really contemplates is erroneous or mista/en non& 'oinder and mis'oinder of parties. Fo one is free to 'oin anybody in a complaint in court only to drop him unceremoniously later at the option of the plaintiff. )he rule presupposes that the original inclusion had been made in the honest conviction that it was proper and the subse%uent dropping is re%uested because it has turned out that such inclusion was a mista/e. And this is the reason why the rule ordains that the dropping is Jon such terms as are 'ustK (Li/ 7#! 3u vs. '#/olete, 66 S 'A 4%5).

Cl"ss su!t

(. *.

A class suit is an action where one or more may sue for the benefit of all if the re%uisites for said action are complied with. An action does not become a class suit merely because it is designated as such in the pleadings. -hether the suit is or is not a class suit depends upon the attendant facts. A class suit does not re%uire commonality of interest in the %uestions involved in the suit. -hat is re%uired by the Rules is a common or general interest in the sub'ect matter of the litigation. )he sub'ect matter of the action means the physical, the things real or personal, the money, lands, chattels, and the li/e, in relation to the suit which is prosecuted and not the direct or wrong committed by the defendant. !t is not also a common %uestion of

+. a. b. c. d.

law that sustains a class suit but a common interest in the sub'ect matter of the controversy. ((#th#9 vs. is no class suit when interests are conflicting. 7or a class suit to prosper, the following re%uisites must concur.

o!soli"#te" B#! ; 7rust

o., 58 S 'A 55,) . )here

)he sub'ect matter of the controversy must be of common or general interest to may persons5 )he persons are so numerous that it is impracticable to 'oin all as parties5 )he parties actually before the court are sufficiently numerous and representative as to fully protect the interests of all concerned5 and )he representatives sue or defend for the benefit of all (Sec.1%, 'ule -).

Su!ts "&"!nst ent!t!es #!t'out 0u(! !c"l pe(son"l!t.

(. *.

A corporation being an entity separate and distinct from its members has no interest in the individual property of its members unless transferred to the corporation. Absent any showing of interests, a corporation has no personality to bring an action for the purpose of recovering the property, which belongs to the members in their personal capacities. An entity without 'uridical personality may be sued under a common name by which it is commonly /nown when it represents to the plaintiff under a common name, and the latter relies on such representation (L#*#!"#9 vs. <stit#, 44, S 'A %40) .

Effect of e"t' of p"(t. l!t!&"nt

(. *. +. ,. a. b.

)he death of the client e$tinguishes the attorney&client relationship and divests a counsel of his authority to represent the client. Accordingly, a dead client has no personality and cannot be represented by and attorney (L#vi?# vs. A, 1&1 S 'A 6,1) . Feither does he become the counsel of the heirs of the deceased unless his services are engaged by said heirs (L#A#s vs. A, 146 S 'A 1&-). 0pon the receipt of the notice of death, the court shall order the legal representative or representatives of the deceased to appear and be substituted for the deceased within thirty (+;) days from notice (Sec. (:, Rule +). )he substitution of the deceased would not be ordered by the court in cases where the death of the party would e$tinguish the action because substitution is proper only when the action survives (A)u#s vs. Ll#/#s, 5 S 'A ,5,). -here the deceased has no heirs, the court shall re%uire the appointment of an e$ecutor or administrator. )his appointment is not re%uired where the deceased left an heir because the heir under the new rule, may be allowed to be substituted for the deceased. !f there is an heir but the heir is a minor, the court may appoint a guardian #" lite/ for said minor heir (Sec. 1-, 'ule -). )he court may appoint an e$ecutor or administrator when. the counsel for the deceased does not name a legal representative5 or there is a representative named but he failed to appear within the specified period (Sec. 16, 'ule -).

II.

VENUE 4Rule @;

(.

enue is the place or the geographical area where an action is to be filed and tried. !n civil cases, it relates only to the place of the suit and not to the 'urisdiction of the court ((#!il# '#ilro#" o/*#!9 vs. Attor!e9 +e!er#l, %0 Phil. 5%-) .

Venue %e(sus -u(!s !ct!on

(. *. +. ,. 5.

Curisdiction is the authority to hear and determine a case5 venue is the place where the case is to be heard or tried5 Curisdiction is a matter of substantive law5 venue of procedural law5 Curisdiction establishes a relation between the court and the sub'ect matter5 venue, a relation between plaintiff and defendant, or petitioner and respondent5 Curisdiction is fi$ed by law and cannot be conferred by the parties5 venue may be conferred by the act or agreement of the parties5 and Lac/ of 'urisdiction over the sub'ect matter is a ground for a /otu *ro*io dismissal5 venue is not a ground for a /otu *ro*io dismissal e$cept in cases sub'ect to summary procedure.

Venue of (e"l "ct!ons

(.

Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has 'urisdiction over the area wherein the real property involved or a portion thereof is situated. 7orcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated (Sec. 1, 'ule 4).

Venue o( pe(son"l "ct!ons

(.

All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, all at the option of the plaintiff (Sec. %, 'ule 4).

Venue of "ct!ons "&"!nst non)(es! ents

(.

!f any of the defendants does not reside and is not found in the 3hilippines, and the action affects the personal status of the plaintiff, or any property of said defendant located in the 3hilippines, the action may be commenced and tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found (Sec. -, 'ule 4), or at the place where the defendant may be found, at the option of the plaintiff (Sec. %).

,'en t'e Rules on Venue o not "ppl.

(.

)he Rules do not apply (a) in those cases where a specific rule or law provides otherwise5 or (b) where the parties have validly agreed in writing before the filing of the action on the e$clusive venue thereof (Sec. 4, 'ule 4).

Effects of st!pul"t!ons on %enue

(. *.

+.

)he parties may stipulate on the venue as long as the agreement is (a) in writing, (b) made before the filing of the action, and (+) e$clusive as to the venue (Sec. 4[$], 'ule 4). )he settled rule on stipulations regarding venue is that while they are considered valid and enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule , in the absence of %ualifying or restrictive words. )hey should be considered merely as an agreement or additional forum, not as limiting venue to the specified place. )hey are not e$clusive by rather permissive. !f the intention of the parties were to restrict venue, there must be accompanying language clearly and categorically e$pressing their purpose and design that actions between them be litigated only at the place named by them. !n interpreting stipulations as to venue, there is a need to in%uire as to whether or not the agreement is restrictive or not. !f the stipulation is restrictive, the suit may be filed only in the place agreed upon by the parties. !t must be reiterated and made clear that under Rule ,, the general rules on venue of actions shall not apply where the parties, before the filing of the action, have validly agreed in writing on an e:clusive venue. )he mere stipulation on the venue of an action, however, is not enough to preclude parties from bringing a case in other venues. )he parties must be able to show that such stipulation is e$clusive. !n the absence of %ualifying or restrictive words, the stipulation should be deemed as merely an agreement on an additional forum, not as limiting venue to the specified place (S*ouses L#!ti! vs. L#!ti!, +' 16005-, Au)ust %8, %006) .

III.

PLEADINGS

(.

3leadings are written statements of the respective claims and defenses of the parties submitted to the court for appropriate 'udgment (Sec. 1, 'ule 6). 3leadings aim to define the issues and foundation of proof to be submitted during the trial, and to apprise the court of the rival claims of the parties.

A!n s of Ple" !n&s 4Rule >;

Compl"!nt

(.

"omplaint is the pleading alleging the plaintiff<s cause or causes of action, stating therein the names and residences of the plaintiff and defendant (Sec. -, 'ule 6).

Ans#e(

(.

An answer is a pleading in which a defending party sets forth his defenses (Sec. -, 'ule 6). !t may allege legal provisions relied upon for defense (Sec. 1, 'ule 8).

Ne&"t!%e Defenses

(. *.

Fegative defenses are the specific denials of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action (Sec. 5[#], 'ule 6). -hen the answer sets forth negative defenses, the burden of proof rests upon the plaintiff, and when the answer alleges affirmative defenses, the burden of proof devolves upon the defendant.

Ne&"t!%e P(e&n"nt

(. *.

Fegative pregnant is an admission in avoidance which does not %ualify as a specific denial. !t is a form of negative e$pression which carries with it an affirmation or at least an implication of some /ind favorable to the adverse party. !t is a denial pregnant with an admission of the substantial facts alleged in the pleading. -here a fact is alleged with %ualifying or modifying language and the words of the allegation as so %ualified or modified are literally denied, the %ualifying circumstances alone are denied while the fact itself is admitted ('e*u$lic vs. S#!"i)#!$#9#!, +' 151%154, 5ul9 15, %00-).

Aff!(m"t!%e Defenses

(.

Fegative defenses are allegations of new matters which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. Affirmative defenses include. 7raud Statute of limitations Release 3ayment !llegality Statute of frauds Bstoppel 7ormer recovery Eischarge in ban/ruptcy Any other matter by way of confession and avoidance (Sec. 5[$], 'ule 6)

a. b. c. d. e. f. g. h. i. '.

Counte(cl"!m

(.

A counterclaim is any claim which a defending party may have against an opposing party (Sec. 6, 'ule 6). !t is in itself a claim or cause of action interposed in an answer. !t is either compulsory or permissive.

Compulso(. Counte(cl"!m

(.

*.

A compulsory counterclaim is one which, being cogni6able by the regular courts of 'ustice, arises out of or is connected with the transaction or occurrence constituting the sub'ect matter of the opposing party<s claim and does not re%uire for its ad'udication, the presence of third parties of whom the court cannot ac%uire 'urisdiction. Such a counterclaim must be within the 'urisdiction of the court, both as to the amount and the nature thereof, e$cept that in an original action before the R)", the counterclaim may be considered compulsory regardless of the amount (Sec. &, 'ule 6). !t is compulsory where.

a. b. c. +. a. b. c. d.

!t arises out of, or is necessarily connected with the transaction or occurrence that is the sub'ect matter of the opposing party<s claim5 !t does not re%uire 'urisdiction5 and )he trial court has 'urisdiction to entertain the claim. )he tests to determine whether or not a counterclaim is compulsory are. Are the issues of fact or law raised by the claim counterclaim largely the sameD -ould res >u"ic#t# bar a subse%uent suit on defendant<s claims absent the compulsory counterclaim ruleD -ill substantially the same evidence support or refute plaintiff<s claim as well as the defendant<s counterclaimD and !s there any logical relation between the claim and the counterclaimD (1i!#!ci#l Buil"i!) or*. vs. 1or$es P#rC Ass!. I!c., --8 S 'A 811) .

Pe(m!ss!%e Counte(cl"!m

(. *. a. b. c.

3ermissive counterclaim is a counterclaim which does not arise out of nor is it necessarily connected with the sub'ect matter of the opposing party<s claim. !t is not barred even if not set up in the action. )he re%uirements of a permissive counterclaim are. !t does not re%uire for its ad'udication the presence of third parties of whom the court cannot ac%uire 'urisdiction5 !t must be within the 'urisdiction of the court wherein the case is pending and is cogni6able by the regular courts of 'ustice5 and !t does not arise out of the same transaction or series of transactions sub'ect of the complaint.

Effect on t'e Counte(cl"!m #'en t'e compl"!nt !s !sm!sse

(.

*.

!f a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff<s motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be limited to the complaint (Sec. %, 'ule 1&). )he dismissal upon motion of plaintiff shall be without pre'udice to the right of the defendant to prosecute the counterclaim. )he defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within (5 days from notice of the plaintiff<s motion to dismiss. Should he opt to prosecute his counterclaim in a separate action, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. A class suit shall not be dismissed or compromised without the approval of the court. )he dismissal of the complaint under Sec. + (due to fault of plaintiff) is without pre'udice to the right of the defendant to prosecute his counterclaim in the same action or in a separate action. )his dismissal shall have the effect of an ad'udication upon the merits, unless otherwise declared by the court. )he dismissal of the main action does not carry with it the dismissal of the counterclaim (Sec. 6, 'ule 16).

C(oss)cl"!ms

(.

A cross&claim is any claim by one party against a co&party arising out of the transaction or occurrence that is the sub'ect matter either of the original action or of a counterclaim therein. Such cross&claim may include a claim that the party against whom it is asserted is or may be liable to the cross&claimant for all of part of a claim asserted in the action against the cross&claimant (Sec. 8, 'ule 6).

T'!( 4fou(t'9 etc.; p"(t. compl"!nts

(.

!t is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.)9party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent<s claim.

Compl"!nt)!n)!nte(%ent!on

(. *.

"omplaint&in&intervention is a pleading whereby a third party asserts a claim against either or all of the original parties. !f the pleading see/s to unite with the defending party in resisting a claim against the latter, he shall file an answer&in&intervention. !f at any time before 'udgment, a person not a party to the action believes that he has a legal interest in the matter in litigation in a case in which he is not a party, he may, with leave of court, file a complaint&in&intervention in the action if he asserts a claim against one or all of the parties.

Repl.

(.

Replay is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby 'oin or ma/e issue as to such matters. !t a party does not file such reply, all the new matters alleged in the answer are deemed controverted (Sec. 10, 'ule 6).

Ple" !n&s "llo#e !n sm"ll cl"!m c"ses "n c"ses co%e(e $. t'e (ules on summ"(. p(oce u(e

(. *.

)he only pleadings allowed under the Rules on Summary 3rocedure are complaint, compulsory counterclaim, cross&claim, pleaded in the answer, and answers thereto (Sec. -[A]). )hese pleadings must be verified (Sec. -[B]). )he only pleadings allowed under small claim cases are.

P"(ts of " Ple" !n& 4Rule 7;

(.

)he parts of a pleading under Rule 1 are. the caption (Sec. 1), the te$t or the body (Sec. %), the signature and address (Sec. -), the verification (Sec. 4), and the certification against forum shopping (Sec. 5).

C"pt!on

(.

)he caption must set forth the name of the court, the title of the action, and the doc/et number if assigned. )he title of the action indicates the names of the parties. )hey shall all e named in the original complaint or petition5 but in subse%uent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties. )heir respective participation in the case shall be indicated.

S!&n"tu(e "n "

(ess

(. *. +.

,.

Bvery pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office bo$. )he signature of counsel constitutes a certificate by him that he has read the pleading5 that to the best of his /nowledge, information, and belief there is good ground to support it5 and that it is not interposed for delay. An unsigned pleading produces no legal effect. 4owever, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. "ounsel who deliberately files an unsigned pleading, or signs a pleading in violation of the Rule, or alleges scandalous or indecent matter therein, or fails to promptly report to the court a change of his address, shall be sub'ect to appropriate disciplinary action. !n every pleading, counsel has to indicate his professional ta$ receipt (3)R) and !#3 receipt, the purpose of which is to see to it that he pays his ta$ and membership due regularly

Ve(!f!c"t!on

(. *. +. ,. 5.

A verification of a pleading is an affirmation under oath by the party ma/ing the pleading that he is prepared to establish the truthfulness of the facts which he has pleaded based on his own personal /nowledge. )he general rule under, Sec. ,. Rule 1 is that, pleading need not be under oath. )his means that a pleading need not be verified. A pleading will be verified only when a verification is re%uired by a law or by a rule. A pleading is verified by and affidavit, which declares that. (a) the affiant has read the pleading, and (b) the allegations therein are true and correct to his personal /nowledge or based on authentic records. )he verification re%uirement is significant, as it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. )he absence of proper verification is cause to treat the pleading as unsigned and dismissable. !t is, however, been held that the absence of a verification or the non&compliance with the verification re%uirement does not necessarily render the pleading defective. !t is only a formal and not a 'urisdictional re%uirement. )he re%uirement is a condition affecting only the form of the pleading (S#r/ei!to vs. 0#r#t#!, +' 16&4&1, 1e$. 5, %00&). )he absence of a verification may be corrected by re%uiring an oath. )he rule is in /eeping with the principle that rules of procedure are established to secure substantial 'ustice and that technical re%uirements may be dispensed with in meritorious cases (P#/*#!)# 2evelo*/e!t Su)#r o.

vs. FL' , %&% S 'A &-&). )he court may order the correction of the pleading or act on an unverified pleading if the attending circumstances are such that strict compliance would not fully serve substantial 'ustice, which after all, is the basic aim for the rules of procedure ('o$ert 2evelo*/e!t or*. vs. Euit#i!, -15 S 'A 150).

Ce(t!f!c"t!on "&"!nst fo(um)s'opp!n&

(. a. b. c.

)he certification against forum shopping is a sworn statement certifying to the following matters. )hat the party has not commenced or filed any claim involving the same issues in any court, tribunal, or %uasi&'udicial agency and, to the best of his /nowledge, no such other action or claim is pending5 )hat if there is such other pending action or claim, a complete statement of the present status thereof5 and )hat if he should therefore learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. )he certification is mandatory under Sec. 5, Rule 1, but nor 'urisdictional ('o$ert 2evelo*/e!t or*. vs. Euit#i!, -15 S 'A 150) . )here is forum shopping when, as a result of an adverse opinion in one forum, a party see/s a favorable opinion, other than by appeal or certior#ri in another. )here can also be forum shopping when a party institutes two or more suits in different courts, either simultaneously or successively, in order to as/ the courts to rule on the same or related causes andIor to grant the same or substantially the same reliefs on the supposition that one or the other court would ma/e a favorable disposition or increase a party<s chances of obtaining a favorable decision or action (3ui$o!ho# vs. o!ce*cio!, +' 15-&85, Au). -, %006) . !t is an act of malpractice, as the litigants trifle with the courts and abuse their processes. !t is improper conduct and degrades the administration of 'ustice. !f the act of the party or its counsel clearly constitutes willful and deliberate forum&shopping, the same shall constitute direct contempt, and a cause for administrative sanctions, as well as a ground for the summary dismissal of the case with pre'udice ((o!tes vs. A, +' 14-&,&, (#9 4, %006) . 7orum shopping e$ists when the elements of litis *e!"e!ti# are present or where a final 'udgment in one case will amount to res >u"ic#t# in another. !t is the plaintiff or principal party who e$ecutes the certification under oath, and not the attorney. !t must be signed by the party himself and cannot be signed by his counsels. As a general and prevailing rule, a certification signed by counsel is a defective certification and is a valid cause for dismissal (1#r <#ster! Shi**i!) o. vs. A, %,& S 'A -0). )his certification is not necessary when what is filed is a mere motion for e$tension, or in criminal cases and distinct causes of action.

*. +.

,. 5.

Re1u!(ements of " co(po("t!on e2ecut!n& t'e %e(!f!c"t!on3ce(t!f!c"t!on on non)fo(um s'opp!n&

(.

A 'uridical entity, unli/e a natural person, can only perform physical acts through properly delegated individuals. )he certification against forum shopping where the plaintiff or a principal party is a 'uridical entity li/e a corporation may be e$ecuted by properly authori6ed persons. )his person may be the lawyer of a corporation. As long as he is duly authori6ed by the corporation and has personal /nowledge of the facts re%uired to be disclosed in the certification against forum shopping, the certification may be signed by the authori6ed lawyer (F#tio!#l Steel or*. vs. A, -88 S 'A 85).

Effect of t'e s!&n"tu(e of counsel !n " ple" !n&

(.

A certification signed by a counsel is a defective certification and is a valid cause for dismissal (1#r <#ster! Shi**i!) o/*#!9 vs. A, %,& S 'A -0) . )his is the general and prevailing rule. A certification by counsel and not by the principal party himself is no certification at all. )he reason for re%uiring that it must be signed by the principal party himself is that he has actual /nowledge, or /nows better than anyone else, whether he has initiated similar actionIs in other courts, agencies or tribunals. )heir lawyer<s e$planation that they were out of town at the time their petition was filed with the "A is bereft of basis. )hat e$planation is an afterthought as it was not alleged by counsel in her certification against forum shopping (+o vs. 'ico, +' 14068%, A*ril %5, %006) .

Alle&"t!ons !n " ple" !n&

(.

Bvery pleading shall contain in a mathematical and logical form, a plain, concise and direct statement of the ultimate facts on which the party relies for his claim and defense, as the case may be, containing the statement of mere evidenciary facts (Sec. 1, 'ule 8).

*"nne( of m"+!n& "lle&"t!ons 4Rule 7;

Con !t!on p(ece ent

(. *.

"onditions precedent are matters which must be complied with before a cause of action arises. -hen a claim is sub'ect to a condition precedent, the compliance of the same must be alleged in the pleading. 7ailure to comply with a condition precedent is an independent ground for a motion to dismiss. that a condition precedent for filing the claim has not been complied (Sec. 1[>], 'ule 16).

<("u 9 m!st"+e9 m"l!ce9 !ntent9 +no#le &e "n ot'e( con !t!on of t'e m!n 9 0u &ments9 off!c!"l ocuments o( "cts

(. *.

-hen ma/ing averments of fraud or mista/e, the circumstances constituting such fraud or mista/e must be stated with particularity (Sec. 5, 'ule 8). !t is not enough therefore, for the complaint to allege that he was defrauded by the defendant. 0nder this provision, the complaint must state with particularity the fraudulent acts of the adverse party. )hese particulars would necessarily include the time, place and specific acts of fraud committed against him. 8alice, intent, /nowledge or other conditions of the mind of a person may be averred generally (Sec. 5, 'ule 8). 0nli/e in fraud or mista/e, they need not be stated with particularity. )he rule is borne out of human e$perience. !t is difficult to state the particulars constituting these matters. 4ence, a general averment is sufficient.

Ple" !n& "n "ct!on"$le ocument

(. *.

An actionable document is a document relied upon by either the plaintiff or the defendant. A substantial number of complaints reaching the courts shows that the plaintiff<s cause of action of the defendant<s defense is based upon a written instrument or a document. -henever an actionable document is the basis of a pleading, the rule specifically direct the pleader to set forth in the pleading the substance of the instrument or the document, (a) and to attach the original or the copy of the document to the pleading as an e$hibit and to be part of the pleading5 or (b) with li/e effect, to set forth in the pleading said copy of the instrument or document (Sec. &, 'ule 8). )his manner of pleading a document applies only to one which is the basis of action or a defense. 4ence, if the document does not have the character of an actionable document, as when it is merely evidentiary, it need not be pleaded strictly in the manner prescribed by Sec. 1, Rule H.

Spec!f!c en!"ls

(. a. b. c.

)here are three modes of specific denial which are contemplated by the Rules, namely. #y specifying each material allegation of the fact in the complaint, the truth of which the defendant does not admit, and whenever practicable, setting forth the substance of the matter which he will rely upon to support his denial5 #y specifying so much of the averment in the complaint as is true and material and denying only the remainder5 #y stating that the defendant is without /nowledge or information sufficient to form a belief as to the truth of a material averment in the complaint, which has the effect of denial (+#D# vs Lim, >R (*:H:+, Can. (:, *;;+) )he purpose of re%uiring the defendant to ma/e a specific denial is to ma/e him disclose the matters alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter which he relied upon to support the denial. )he parties are compelled to lay their cards on the table (ABui!te9 vs. 7i$o!), +' 166&04, 2ec. %0, %006).

*.

Effect of f"!lu(e to m"+e spec!f!c en!"ls

(. *. +.

,. a. b. c.

!f there are material averments in the complaint other than those as to the amount of unli%uidated damages, these shall be deemed admitted when not specifically denied (Sec. 11, 'ule 8). 8aterial allegations, e$cept unli%uidated damages, not specifically denied are deemed admitted. !f the allegations are deemed admitted, there is no more triable issue between the parties and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for 'udgment on the pleadings under Rule +,. An admission in a pleading cannot be controverted by the party ma/ing such admission because the admission is conclusive as to him. All proofs submitted by him contrary thereto or inconsistent therewith should be ignored whether an ob'ection is interposed by a party or not ('e*u$lic vs. S#r#$i#, +' 15&84&, Au). %5, %005). Said admission is a 'udicial admission, having been made by a party in the course of the proceedings in the same case, and does not re%uire proof. A party who desires to contradict his own 'udicial admission may do so only be either of two ways. (a) by showing that the admission was made through palpable mista/e5 or (b) that no such admission was made (Sec. 4, 'ule 1%,). )he following are not deemed admitted by the failure to ma/e a specific denial. )he amount of unli%uidated damages5 "onclusions in a pleading which do not have to be denied at all because only ultimate facts need be alleged in a pleading5 Fon&material allegations, because only material allegations need be denied.

,'en " spec!f!c en!"l (e1u!(es "n o"t'

(. a. b.

Specific denials which must be under oath to be sufficient are. A denial of an actionable document (Sec. 8, 'ule 8)5 A denial of allegations of usury in a complaint to recover usurious interest (Sec. 11, 'ule 8).

Effect of f"!lu(e to ple" 4Rule 5;

<"!lu(e to ple"

efenses "n o$0ect!ons

(. a. b. c. d.

Eefenses or ob'ections no pleaded in either in a motion to dismiss or in the answer, they are deemed waived. B$cept. -hen it appears from the pleading or the pieces of evidence on record that the court has no 'urisdiction over the sub'ect matter5 )hat there is another action pending between the same parties for the same cause5 )hat the action is barred by the statute of limitations (s#/e #s Sec. 8, 'ule 11&)5 Res 'udicata. !n all these cases, the court shall dismiss the claim (Sec. 1, 'ule ,).

<"!lu(e to ple" " compulso(. counte(cl"!m "n c(oss)cl"!m

(.

A compulsory counterclaim or a cross&claim not set up shall be barred (Sec. %, 'ule ,).

Def"ult

(.

Eefault is a procedural concept that occurs when the defending party fails to file his answer within the reglementary period. !t does not occur from the failure of the defendant to attend either the pre&trial or the trial.

,'en " ecl"("t!on of ef"ult !s p(ope(

(.

!f the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default (Sec. -, 'ule ,).

Effect of "n o( e( of ef"ult

(.

A party in default shall be entitled to notice of subse%uent proceedings but not to ta/e part in the trial (Sec. -[#], 'ule ,).

Rel!ef f(om "n o( e( of ef"ult

(. a.

Remedy after notice of order and before 'udgment. 8otion to set aside order of default, showing that (a) the failure to answer was due to fraud, accident, mista/e, or e$cusable negligence, and (b) the defendant has a meritorious defenseMthere must be an affidavit of merit (Sec. -[$], 'ule ,).

*. b. c. +. d. e. ,.

Remedy after 'udgment but before finality. 8otion for new trial under Rule +15 or Appeal from the 'udgment as being contrary to the evidence or the law5 Remedy after 'udgment becomes final and e$ecutor. 3etition for relief from 'udgment under Rule +H5 Action for nullity of 'udgment under Rule ,1. !f the order of default is valid, ertior#ri is not available. !f the default order was improvidently issued, that is, the defendant was declared in default, without a motion, or without having served with summons before the e$piration of the reglementary period to answer, ertior#ri is available as a remedy ((#tute vs. S, %6 S 'A &,88 ACut vs. A, 116 S 'A %16).

Effect of " p"(t!"l ef"ult

(.

-hen a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render 'udgment upon the evidence presented (Sec. --[c], 'ule ,).

E2tent of (el!ef

(.

A 'udgment rendered against a party in default may not e$ceed the amount or be different from that prayed for nor include unli%uidated damages which are not awarded (Sec. -[c], 'ule ,). !n fact, there can be no automatic grant of relief as the court has to weigh the evidence. 7urthermore, there can be no award of unli%uidated damages (+#>u"o vs. 7r#"ers 'o9#l B#!C, +' 1510,8, (#rch -1, %006) .

Act!ons #'e(e ef"ult "(e not "llo#e

(. *. +.

Annulment of marriage5 Eeclaration of nullity of marriage5 and Legal separation

)he court shall order the prosecuting attorney to investigate whether or not a collusion between the parties e$ists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated (Sec. -[e], 'ule ,).

<!l!n& "n Se(%!ce of ple" !n&s 4Rule 1B;

P".ment of oc+et fees (. =n ac%uisition of 'urisdiction. !t is not simply the filing of the complaint or appropriate initiatory pleading but the payments of the prescribed doc/et fee, that vests a trial court with 'urisdiction over the sub'ect matter or nature of the action (Proto! Pili*i!#s or*. vs. B#!Bue F#tio!#l "e P#ris, 460 S 'A %60) . !n connection with the payment of doc/et fees, the court re%uires that all complaints, petitions, answers and similar pleadings must specify the amount of damages being prayed for both in the body of the pleading and in prayer therein and said damages shall be considered in the assessment of the filing fees5 otherwise such pleading shall not be accepted for filing or shall be e$punged from the record. Any defect in the original pleading resulting in underpayment of the doc/et fee cannot be cured by amendment, such as by the reduction of the claim as, for all legal purposes, there is no original complaint over which the court has ac%uired 'urisdiction ((#!chester 2evelo*/e!t or*. vs. A, +' &5,1,, (#9 &, 1,8&) . )he rule on payment of doc/et fee has, in some instances, been sub'ect to the rule on liberal interpretation. )hus, in a case, it was held that while the payment of the re%uired doc/et fee is a 'urisdictional re%uirement, even its nonpayment at the time of filing does not automatically cause the dismissal of the case, as long as the fee is paid within the applicable prescriptive or reglementary period (P+ .' vs. Lo*eD, 4&4 S 'A &68 Su! I!sur#!ce .44ice vs. Asu!cio!, 1&0 S 'A %&%). Also, if the amount of doc/et fees is insufficient considering the amount of the claim, the party filing the case will be re%uired to pay the deficiency, but 'urisdiction is not automatically lost ('iver# vs. 2el 'os#rio, +' 144,-4, 5#!. 15, %004). =n appeal. )he Rules now re%uires that appellate doc/et and other lawful fees must be paid within the same period for ta/ing an appeal. )his is clear from the opening sentence of Sec. ,, Rule ,( of the same rules that, J-ithin the period for ta/ing an appeal, the appellant shall pay to the cler/ of court which rendered the 'udgment or final order appealed from, the full amount of the appellate court doc/et and other lawful fees.K

*.

+.

,.

)he Supreme "ourt has consistently held that payment of doc/et fee within the prescribed period is mandatory for the perfection of an appeal. -ithout such payment, the appellate court does not ac%uire 'urisdiction over the sub'ect matter of the action and the decision sought to be appealed from becomes final and e$ecutor ('e)#l#"o vs. +o, +' 16&,88, 1e$. 6, %00&) . 4ence, nonpayment is a valid ground for the dismissal of an appeal ((A S#!t#!"er o!structio! vs. Vill#!uev#, +' 1-64&&, Fov. 10, %004) . 4owever, delay in the payment of the doc/et fees confers upon the court a discretionary, not a mandatory power to dismiss an appeal (Vill#/or vs. A, +' 1-6858, 5#!. %1, %004) .

<!l!n& %e(sus se(%!ce of ple" !n&s

(. *.

7iling is the act of presenting the pleading or other paper to the cler/ of court5 Service is the act of providing a party with a copy of the pleading or paper concerned (Sec. %, 'ule 1-).

Pe(!o s of f!l!n& of ple" !n&s

(.

)he date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. )he envelope shall be attached to the record of the case (Sec. -, 'ule 1-)

*"nne( of f!l!n&

(.

#y personal service or by registered mail. )he filing of pleadings, appearances, motions, notices, orders, 'udgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the cler/ of court or by sending them by registered mail. !n the first case, the cler/ of court shall endorse on the pleading the date and hour of filing. !n the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. )he envelope shall be attached to the record of the case (Sec. -, 'ule 1-).

*o es of se(%!ce

(. *. +.

)here are two modes of service of pleadings, 'udgments, motions, notices, orders, 'udgments and other papers. (a) personally, or (b) by mail. 4owever, if personal service and serviced by mail cannot be made, service shall be done by Asubstituted service<. 3ersonal service is the preferred mode of service. !f another mode of service is used other than personal service, the service must be accompanied by a written e$planation why the service of filing was not done personally. B$empt from this e$planation are papers emanating from the court. A violation of this e$planation re%uirement may be a cause for the paper to be considered as not having been filed (Sec. 11, 'ule 1-). 3ersonal service is made by. (a) delivering a copy of the papers served personally to the party or his counsel, or (b) by leaving the papers in his office with his cler/ or a person having charge thereof. !f no person is found in the office, or his office is not /nown or he has no office, then by leaving a copy of the papers at the party<s or counsel<s residence, if /nown, with a person of sufficient age and discretion residing therein between eight in the morning and si$ in the evening (Sec. 6, 'ule 1-).

Se(%!ce $. m"!l

(.

)he preferred service by mail is by registered mail. Service by ordinary mail may be done only if no registry service is available in the locality of either the sender or the addressee (Sec. &, 'ule 1-). !t shall be done by depositing the copy in the post office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if /nown, or otherwise at his residence, if /nown, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten ((;) days if not delivered.

Su$st!tute se(%!ce

(.

)his mode is availed of only when there is failure to effect service personally or by mail. )his failure occurs when the office and residence of the party or counsel is un/nown. Substituted service is effected by delivering the copy to the cler/ of court, with proof of failure of both personal service and service by mail (Sec. H, Rule (+). Substituted service is complete at the time of delivery of the copy to the cler/ of court.

Se(%!ce of 0u &ments9 f!n"l o( e(s o( (esolut!ons

(.

7inal orders or 'udgments shall be served either personally or by registered mail. -hen a party summoned by publication has failed to appear in the action, final orders or 'udgments against him shall be served upon him also by publication at the e$pense of the prevailing party (Sec. ,).

P(!o(!t!es !n mo es of se(%!ce "n f!l!n&

(. *. +. a. b. c. d. e. f. g. h. i. '.

3ersonal service is the preferred mode of service. )he preferred service by mail is by registered mail. )he following papers are re%uired to be filed in court and served upon the parties affected. Cudgments Resolutions =rders 3leadings subse%uent to the complaint -ritten motions Fotices Appearances Eemands =ffers of 'udgment Similar papers (Sec. 4, 'ule 1-).

,'en se(%!ce !s eeme complete

(. *. +.

3ersonal service is deemed complete upon the actual delivery following the above procedure (Sec. 10, 'ule 1-). Service by ordinary mail is deemed complete upon the e$piration of ten ((;) days after mailing, unless the court otherwise provides. =n the other hand, service by registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever is earlier (Sec. 8, 'ule 1-). Substituted service is complete at the time of delivery of the copy to the cler/ of court.

P(oof of f!l!n& "n se(%!ce

(. *. +.

)he filing of a pleading or paper shall be proved by its e$istence in the record of the case, if it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped ac/nowledgment of its filing by the cler/ of court in a copy of the same (Sec. 1%, 'ule 1-). !f the filing or paper is filed by registered mail, proof of filing is by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten ((;) days if not delivered (Sec. (*, Rule (+). 3roof of personal service shall consist of the written admission of the party served. !t may also be proven by the official return of the server, or the affidavit of the party serving, containing full information of the date, place and manner of service (Sec. 1-, 'ule 1-) . !f the service is by ordinary mail, proof thereof shall consist of the affidavit of the person mailing of the facts showing compliance with Sec. 1, Rule (+. !f the service is by registered mail, the proof shall consist of such affidavit and the registry receipt issued by the mailing office. )he registry return card is to be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee (Sec. 1-, 'ule 1-).

Amen ment 4Rule 1:;

Amen ment "s " m"tte( of (!&'t

(.

A plaintiff has the right to amend his complaint once at any time before a responsive pleading is served by the other party or in case of a reply to which there is no responsive pleading, at any time within ten ((;) days after it is served (Sec. %, 'ule 10). )hus, before an answer is served on the plaintiff, the latter may amend his complaint as a matter of right. )he defendant may also amend his answer, also as a matter of right, before a reply is served upon him. Sec. * refers to an amendment made before the trial court, not to amendments before the "A. the "A is vested with 'urisdiction to admit or deny amended petitions filed before it (F#v#rro V"#. 2e 7#ro/#, 4&8 S 'A --6) . 4ence, even if no responsive pleading has yet been served, if the amendment is subse%uent to a previous amendment made as a matter of right, the subse%uent amendment must be with leave of court.

Amen ments $. le"%e of cou(t

(. *.

Leave of court is re%uired for substantial amendment made after service of a responsive pleading (Sec. +, Rule (;). )he plaintiff, for e$ample, cannot amend his complaint by changing his cause of action or adding a new one without leave of court ( #lo #!" S#! 5ose vs. 'ol"#!, &6 Phil. 4458 Bue!#ve!tur# vs. Bue!#ve!tur#, ,4 Phil. 1,-). After a responsive pleading is filed, an amendment to the complaint may be substantial and will correspondingly re%uire a substantial alteration in the defenses of the adverse party. )he amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay in the proceedings. Leave of court is thus, re%uired. =n the other hand, where no responsive pleading has yet been served, no defenses would be altered. )he amendment of the pleading will not then re%uire leave of court (Si#soco vs. A, -0- S 'A 186).

<o(m"l "men ment

(.

A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no pre'udice is caused thereby to the adverse party (Sec. 4, 'ule 10).

Amen ments to confo(m to o( "ut'o(!Ce p(esent"t!on of e%! ence

(.

-hen issues not raised by the pleadings are tried with the e$press or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after 'udgment5 but failure to amend does not affect the result of the trial of these issues. !f evidence is ob'ected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial 'ustice will be subserved thereby. )he court may grant a continuance to enable the amendment to be made (Sec. 5, 'ule 10).

D!ffe(ent f(om supplement"l ple" !n&s

(. *.

A supplemental pleading is one which sets forth transactions, occurrences, or events which have happened since the date of the pleading sought to be supplemented. )he filing of supplemental pleadings re%uires leave of court. )he court may allow the pleading only upon such terms as are 'ust. )his leave is sought by the filing of a motion with notice to all parties (Sec. 6, 'ule 10). A supplemental pleading does not e$tinguish the e$istence of the original pleading, while an amended pleading ta/es the place of the original pleading. A supplemental pleading e$ists side with the original5 it does not replace that which it supplements< it does not supersede the original but assumes that the original pleading remain as the issues to be tried in the action. A supplemental pleading supplies the deficiencies in aid of an original pleading, not to entirely substitute the latter (S*s. #oili vs. A, +' 1%8-%5, Se*t. 14, 1,,,) .

Effect of "men e ple" !n&

(. *.

An amended pleading supersedes the original one which it amends (Sec. 8, 'ule 10). )he original pleading loses its status as a pleading, is deemed withdrawn and disappears from the record. !t has been held that the original complaint is deemed superseded and abandoned by the amendatory complaint only if the latter introduces a new or different cause of action (VersoD# vs. A, %,, S 'A 100). )he original pleading is superseded or disappears from the records. )he defenses in the original pleadings not reproduced in the amended pleadings are waived ((#)#s*i vs. 'e/olete, 115 S 'A 1,-).

I. SU**ONS 4Rule 1@; (() Summons is a writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein.

(*) )he service of summons enables the court to ac%uire 'urisdiction over the person of the defendant. !f there is no service of summons, any 'udgment rendered or proceedings had in a case are null and void, e$cept in case of voluntary appearance (<chev#rri# vs. P#rso!s 3#r"A#re, 51 Phil. ,80) . )he law re%uiring the manner of service of summons in 'urisdictional (7o9ot# u$#o vs. A, +' 1%6-%1, .ct. %-, 1,,&) .

N"tu(e "n pu(pose of summons !n (el"t!on to "ct!ons in personam9 in rem "n quasi in rem

(() !n an action i! *erso!#/, the purpose of summons is not only to notify the defendant of the action against him but also to ac%uire 'urisdiction over his person (6/#!"#* vs. S#$io, 5r., --, S 'A %4-) . )he filing of the complaint does not enable the courts to ac%uire 'urisdiction over the person of the defendant. #y the filing of the complaint and the payment of the re%uired filing and doc/et fees, the court ac%uires 'urisdiction only over the person of the plaintiff, not over the person of the defendant. Ac%uisition of 'urisdiction over the latter is accomplished by a valid service of summons upon him. Service of summons logically follows the filing of the complaint. Fote further that the filing of the complaint tolls the running of the prescriptive period of the cause of action in accordance with Article ((55 of the "ivil "ode. (*) !n an action i! re/ or Bu#si i! re/, 'urisdiction over the defendant is not re%uired and the court ac%uires 'urisdiction over an action as long as it ac%uires 'urisdiction over the res. )he purpose of summons in these actions is not the ac%uisition of 'urisdiction over the defendant but mainly to satisfy the constitutional re%uirement of due process (+o/eD vs. A, 4%0 S 'A ,8).

Volunt"(. "ppe"("nce (() oluntary appearance is any appearance of the defendant in court, provided he does not raise the %uestion of lac/ of 'urisdiction of the court (1lores vs. 0ur$ito, -& Phil. &468 #r$#llo vs. <!c#r!#cio!, ,% Phil. ,&4) . !t is e%uivalent to service of summons (Sec. %0). (*) An appearance is whatever form, without e$plicitly ob'ecting to the 'urisdiction of the court over the person, is a submission to the 'urisdiction of the court over the person. !t may be made by simply filing a formal motion, or plea or answer. !f his motion is for any other purpose than to ob'ect to the 'urisdiction of the court over his person, he thereby submits himself to the 'urisdiction of the court (Busue)o vs. A, L=48,55, 5u!e -0, 1,8&8 L# F#v#l 2ru) or*. vs. A, 54 S A2 ,1&) . (+) (a) (b) (c) (d) (e) (f) oluntary appearance may be in form of. oluntary appearance of attorney5 A motion, by answer, or simple manifestation (1lores vs. Sur$ito)5 A telegraphic motion for postponement (Pu!D#l#! vs. P#*ic#, 1e$. %,, 1,60) 5 7iling a motion for dissolution of attachment5 7ailure to %uestion the invalid service of summons (F#v#le vs. 7iling a motion for e$tension of time to file an answer. A, +' 10,,5&, 1e$. %0, 1,,6)5

Pe(son"l se(%!ce (() !t shall be served by handling a copy to the defendant in person, or if he refuses it, by tendering it to him (Sec. 6, 'ule 14).

Su$st!tute se(%!ce (() (a) (b) !f the defendant cannot be served within a reasonable time, service may be effected. #y leaving copies of the summons at the defendant<s dwelling house or residence with some person of suitable age and discretion then residing therein5 or #y leaving copies at defendant<s office or regular place of business with some competent person in charge thereof (Sec. &).

(*) !t may be resorted to if there are 'ustifiable causes, where the defendant cannot be served within a reasonable time (Sec. 1). An e$ample is when the defendant is in hiding and resorted to it intentionally to avoid service of summons, or when the defendant refuses without 'ustifiable reason to receive the summons (F#v#le vs. A, %5S 'A &05). (+) !n substituted service of summons, actual receipt of the summons by the defendant through the person served must be shown ((ille!!iu/ I!"ustri#l o//erci#l or*. vs. 7#!, -8- Phil. 468). !t further re%uires that where there is substituted service, there should be a report indicating that the person who received the summons in defendant<s behalf was one with whom petitioner had a relation of confidence ensuring that the latter would receive or would be notified of the summons issued in his name (A!) Pi!) vs. A, -6, Phil. 60,8 #si/i!# vs. 3o!. Le)#s*i, +' 14&5-0, 5u!e %,, %005) . (,) Substituted service is not allowed in service of summons on domestic corporations (2elt# (otor S#les or*. vs. (#!)osi!), &0 S 'A 5,8) .

Const(uct!%e se(%!ce 4$. pu$l!c"t!on; (() As a rule, summons by publication is available only in actions i! re/ or Bu#si i! re/. !t is not available as a means of ac%uiring 'urisdiction over the person of the defendant in an action i! *erso!#/.

(*) Against a resident, the recogni6ed mode of service is service in person on the defendant under Sec. : Rule (,. !n a case where the defendant cannot be served within a reasonable time, substituted service will apply (Sec. &, 'ule 14), but no summons by publication which is permissible however, under the conditions set forth in Sec. (,, Rule (,. (+) Against a non&resident, 'urisdiction is ac%uired over the defendant by service upon his person while said defendant is within the 3hilippines. As once held, when the defendant is a nonresident, personal service of summons in the state is essential to the ac%uisition of 'urisdiction over him (#anco Eo #rasil, supra). )his is in fact the only way of ac%uiring 'urisdiction over his person if he does not voluntarily appear in the action. Summons by publication against a nonresident in an action i! *erso!#/ is not a proper mode of service. (,) 3ublication is notice to the whole world that the proceeding has for its ob'ect to bar indefinitely all who might be minded to ma/e an ob'ection of any sort against the right sought to be established. !t is the publication of such notice that brings the whole world as a party in the case and vests the court with 'urisdiction to hear and decide it (Al#$#! vs. A, +' 1560%1, Se*t. %-, %005).

Se(%!ce upon " efen "nt #'e(e '!s ! ent!t. !s un+no#n o( #'e(e '!s #'e(e"$outs "(e un+no#n (() -here the defendant is designated as un/nown, or whenever his whereabouts are un/nown and cannot be ascertained despite a diligent in%uiry, service may, with prior leave of court, be effected upon the defendant, by publication in a newspaper of general circulation. )he place and the fre%uency of the publication is a matter for the court to determine (Sec. 14, 'ule 14). )he rule does not distinguish whether the action is i! *erso!#/, i! re/ or Bu#si i! re/. )he tenor of the rule authori6es summons by publication whatever the action may be as long as the identity of the defendant is un/nown or his whereabouts are un/nown. 0nder the previous rulings, 'urisdiction over the defendant in an action in personam cannot be ac%uired by the summons by publication (P#!t#leo! vs. Asu!cio!, 105 Phil. &618 o!soli"#te" Pl9A#re I!"ustries vs. Brev#, 166 S 'A 516).

Rules on Summons on Defen "nt (() (a) Resident 3resent in the 3hilippines (. *. +. 3ersonal service ('ule 14, Sec. 6) Substituted service ('ule 14, Sec. &) 3ublication, but only if (. his identity or whereabouts is un/nown ('ule 14, Sec. 14)8 #!" *. the action is in rem or %uasi in rem ( itiDe! Suret9 v. (ele!cio=3errer# , -8 S 'A -6, [1,&1]).

(b)

Absent from the 3hilippines (. *. Substituted service ('ule 14, Sec. &) B$traterritorial service ('ule 14, Sec. 16 #!" 15)8 action need not be i! re/ or Bu#si i! re/ (V#l/o!te v.

A, %5% S 'A ,% [1,,6])

(*)

Fon&resident (. 3resent in the 3hilippines (. 3ersonal service (Sec. 6, 'ule 14) *. Substituted service (Sec. &, 'ule 14) +. Absent from the 3hilippines (. Action in rem or %uasi in rem 9 only B$traterritorial service (Rule (,, Sec. (5) *. Action in personam, and 'udgment cannot be secured by attachment (e.g. action for in'unction) +. -ait for the defendant to come to the 3hilippines and to serve summons then ,. #ait the defendant to voluntarily appear in court (Rule (,, Sec. *;) 5. 3laintiff cannot resort to e$traterritorial service of summons ( G#A#s#Ci Port Services vs. A/ores , 1,, S 'A %-0 [1,,1]8 2i#l or*or#tio! vs. Sori#!o, 161 S 'A &-& [1,88]) .

Se(%!ce upon (es! ents tempo("(!l. outs! e t'e P'!l!pp!nes (() Service of summons upon a resident of the 3hilippines who is temporarily out of the country, may, by leave of court be effected out of the 3hilippines as under the rules on e$traterritorial service in Sec. (5, Rule (, by any of the following modes. (a) by personal service as in Sec. :, (b) by publication in a news paper of general circulation together with a registered mailing of a copy of the summons and the order of the court to the last /nown address of the defendant, or (c) by any manner the court may deem sufficient under Sec. (:. Li/e in the case of an un/nown defendant or one whose whereabouts are un/nown, the rule affecting residents who are temporarily out of the 3hilippines applies in any action. Fote also, that summons by publication may be effected against the defendant. (*) )he defendant may however, also be served by substituted service ((o!t#l$#! vs. (#:i/o, %% S 'A 10&0) . )his is because even if he is abroad, he has a residence in the 3hilippines or a place of business and surely, because of his absence, he cannot be served in person within a reasonable time.

E2t(")te((!to(!"l se(%!ce9 #'en "llo#e (() 0nder Sec. (5, Rule (,, e$traterritorial service of summons is proper only in four (,) instances namely.

(a) (b) (c) (d) (*) (a) (b) (c)

-hen the action affects the personal status of the plaintiffs5 -hen the action relates to, or the sub'ect of which is, property within the 3hilippines, in which the defendant has or claims a lien or interest, actual or contingent5 -hen the relief demanded in such action consists, wholly or in part, in e$cluding the defendant from any interest in property located in the 3hilippines5 and -hen the defendant non&resident<s property has been attached within the 3hilippines. B$traterritorial service of summons applies when the following re%uisites concur. )he defendant is nonresident5 4e is not found in the 3hilippines5 and )he action against him is either i! re/ or Bu#si i! re/.

(+) !f the action is i! *erso!#/, this mode of service will not be available. )here is no e$traterritorial service of summons in an action i! *erso!#/. 4ence, e$traterritorial service upon a nonresident in an action for in'unction which is in personam is not proper (G#A#s#Ci Port Service or*. vs. A/ores, 1,, S 'A %-08 B#!co 2o Br#sil vs. A, --- S 'A 545).

Se(%!ce upon p(!sone(s "n m!no(s (() =n a minor. Service shall be made on him personally and on his legal guardian if he has one, or if none, upon his guardian #" lite/ whose appointment shall be applied for by the plaintiff, or upon a person e$ercising parental authority over him, but the court may order that service made on a minor of (5 or more years of age shall be sufficient (Sec. 10)5 (*) =n prisoners. !t shall be made upon him by serving on the officer having the management of the 'ail or institution who is deemed deputi6ed as a special sheriff for said purpose (Sec. ,).

P(oof of se(%!ce (() -hen the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff<s counsel, and shall return the summons to the cler/ who issued it, accompanied by proof of service (Sec. 4, 'ule 14). (*) After the completion of the service, a proof of service is re%uired to be filed by the server of the summons. )he proof of service of summons shall be made in writing by the server and shall set forth the manner, place and date of service5 shall specify any papers which have been served with the process and the name of the person who received the same5 and shall be sworn to when made by a person other than a sheriff or his deputy (Sec. 18).

II.

*OTIONS 4Rule 18;

Def!n!t!on of *ot!on (() A motion is an application for relief other than by a pleading (Sec. 1, 'ule 15).

*ot!ons %e(sus Ple" !n&s (() A pleading is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate 'udgment (Sec. 1, 'ule 6). !t may be in the form of a complaint, counterclaim, cross&claim, third&party complaint, or complaint&in&intervention, answer or reply (Sec. %, 'ule 6). (*) A motion on the other hand is an application for relief other than a pleading (Sec. 1, 'ule 15).

Contents "n fo(m of mot!ons (() A motion shall state the order sought to be obtained, and the grounds which it is based, and if necessary shall be accompanied by supporting affidavits and other papers (Sec. -). (*) All motions must be in writing e$cept those made in open court or in the course of a hearing or trial (Sec. %).

Omn!$us *ot!on Rule

(() )he rule is a procedural principle which re%uires that every motion that attac/s a pleading, 'udgment, order or proceeding shall include all grounds then available, and all ob'ections not so included shall be deemed waived (Sec. 8). Since the rule is sub'ect to the provisions of Sec. (, Rule 2, the ob'ections mentioned therein are not deemed waived even if not included in the motion. )hese ob'ections are. (a) that the court has no 'urisdiction over the sub'ect matter, (b) that there is another action pending between the same parties for the same cause (litis *e!"e!ci#), (c) that the action is barred by a prior 'udgment (res >u"ic#t#), and (d) that the action is barred by the statute of limitations (*rescri*tio!) (Sec. 1, *#r. %, 'ule ,). (*) A motion to dismiss is a typical e$ample of a motion sub'ect to omnibus motion rule, since a motion to dismiss attac/s a complaint which is a pleading. 7ollowing the omnibus motion rule, if a motion to dismiss is filed, then the motion must invo/e all ob'ections which are available at the time of the filing of said motion. !f the ob'ection which is available at the time is not included in the motion, that ground is deemed waived. !t can no longer be invo/ed as affirmative defense in the answer which the movant may file following the denial of his motion to dismiss.

L!t!&"te "n ex parte mot!ons (() A litigated motion is one which re%uires the parties to be heard before a ruling on the motion is made by the court. Sec. , establishes the general rule that every written motion is deemed a litigated motion. A motion to dismiss ('ule 16), a motion for 'udgment for the pleadings ('ule -4), and a summary 'udgment ('ule -5), are litigated motions. (*) An e: *#rte motion is one which does not re%uire that the parties be heard, and which the court may act upon without pre'udicing the rights of the other party. )his /ind of motion is not covered by the hearing re%uirement of the Rules (Sec. %). An e$ample of an e: *#rte motion is that one filed by the plaintiff pursuant to Sec. (, Rule (H, in which he moves promptly that the case be set for pre&trial. A motion for e$tension of time is an e: *#rte motion made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the /nowledge of the other party or parties. B$ parte motions are fre%uently permissible in procedural matters, and also in situations and under circumstances of emergency5 and an e$ception to the rule re%uiring notice is sometimes made where notice or the resulting delay might tend to defeat the ob'ective of the motion (S#r/ie!to vs. 0#r#t#!, +' 16&4&1, 1e$. 5, %00&) .

P(o)fo(m" mot!ons (() )he "ourt has consistently held that a motion which does not meet the re%uirements of Sections , and 5 of Rule (5 on hearing and notice of the hearing is a mere scrap of paper, which the cler/ of court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory re%uirement, and the failure of movants to comply with these re%uirements renders their motions fatally defective (Vette I!"ustri#l S#les vs. he!), +' 1&0%-%=1&0-01, 2ec. 5, %006) . (*) A pro forma motion is one which does not satisfy the re%uirements of the rules and one which will be treated as a motion intended to delay the proceedings ((#riCi!# 2evelo*/e!t or*or#toi! vs. 1lo>o, %51 S 'A 8&) .

*ot!ons fo( =!ll of P"(t!cul"(s 4Rule 16;

Pu(pose "n #'en "ppl!e fo( (() A party<s right to move for a bill of particulars in accordance with Sec. (, Rule (* (doesn<t include matters evidentiary in nature, which are covered by 8odes of Eiscovery) when the allegations of the complaint are vague and uncertain is intended to afford a party not only a chance to properly prepare a responsive pleading but also an opportunity to prepare an intelligent answer. )his is to avert the danger where the opposing party will find difficulty in s%uarely meeting the issues raised against him and plead the corresponding defenses which if not timely raised in the answer will be deemed waived. )he proper preparation of an intelligent answer re%uires information as to the precise nature, character, scope and e$tent of the cause of action in order that the pleader may be able to s%uarely meet the issues raised, thereby circumscribing them within determined confines and preventing surprises during the trial, and in order that he may set forth his defenses which may not be so readily availed of if the allegations controverted are vague, indefinite, uncertain or are mere general conclusions. )he latter tas/ assumes significance because defenses not pleaded (save those e$cepted in Sec. *, Rule 2, and whenever appropriate, the defenses of prescription) in a motion to dismiss or in the answer are deemed waived ('e*u$lic vs. S#!"i)#!$#9#!, +' 115&48, Au). &, 1,,6) . (*) )he purpose of the motion is to see/ an order from the court directing the pleader to submit a bill of particulars which avers matters with Asufficient definitiveness or particularity< to enable the movant to prepare his responsive pleading (Sec. (, Rule (*), not to enable the movant to prepare for trial. )he latter purpose is the ultimate ob'ective of the discovery procedures from Rules *+ to *2 and ever of a pre&trial under Rule (H. !n other words, the function of a bill of particulars is to clarify the allegations in the pleading so an adverse party may be informed with certainty of the e$act character of a cause of action or a defense. -ithout the clarifications sought by the motion, the movant may be deprived of the opportunity to submit an intelligent responsive pleading. (+) A motion for a bill of particulars is to be filed before, not after responding to a pleading (Sec. 1, 'ule 1%). )he period to file a motion refers to the period for filing the responsive pleading in Rule ((. )hus, where the motion for bill of particulars is directed to a complaint, the motion should be filed within fifteen ((5) days after service of summons. !f the motion is directed to a counterclaim, then the same must be filed within ten ((;) days from service of the counterclaim which is the period provided for by Sec. ,, Rule (( to answer a counterclaim. (,) !n case of a reply to which no responsive pleading is provided for by the Rules, the motion for bill of particulars must be filed within ten ((;) days of the service of said reply (Sec. 1, 'ule 1%).

Act!ons of t'e cou(t (() 0pon receipt of the motion which the cler/ of court must immediately bring to the attention of the court, the latter has three possible options, namely. (a) to deny the motion outright, (b) to grant the motion outright or (c) to hold a hearing on the motion.

Compl!"nce #!t' t'e o( e( "n effect of non)compl!"nce (() !f a motion for bill of particulars is granted, the court shall order the pleader to submit a bill of particulars to the pleading to which the motion is directed. )he compliance shall be effected within ten ((;) days from notice of the order, or within the period fi$ed by the court (Sec. -, 'ule 1%). (*) !n complying with the order, the pleader may file the bill of particulars either in a separate pleading or in the form or an amended pleading (Sec. -, 'ule 1%). )he bill of particulars submitted becomes part of the pleading for which it is intended (Sec. 6, 'ule 1%). (+) !f the order to file a bill of particulars is not obeyed, or in case of insufficient compliance therewith, the court may order (a) the stri/ing out of the pleading (b) or the portions thereof to which the order was directed (c) or ma/e such other order as it deems 'ust (Sec. 4).

Effect on t'e pe(!o to f!le " (espons!%e ple" !n& (() A motion for bill of particulars is not a pleading hence, not a responsive pleading. -hether or not his motion is granted, the movant may file his responsive pleading. -hen he files a motion for #=3, the period to file the responsive pleading is stayed or interrupted. After service of the bill of particulars upon him or after notice of the denial of his motion, he may file his responsive pleading within the period to which he is entitled to at the time the motion for bill of particulars is filed. !f he has still eleven ((() days to file his pleading at the time the motion for #=3 is filed, then he has the same number of days to file his responsive pleading from the service upon him of the #=3. !f the motion is denied, then he has the same number of days within which to file his pleading counted from his receipt of the notice of the order denying his motion. !f the movant has less than five (5) days to file his responsive pleading after service of the bill of particulars or after notice of the denial of his motion, he nevertheless has five (5) days within which to file his responsive pleading. (Sec.5, 'ule 1%). (*) A seasonable motion for a bill of particulars interrupts the period within which to answer. After service of the bill of particulars or of a more definite pleading, of after notice of denial of his motion, the moving party shall have the same time to serve his responsive pleading, if any is permitted by the rules, as that to which he was entitled at the time of serving his motion, but no less than five (5) days in any event (7#! vs. S#!"i)#$#9#!, +' 841,5, 2ec. 11, 1,8,8 Sec. 5) .

*ot!on to D!sm!ss 4Rule 1>; (() A motion to dismiss is not a pleading. !t is merely a motion. !t is an application for relief other than by a pleading (Sec. 1, 'ule 15). )he pleadings allowed under the Rules are. (a) complaint, (b) answer, (c) counterclaim, (d) cross&claim, (e) third (fourth, etc.) 9party complaint, (f) complaint in intervention (Sec. %, 'ule 6), and reply (Sec. 10, 'ule 6). A motion is not one of those specifically designated as a pleading. G(oun s (() (a) (b) (c) (d) (e) (f) (g) (h) (i) (') 0nder Sec. (, Rule (:, a motion to dismiss may be filed on any of the following grounds. )he court has no 'urisdiction over the person of the defending party5 )he court has no 'urisdiction over the sub'ect matter of the claim5 )he venue is improperly laid5 )he plaintiff has no legal capacity to sue5 )here is another action pending between the same parties and for the same cause ( lis *e!"e!s)5 )he cause of action is barred by a prior 'udgment ( res >u"ic#t#) or by the statute of limitations (prescription)5 )he pleading asserting the claim states no cause of action5 )he claim or demand set forth in the plaintiff<s pleading has been paid, waived, abandoned, or otherwise e$tinguished5 )he claim on which the action is founded is unenforceable under the provisions of the statute of frauds5 and A condition precedent for filing the action has not been complied with.

(*) )he language of the rule, particularly on the relation of the words JabandonedK and Jotherwise e$tinguishedK to the phrase Jclaim or demand deemed set forth in the plaintiff<s pleadingK is broad enough to include within its ambit the defense of bar by laches. 4owever, when a party moves for the dismissal of the complaint based on laches, the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the %uestions of law but also their evidence on the %uestions of fact involved. )hus, being factual in nature, the elements of laches must be proved or disproved through the presentation of evidence by the parties (Pi!e"# vs. 3eirs o4 <liseo +uev#r#, +' 14-188, 1e$. 14, %00&) .

Resolut!on of mot!on

(() After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. )he court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. !n every case, the resolution shall state clearly and distinctly the reasons therefor (Sec. -). (*) (() (*) (+) =ptions of the court after hearing 9 but not to defer the resolution of the motion for the reason that the ground relied upon is not indubitable. dismiss the action or claim5 deny the motion to dismiss5 or order amendment of the pleading.

Reme !es of pl"!nt!ff #'en t'e compl"!nt !s !sm!sse (() !f the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the defendant has several options.

(a) Refile the complaint, depending upon the ground for the dismissal of the action. 7or instance, if the ground for dismissal was anchored on improper venue, the defendant may file the action in the proper venue. (b) Appeal from the order of dismissal where the ground relied upon is one which bars the refiling of the complaint li/e res 'udicata, prescription, e$tinguishment of the obligation or violation of the statute of frauds (Sec. 5, Rule (:). Since the complaint cannot be refiled, the dismissal is with pre'udice. 0nder Sec. (?h@, Rule ,(, it is an order dismissing an action without pre'udice which cannot be appealed from. "onversely, where the dismissal is with pre'udice, an appeal from the order of dismissal is not precluded. 4owever, where the ground for dismissal for instance, is the failure of the complaint to state cause of action, the plaintiff may simply file the complaint anew5 but since the dismissal is without pre'udice to its refilling, the order of dismissal cannot be appealed from under the terms of Sec. (?h@, Rule ,(. (c) 3etition for certiorari is availed of if the court gravely abuses its discretion in a manner amounting to lac/ of 'urisdiction and is the appropriate remedy in those instances when the dismissal is without pre'udice (Sec. 1, 'ule 41).

Reme !es of t'e efen "nt #'en t'e mot!on !s en!e (() 7ile answer within the balance of the period prescribed by Rule (( to which he was entitled at the time of serving his motion, but not less than five (5) days in any event (Sec. 4, 'ule 16). As a rule, the filing of an answer, going through the usual trial process, and the filing of a timely appeal from an adverse 'udgment are the proper remedies against a denial of a motion to dismiss. )he filing of an appeal from an order denying a motion to dismiss is not the remedy prescribed by e$isting rules. )he order of denial, being interlocutory is not appealable by e$press provision of Sec (?c@, Rule ,(. (*) "ivil action under Rule :5. )his remedy however is predicated upon an allegation and a showing that the denial of the motion was tainted with grave abuse of discretion amounting to lac/ of 'urisdiction. -ithout such showing, Rule :5 cannot be availed of as a remedy. (+) )he general rule is that the denial of a motion to dismiss cannot be %uestioned in a special civil action for certiorari which is a remedy designed to correct errors of 'urisdiction and not errors of 'udgment. Feither can a denial of a motion to dismiss be the sub'ect of an appeal unless and until a final 'udgment or order is rendered. !n order to 'ustify the grant of the e$traordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lac/ or e$cess of 'urisdiction (2ou)l#s Lu H/ vs. +ertru"es F#$u#, +r 161-0,, 1e$. %-, %005) . (,) 7ile an appeal, because by the clear language of Sec. 5, the dismissal is sub'ect to the right of appeal. )his remedy is appropriate in the instances where the defendant is barred from refiling the same action of claim if the dismissal is based on the following grounds. (a) (b) (c) (d) )he cause of action is barred by a prior 'udgment )he cause of action is barred by the statute of limitations )he claim or demand has been paid, waived, abandoned or otherwise e$tinguished )he claim on which the action is founded is unenforceable under the provisions of the statute of frauds.

(5) )he denial of a motion to dismiss is interlocutory, hence, the remedy is to file an answer, proceed to trial, and await 'udgment before interposing an appeal. )he denial should be raised as an error of the trial court on appeal. ertior#ri is not the proper remedy. A writ of certior#ri is not intended to correct every controversial interlocutory ruling. !t is resorted to only to correct a grave abuse of discretion or a whimsical e$ercise of 'udgment e%uivalent to lac/ of 'urisdiction. !ts function is limited to /eeping an inferior court within its 'urisdiction and to relieve persons from arbitrary acts, acts which courts or 'udges have no power or authority in law to perform. !t is not designed to correct erroneous findings and conclusions made by the courts (Bo!i4#cio o!structio! (#!#)e/e!t or*. vs. 3o!. <stel# Ber!#$e, +' 1481&4, 5u!e -0, %005).

Effect of !sm!ss"l of compl"!nt on ce(t"!n &(oun s (() 7ailure to state cause of action 9 defendant hypothetically admits all the averments thereof. )he test of sufficiency of the facts found in a complaint as constituting a cause of action is whether or not admitting the facts alleged, the court can render a valid 'udgment upon the same in accordance with the prayer thereof. )he hypothetical admission e$tends to the relevant and material facts well pleaded in the complaint and inferences fairly deducible therefrom. 4ence, if the allegations in the complaint can be maintained, the same should not be dismissed regardless of the defense that may be assessed by the defendant (2#v#o Li)ht #!" PoAer o. vs.3o!. 5u")e, 2#v#o it9 '7 , +' 14&058, (#rch 10, %005).

(*) -hen the complaint is dismissed on the grounds of prior 'udgment or by the statute of limitations, or payment, waiver, abandonment or e$tinguishment of the claim or unenforceability of the cause of action under the statute of frauds, the dismissal shall bar the refiling of the same action or claim, but this is without pre'udice to the right of the other party to appeal from the order of dismissal because such dismissal is a final order, not merely interlocutory (Sec. 5).

,'en &(oun s ple" e "s "ff!(m"t!%e efenses (() !f no motion to dismiss has been filed, any of the grounds provided for dismissal may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, 'ule 16). (*) !mplied under Sec. :, Rule (: is that the grounds for a motion to dismiss are not waived even if the defendant fails to file a motion to dismiss because he may still avail of the defenses under Rule (: as affirmative defenses in his answer. (+) )he preliminary hearing authori6ed on the affirmative defenses raised in the answer, applies only if no motion to dismiss has been filed. As a rule, a preliminary hearing is not authori6ed when a motion to dismiss has been filed. An e$ception previously carved out as if the trial court had not categorically resolved the motion to dismiss. Another e$ception would be 'ustified under the liberal construction rule as when it is evident that the action is barred by res >u"ic#t#. A strict application of Sec. : would accordingly lead to absurdity when an obviously barred complaint continues to be litigated. )he denial of a motion to dismiss does not preclude any future reliance on the grounds relied thereupon (S*s. '#s"#s vs. S*s. Vill#, +' 15&605, 2ec. 1-, %005) .

="( $. !sm!ss"l (() 'es >u"ic#t# as a ground for dismissal is based on two grounds, namely. (a) public policy and necessity, which ma/es it to the interest of the State that there should be an end to litigation (re*u$lic#e ut sit litiu/) 5 and (b) the hardship on the individual of being ve$ed twice for the same cause (!e/o "e$et $is ve:#ri et e#"e/ c#us#) . Accordingly, courts will simply refuse to reopen what has been decided. )hey will not allow the same parties or their privies to litigate anew a %uestion once it has been considered and decided with finality. Litigations must end and terminate sometime and somewhere. )he effective and efficient administration of 'ustice re%uires that once a 'udgment has become final, the prevailing party should not be deprived of the fruits of the verdict by subse%uent suits on the same issues filed by the same parties (1ells, I!c. vs. Prov. o4 B#t#!)#s, +' 16855&, 1e$. 1,, %00&) . (*) 'es >u"ic#t# comprehends two distinct concepts. (a) bar by a former 'udgment, and (b) conclusiveness of 'udgment (3eirs o4 Ie!cesl#o 7#$i# vs. A, +' 1%,-&& ; 1%,-,,, 1e$. %%, %00&). )he first concept bars the prosecution of a second action upon the same claim, demand or cause of action. )he second concept states that a fact or %uestion which was in issue in a former suit and was there 'udicially passed upon and determined by a court of competent 'urisdiction, is conclusively settled by the 'udgment therein as far as the parties to that action and persons in privity with them are concerned and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent 'urisdiction on either the same or different cause of action, while the 'udgment remains unreversed by proper authority ((or#)# vs. S*ouses So/o, +' 166&81, Se*t. 5, %006) . (+) (a) (b) (c) (d) >rounds for dismissal that bar refiling cause of action is barred by a prior 'udgment5 cause of action is barred by the statute of limitations5 claim or demand set forth in the plaintiff<s pleading has been paid, waived, abandoned, or otherwise e$tinguished5 claim is unenforceable under the statute of frauds.

D!st!n&u!s'e f(om Demu((e( to E%! ence (Rule 33) (() Eemurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his case on the ground of insufficiency of evidence. !t may be filed after the plaintiff has completed the presentation of his evidence. !t is an aid or instrument for the e$peditious termination of an action similar to a motion to dismiss, which the court or tribunal may either grant or deny. (*) (a) (b) (c) Eistinctions. A motion to dismiss is usually filed before the service and filing of the answer5 a demurrer to evidence is made after the plaintiff rests his case5 A motion to dismiss is anchored on many grounds5 a demurrer is anchored on one groundMplaintiff has no right to relief5 and !f a motion to dismiss is denied, the defendant may file his responsive pleading5 in a demurrer, the defendant may present his evidence.

III. DIS*ISSAL O< ACTIONS 4Rule 17;

D!sm!ss"l upon not!ce $. pl"!nt!ff (() Be4ore the service of an answer or the service of a motion for summary 'udgment, a complaint may be dismissed by the plaintiff by filing a !otice o4 "is/iss#l . 0pon the filing of the notice of dismissal, the court shall issue an order confirming the dismissal. (Sec. (, Rule (1). (*) it is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order implies, said order merely confirms a dismissal already effected by the filing of the notice of dismissal. )he court does not have to approve the dismissal because it has no discretion on the matter. #efore an answer or a motion for summary 'udgment has been served upon the plaintiff, the dismissal by the plaintiff by the filing of the notice is a matter of right. )he dismissal occurs as of the date of the notice is filed by the plaintiff and not the date the court issues the order confirming the dismissal. (+) 0nder the clear terms of Sec. (, Rule (1, the dismissal as a matter of right ceases when an answer or a motion for summary 'udgment is served on the plaintiff and not when the answer or the motion is filed with the court. )hus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is still a matter of right.

T#o) !sm!ss"l (ule (() )he two&dismissal rule applies when the plaintiff has (a) twice dismissed actions, (b) based on or including the same claim, (c) in a court of competent 'urisdiction. )he second notice of dismissal will bar the refiling of the action because it will operate as an ad'udication of the claim upon the merits. !n other words, the claim may only be filed twice, the first being the claim embodied in the original complaint. Since as a rule, the dismissal is without pre'udice, the same claim may be filed. !f the refilled claim or complaint is dismissed again through a second notice of dismissal, that second notice triggers the application of the two&dismissal rule and the dismissal is to be deemed one with pre'udice because it is considered as an ad'udication upon the merits.

D!sm!ss"l upon mot!on $. pl"!nt!ff (() =nce either an answer or motion for summary 'udgment has been served on the plaintiff, the dismissal is no longer a matter of right and will re%uire the filing of a motion to dismiss, not a mere notice of dismissal. )he motion to dismiss will now be sub'ect to the approval of the court which will decide on the motion upon such terms and conditions as are 'ust (Sec. %, 'ule 1&). )he dismissal under Sec. * is no longer a matter of right on the part of the plaintiff but a matter of discretion upon the court.

Effect of !sm!ss"l upon e2!st!n& counte(cl"!m (() !f a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff<s motion to dismiss, and the court grants said motion to dismiss, the dismissal Jsh#ll $e li/ite" to the co/*l#i!tJ (Sec. %, 'ule 1&) . )he phraseology of the provision is clear. the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because the rule ma/es no distinction. )he defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen ((5) days from the notice of the plaintiff<s motion to dismiss. Should he opt to prosecute his counterclaim in a separate action, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. (*) A similar rule is adopted in Sec. :, Rule (: and Sec. +, Rule (1, wherein the dismissal of the counterclaim does not carry with it the dismissal of the counterclaim. )he same provision also grants the defendant a choice in the prosecution of his counterclaim.

D!sm!ss"l ue to t'e f"ult of pl"!nt!ff (() A complaint may be dismissed even if the plaintiff has no desire to have the same dismissed. )he dismissal is this case will be through reasons attributed to his fault. Sec. *, Rule (1 provides the following grounds for dismissal. (a) (b) (c) (d) 7ailure of the plaintiff, without 'ustifiable reasons, to appear on the date on the date of the presentation of his evidence in chief5 7ailure of the plaintiff to prosecute his action for an unreasonable length of time5 7ailure of the plaintiff to comply with the Rules of "ourt5 or 7ailure of the plaintiff to obey any order of the court.

(*) )he dismissal due to the fault of the plaintiff may be done by the court /otu *ro*io or upon a motion filed by the defendant (Sec. *, Rule (1). )he court may dismiss an action /otu *ro*io. (a) (b) (c) (d) 7ailure to prosecute for unreasonable length of time5 7ailure to appear at the trial5 7ailure to comply with the rules5 7ailure to comply with the order of the court5 and

(e)

Lac/ of 'urisdiction.

D!sm!ss"l of counte(cl"!m9 c(oss)cl"!m o( t'!( )p"(t compl"!nt (() )he rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross&claim, or third&party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. (, Rule (1 shall be made before a responsive pleading or a motion for summary 'udgment is served or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4).

IV. PRE)TRIAL 4Rule17; Concept of p(e)t(!"l (() After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move e$ parte that the case be set for pre&trial.

N"tu(e "n pu(pose (() )he conduct of a pre&trial is mandatory. 3re&trial is a procedural device intended to clarify and limit the basic issues between the parties. !t thus paves the way for a less cluttered trial and resolution of the case. !ts main ob'ective is to simplify, abbreviate and e$pedite trial, or totally dispense with it (A$u$#C#r vs. A$u$#C#r, -1& S 'A %64). !t is a basic precept that the parties are bound to honor the stipulations made during the pre&trial (I!terli!i!) or*. vs. Phil. 7rust o., +' 1441,0, (#rch 6, %00%) . (*) (a) (b) (c) (d) (e) (f) (g) (h) (i) 3re&trial is a procedural device held prior to the trial for the court to consider the following purposes. )he possibility of an amicable settlement or a submission to alternative modes of dispute resolution5 Simplification of issues5 Fecessity or desirability of amendments to the pleadings5 3ossibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof5 Limitation of the number of witnesses5 Advisability of a preliminary reference of issues to a commissioner5 3ropriety of rendering 'udgment on the pleadings, or summary 'udgment, or of dismissing the action should a valid ground therefor be found to e$ist5 Advisability or necessity of suspending the proceedings5 and =ther matters as may aid in the prompt disposition of the action (Sec. %, 'ule 18).

Not!ce of p(e)t(!"l (() )he notice of pre&trial shall be served on the counsel of the party if the latter is represented by counsel. =therwise, the notice shall be served on the party himself. )he counsel is charged with the duty of notifying his client of the date, time and place of the pre&trial (Sec. -, 'ule 18). (*) Fotice of pre&trial is so important that it would be grave abuse of discretion for the court for e$ample, to allow the plaintiff to present his evidence e: *#rte for failure of the defendant to appear before the pre&trial who did not receive through his counsel a notice of pre&trial. Accordingly, there is no legal basis for a court to consider a party notified of the pre&trial and to consider that there is no longer a need to send notice of pre&trial merely because it was his counsel who suggested the date of pre&trail (A)ulto vs. 7ucso!, 4&6 S 'A -,5). Appe"("nce of p"(t!es? effect of f"!lu(e to "ppe"( (() !t shall be the duty of both the parties and their counsels to appear at the pre&trial (Sec. 4, 'ule 18).

(*) )he failure of the plaintiff to appear shall be cause for the dismissal of the action. )his dismissal shall be with pre'udice e$cept when the court orders otherwise (Sec. 5, 'ule 18). Since the dismissal of the action shall be with pre'udice, unless otherwise provided, the same shall have the effect of an ad'udication on the merits thus, final. )he remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with pre'udice is appealable. 0nder the Rules, it is only when the order of dismissal is without pre'udice, that appeal cannot be availed of (Sec. 1[h], 'ule 41). Since appeal is available, certior#ri is not the remedy because the application of a petition for certior#ri under Rule :5 is conditioned upon the absence of appeal or any plain, speedy and ade%uate remedy (Sec. 1, 'ule 65). (+) )he failure of the defendant to appear shall be cause to allow the plaintiff to present his evidence e: *#rte and for the court to render 'udgment on the basis of the evidence presented by the plaintiff (Sec. 5, 'ule 18). )he order of the court allowing the plaintiff to present his evidence e: *#rte does not dispose of the case with finality. )he order is therefore, merely interlocutory5 hence, not appealable. 0nder Sec. ((c) of Rule ,(, no appeal may be ta/en from an interlocutory order. )he defendant who feels aggrieved by the order may move for the reconsideration of the order and if the denial is tainted with grave abuse of discretion, he may file a petition for certior#ri.

P(e)t(!"l $(!ef? effect of f"!lu(e to f!le (() )he parties shall file with the court their respective pre&trial briefs which shall be received at least three (+) days before the date of the pre&trial. )his pre&trial brief shall be served on the adverse party (Sec. 6, 'ule 18). (*) (a) (b) (c) (d) (e) (f) )he pre&trial brief shall contain the following matters. A statement of their willingness to enter into an amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof5 A summary of admitted facts and proposed stipulation of facts5 )he issues to be tried or resolved5 )he documents or e$hibits to be presented, stating the purposes thereof5 A manifestation of their having availed of or their intention to avail of discovery procedures or referral to commissioners5 and )he number and names of the witnesses, and the substance of their respective testimonies (Sec.6, 'ule 18).

(+) 7ailure to file the pre&trial brief shall have the same effect as failure to appear at the pre&trial (Sec. 6, 'ule 18). 4ence, if it is the plaintiff who fails to file a pre&trial brief, such failure shall be cause for dismissal of the action. !f it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidence e: *#rte. A pre&trial brief is not re%uired in a criminal case. D!st!nct!on $et#een p(e)t(!"l !n c!%!l c"se "n p(e)t(!"l !n c(!m!n"l c"se (() )he pre&trial in a civil case is set when the plaintiff moves e: *#rte to set the case for pre&trial (Sec.1, 'ule 18). )he pre&trial in criminal case is ordered by the court and no motion to set the case for pre&trial is re%uired from either the prosecution or the defense (Sec. 1, 'ule 118). (*) )he motion to set the case for pre&trial in a civil case is made after the last pleading has been served and filed (Sec. 1, 'ule 18). !n a criminal case, the pre&trial is ordered by the court after arraignment and within thirty (+;) days from the date the court ac%uires 'urisdiction over the person of the accused (Sec. 1, 'ule 118). (+) )he pre&trial in a civil case considers the possibility of an amicable settlement as an important ob'ective (Sec. %[#], 'ule 18) . )he pre&trial in a criminal case does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes (Sec.1, 'ule 118). (,) !n a civil case, the agreements and admissions made in the pre&trial are not re%uired to be signed by the parties and their counsels. )hey are to be contained in the record of pre&trial and the pre&trial order (Sec. &, 'ule 18). !n a criminal case, all agreements or admissions made or entered during the pre&trial conference shall be reduced in writing and signed by the accused and counsel5 otherwise, they cannot be used against the accuse (Sec. %, 'ule 118). (5) )he sanctions for non&appearance in a pre&trial are imposed upon the plaintiff or the defendant in a civil case (Sec. 4, 'ule 18). )he sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor (Sec. -, 'ule 118). C!%!l P(e)t(!"l 8andatory 3resence of defendant and counsel mandatory Amicable settlement is discussed C(!m!n"l P(e)t(!"l 8andatory Accused need not be present, but his counsel must be present, otherwise he may be sanctioned Amicable settlement is not discussed, unless the criminal case is covered by summary procedure

Agreement included in pre&trial order need not be inAgreements or admissions must be written and signed by the writing accused and counsel to be admissible against him. "an have proffer of evidence 3roffer of evidence only after trial

Alte(n"t!%e D!spute Resolut!on 4ADR; (() !f the case has already filed a complaint with the trial court without prior recourse to arbitration, the proper procedure to enable an arbitration panel to resolve the parties< dispute pursuant to the contract is for the trial court to stay the proceedings. After the arbitration proceeding has already been pursued and completed, then the trial court may confirm the award made by the arbitration panel (1iest# Iorl" (#ll or*. vs. Li!$er) Phils. I!c., +' 15%4&1, Au). 18, %006) . (*) (a) (b) A party has several 'udicial remedies available at its disposal after the Arbitration "ommittee denied its 8otion for Reconsideration. !t may petition the proper R)" to issue an order vacating the award on the grounds provided for under Sec. *, of the Arbitration Law5 7ile a petition for review under Rule ,+ with the "ourt of Appeals on %uestions of fact, of law, or mi$ed %uestions of fact and law (Sec. 41, A2')5

(c) 7ile a petition for certior#ri under Rule :5 on the ground that the Arbitration "ommittee acted without or in e$cess of its 'urisdiction or with grave abuse of discretion amounting to lac/ or e$cess of 'urisdiction (I!sul#r S#vi!)s B#!C vs. 1#r <#st B#!C #!" 7rust o., +' 141818, 5u!e %%, %006) .

V.

INTERVENTION 4Rule 15;

(() !ntervention is a legal proceeding by which a person who is not a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and re%uirements set by the Rules. )his third person who intervenes is one who is not originally impleaded in the action (1irst Phili**i!e 3ol"i!)s or*. S#!"i)#!$#9#!, %5- S 'A -08 'ule 1,) . (*) !ntervention is merely a collateral or accessory or ancillary to the principal action ad not an independent proceeding. -ith the final dismissal of the original action, the complaint in intervention can no longer be acted upon. Re1u!s!tes fo( !nte(%ent!on (() )he following re%uisites must be complied with before a non&party may intervene in a pending action.

(a) )here must be a motion for intervention filed $e4ore rendition of 'udgment by the trial court (Sec. 1, 'ule 1,). A motion is necessary because leave of court is re%uired before a person may be allowed to intervene. (b) (() (*) )he movant must show in his motion that he has. A legal interest in the matter in litigation, the success of either of the parties in the action, or against both parties5 )hat the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof5 and

(+) )hat the intervention must not only unduly delay or pre'udice the ad'udication of the rights of the original parties and that the intervenor<s rights may not be fully protected in a separate proceeding ((#$#9o 1#r/s, I!c. vs. A, +' 140058, Au). 1, %00%) .

T!me to !nte(%ene (() )he motion to intervene may be filed at any time before the rendition of 'udgment by the trial court (Sec. %, 'ule 18). !ntervention after trial and decision can no longer be permitted (H#u vs. (#!il# B#!Ci!) or*., +' 1%6&-1, 5ul9 11, %00%) . Reme . fo( t'e en!"l of mot!on to !nte(%ent!on (() )he remedy of the aggrieved party is appeal. (#!"#/us will not lie e$cept in case of grave abuse of discretion.

VI. SU=POENA 4Rule 61; (() Su$poen" is a process directed to a person re%uiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted under the laws of the 3hilippines, or for ta/ing of his deposition (Sec. 1, 'ule %1). (*) Su$poen" duces tecum is a process directed to a person re%uiring him to bring with him at the hearing or trial of an action any boo/s, documents, or other things under his control. (+) Su$poen" ad testificandum is a process by which the court, at the instance of a party, commands a witness who has in his possession or control some document or paper that is pertinent to the issues of a pending controversy to produce it as the trial (Bl#cC@s L#A 2isctio!#r9, 5th <".).

Se(%!ce of su$poen" (() !t shall be made in the same manner as personal or substituted service of summons. )he original shall be e$hibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day<s attendance and the /ilometrage allowed by the Rules, e$cept that when a subpoena is issued by or on behalf of the Republic, or an officer or agency thereof, the tender need not be made. )he service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. !f the subpoena is "uces tecu/, the reasonable cost of producing the boo/s, documents or things demanded shall alsp be tendered. (*) Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authori6ed, who is not a party and is not less than eighteen ((H) years of age (Sec. 6, 'ule %1).

Compell!n& "tten "nce of #!tnesses? Contempt (() !n case of failure of a witness to attend, the court or 'udge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is re%uired, and the cost of such warrant and sei6ure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without 'ust cause (Sec. 8).

(*) 7ailure by any person without ade%uate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. !f the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule (Sec. ,).

Du"s'!n& of su$poen" (() )he court may %uash a subpoena "uces tecu/ upon motion promptly made and, in any event, at or before the time specified therein. (a) if it is unreasonable and oppressive, or (b) the relevancy of the boo/s, documents or things does not appear, or (c) if the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. 4). (*) Subpoena #" testi4ic#!"u/ may be %uashed on the ground that the witness is not bound thereby. !n either case, the subpoena may be %uashed on the ground that the witness fees and /ilometrage allowed by the Rules were not tendered when the subpoena was served (Sec. 4).

VII. *ODES O< DISCOVERE 4Rules 6B)67; (() (a) (b) (c) (d) (e) (f) 8odes of discovery. Eepositions pending action (Rule *+)5 Eepositions before action or pending appeal (Rule *,)5 !nterrogatories to parties (Rule *5) Admission by adverse party (Rule *:)5 3roduction or inspection of documents and things (Rule *1)5 and 3hysical and mental e$amination of persons (Rule *H).

(*) )he importance of the rules of discovery is that they shorten the period of litigation and speed up ad'udication. )he evident purpose is to enable the parties, consistent with recogni6ed principles, to obtain the fullest possible /nowledge of the facts and issues before civil trials and thus prevent said trials from being carried on in the dar/. )he rules of discovery serve as (a) devices, along with the pre&trial hearing under Rule (H, to narrow and clarify the basis issues between the parties5 and (b) devices for ascertaining the facts relative to those issues ('e*u$lic vs. S#!"i)#!$#9#!, %04 S 'A %1%). (+) (a) (b) (c) (d) (e) )he basic purposes of the rules of discovery are. )o enable a party to obtain /nowledge of material facts within the /nowledge of the adverse party or of third parties through depositions5 )o obtain /nowledge of material facts or admissions from the adverse party through written interrogatories5 )o obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through re%uests for admissions5 )o inspect relevant documents or ob'ects, and lands or other property in the possession and control of the adverse party5 and )o determine the physical or mental condition of a party when such is in controversy (Goh vs. IA , 144 S 'A %5,).

Depos!t!ons Pen !n& Act!on 4Rule 6B; Depos!t!ons $efo(e "ct!on o( pen !n& "ppe"l *e"n!n& of Depos!t!on (() A deposition is the ta/ing of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. )his testimony is ta/en out of court. !t may be either by oral e$amination, or by a written interrogatory (Sec. 1, 'ule %-). (*) (a) (b) Uses Ninds of depositions. Eeposition "e $e!e esse 9 one ta/en pending action (Sec. 1, 'ule %-)5 and Eeposition i! *er*etu# rei /e/ori#/ 9 one ta/en prior to the institution of an apprehended or intended action ('ule 1-4).

(() A deposition may be sought for use in a future action ('ule %4), during a pending action ('ule %-), or for use in a pending appeal ('ule %4). !f the deposition is for use during a pending action, it is commonly called a "e*ositio! benne esse and is governed by Rule *+. !f it is to perpetuate a testimony for use in future proceedings as when it is sought before the e$istence of an action, or for cases on appeal, it is called a deposition i! perpetuam rei memoriam . Any or all of the deposition, so far as admissible under the rules of evidence, may be used (a) against any party who was present or represented at the ta/ing of the deposition, or (b) against one who had due notice of the deposition (Sec. 4, 'ule %-). (*) (a) (b) (c) (() )he deposition may be used for the following purposes. 7or contradicting or impeaching the testimony of the deponent as a witness5 7or any purpose by the adverse party where the deponent is a party5 7or any purpose by any party, where the deponent is a witness if the court finds that. )he witness is dead5

(*) )he witness resides more than (;; /ilometers from the place of trial or hearing, or is out of the 3hilippines, unless it appears that his absence was procured by the party offering the deposition5 (+) (,) (5) )hat the witness is unable to attend or testify because of age, sic/ness, infirmity, or imprisonment5 or )hat the party offering the deposition has been unable to procure the attendance of witnesses by subpoena5 or -hen e$ceptional circumstances e$ist (Sec. 4, 'ule %-).

Scope of e2"m!n"t!on (() 0nless otherwise ordered by the court as provided by Sec. (: or (H, the deponent may be e$amined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any other party, including the e$istence, description, nature, custody, condition, and location of any boo/s, documents, or other tangible things and the identity and location of persons having /nowledge of relevant facts (Sec. %).

,'en m". O$0ect!ons to A m!ss!$!l!t. $e *" e (() Sub'ect to the provisions of Sec. *2, ob'ection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would re%uire the e$clusion of the evidence if the witness were then present and testifying (Sec. 6). ,'en m". t"+!n& of epos!t!on $e te(m!n"te o( !ts scope l!m!te (() At any time during the ta/ing of the deposition, on motion or petition of any party or of the deponent and upon showing that the e$amination is being conducted in bad faith or in such manner as reasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the R)" of the place where the deposition is being ta/en may order the officer conducting the e$amination to cease forthwith from ta/ing the deposition, or may limit the scope and manner of the ta/ing of the deposition, as provided in Sec. (:, Rule *+. !f the order made terminates the e$amination, it shall be resumed thereafter only upon the order of the court in which the action is pending. 0pon demand of the ob'ecting party or deponent, the ta/ing of the deposition shall be suspended for the time necessary to ma/e a notice for an order. !n granting or refusing such order, the court may impose upon either party or upon the witness the re%uirement to pay such costs or e$penses as the court may deem reasonable (Sec. 18).

,(!tten !nte((o&"to(!es to " %e(se p"(t!es Conse1uences of (efus"l to "ns#e( (() !f a party or other deponent refuses to answer any %uestion upon oral e$amination, the e$amination may be completed on other matters or ad'ourned as the proponent of the %uestion may prefer. )he proponent may thereafter apply to the proper court of the place where the deposition is being ta/en, for an order to compel an answer. )he same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules *+ or *5. !f the application is granted, the court shall re%uire the refusing party or deponent to answer the %uestion or interrogatory and if it also finds that the refusal to answer was without substantial 'ustification, it may re%uire the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable e$penses incurred in obtaining the order, including attorney<s fees. !f the application is denied and the court finds that it was filed without substantial 'ustification, the court may re%uire the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable e$penses incurred in opposing the application, including attorney<s fees (Sec. 1, 'ule %,). (*) !f a party or other witness refuses to be sworn or refuses to answer any %uestion after being directed to do so by the court of the place in which the deposition is being ta/en, the refusal may be considered a contempt of that court (Sec. %, 'ule %,).

(+) !f any party or an officer or managing agent of a party refuses to obey an order made under section ( of this Rule re%uiring him to answer designated %uestions, or an order under Rule *1 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule *H re%uiring him to submit to a physical or mental e$amination, the court may ma/e such orders in regard to the refusal as are 'ust, and among others the following. (a) An order that the matters regarding which the %uestions were as/ed, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be ta/en to be established for the purposes of the action in accordance with the claim of the party obtaining the order5 (b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition5 (c) An order stri/ing out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a 'udgment by default against the disobedient party5 and) (d) !n lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders e$cept an order to submit to a physical or mental e$amination (Sec. -, 'ule %,).

Effect of f"!lu(e to se(%e #(!tten !nte((o&"to(!es (() A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give deposition pending appeal, unless allowed by the court or to prevent a failure of 'ustice (Sec. 6, 'ule %5). )his provision encourages the use of written interrogatories although a party is not compelled to use this discovery procedure, the rule imposes sanctions for his failure to serve written interrogatories by depriving him of the privilege to call the adverse party as a witness or to give a deposition pending appeal.

Re1uest fo( " m!ss!on 4Rule 6>; (() A party, although not compelled by the Rules, is advised to file and serve a written re%uest for admission on the adverse party of those material and relevant facts at issue which are, or ought to be, within the personal /nowledge of said adverse party. )he party who fails to file and serve the re%uest shall not be permitted to present evidence on such facts (Sec. 5, 'ule %6).

Impl!e " m!ss!on $. " %e(se p"(t. (() Bach of the matters of which an admission is re%uested shall be deemed admitted unless, within a period designated in the re%uest, which shall not be less than fifteen ((5) days after service thereof, or within such further time as the court may allow on motion, the party to whom the re%uest is directed files and serves upon the party re%uesting the admission a sworn statement either denying specifically the matters of which an admission is re%uested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (Sec. %, *#r. 1). (*) =b'ections to any re%uest for admission shall be submitted to the court by the party re%uested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such ob'ections are resolved, which resolution shall be made as early as practicable (Sec. %, *#r. %).

Conse1uences of f"!lu(e to "ns#e( (e1uest fo( " m!ss!on (() )he facts or documents are deemed admitted. 0nder the Rules, each of the matters of which an admission is re%uested shall be deemed admitted unless within a period designated in the re%uest which shall not be less than (5 days after service thereof, or within such further time as the court may allow on motion, the party to whom the re%uest is directed files and serves upon the party re%uesting the admission a sworn statement either denying specifically the matter of which an admission is re%uested or setting forth in detail the reason why he cannot truthfully either admit or deny those matters.

Effect of " m!ss!on (() Any admission made by a party pursuant to such re%uest is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding (Sec. -).

Effect of f"!lu(e to f!le "n se(%e (e1uest fo( " m!ss!on (() A party who fails to file and serve a re%uest for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal /nowledge of the latter, shall not be permitted to present evidence on such facts (Sec. 5).

P(o uct!on of !nspect!on of ocuments o( t'!n&s 4Rule 67; (() 0pon motion of any party showing good cause therefor, the court in which an action is pending may.

(a) =rder any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, boo/s, accounts, letters, photographs, ob'ects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control5 or (b) =rder any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant ob'ect or operation thereon. )he order shall specify the time, place and manner of ma/ing the inspection and ta/ing copies and photographs, and may prescribe such terms and conditions as are 'ust. (*) (a) (b) (c) (d) (e) Re%uirements for the production or inspection of documents or things. A motion must be filed by a party showing good cause therefor5 )he motion must sufficiently describe the document or thing sought to be produced or inspected5 )he motion must be given to all the other parties5 )he document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action5 )he document or thing sought to be produced or inspected must not be privileged5 and or*.

(f) )he document or thing sought to be produced or inspected must be in the possession of the adverse party or, at least under his control (Sec. 1, 'ule %&8 Li/e vs. (or#!, 5, Phil. 1&5)

P'.s!c"l "n ment"l e2"m!n"t!on of pe(sons 4Rule 67; (() (a) (b) (c) (*) (a) Re%uirements of physical and mental e$amination of persons. )he physical or mental condition of a party must be in controversy in the action5 A motion showing good cause must be filed5 and Fotion of the motion must be given to the party to be e$amined and to all the other parties (Secs. 1 #!" %). Rules governing the rights of parties on the report of the e$amining physician regarding the physical or mental condition of party e$amined. )he person e$amined shall, upon re%uest, be entitled to a copy of the detailed written report of the e$amining physician setting out his findings and conclusions5

(b) )he party causing the e$amination to be made shall be entitled upon re%uest to receive from the party e$amined, a li/e report of any e$amination previously or thereafter made, of the same physical or mental condition5 (c) (d) !f the party e$amined refuses to deliver such report, the court on motion and notice may ma/e an order re%uiring delivery5 !f a physician fails or refuses to ma/e such report, the court may e$clude his testimony if offered at the trial5

(e) )he party e$amined who obtains a reports of the e$amination or ta/es the deposition of the e$aminer waives any privilege he may have in that action or any other action involving the same controversy, regarding the testimony of every other person who has e$amined or may thereafter e$amine him in respect of the same mental or physical e$amination (Sec. 4).

Conse1uences of (efus"l to compl. #!t' mo es of !sco%e(. 4Rule 65; (() (a) )he following are the conse%uences of a plaintiff<s refusal to ma/e discovery. )he e$amining party may complete the e$amination on the other matters or ad'ourn to the same (Sec. 1)5

(b) )hereafter, on reasonable notice to all persons affected thereby, he may apply to the court of the province where the deposition is being ta/en for an order compelling answer5 (c) !f the court finds that the refusal was without substantial 'ustification, it may order the refusing party or the attorney advising him or both of them to pay the e$amining party the amount of reasonable attorney<s fees5

(d)

)he refusal to answer may be considered as contempt of court (Sec. %)5

(e) )he court may order that the facts sought to be established by the e$amining party shall e ta/en to be established for the purpose of the action in accordance with the claim of the party obtaining the order (Sec. -[#])5 (f) )he court may issue an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony (Sec. -[$])5 (g) (h) (i) )he court may order the stri/ing out of pleadings or party thereof (Sec. -[c])8 )he court may stay further proceedings until the order is obeyed5 )he court may dismiss the action or proceeding or any party thereof, or render 'udgment by default against the disobedient party (Sec. 5)5

(') )he court may order the arrest of any party who refuses to admit the truth of any matter of fact or the genuineness of any document to pay the party who made the re%uest and who proves the truth of any such matters or the genuineness of such document, reasonable e$penses incurred in ma/ing such proof, including reasonable attorney<s fees (Sec. 4).

VIII. TRIAL 4Rule B:; (() A trial is the 'udicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments (Acost# vs. Peo*le, 5 S 'A &&4). A 0ou(nments "n postponements (() )he general rule is that a court may ad'ourn a trial from day to day, and to any stated time, as the e$peditious and convenient transaction of business may re%uire (Sec. %). (*) )he court has no power to ad'ourn a trial for a period longer than one month from each ad'ournment, nor more than three (+) months in all, e$cept when authori6ed in writing by the "ourt Administrator. A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier ('e*u$lic vs. S#!"i)#!$#9#!, -01 S 'A %-&) . (+) 3ostponement is not a matter of right. !t is addressed to the sound discretion of the court (+#rces vs. V#le!Duel#, 1&0 S 'A &45) .

Re1u!s!tes of mot!on to postpone t(!"l fo( "$sence of e%! ence (() (a) )rial may be postponed on the ground of absence of evidence upon compliance with the following. A motion for postponement must be filed5

(b) )he motion must be supported by an affidavit or sworn certification showing (() the materiality or relevancy of the evidence, and (*) that due diligence has been used to procure it (Sec. -). (*) !f the adverse party admits the facts given in evidence, the trial shall not be postponed even if he reserves the right to ob'ect to the admissibility of the evidence (Sec. -).

Re1u!s!tes of mot!on to postpone t(!"l !llness of p"(t. o( counsel (() A motion for postponement must be filed5

(*) )he motion must be supported by an affidavit or sworn certification showing that (a) the presence of the party or counsel at the trial is indispensable, and (b) that the character of his illness is such as to render his non&attendance e$cusable (Sec. 4).

A&(ee st"tements of f"cts (() !f the parties agree, in writing, on the facts involved in the action, they may then as/ the court to render 'udgment thereon without the introduction of evidence. !f the agreement of facts is partial, trial shall be held as to others (Sec. 6). )he agreed statement of facts is conclusive on the parties, as well as on the court. Feither of the parties may withdraw from the agreement, nor may the court ignore the same ((c+uire vs. (#!u4#cturers Li4e I!s., 8& Phil. -&0).

O( e( of t(!"l (() Sub'ect to the provisions of Sec. *, Rule +(, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre&trial order and shall proceed as follows. (a) (b) (c) (d) )he plaintiff shall adduce evidence in support of his complaint5 )he defendant shall then adduce evidence in support of his defense, counterclaim, cross&claim and third party complaint5 )he third party defendant, if any, shall adduce evidence of his defense, counterclaim, cross&claim and fourth&party complaint5 )he fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them5

(e) )he parties against whom any counterclaim or cross&claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court5 (f) )he parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of 'ustice, permits them to adduce evidence upon their original case5 and (g) 0pon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings. !f several defendants or third party defendants and so forty having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence (Sec. 5)

Consol! "t!on o( Se%e("nce of 'e"(!n& o( t(!"l 4Rule B1; (() "onsolidation. -hen actions involving a common %uestion of law or facts are pending before the court, it may order a 'oint hearing or trial of any or all the matters in issue in the actions5 it may order all the actions consolidated5 and it may ma/e such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay (Sec. 1). (*) Severance (Separate) )rials. )he court, in furtherance of convenience or to avoid pre'udice, may order a separate trial of any claim, cross&claim, counterclaim, or third party complaint, or of any separate issue or of any number of claims, cross&claims, counterclaim, third party complaints or issue (Sec. %).

Dele&"t!on of (ecept!on of e%! ence (() )he 'udge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Reception of the evidence may nevertheless be delegated to the cler/ of court who is a member of the bar, in any of the following cases. (a) (b) (c) !n default hearings5 !n e: *#rte hearings5 or !n any case by written agreement of the parties (Sec. ,).

T(!"l $. comm!ss!one(s 4Rule B6; (() "ommissioner includes a referee, an auditor and an e$aminer (Sec. 1)

Refe(ence $. consent (() #y written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec. 1).

Refe(ence o( e(e on mot!on (() -hen the parties do not consent, the court may, upon the application of either or on its own motion, direct a reference to a commissioner in the following cases.

(a) -hen the trial of an issue of fact re%uires the e$amination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific %uestion involved therein5

(b) (c) %).

-hen the ta/ing of an account is necessary for the information of the court before 'udgment, or for carrying a 'udgment or order into effect5 -hen a %uestion of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a 'udgment or order into effect (Sec.

Po#e(s of comm!ss!one( (() (a) (b) (c) (*) (+) (a) (b) (c) (d) 0nder the Rules, the court<s order may specify or limit the powers of the commissioner. 4ence, the order may direct him to. Report only upon particular issues5 Eo or perform particular acts5 or Receive and report evidence only. )he order may also fi$ the date for beginning and closing of the hearings and for the filing of his report. Sub'ect to such limitations stated in the order, the commissioner. Shall e$ercise the power to regulate the proceedings in every hearing before him5 Shall do all acts and ta/e all measures necessary or proper for the efficient performance of his duties under the order< 8ay issue subpoenas and subpoenas "uces tecu/, and swear witnesses5 and Rule upon the admissibility of evidence, unless otherwise provided in the order of reference (Sec. -, 'ule -%).

Comm!ss!one(Fs (epo(t? not!ce to p"(t!es "n 'e"(!n& on t'e (epo(t (() 0pon completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. -hen his powers are not specified or limited, he shall set forth his findings of fact and conclusions or law in his report. 4e shall attach in his report all e$hibits, affidavits, depositions, papers and the transcript, if any, of the evidence presented before him (Sec. ,). (*) )he commissioner<s report is not binding upon the court which is free to adopt, modify, or re'ect, in whole or in part, the report. )he court may receive further evidence or recommit the report with instructions (Sec. 11, 'ule -%8 B#lt#D#r vs. Li/*i!, 4, Phil. -,). (+) Fotice of the filing of the report must be sent to the parties for the purpose of giving them an opportunity to present their ob'ections (S#!tos vs. +uD/#!, 45 Phil. 646). )he failure to grant the parties, in due form, this opportunity to ob'ect, may, in some instances, constitute a serious error in violation of their substantial rights (+ovt. vs. .sorio, 50 Phil. 864). )he rule, however, is not absolute. !n (#!il# 7r#"i!) #!" Su**l9 o. vs. Phil. L#$or 6!io!, &1 Phil. 5-, , it was ruled that although the parties were not notified of the filing of the commissioner<s reports, and the court failed to set said report for hearing, if the parties who appeared before the commissioner were duly represented by counsel and given an opportunity to be heard, the re%uirement of due process has been satisfied, and a decision on the basis of such report, with the other evidence of the case is a decision which meets the re%uirements of fair and open hearing. (,) !n the hearing to be conducted on the commissioner<s report, the court will review only so much as may be drawn in %uestion by proper ob'ections. !t is not e$pected to rehear the case upon the entire record (Grei"t vs. (c ullou)h #!" o., -& Phi. 4&4).

IG.

DE*URRER TO EVIDENCE 4Rule BB;

(() Eemurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his case on the ground of insufficiency of evidence (B#lle!ti!e@s L#A 2ictio!#r9). (*) )he provision of the Rules governing demurrer to evidence does not apply to an election case (+e/e!tiD# vs. .(<L< , -5- S 'A &%4).

G(oun (() )he only ground for demurrer to evidence is that the plaintiff has no right to relief.

Effect of en!"l? Effect of &("nt (() !n the event his motion is denied, the defendant does not waive his right to offer evidence. An order denying a demurrer to evidence is interlocutory and is therefore, not appealable. !t can however be the sub'ect of a petition for certior#ri in case of grave abuse of discretion or an oppressive e$ercise of 'udicial authority. (*) !f the motion is granted and the order of dismissal is reversed on appeal, the movants loses his right to present the evidence on his behalf. !n the case of reversal, the appellate court shall render 'udgment for the plaintiff based on the evidence alone. (+) !t is not correct for the appellate court reversing the order granting the demurrer to remand the case to the trial court for further proceedings. )he appellate court should, instead of remanding the case, render 'udgment on the basis of the evidence submitted by the plaintiff ('#"ioAe#lth 1i!#!ce or*. vs. 2el 'os#rio, --5 S 'A %88).

,"!%e( of (!&'t to p(esent e%! ence (() !f the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence.

Demu((e( to e%! ence !n " c!%!l c"se %e(sus emu((e( to e%! ence !n " c(!m!n"l c"se (() !n a civil case, leave of court is not re%uired before filing a demurrer. !n a criminal case, leave of court is filed with or without leave of court (Sec. %-, 'ule 11,).

(*) !n a civil case, if the demurrer is granted, the order of dismissal is appealableMsince the motion is interlocutory. !n a criminal case, the order of dismissal is not appealable because of the constitutional policy against double 'eopardyMdenial is tantamount to ac%uittal, final and e$ecutory. (+) !n civil case, if the demurrer is denied, the defendant may proceed to present his evidence. !n a criminal case, the accused may adduce his evidence only if the demurrer is filed with leave of court. 4e cannot present his evidence if he filed the demurrer without leave of court (Sec. %-, 'ule 11,).

G. -UDG*ENTS AND <INAL ORDERS 4Rules B@ B>;

-u &ment #!t'out t(!"l (() )he theory of summary 'udgment is that although an answer may on its face appear to tender issuesMre%uiring trialMyet if it is demonstrated by affidavits, depositions, or admissions that those issues are not genuine, but sham or fictitious, the "ourt is 'ustified in dispensing with the trial and rendering summary 'udgment for plaintiff. )he court is e$pected to act chiefly on the basis of the affidavits, depositions, admissions submitted by the movants, and those of the other party in opposition thereto. )he hearing contemplated (with (;&day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence on the issues set up in the pleadings. A hearing is not thus "e ri)uer. )he matter may be resolved, and usually is, on the basis of affidavits, depositions, admissions. 0nder the circumstances of the case, a hearing would serve no purpose, and clearly unnecessary. )he summary 'udgment here was 'ustified, considering the absence of opposing affidavits to contradict the affidavits (+#lici# vs. Polo, L=4,668, Fov. 14, 1,8,8 #rco! 2evt. or*. vs. A, +' 88%18, 2ec. 1&, 1,8,) . Contents of " 0u &ment (() Cudgment has two parts. (a) the body of the 'udgment or the r#tio "eci"e!"i, and (b) the dispositive portion of the 'udgment or 4#llo. )he body of the decision (ratio decidendi) is not the part of the 'udgment that is sub'ect to e$ecution but the fallo because it is the latter which is the latter which is the 'udgment of the court. )he importance of 4#llo or dispositive portion of a decision should state whether the complaint or petition is granted or denied, the specific relief granted, and the costs ((or#les vs. A, 461 S 'A -4). !t is the dispositive part of the 'udgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively (Li)ht '#il 7r#!sit Authorit9 vs. A, 444 S 'A 1%5). (*) )he general rule is that where there is a conflict between the 4#llo and the r#tio "eci"e!"i, the fallo controls. )his rule rests on the theory that the 4#llo is the final order while the opinion in the body is merely a statement ordering nothing. -here the inevitable conclusion from the body of the decision is so clear that there was a mere mista/e in the dispositive portion, the body of the decision prevails (Pol#!" I!"ustri#l Li/ite" vs. F#tio!#l 2evelo*/e!t o/*#!9, 46& S 'A 500) .

-u &ment on t'e ple" !n&s 4Rule B@; (() -here an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party<s pleading, the court may, on motion of that party, direct 'udgment on such pleading. 4owever, in actions for declaration of nullity or annulment of marriage or for legal separation (or for unli%uidated damages, or admission of the truth of allegation of adverse party), the material facts alleged in the complaint shall always be proved (Sec. 1).

Summ"(. 0u &ments 4Rule B8; (() A summary 'udgment or accelerated 'udgment is a procedural techni%ue to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, of for weeding out sham claims or defenses at an early stage of the litigation to avoid the e$pense and loss of

time involved in a trial. !ts ob'ect is to separate what is formal or pretended denial or averment from what is genuine and substantial so that only the latter may sub'ect a party&in&interest to the burden of trial. 8oreover, said summary 'udgment must be premised on the absence of any other triable genuine issues of fact. =therwise, the movants cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which re%uires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim ((o!tere9 1oo"s or*. vs. <ser>ose, +' 15-1%6, Se*t. 11, %00-) . (*) )he re%uisites are. (a) there must be no genuine issue as to any material fact, e$cept for the amount of damages5 and (b) the party presenting the motion for summary 'udgment must be entitled to a 'udgment as a matter of law.

<o( t'e cl"!m"nt (() A party see/ing to recover upon a claim, counterclaim, or cross&claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary 'udgment in his favor upon all or any part thereof (Sec. 1).

<o( t'e efen "nt (() A party against whom a claim, counterclaim, or cross&claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary 'udgment in his favor as to all or any part thereof (Sec. %).

,'en t'e c"se not full. " 0u !c"te (() !f on motion, 'udgment is not rendered upon the whole case of for all the reliefs sought and a trail is necessary, the court at the hearing of the motion, by e$amining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts e$ist without substantial controversy and what are actually and in good faith controverted. !t shall thereupon ma/e an order specifying the facts that appear without substantial controversy, including the e$tent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are 'ust. )he facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly (Sec. 4, 'ule -5).

Aff! "%!ts "n "tt"c'ments (() Supporting and opposing affidavits shall be made on personal /nowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. "ertified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5). (*) Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable e$penses which the filing of the affidavits caused him to incur, including attorney<s fees. !t may, after hearing, further ad'udge the offending party or counsel guilty of contempt (Sec. 6).

-u &ments on t'e ple" !n&s %e(sus summ"(. 0u &ments (() !n the 'udgment on the pleadings, the answer does not tender an issue5 in summary 'udgment, there is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to 'udgment as a matter of right5 (*) (+) !n 'udgment on the pleadings, the movants must give a +&day notice of hearing5 while in summary 'udgment, the opposing party is given (; days notice5 !n 'udgment on the pleadings, the entire case may be terminated5 while in summary 'udgment, it may only be partial5

(,) !n 'udgment on the pleadings, only the plaintiff or the defendants as far as the counterclaim, cross&claim or third&party complaint is concerned can file the same5 while in summary 'udgment, either the plaintiff or the defendant may file it.

Ren !t!on of 0u &ments "n f!n"l o( e(s (() Rendition of 'udgment is the filing of the same with the cler/ of court. !t is not the pronouncement of the 'udgment in open court that constitutes the rendition. Bven if the 'udgment has already been put in writing and signed, it is still sub'ect to amendment if it has not yet been filed with the cler/ of court and before its filing does not yet constitute the real 'udgment of the court (A)o vs. A, 6 S 'A 5-0). !t is not the writing of the 'udgment or its signing which constitutes rendition of the 'udgment ( #stro vs. (#l#Do, ,, S 'A 164). (*) A 'udgment or final order determining the merits of the case shall be in writing personally and directly prepared by the 'udge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the cler/ of the court (Sec. 1, 'ule -6).

Ent(. of 0u &ment "n f!n"l o( e( (() !f no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, the 'udgment or final order shall forthwith be entered by the cler/ in the boo/ of entries of 'udgments. )he date of finality of the 'udgment or final order shall be deemed the date of its entry. )he record shall contain the dispositive part of the 'udgment or final order and shall be signed by the cler/, with a certificate that such 'udgment or final order has become final and e$ecutor (Sec. %). (*) )he entry of 'udgment refers to the physical act performed by the cler/ of court in entering the dispositive portion of the 'udgment in the boo/ of entries of 'udgment and after the same has become final and e$ecutor. )he record shall contain the dispositive portion of the 'udgment or final order and shall be signed by the cler/ of court, with a certificate by said cler/ that the 'udgment has already become final and e$ecutor ( Sec. %, 'ule -6). (+) )here are some proceedings the filing of which is rec/oned from the date of the entry of 'udgment. (a) the e$ecution of a 'udgment by motion is within five (5) years from the entry of the 'udgment (Sec. 6, 'ule -,)5 (b) the filing of a petition for relief has, as one of its periods, not more than si$ (:) months from the entry of the 'udgment or final order (Sec. -, 'ule -8). POST -UDG*ENT RE*EDIES 4Rules B7)B79 @:@79 86)8B;

(()

Remedies before a 'udgment becomes final and e$ecutory

(a) (b) (c)

8otion for reconsideration (prohibited in a case that falls under summary procedure) ('ules -&, 5%)5 8otion for new trial ('ules -&, 5-)5 and Appeal ('ules 40, 41, 4%, 4-, 45)

(*)

Remedies after 'udgment becomes final and e$ecutory

(a) (b) (c) (d)

3etition for relief from 'udgment5 Action to annul a 'udgment5 "ertiorari5 and "ollateral attac/ of a 'udgment.

*ot!on fo( Ne# T(!"l o( Recons! e("t!on 4Rule B7;

G(oun s fo( " mot!on fo( ne# t(!"l

(() 7raud (e$trinsic), accident, mista/e (of fact and not of law) or e$cusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights5 (*) Fewly discovered evidence (#erry Rule), which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result5 and (+) Award of e$cessive damages, or insufficiency of the evidence to 'ustify the decision, or that the decision is against the law (Sec. 1, 'ule -&).

G(oun s fo( " mot!on fo( (econs! e("t!on

(() (*)

)he damages awarded are e$cessive5 )he evidence is insufficient to 'ustify the decision or final order5

(+)

)he decision or final order is contrary to law (Sec. 1).

,'en to f!le

(() A motion for new trial should be filed within the period for ta/ing an appeal. 4ence, it must be filed before the finality of the 'udgment (Sec. 1). Fo motion for e$tension of time to file a motion for reconsideration shall be allowed. !n 2istilleri# Li/tu#co vs. A, 14- S 'A ,% , it was said that the period for filing a motion for new trial is within the period for ta/ing an appeal. (*) )he period for appeal is within (5 days after notice to the appellant of the 'udgment or final order appealed from. -here a record on appeal is re%uired, the appellant shall file a notice of appeal and a record on appeal within +; days from notice of the 'udgment or final order (Sec. -, 'ule 41). A record on appeal shall be re%uired only in special proceedings and other cases of multiple or separate appeals (Sec. -, 'ule 40).

Den!"l of t'e mot!on? effect

(() !f the motion is denied, the movants has a Jfresh periodK of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal. (*) -hen the motion for new trial is denied on the ground of fraud, accident, mista/e of fact or law, or e$cusable negligence, the aggrieved party can no longer avail of the remedy of petition for relief from 'udgment (1r#!cisco vs. Pu!o, 108 S 'A 4%&) .

G("nt of t'e mot!on? effect

(() !f a new trial be granted in accordance with the provisions of the rules, the original 'udgment shall be vacated or set aside, and the action shall stand for trial "e !ovo5 but the recorded evidence ta/en upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without reta/ing the same (Sec. 6). )he filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. %, 'ule 408 Sec. -, 'ule 41) . (*) !f the court grants the motion (e.g., it finds that e$cessive damages have been awarded or that the 'udgment or final order is contrary to the evidence or law), it may amend such 'udgment or final order accordingly (Sec. -). )he amended 'udgment is in the nature of a new 'udgment which supersedes the original 'udgment. !t is not a mere supplemental decision which does not supplant the original but only serves to add something to it (<sBuivel vs. Ale)re, 1&% S 'A -15) . !f the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less that all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the 'udgment or final order upon the rest (Sec. &).

Reme . #'en mot!on !s en!e

(()

)he party aggrieved should appeal the 'udgment. )his is so because a second motion for reconsideration is e$pressly prohibited under the !nterim Rules (Sec. 5).

(*) An order denying a motion for reconsideration or new trial is not appealable, the remedy being an appeal from the 'udgment or final order under Rule +H. )he remedy from an order denying a motion for new trial is not to appeal from the order of denial. Again, the order is not appealable. )he remedy is to appeal from the 'udgment or final order itself sub'ect of the motion for new trial (Sec. ,, rule -&).

<(es' 18) ". pe(!o (ule

(() !f the motion is denied, the movants has a fresh period of (5 days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice to appeal. )his new period becomes significant if either a motion for reconsideration or a motion for new trial has been filed but was denied or dismissed. )his fresh period rule applies only to Rule ,( governing appeals from the R)" but also to Rule ,; governing appeals from 8)" to R)", Rule ,* on petitions for review from the R)" to the "A, Rule ,+ on appeal from %uasi&'udicial agencies to the "A, and Rule ,5 governing appeals by certiorari to the S". Accordingly, this rule was adopted to standardi6e the appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimi6e errors of 'udgment. =bviously, the new (5 day period may be availed of only if either motion is filed5 otherwise, the decision becomes final and e$ecutory after the lapse of the original appeal period provided in Rule ,( (Neypes vs. CA, GR ! "#!, $ept. !, #%%" ). )he Fe9*es ruling shall not be applied where no motion for new trial or motion for reconsideration has been filed in which case the (5&day period shall run from notice of the 'udgment.

(*) )he fresh period rule does not refer to the period within which to appeal from the order denying the motion for new trial because the order is not appealable under Sec. 2, Rule +1. )he non&appealability of the order of denial is also confirmed by Sec. ((a), Rule ,(, which provides that no appeal may be ta/en from an order denying a motion for new trial or a motion for reconsideration.

Appe"ls !n Gene("l

(() )he right to appeal is not part of due process but a mere statutory privilege that has to be e$ercised only in the manner and in accordance with the provisions of law (Stolt=Fielse! vs. FL' , +' 14&6%-, 2ec. 1-, %005) . )he general rule is that the remedy to obtain reversal or modification of 'udgment on the merits is appeal. )his is true even if the error, or one of the errors, ascribed to the court rendering the 'udgment is its lac/ of 'urisdiction over the sub'ect matter, or the e$ercise of power in e$cess thereof, or grave abuse of discretion in the findings of facts or of law set out in the decision (Associ#tio! o4 I!te)r#te" Securit9 1orce o4 Bisli)=AL6 vs. A, +' 140150, Au). %%, %005). An appeal may be ta/en only from 'udgments or final orders that completely dispose of the case (Sec. 1, 'ule 41). An interlocutory order is not appealable until after the rendition of the 'udgment on the merits. (*) "ertain rules on appeal.

(a) Fo trial de novo anymore. )he appellate courts must decide the case on the basis of the record, e$cept when the proceedings were not duly recorded as when there was absence of a %ualified stenographer (Sec. %%["], B. 1%,8 'ule %1["], I!teri/ 'ulesI) 5 (b) (c) (d) )here can be no new parties5 )here can be no change of theory (F#v#l vs. A, 48- S 'A 10%)5 )here can be no new matters (.!"#* vs. Au$)#, 88 S 'A 610)5

(e) (f) (g)

)here can be amendments of pleadings to conform to the evidence submitted before the trial court (2#9#o vs. Shell, ,& S 'A 40&)5 )he liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor ((u!. o4 .rio! vs. o!ch#, 50 Phil. 6&,) 5 Appeal by guarantor does not inure to the principal (LuDo! (et#l vs. (#!il# 6!"erAriter, %, S 'A 184) 5

(h) !n e'ectment cases, the R)" cannot award to the appellant on his counterclaim more than the amount of damages beyond the 'urisdiction of the 8)" (A)usti! vs. B#t#cl#!, 1-5 S 'A -4%)5 (i) )he appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record ('ule %1, I!teri/ 'ules).

-u &ments "n f!n"l o( e(s su$0ect to "ppe"l

(() An appeal may be ta/en only from 'udgments or final orders that completely dispose of the case (Sec. 1, 'ule 41). An interlocutory order is not appealable until after the rendition of the 'udgment on the merits.

*"tte(s not "ppe"l"$le

(() (a) (b) (c) (d)

Fo appeal may be ta/en from. An order denying a motion for new trial or a motion for reconsideration5 An order denying a petition for relief or any similar motion see/ing relief from 'udgment5 An interlocutory order5 An order disallowing or dismissing an appeal5

(e) An order denying a motion to set aside a 'udgment by consent, confession or compromise on the ground of fraud, mista/e or duress, or any other ground vitiating consent5 (f) An order of e$ecution5

(g) A 'udgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross&claims, and third&party complaints, while the main case is pending, unless the court allows an appeal therefrom5 and (h) An order dismissing and action without pre'udice (Sec. 1, 'ule 41).

(*) A %uestion that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, 'ustice and due process (B#!C o4 o//erce vs. Serr#!o, 451 S 'A 484) . 7or an appellate court to consider a legal %uestion, it should have been raised in the court below (PF. vs. A, 45& S 'A -%). !t would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. it is true that this rule admits of e$ceptions as in cases of lac/ of 'urisdiction, where the lower court committed plain error, where there are 'urisprudential developments affecting the issues, or when the issues raised present a matter of public policy (B#lu9ot vs. Po$lete, +' 1444-5, 1e$. 6, %00&). (+) )he rule under (*) however is only the general rule because Sec. H, Rule 5( precludes its absolute application allowing as it does certain errors which even if not assigned may be ruled upon by the appellate court. hence, the court may consider an error not raised on appeal provided the same falls within any of the following categories. (a) (b) (c) (d) (e) !t is an error that affects the 'urisdiction over the sub'ect matter5 !t is an error that affects the validity of the 'udgment appealed from5 !t is an error which affects the proceedings5 !t is an error closely related to or dependent on an assigned error and properly argued in the brief5 or !t is a plain and clerical error.

Reme . "&"!nst 0u &ments "n o( e(s #'!c' "(e not "ppe"l"$le

(() !n those instances where the 'udgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule :5. Rule :5 refers to the special civil actions of certiorari, prohibition and mandamus. 3ractically, it would be the special civil action of certiorari that would be availed of under most circumstances. )he most potent remedy against those 'udgments and orders from which appeal cannot be ta/en is to allege and prove that the same were issued without 'urisdiction, with grave abuse of discretion or in e$cess of 'urisdiction, all amounting to lac/ of 'urisdiction.

*o es of "ppe"l ($ec. #, Rule ! )

(a) O( !n"(. "ppe"l. )he appeal to the "A in cases decided by the R)" in the e$ercise of its original 'urisdiction shall be ta/en by filing a notice of appeal with the court which rendered the 'udgment or final order appealed from and serving a copy thereof upon the adverse party. Fo record on appeal shall be re%uired e$cept in special proceedings and other cases of multiple or separate appeals where the law or the Rules so re%uire. !n such cases, the record on appeal shall be filed and served in li/e manner. (b) Pet!t!on fo( (e%!e# . )he appeal to the "A in cases decided by the R)" in the e$ercise of its appellate 'urisdiction shall be by petition for review in accordance with Rule ,*. (c) Pet!t!on fo( (e%!e# on ce(t!o("(! . !n all cases where only %uestions of law are raised or involved, the appeal shall be to the S" by petition for review on certiorari in accordance with Rule ,5.

Issues to $e ("!se on "ppe"l

(() -hether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment or errors any %uestion of law or fact that has been raised in the court below and which is within the issues framed by the parties (Sec. 15, 'ule 44).

Pe(!o of "ppe"l

(() 3eriod of =rdinary Appeal under Rule ,;. An appeal may be ta/en (from 8)" to R)") within (5 days after notice to the appellant of the 'udgment or final order appealed from. -here a record on appeal is re%uired, the appellant shall file a notice of appeal and a record on appeal within +; days after notice of the 'udgment or final order. )he period of appeal shall be interrupted by a timely motion for new trial or reconsideration. Fo motion for e$tension of time to file a motion for new trial or reconsideration shall be allowed (Sec. %). (*) 3eriod of =rdinary Appeal under Rule ,(). )he appeal shall be ta/en within (5 days from notice of the 'udgment or final order appealed from. -here a record on appeal is re%uired, the appellants shall file a notice of appeal and a record on appeal within +; days from notice of the 'udgment or final order. 4owever, on appeal in h#$e#s cor*us cases shall be ta/en within ,H hours from notice of the 'udgment or final order appealed from (A( Fo. 01=1=0-=S , 5u!e 1,, %001) . )he period of appeal shall be interrupted by a timely motion for new trial or reconsideration. Fo motion for e$tension of time to file a motion for new trial or reconsideration shall be allowed (Sec. -). !f the record on appeal is not transmitted to the "A within +; days after the perfection of appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal (Sec. -, 'ule 44). (+) 3eriod of 3etition for Review under Rule ,*. )he petition shall be filed and served within (5 days from notice of the decision sought to be reviewed or of the denial of petitioner<s motion for new trial or reconsideration filed in due time after 'udgment. )he court may grant and additional period of (5 days only provided the e$tension is sought (a) upon proper motion, and (b) there is payment of the full amount of the doc/et and other lawful fees and the deposit for costs before the e$piration of the reglementary period. Fo further e$tension shall be granted e$cept for the most compelling reason and in no case to e$ceed (5 days (Sec. 1). (,) 3eriod of Appeal by 3etition for Review under Rule ,+ . )he appeal shall be ta/en within (5 days from notice of the award, 'udgment, final order or resolution, or from the date of its last publication, if publication is re%uired by law for its effectivity, or of the denial of petitioner<s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency # Buo. =nly one (() motion for reconsideration shall be allowed. 0pon proper motion and the payment of the full amount of the doc/et fee before the e$piration of the reglementary period, the "A may grant an additional period of (5 days only within which to file the petition for review. Fo further e$tension shall be granted e$cept for the most compelling reason and in no case to e$ceed (5 days (Sec. 4). (5) 3eriod of Appeal by 3etition for Review on "ertiorari under Rule ,5 . )he appeal which shall be in the form of a verified petition shall be filed within (5 days from notice of the 'udgment, final order or resolution appealed from, or within (5 days from notice of the denial of the petitioner<s motion for new trail or motion for reconsideration filed in due time. )he Supreme "ourt may, for 'ustifiable reasons, grant an e$tension of +; days only within which to file the petition provided, (a) there is a motion for e$tension of time duly filed and served, (b) there is full payment of the doc/et and other lawful fees and the deposit for costs, and (c) the motion is filed and served and the payment is made before the e$piration of the reglementary period (Sec. %).

*ODE O< APPEAL

PERIOD O< APPEAL

Pe(!o of "ppe"l !f p"(t. f!les *<R o( Ne# T(!"l 4Ne.pes Rule;

=rdinary Appeal (Rules ,;, ,() a) Fotice of Appeal (Rule ,;) -ithin (5 days from receipt of 'udgment or final -ithin (5 days from receipt of order denying motion order for reconsideration or new trial )he +;&day to file the notice of appeal and record on appeal should rec/oned from the receipt of the order denying the motion for new trial or motion for reconsideration (0#9co vs. 3i/lo, +' 1&0%4-, A*ril 16, %008) b) Record on Appeal (Rule ,() 3etition for Review (Rule ,*) 3etition for Review (Rule ,+) Appeal by "ertiorari (Rule ,5) -ithin +; days from receipt of 'udgment or final order -ithin (5 days from receipt of 'udgment -ithin (5 days from receipt of the order denying motion for reconsideration or new trial

-ithin (5 days from receipt of 'udgment or final -ithin (5 days from receipt of the order denying order or of last publication motion for reconsideration or new trial -ithin (5 days from receipt of 'udgment or final -ithin (5 days from receipt of the order denying order motion for reconsideration or new trial

Pe(fect!on of "ppe"ls

(() (a)

7or =rdinary Appeals from 8)" to the R)" (Rule ,;) and from the R)" to the "A (Rule ,(). A party<s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time5

(b) A party<s appeal by record on appeal is deemed perfected as to him with respect to the sub'ect matter thereof upon the approval of the record on appeal filed in due time5 (c) !n appeals by notice of appeal, the court loses 'urisdiction only over the sub'ect matter thereof upon the approval of the records on appeal filed in due time and the e$piration of the time to appeal of the other parties5 (d) !n either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order e$ecution pending appeal in accordance with Sec. *, Rule +2, and allow withdrawal of the appeal (Sec. ,, 'ule 41). (*) 3erfection of Appeal by 3etition for Review under Rule ,*. (Sec.8)

(a) 0pon the timely filing of a petition for review and the payment of the corresponding doc/et and other lawful fees, the appeal is deemed perfected as to the petitioner. )he R)" loses 'urisdiction over the case upon the perfection of the appeals filed in due time and the e$piration of the time to appeal of the other parties. 4owever, before the "A give due course to the petition, the R)" may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order e$ecution pending appeal in accordance with Sec. *, Rule +2, and allow withdrawal of the appeal. (b) B$cept in civil cases decided under Rules on Summary 3rocedure, the appeal shall stay the 'udgment or final order unless the "A, the law, or the Rules provide otherwise. (c) A party<s appeal by notice of appeal is deemed perfected as to him upon the filing thereof in due time, and a party<s appeal by record on appeal is deemed perfected as to him upon the approval thereof. !n the first case, the court loses 'urisdiction over the whole case upon the perfection of the appeals ta/en by the parties who have appealed and the e$piration of the time to appeal of the other parties. !n the second case, the court loses 'urisdiction over the sub'ect matter thereof upon the approval of all the records on appeal filed by the parties who have appealed and the e$piration of the time to appeal of the other parties5 and retains 'urisdiction over the remaining sub'ect matter not covered by the appeal.

Appe"l f(om 0u &ments o( f!n"l o( e(s of t'e *TC

(() An appeal from a 'udgment or final order of a 8)" may be ta/en to the R)" e$ercising 'urisdiction over the area to which the former pertains. )he title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee (Sec. 1, 'ule 40). (*) )he appeal is ta/en by filing a notice of appeal with the court that rendered the 'udgment or final order appealed from. )he notice of appeal shall indicate the parties to the appeal, the 'udgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. A record on appeal shall be re%uired only in special proceedings and in other cases of multiple or separate appeals (Sec. -). (+) 3rocedure (Sec. &).

(a)

0pon receipt of the complete record or the record on appeal, the cler/ of court of the R)" shall notify the parties of such fact.

(b) -ithin (5 days from such notice, the appellant shall submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. -ithin (5 days from receipt of appellant<s memorandum, the appellee may file his memorandum. 7ailure of appellant to file a memorandum shall be a ground for dismissal of the appeal. (c) =nce the filing of the memorandum of the appellee, or the e$piration of the period to do so, the case shall be considered submitted for decision. )he R)" shall decide the case on the basis of the record of the proceedings had in the court of origin and such memoranda as are filed.

Appe"l f(om 0u &ments o( f!n"l o( e(s of t'e RTC

(() Rule ,( applies to appeals from the 'udgment or final order of the R)" in the e$ercise of its original 'urisdiction. )his appeal is called an Jordinary appealK. Rule ,* applies to an appeal from the 'udgment or final order of the R)" to the "A in cases decided by the R)" in the e$ercise of its appellate 'urisdiction.

Appe"l f(om 0u &ments o( f!n"l o( e(s of t'e CA

(() Appeal by certior#ri under Rule ,5 shall be ta/en to the S" where the petitions shall raise only %uestions of law distinctly set forth. )he general rule is that the S" shall not entertain %uestions of fact, e$cept in the following cases. (a) (b) (c) (d) (e) (f) (g) (h) (i) (') )he conclusion of the "A is grounded entirely on speculations, surmises and con'ectures5 )he inference made is manifestly mista/en, absurd or impossible5 )here is grave abuse of discretion5 )he 'udgment is based on misapprehension of facts5 )he findings of facts are conflicting5 )he "A in ma/ing its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee5 )he findings are contrary to those of the trial court5 )he facts set forth in the petition as well as in the petitioner<s main and reply briefs are not disputed by the respondents5 )he findings of fact of the "A are premised on the supposed absence of evidence and contradicted by the evidence on record5 or )hose filed under -rits of amparo, h#$e#s "#t#, or /ali/asan.

Appe"l f(om 0u &ments o( f!n"l o( e(s of t'e CTA

(() 0nder Sec. (( of RA 2*H*, no civil proceeding involving matters arising under the F!R", the )"" or the Local >overnment "ode shall be maintained, e$cept as herein provided, until and unless an appeal has been previously filed with the ")A and disposed of in accordance with the provisions of the Act. A party adversely affected by a resolution of a Eivision of ")A on a motion for reconsideration or new trial, may file a petition for review with the ")A e! $#!c. (*) Sec. (( of RA 2*H* further provides that a party adversely affected by a decision or ruling of the ")A e! $#!c may file with the S" a verified petition for review on certior#ri pursuant to Rule ,5.

Re%!e# of f!n"l 0u &ments o( f!n"l o( e(s of t'e CO*ELEC

(() A 'udgment, resolution or final order of the "=8BLB" may be brought by the aggrieved party to the S" on certior#ri under Rule ,5 by filing the petition within +; days from notice (Sec. -, 'ule 64).

Re%!e# of f!n"l o( e(s of t'e CSC

(() A 'udgment, final order or resolution of the "ivil Service "ommission may be ta/en to the "A under Rule ,+. Fote the difference between the mode of appeal from a 'udgment of the "S" and the mode of appeal from the 'udgments of other constitutional commissions.

Re%!e# of f!n"l o( e(s of t'e COA

(() A 'udgment, resolution or final order of the "ommission on Audit may be brought by the aggrieved party to the S" on certior#ri under Rule :5 by filing the petition within +; days from notice (Sec. -, 'ule 64).

Re%!e# of f!n"l o( e(s of t'e Om$u sm"n

(() !n administrative disciplinary cases, the ruling of the =ffice of the =mbudsman are appealable to the "ourt of Appeals. Sec. *1 of RA :11; (=mbudsman Act of (2H1) insofar as it allowed a direct appeal to the S" was declared unconstitutional in 1#$i#! vs. 2esierto because the statute, being one which increased the appellate 'urisdiction of the S" was enacted without the advice and concurrence of the "ourt. !nstead, appeals from decisions of the =mbudsman in administrative disciplinary actions should be brought to the "A under Rule ,+ (+o!D#les vs. 'os#s, 4%- S 'A %88). (a) )he "A has 'urisdiction over orders, directives and decisions of the =ffice of the =mbudsman in administrative cases only. !f cannot, therefore, review the orders, directives or decisions of the == in criminal or non&administrative cases (+ol#!)co vs. 1u!), +' 14&640=&6%, .ct. 1%, %006). (b) Although as a conse%uence of 1#$i#! appeals from the =mbudsman in administrative cases are now cogni6able by the "A, nevertheless in cases in which it is alleged that the =mbudsman has acted with grave abuse of discretion amounting to lac/ or e$cess of 'urisdiction amounting to lac/ or e$cess of 'urisdiction, a special civil action of certior#ri under Rule :5 may be filed with the S" to set aside the =mbudsman<s order or resolution (F#v# vs. FBI, 455 S 'A -&&). (*) !n criminal cases, the ruling of the =mbudsman shall be elevated to the S" by way of Rule :5. )he S"<s power to review over resolutions and orders of the =ffice of the =mbudsman is restricted on to determining whether grave abuse of discretion has been committed by it. )he "ourt is not authori6ed to correct every error or mista/e of the =ffice of the =mbudsman other than grave abuse of discretion (Vill#!uev# vs. .*le, +' 1651%5, Fov. 18, %005) . )he remedy is not a petition for review on certiorari under Rule ,5.

Re%!e# of f!n"l o( e(s of t'e NLRC

(() )he remedy of a party aggrieved by the decision of the Fational Labor Relations "ommission is to promptly move for the reconsideration of the decision and if denied to timely file a special civil action of certiorari under Rule ,5 within :; days from notice of the decision. !n observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the "A (St. (#rti! 1u!er#l 3o/es vs. FL' , +' 1-0866, Se*t. 16, 1,,8) .

Re%!e# of f!n"l o( e(s of t'e 1u"s!)0u !c!"l "&enc!es

(() Appeals from 'udgments and final orders of %uasi&'udicial bodiesIagencies are now re%uired to be brought to the "A under the re%uirements and conditions set forth in Rule ,+. )his rule was adopted precisely to provide a uniform rule of appellate procedure from %uasi&'udicial bodies ( #r*io vs. Sulu 'esource 2evt. or*., -8& S 'A 1%8). (*) )he appeal under Rule ,+ may be ta/en to the "A whether the appeal involves a %uestion of fact, a %uestion of law, or mi$ed %uestions of fact and law. )he appeal shall be ta/en by filing a verified petition for review with the "A. )he appeal shall not stay the award, 'udgment, final order or resolution sought to be reviewed unless the "A shall direct otherwise upon such terms as it may deem 'ust.

Rel!efs f(om -u &ments9 O( e(s "n Ot'e( P(ocee !n&s 4Rule B7;

(() A petition for relief from 'udgment is an e%uitable remedy that is allowed only in e$ceptional cases when there is no other available or ade%uate remedy. -hen a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mista/e or e$cusable negligence from filing such motion or ta/ing such appeal, he cannot avail himself of this petition (7rust I!ter!#tio!#l P#*er or*. vs. Pel#eD, +' 1648&1, Au). %%, %006). (*) 0nder Sec. 5, Rule +H, the court in which the petition is filed, may grant such *reli/i!#r9 i!>u!ctio! to preserve the rights of the parties upon the filing of a bond in favor of the adverse party. )he bond is conditioned upon the payment to the adverse party of all damages and costs that may be awarded to such adverse party by reason of the issuance of the in'unction (Sec. 5).

G(oun s fo( "%"!l!n& of t'e (eme . 4pet!t!on fo( (el!ef;

(() -hen a 'udgment or final order is entered, or any other proceeding is thereafter ta/en against a party in any court through (a) fraud, (b) accident, (c) mista/e, or (c) e$cusable negligence, he may file a petition in such court and in the same case praying that the 'udgment, order or proceeding be set aside (Sec. 1, 'ule -8). (*) -hen the petitioner has been prevented from ta/ing an appeal by fraud, mista/e, or e$cusable negligence (Sec. %).

T!me to f!le pet!t!on

(() A petition for relief from 'udgment, order or other proceedings must be verified, filed within :; days after the petitioner learns of the 'udgment, final order, or other proceeding to be set aside, and not more than si$ (:) months after such 'udgment or final order was entered, or such proceeding was ta/en5 and must be accompanied with affidavits showing the fraud, accident, mista/e, or e$cusable negligence relied upon, and the facts constituting the petitioner<s good and substantial cause of action or defense, as the case may be (Sec. -, 'ule -8).

Contents of pet!t!on

(() )he petition must be verified and must be accompanied with affidavits showing fraud, accident, mista/e or e$cusable negligence relied upon, and the facts constituting the petitioner<s good and substantial cause of action or defense, as the case may be (Sec. -).

Annulment of -u &ments9 o( <!n"l O( e(s "n Resolut!ons 4Rule @7;

G(oun s fo( "nnulment

(() )he annulment may be based only on the grounds of e$trinsic fraud and lac/ of 'urisdiction. B$trinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief (Sec. %, 'ule 4&).

Pe(!o to f!le "ct!on

(() !f based on e$trinsic fraud, the action must be filed within four (,) years from its discovery5 and if based on lac/ of 'urisdiction, before it is barred by laches or estoppels (Sec. -).

Effects of 0u &ment of "nnulment

(() A 'udgment of annulment shall set aside the %uestioned 'udgment or final order or resolution and render the same null and void, without pre'udice to the original action being refilled in the proper court. 4owever, where the 'udgment or final order or resolution is set aside on the ground of e$trinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein (Sec. &, 'ule 4&).

Coll"te("l "tt"c+ of 0u &ments

(() A collateral attac/ is made when, in another action to obtain a different relief, an attac/ on the 'udgment is made as an incident in said action. )his is proper only when the 'udgment, on its face, is null and void, as where it is patent that the court which rendered said 'udgment has no 'urisdiction ( o vs. A, 1,6 S 'A &05). B$amples. A petition for certior#ri under Rule :5 is a direct attac/. !t is filed primarily to have an order annulled. An action for annulment of a 'udgment is li/ewise a direct attac/ on a 'udgment. A motion to dismiss a complaint for collection of a sum of money filed by a corporation against the defendant on the ground that the plaintiff has no legal capacity to use is a collateral attac/ on the corporation. A motion to dismiss is incidental to the main action for sum of money. !t is not filed as an action intended to attac/ the legal e$istence of the plaintiff ( o vs. A, 1,6 S 'A &05).

1.

II.

EGECUTION9 SATIS<ACTION AND E<<ECT O< -UDG*ENTS 4Rule B5;

D!ffe(ence $et#een f!n"l!t. of 0u &ment fo( pu(pose of "ppe"l? fo( pu(poses of e2ecut!on

(() )he term JfinalK when used to describe a 'udgment may be used in two senses. !n the first, it refers to a 'udgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. !n this sense, a final 'udgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case ('u"eco! (#!#)e/e!t or*. vs. Si!)so!, 4554 S 'A 61%) . Since the finality of a 'udgment has the effect of ending the litigation, an aggrieved party may then appeal from the 'udgment. 0nder Sec. (, Rule ,(, an appeal may be ta/en from a 'udgment or final order that completely disposes of the case. 0nder the same rule, an appeal cannot be ta/en from an interlocutory order. (*) !n another sense, the word JfinalK may refer to a 'udgment that is no longer appealable and is already capable of being e$ecuted because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal, it has already been resolved by a highest possible tribunal (P ++ vs. S#!"i)#!$#9#!, 455 S 'A 5%6). !n this sense, the 'udgment is commonly referred to a s one that is final and e$ecutory.

,'en e2ecut!on s'"ll !ssue? E2ecut!on "s " m"tte( of (!&'t 4Sec. 1;

(() B$ecution is a matter of right upon the e$piration of the period to appeal and no appeal was perfected from a 'udgment or order that disposes of the action or proceeding (Sec. 1, 'ule -,). =nce a 'udgment becomes final and e$ecutory, the prevailing party can have it e$ecuted as a matter of right, and the issuance of a writ of e$ecution becomes the ministerial duty of the court. =nce a decision becomes final and e$ecutory, it is the ministerial duty of the presiding 'udge to issue a writ of e$ecution e$cept in certain cases, as when subse%uent events would render e$ecution of 'udgment un'ust ((#!)#h#s vs. P#re"es, +' 15&866, 1e$. 14, %00&) . (*) )he above principles have been consistently applied. )hus, in a subse%uent ruling the "ourt declared. K=nce a 'udgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of e$ecution the issuance of which is the trial court<s ministerial duty, compellable by mandamusK (+re#ter (etro*olit#! (#!il# Soli" I#ste (#!#)e/e!t o//ittee vs. 5#!co/ <!viro!/e!t#l or*., +' %16-66-, 5#!. -0, %006) . (+) Cudgments and orders become final and e$ecutor by operation of law and not by 'udicial declaration. )he trial court need not even pronounce the finality of the order as the same becomes final by operation of law. !ts finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period (7est#te o4 (#ri# (#!uel V"#. 2e Bi#sc#!, -&4 S 'A 6%18 Vl#so! <!ter*rises vs. A, -10 S 'A %6) . (,) (a) (b) (c) (d) (e) (f) B$ecution is a matter or right after e$piration of period to appeal and no appeal is perfected, e$cept in the following cases. -here 'udgment turns out to be incomplete or conditional5 Cudgment is novated by the parties5 B%uitable grounds (i.e., change in the situation of the partiesMsupervening fact doctrine) B$ecution is en'oined (i.e., petition for relief from 'udgment or annulment of 'udgment with )R= or writ of preliminary in'unction)5 Cudgment has become dormant5 or B$ecution is un'ust or impossible.

D!sc(et!on"(. e2ecut!on 4Sec. 6;

(() )he concept of discretionary e$ecution constitutes an e$ception to the general rule that a 'udgment cannot be e$ecuted before the lapse of the period for appeal or during the pendency of an appeal. 0nder Sec. (, Rule +2, e$ecution shall issue only as a matter of right upon a 'udgment or final order that finally disposes of the action or proceeding upon the e$ecution of the period to appeal therefrom if no appeal has been duly perfected. (*) A discretionary e$ecution is called JdiscretionaryK precisely because it is not a matter of right. )he e$ecution of a 'udgment under this concept is addressed to the discretionary power of the court (B#!)CoC B#!C Pu$lic o/*#!9 Lt". vs. Lee, +' 15,806, 5#!. %,, %006) . 0nli/e 'udgments that are final and e$ecutor, a 'udgment sub'ect to discretionary e$ecution cannot be insisted upon but simply prayed and hoped for because a discretionary e$ecution is not a matter of right. (+) A discretionary e$ecution li/e an e$ecution pending appeal must be strictly construed because it is an e$ception to the general rule. !t is not meant to be availed of routinely because it applies only in e$traordinary circumstances. !t should be interpreted only insofar as the language thereof fairly warrants, and all doubts should be resolved in favor of the general rule (Pl#!ters Pro"ucts, I!c. vs. A, +' 10605%, .ct. %%, 1,,,) . -here the e$ecution is not in conformity with the rules, the e$ecution is null and void (B#!)CoC B#!C vs. Lee, su*r#.). (,) (a) (b) (c) (d) Re%uisites for discretionary e$ecution. )here must be a motion filed by the prevailing party with notice to the adverse party5 )here must be a hearing of the motion for discretionary e$ecution5 )here must be good reasons to 'ustify the discretionary e$ecution5 and )he good reasons must be stated in a special order (Sec. %, 'ule -,).

/o# " 0u &ment !s e2ecute 4Sec. @;

(() Cudgments in actions for in'unction, receivership, accounting and support, and such other 'udgments as are now or may hereafter be declared to be immediately e$ecutory, shall be enforceable after their rendition and shall not be stayed by an appeal ta/en therefrom, unless otherwise ordered by the trial court. on appeal therefrom, the appellate court in its discretion may ma/e an order suspending, modifying, restoring or granting the in'unction, receivership, accounting, or award of support. )he stay of e$ecution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. (*) (a) (b) (c) Cudgments that may be altered or modified after becoming final and e$ecutory. 7acts and circumstances transpire which render its e$ecution impossible or un'ust5 Support5 !nterlocutory 'udgment.

E2ecut!on $. mot!on o( $. !n epen ent "ct!on 4Sec. >;

(() A final and e$ecutor 'udgment or order may be e$ecuted on motion within 5 years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a 'udgment may be enforced by action. )he revived 'udgment may also be enforced by motion within 5 years from the date of its entry and thereafter by action before it is barred by the statute of limitations.

Issu"nce "n contents of " #(!t of e2ecut!on 4Sec. 7;

(() )he writ of e$ecution shall. (i) issue in the name of the Republic of the 3hilippines from the court which granted the motion5 (ii) state the name of the court, the case number and title, the dispositive part of the sub'ect 'udgment or order5 and (iii) re%uire the sheriff or other proper officer to whom it is directed to enforce the writ according to its term, in the manner hereinafter provided. (a) !f the e$ecution be against the property of the 'udgment obligor, to satisfy the 'udgment, with interest, out of the real or personal property of such 'udgment obligor5

(b) !f it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the 'udgment obligor, to satisfy the 'udgment, with interest, out of such property5 (c) !f it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the 'udgment, the material parts of which shall be recited in the writ of e$ecution5 (d) !f it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the 'udgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property5 and (e) !n all cases, the writ of e$ecution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the 'udgment. 7or this purpose, the motion for e$ecution shall specify the amounts of the foregoing reliefs sought by the movants.

E2ecut!on of 0u &ment fo( mone. 4Sec. 5;

(()

!n e$ecuting a 'udgment for money, the sheriff shall follow the following steps.

(a) Eemand from the 'udgment obligor the immediate payment of the full amount stated in the 'udgment including the lawful fees in cash, certified chec/ payable to the 'udgment oblige or any other form of payment acceptable to him (Sec. ,). !n emphasi6ing this rule, the S" held that in the e$ecution of a money 'udgment, the sheriff is re%uired to first ma/e a demand on the obligor for the immediate payment of the full amount stated in the writ of e$ecution (Si$ulo vs. S#! 5ose, 4&4 S 'A 464) . (b) !f the 'udgment obligor cannot pay all or part of the obligation in cash, certified chec/ or other mode of payment, the officer shall levy upon the properties of the 'udgment obligor. )he 'udgment obligor shall have the option to choose which property or part thereof may be levied upon. !f the 'udgment obligor does not e$ercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal 'udgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the 'udgment and lawful fees (Sec. ,[$]).

E2ecut!on of 0u &ment fo( spec!f!c "cts 4Sec. 1:;

(() !f the 'udgment re%uires a person to perform a specific act, said act must be performed but if the party fails to comply within the specified time, the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as if done by the party (Sec 10[#]) . !f the 'udgment directs a conveyance of real or personal property, and said property is in the 3hilippines, the court in lieu of directing the conveyance thereof, may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance e$ecuted in due form of law (Sec. 10[#], 'ule -,).

E2ecut!on of spec!"l 0u &ments 4Sec. 11;

(() -hen a 'udgment re%uires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the 'udgment shall be attached to the writ of e$ecution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person re%uired thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such 'udgment.

Effect of le%. on t'!( pe(sons 4Sec. 16;

(() )he levy on e$ecution shall create a lien in favor of the 'udgment oblige over the right, title and interest of the 'udgment obligor in such property at the time of the levy, sub'ect to liens and encumbrances then e$isting.

P(ope(t!es e2empt f(om e2ecut!on 4Sec. 1B;

(() (a) (b)

)here are certain properties e$empt from e$ecution enumerated under Sec. (+, Rule +2. )he 'udgment obligor<s family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith5 =rdinary tools and implements personally used by him in his trade, employment, or livelihood5

(c) )hree horses, or three cows, or three carabaos, or other beasts of burden, such as the 'udgment obligor may select necessarily used by him in his ordinary occupation5 (d) 4is necessary clothing and articles for ordinary personal use, e$cluding 'ewelry5

(e) 4ousehold furniture and utensils necessary for house/eeping, and used for that purpose by the 'udgment obligor and his family, such as the 'udgment obligor may select, of a value not e$ceeding (;;,;;; pesos. (f) 3rovisions for individual or family use sufficient for four months5

(g) )he professional libraries and e%uipment of 'udges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not e$ceeding +;;,;;; pesos5 (h) =ne fishing boat and accessories not e$ceeding the total value of (;;,;;; pesos owned by a fisherman and by the lawful use of which he earns his livelihood5

(i) So much of the salaries, wages, or earnings of the 'udgment obligor for his personal services with , months preceding the levy as are necessary for the support of his family5 (') (/) (l) Lettered gravestones5 8onies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance5 )he right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government5 and

(m) 3roperties specially e$empted by law (Sec. 1-, 'ule -,). (*) !f the property mentioned in Sec. (+ is the sub'ect of e$ecution because of a 'udgment for the recovery of the price or upon 'udgment of foreclosure of a mortgage upon the property, the property is not e$empt from e$ecution.

P(ocee !n&s #'e(e p(ope(t. !s cl"!me $. t'!( pe(sons 4Sec. 1>;

(() !f the property levied on is claimed by any person other than the 'udgment obligor or his agent, and such person ma/es an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer ma/ing the levy and a copy thereof upon the 'udgment obligee, the officer shall not be bound to /eep the property, unless such 'udgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third&party claimant in a sum not less than the value of the property levied on. !n case of disagreement as to such value, the same shall be determined by the court issuing the writ of e$ecution. Fo claim for damages for the ta/ing or /eeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty ((*;) days from the date of the filing of the bond. )he officer shall not be liable for damages for the ta/ing or /eeping of the property, to any third&party claimant if such bond is filed. Fothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the 'udgment obligee from claiming damages in the same or a separate action against a third&party claimant who filed a frivolous or plainly spurious claim. -hen the writ of e$ecution is issued in favor of the Republic of the 3hilippines, or any officer duly representing it, the filing of such bond shall not be re%uired, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor >eneral and if held liable therefor, the actual damages ad'udged by the court shall be paid by the Fational )reasurer out of such funds as may be appropriated for the purpose. (*) (a) (b) (c) (d) Re%uisites for a claim by a third person. )he property is levied5 )he claimant is a person other than the 'udgment obligor or his agent5 8a/es an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title5 and Serves the same upon the officer ma/ing the levy and the 'udgment obligee.

In (el"t!on to t'!( p"(t. cl"!m !n "tt"c'ment "n (eple%!n

(()

"ertain remedies available to a third person not party to the action but whose property is the sub'ect of e$ecution.

(a) &erceria 9 #y ma/ing an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. )he affidavit must be served upon the sheriff and the attaching party (Sec. 14, 'ule 5&). 0pon service of the affidavit upon him, the sheriff shall not be bound to /eep the property under attachment e$cept if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the ta/ing or /eeping of the property, if such bond shall be filed.

(b) E2clus!on o( (ele"se of p(ope(t. 9 0pon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the e$ecution of the writ of attachment. )he court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. !n resolving the application, the court cannot pass upon the %uestion of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not ( hi!) vs. A, 4%S 'A -56). (c) Inte(%ent!on 9 )his is possible because no 'udgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the 'udgment by the trial court (Sec. %, 'ule 1,). (d) Accion Reinvindicatoria 9 )he third party claimant is not precluded by Sec. (,, Rule 51 from vindicating his claim to the property in the same or in a separate action. 4e may file a separate action to nullify the levy with damages resulting from the unlawful levy and sei6ure. )his action may be a totally distinct action from the former case.

Rules on Re empt!on

(() Real property sold, or any part thereof sold separately, may be redeemed by the following persons. (a) Cudgment obligor, or his successor in interest in the whole or any part of the property5

(b) Redemptioner 9 a creditor having a lien by virtue of an attachment, 'udgment or mortgage on the property sold, or on some part thereof, subse%uent to the lien under which the property was sold. A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been e$ecuted after the entry of 'udgment. >enerally in 'udicial foreclosure sale, there is no right of redemption, but only e%uity of redemption. !n sale of estate property to pay off debts of the estate, there is no redemption at all. =nly in e$tra'udicial foreclosure sale and sale on e$ecution is there the right of redemption. (*) )he 'udgment obligor, or redemptioner, may redeem the property from the purchaser at any time within ( year from the date of the registration of the certificate of sale by paying the purchaser (a) the amount of his purchase5 (b) amount of any assessments or ta$es which the purchaser may have paid after purchase5 (c) if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the 'udgment under which such purchase was made, the amount of such other lien5 and (d) with ( percent per month interest up to the time of redemption. (+) 3roperty redeemed may again be redeemed within :; days after the last redemption by a redemptioner, upon payment of. (a) the sum paid on the last redemption, with additional * percent5 (b) the amount of any assessments or ta$es which the last redemptioner may have paid thereon after redemption by him, with interest5 (c) the amount of any liens held by said last redemptioner prior to his own, with interest. (,) )he property may be again, and as often as a redemptioner is so disposed, similarly redeemed from any previous redemptioner within :; days after the last redemption. -ritten notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place. !f any assessments or ta$es are paid by the redemptioner or if he has or ac%uires any lien other than that upon which the redemption was made, notice thereof must in li/e manner be given to the officer and filed with the registry of deeds. !f such notice be not filed, the property may be redeemed without paying such assessments, ta$es, or liens. (5) Bffect of Redemption. !f the 'udgment obligor redeems, he must ma/e the same payments as are re%uired to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. )he person to whom the redemption payment is made must e$ecute and deliver to him a certificate of redemption ac/nowledged before a notary public or other officer authori6ed to ta/e ac/nowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. )he payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale (Sec. %,). (:) 3roof re%uired of redemptioner. A redemptioner must produce to the officer, or person from whom he see/s to redeem, and serve with his notice to the officer a copy of the 'udgment or final order under which he claims the right to redeem, certified by the cler/ of the court wherein the 'udgment or final order is entered5 or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds5 or an original or certified copy of any assignment necessary to establish his claim5 and an affidavit e$ecuted by him or his agent, showing the amount then actually due on the lien (Sec. -0). (1) 8anner of using premises pending redemption. 0ntil the e$piration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by in'unction, on the application of the purchaser or the 'udgment obligee, with or without notice5 but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used5 or to use it in the ordinary course of husbandry5 or to ma/e the necessary repairs to buildings thereon while he occupies the property (Sec. -1). (H) Rents, earnings and income of property pending redemption. )he purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on e$ecution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the 'udgment obligor until the e$piration of his period of redemption (Sec. -%). (2) Eeed and possession to be given at e$piration of redemption period5 by whom e$ecuted or given. !f no redemption be made within one (() year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property5 or, if so redeemed whenever si$ty (:;) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has e$pired, the last redemptioner is entitled to the conveyance and possession5 but in all cases the 'udgment obligor shall have the entire period of one (() year from the date of the registration of the sale to redeem the property. )he deed shall be e$ecuted by the officer ma/ing the sale or by his successor in office, and in the latter case shall have the same validity as though the officer ma/ing the sale had continued in office and e$ecuted it. 0pon the e$piration of the right of redemption, the purchaser or redemptioner shall be substituted to and ac%uire all the rights, title, interest and claim of the 'udgment obligor to the property as of the time of the levy. )he possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the 'udgment obligor (Sec. --).

E2"m!n"t!on of 0u &ments o$l!&o( #'en 0u &ment !s uns"t!sf!e 4Sec. B>;

(() -hen the return of a writ of e$ecution issued against property of a 'udgment obligor, or any one of several obligors in the same 'udgment, shows that the 'udgment remains unsatisfied, in whole or in part, the 'udgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said 'udgment, re%uiring such 'udgment obligor to appear and be e$amined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place5 and proceedings may thereupon be had for the application of the property and income of the 'udgment obligor towards the satisfaction of the 'udgment. #ut no 'udgment obligor shall be so re%uired to appear before a court or commissioner outside the province or city in which such obligor resides or is found.

E2"m!n"t!on of o$l!&o( of 0u &ment o$l!&o( 4Sec. B7;

(() -hen the return of a writ of e$ecution against the property of a 'udgment obligor shows that the 'udgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that person, corporation, or other 'uridical entity has property of such 'udgment obligor or is indebted to him, the court may, by an order, re%uire such person, corporation, or other 'uridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be e$amined concerning the same. )he service of the order shall bind all credits due the 'udgment obligor and all money and property of the 'udgment obligor in the possession or in control of such person, corporation, or 'uridical entity from the time of service5 and the court may also re%uire notice of such proceedings to be given to any party to the action in such manner as it may deem proper.

Effect of 0u &ment o( f!n"l o( e(sH Res 'udicata 4Sec. @7;

(() !n case of a 'udgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the 'udgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person5 however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the truth of the testator or intestate5 (*) !n other cases, the 'udgment or final order is, with respect to the matter directly ad'udged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subse%uent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity5 and (+) !n any other litigation between the same parties or their successors in interest, that only is deemed to have been ad'udged in a former 'udgment or final order which appears upon its face to have been so ad'udged, or which was actually and necessarily included therein or necessary thereto.

Enfo(cement "n effect of fo(e!&n 0u &ments o( f!n"l o( e(s 4Sec. @7;

(()

!n case of a 'udgment or final order upon a specific thing, the 'udgment or final order is conclusive upon the title to the thing5 and

(*) !n case of a 'udgment or final order against a person, the 'udgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subse%uent title. !n either case, the 'udgment or final order may be repelled by evidence of a want of 'urisdiction, want of notice to the party, collusion, fraud, or clear mista/e of law or fact. (+) A foreign 'udgment on the mere strength of its promulgation is not yet conclusive, as it can be annulled on the grounds of want of 'urisdiction, want of notice to the party, collusion, fraud, or clear mista/e of law or fact. !t is li/ewise recogni6ed in 3hilippine 'urisprudence and international law that a foreign 'udgment may be barred from recognition if it runs counter to public policy ('e*u$lic vs. +i!)o9o!, +' 1664%,, 5u!e %&, %006). 1. III. PROVISIONAL RE*EDIES 4Rules 87)>1;

N"tu(e of p(o%!s!on"l (eme !es

(() 3rovisional remedies are temporary, au$iliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. )hey are writs and processes which are not main actions and they presuppose the e$istence of a principal action. (*) 3rovisional remedies are resorted to by litigants for any of the following reasons.

(a) (b) (c) (d) (+) (a) (b) (c) (d) (e)

)o preserve or protect their rights or interests while the main action is pending5 )o secure the 'udgment5 )o preserve the status %uo5 or )o preserve the sub'ect matter of the action. 3rovisional remedies specified under the rules are. 3reliminary attachment ('ule 5&)5 3reliminary in'unction ('ule 58)5 Receivership ('ule 5,)5 Replevin ('ule 60)5 and Support *e!"e!t lite ('ule 61).

-u(!s !ct!on o%e( p(o%!s!on"l (eme !es

(() )he courts which grants or issues a provisional remedy is the court which has 'urisdiction over the main action. Bven an inferior court may grant a provisional remedy in an action pending with it and within its 'urisdiction.

P(el!m!n"(. Att"c'ment 4Rule 87;

(() 3reliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever 'udgment may be rendered in the case (2#v#o Li)ht #!" PoAer, I!c. vs. A, %04 S 'A -4-). (*) -hen availed of and is granted in an action purely i! *erso!#/, it converts the action to one that is Bu#si i! re/. !n an action i! re/ or Bu#si i! re/, 'urisdiction over the res is sufficient. Curisdiction over the person of the defendant is not re%uired (Vill#re#l vs. A, %,5 S 'A 511). (+) 3reliminary attachment is designed to.

(a) Sei6e the property of the debtor before final 'udgment and put the same in custo"i#l e)is even while the action is pending for the satisfaction of a later 'udgment (I!sul#r B#!C o4 Asi# #!" A/eric# vs. A, 1,0 S 'A 6%,)8 (b) )o enable the court to ac%uire 'urisdiction over the res or the property sub'ect of the action in cases where service in person or any other service to ac%uire 'urisdiction over the defendant cannot be affected. (,) 3reliminary attachment has three types.

(a) 3reliminary attachment 9 one issued at the commencement of the action or at any time before entry of 'udgment as security for the satisfaction of any 'udgment that may be recovered. 4ere the court ta/es custody of the property of the party against whom attachment is directed. (b) >arnishment 9 plaintiff see/s to sub'ect either the property of defendant in the hands of a third person (garnishee) to his claim or the money which said third person owes the defendant. >arnishment does not involve actual sei6ure of property which remains in the hands of the garnishee. !t simply impounds the property in the garnishee<s possession and maintains the st#tus Buo until the main action is finally decided. >arnishment proceedings are usually directed against personal property, tangible or intangible and whether capable of manual delivery or not. (c) Levy on e$ecution 9 writ issued by the court after 'udgment by which the property of the 'udgment obligor is ta/en into custody of the court before the sale of the property on e$ecution for the satisfaction of a final 'udgment. !t is the preliminary step to the sale on e$ecution of the property of the 'udgment debtor. (5) )he grant of the remedy is addressed to the discretion of the court whether or not the application shall be given full credit is discretionary upon the court. in determining the propriety of the grant, the court also considers the principal case upon which the provisional remedy depends.

G(oun s fo( !ssu"nce of #(!t of "tt"c'ment

(() At the commencement of the action or at any time before entry of 'udgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any 'udgment that may be recovered in the following cases. (a) !n an action for the recovery of a specified amount of money or damages, other than moral and e$emplary, on a cause of action arising from law, contract, %uasi& contract, delict or %uasi&delict against a party who is about to depart from the 3hilippines with intent to defraud his creditors5 (b) !n an action for money or property embe66led or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, bro/er, agent or cler/, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty5 (c) !n an action to recover the possession of property un'ustly or fraudulently ta/en, detained or converted, when the property, or any party thereof, has been concealed, removed, or disposed of to prevent its being found or ta/en by the applicant or an authori6ed person5 (d) !n an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action the action is brought, or in the performance thereof5 (e) (f) !n an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors5 or !n an action against a party who does not reside and is not found in the 3hilippines, or on whom summons may be served by publication (Sec. 1).

Re1u!s!tes

(() (a) (b)

)he issuance of an orderIwrit of e$ecution re%uires the following. )he case must be any of those where preliminary attachment is proper5 )he applicant must file a motion ( e: *#rte or with notice and hearing)5

(c) )he applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced5 that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims5 and (d) )he applicant must post a bond e$ecuted to the adverse party. )his is called an attachment bond, which answers for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment ( #rlos vs. S#!"ov#l, 4&1 S 'A %66) .

Issu"nce "n contents of o( e( of "tt"c'ment? "ff! "%!t "n $on

(() An order of attachment may be issued either e: *#rte or upon motion with notice and hearing by the court in which the action is pending, or by the "A or the S", and must re%uire the sheriff of the court to attach so much of the property in the 3hilippines of the party against whom it is issued, not e$empt from e$ecution, as may be sufficient to satisfy the applicant<s demand, unless such party ma/es deposit or gives a bond in an amount e%ual to that fi$ed in the order, which may be the amount sufficient to satisfy the applicant<s demand or the value of the property to be attached as stated by the applicant, e$clusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different 'udicial regions (Sec. %). (*) An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally /nows the facts, that a sufficient cause of action e$ists, that the case is one of those mentioned in Section(, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. )he affidavit, and the bond must be filed with the court before the order issues (Sec. -).

Rule on p(!o( o( contempo("neous se(%!ce of summons

(() Fo levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by the service of summons, together with a copy of the complaint, the application for attachment, the applicant<s affidavit and bond, and the order and writ of attachment, on the defendant within the 3hilippines. (*) (a) (b) )he re%uirement of prior or contemporaneous service of summons shall not apply in the following instances. -here the summons could not be served personally or by substituted service despite diligent efforts5 )he defendant is a resident of the 3hilippines who is temporarily out of the country5

(c) (d)

)he defendant is a non&resident5 or )he action is one i! re/ or Bu#si i! re/ (Sec. 5).

*"nne( of "tt"c'!n& (e"l "n pe(son"l p(ope(t.? #'en p(ope(t. "tt"c'e !s cl"!me $. t'!( pe(son

Sec. &. Att#ch/e!t o4 re#l #!" *erso!#l *ro*ert98 recor"i!) thereo4. K Real and personal property shall be attached by the sheriff e$ecuting the writ in the following manner. (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. -here the property has been brought under the operation of either the Land Registration Act or the 3roperty Registration Eecree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration boo/ where the certificate is registered, and the registered owner or owners thereof. )he registrar of deeds must inde$ attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. !f the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment5 (b) 3ersonal property capable of manual delivery, by ta/ing and safely /eeping it in his custody, after issuing the corresponding receipt therefor5 (c) Stoc/s or shares, or an interest in stoc/s or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stoc/ or interest of the party against whom the attachment is issued is attached in pursuance of such writ5 (d) Eebts and credits, including ban/ deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ5 (e) )he interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the e$ecutor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the cler/ of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. !f the property sought to be attached is in custo"i# le)is, a copy of the writ of attachment shall be filed with the proper court or %uasi&'udicial agency, and notice of the attachment served upon the custodian of such property.

((;) "ertain remedies available to a third person not party to the action but whose property is the sub'ect of e$ecution. (e) )erceria 9 by ma/ing an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. )he affidavit must be served upon the sheriff and the attaching party (Sec. 14). 0pon service of the affidavit upon him, the sheriff shall not be bound to /eep the property under attachment e$cept if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the ta/ing or /eeping of the property, if such bond shall be filed. (f) B$clusion or release of property 9 0pon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the e$ecution of the writ of attachment. )he court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. !n resolving the application, the court cannot pass upon the %uestion of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not ( hi!) vs. A, 4%S 'A -56). (g) !ntervention 9 this is possible because no 'udgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the 'udgment by the trial court (Sec. %, 'ule 1,). (h) Accion Reinvindicatoria 9 )he third party claimant is not precluded by Sec. (,, Rule 51 from vindicating his claim to the property in the same or in a separate action. 4e may file a separate action to nullify the levy with damages resulting from the unlawful levy and sei6ure. )his action may be a totally distinct action from the former case.

D!sc'"(&e of "tt"c'ment "n t'e counte()$on

(() !f the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment. )his motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movants ma/es a cash deposit or files a counter&bond e$ecuted to the attaching party with the cler/ of court where the application is made in an amount e%ual to that fi$ed by the court in the order of attachment, e$clusive of costs. "ounter& bonds are replacements of the property formerly attached, and 'ust as the latter, may be levied upon after final 'udgment. Fote that the mere posting of counterbond does not automatically discharge the writ of attachment. !t is only after the hearing and after the 'udge has ordered the discharge of attachment that the same is properly discharged (Sec. 1%).

(*) Attachment may li/ewise be discharged without the need for filing of a counter&bond. )his is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that. (a) (b) (c) (d) (+) (a) (b) (c) (d) )he attachment was improperly or irregularly issued or enforced5 or )he bond of the attaching creditor is insufficient5 or )he attachment is e$cessive and must be discharged as to the e$cess (Sec. 1-)5 or )he property is e$empt from e$ecution, and as such is also e$empt from preliminary attachment (Sec. %). >rounds for discharge of an attachment "ounterbond posted improperly issued irregularly issued or enforced insufficient applicant<s bond

J!mproperlyK (e.g. writ of attachment was not based on the grounds in Sec. () J!rregularlyK (e.g. writ of attachment was e$ecuted without previous or contemporaneous service of summons

S"t!sf"ct!on of 0u &ment out of p(ope(t. "tt"c'e

(() !f 'udgment be recovered by the attaching party and e$ecution issue thereon, the sheriff may cause the 'udgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner. (a) #y paying to the 'udgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the 'udgment5 (b) !f any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff<s hands, or in those of the cler/ of the court5 (c) #y collecting from all persons having in their possession credits belonging to the 'udgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amounts of such credits and debts as determined by the court in the action, and stated in the 'udgment, and paying the proceeds of such collection over to the 'udgment obligee (Sec. 15). (*) (() (*) (+) (,) =rder of satisfaction of 'udgment of attached property 3erishable or other property sold in pursuance of the order of the court5 3roperty, real or personal, as may be necessary to satisfy the balance5 collecting from debtors of the 'udgment obligor5 ordinary e$ecution.

P(el!m!n"(. In0unct!on 4Rule 87;

Def!n!t!ons "n D!ffe(encesH P(el!m!n"(. In0unct!on "n Tempo("(. Rest("!n!n& O( e(

(() A preliminary in'unction is an order granted at any stage of an action or proceeding prior to the 'udgment or final order, re%uiring a party or a court, agency or a person to refrain from a particular act or acts. !t may also re%uire the performance of a particular act or acts, in which case it shall be /nown as a preliminary mandatory in'unction (Sec. 1).

(*) As a provisional remedy, preliminary in'unction aims to preserve the st#tus Buo or to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action ( orteD=<str#"# vs. 3eirs o4 2o/i!)o, 451 S 'A %&5 [%005]) . )he status %uo is the last, actual, peaceable and uncontested situation which precedes a controversy. )he in'unction should not establish a new relation between the parties, but merely should maintain or re&establish the pre&e$isting relationship between them. (+) A writ of preliminary in'unction remains until it is dissolved5 a temporary restraining order ()R=) has a lifetime only of *; days (R)" and 8)") or :; days ("ourt of Appeals). A )R= issued by the Supreme "ourt shall be effective until further orders. A )R= is issued to preserve the st#tus Buo until the hearing of the application for preliminary in'unction. )he 'udge may issue a )R= with a limited life of *; days from date of issue. !f before the e$piration of the *; day period, the application for preliminary in'unction is denied, the )R= would be deemed automatically vacated. !f no action is ta/en by the 'udge within the *; day period, the )R= would automatically e$pire on the *;th day by the sheer force of law, no 'udicial declaration to that effect being necessary (B#colo" it9 I#ter 2istrict vs. L#$#9e!, 446 S 'A 110) . (,) (22H #ar. A )R= is an order to maintain the st#tus Buo between and among the parties until the determination of the prayer for a writ of preliminary in'unction. A writ of preliminary in'unction cannot be granted without notice and hearing. A )R= may be granted e: *#rte if it shall appear from facts shown by affidavits or by the verified application that great or irreparable in'ury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary in'unction was made my issue a )R= e: *#rte for a period not e$ceeding *; days from service to the party sought to be en'oined.

Re1u!s!tes

(() A preliminary in'unction or temporary restraining order may be granted only when. (a) )he application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded5 and (b) 0nless e$empted by the court, the applicant files with the court where the action or proceeding is pending, a bond e$ecuted to the party or person en'oined, in an amount to be fi$ed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the in'unction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. 0pon approval of the re%uisite bond, a writ of preliminary in'unction shall be issued. (c) -hen an application for a writ of preliminary in'unction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple&sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be en'oined. !n any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant<s affidavit and bond, upon the adverse party in the 3hilippines. 4owever where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the 3hilippines temporarily absent therefrom or is a nonresident thereof, the re%uirement of prior or contemporaneous service of summons shall not apply. (d) )he application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty&four (*,) hours after the sheriff<s return of service andIor the records are received by the branch selected by raffle and to which the records shall be transmitted immediately (Sec. 4). (e) )he applicant must establish that there is a need to restrain the commission or continuance of the acts complied of and if not en'oined would wor/ in'ustice to the applicant (B#r$#>o vs. 3i""e! VieA 3o/eoA!ers, I!c., 450 S 'A -15) . (f) )he plaintiff must further establish that he or she has a present unmista/able right to be protected5 that the facts against which in'unction is directed violate such right5 and there is a special and paramount necessity for the writ to prevent serious damages. !n the absence of proof of legal right and the in'ury sustained by the plaintiff, an order for the issuance of a writ of preliminary in'unction will be nullified. )hus, where the plaintiff<s right is doubtful or disputed, a preliminary in'unction is not proper. )he possibility of irreparable damage without proof of an actual e$isting right is not a ground for preliminary in'unction (S*s. Fisce vs. <Buit#$le P I B#!C, 1e$. 1,, %00&).

A!n s of In0unct!on

(() 3rohibitory 9 its purpose is to prevent a person from the performance of a particular act which has not yet been performed. 4ere, the status %uo is preserved or restored and this refers to the last peaceable, uncontested status prior to the controversy. (a) 3reliminary 9 secured before the finality of 'udgment.

(a) 7inal 9 issued as a 'udgment, ma/ing the in'unction permanent. !t perpetually restrains a person from the continuance or commission of an act and confirms the previous preliminary in'unction. !t is one included in the 'udgment as the relief or part of the relief granted as a result of the action, hence, granted only after trial (Sec. 10), and no bond is re%uired. (*) (a) (b) 8andatory 9 its purpose is to re%uire a person to perform a particular positive act which has already been performed and has violated the rights of another. 3reliminary 7inal

(*a) Re%uisites for the issuance of mandatory preliminary in'unction

(a) (b) (c)

)he invasion of the right is material and substantial5 )he right of a complainant is clear and unmista/able5 )here is an urgent and permanent necessity for the writ to prevent serious damage ('iver# vs. 1lore!"o, 144 S 'A 64-).

,'en #(!t m". $e !ssue

(()

)he complaint in the action is verified, and shows facts entitling the plaintiff to the relief demanded5 and

(*) )he plaintiff files a bond which the court may fi$, conditioned for the payment of damages to the party en'oined, if the court finds that the plaintiff is not entitled thereto (Sec. 4).

G(oun s fo( !ssu"nce of p(el!m!n"(. !n0unct!on

(() )he applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in re%uiring the performance of an act or acts either for a limited period or perpetually5 or (*) )he commission, continuance or non&performance of the act or acts complained of during the litigation would probably wor/ in'ustice to the applicant5 or

(+) A party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the sub'ect of the action or proceeding, and tending to render the 'udgment ineffectual (Sec. -).

G(oun s fo( o$0ect!on to9 o( fo( t'e !ssolut!on of !n0unct!on o( (est("!n!n& o( e(

(() )he application for in'unction or restraining order may be denied, upon a showing of its insufficiency. )he in'unction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavit of the party or person en'oined, which may be opposed by the applicant also by affidavits. !t may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the in'unction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person en'oined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fi$ed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the in'unction or restraining order. !f it appears that the e$tent of the preliminary in'unction or restraining order granted is too great, it may be modified (Sec. 6). (+) (a) (b) (*) >rounds for ob'ection to, or for motion of dissolution of, in'unction or restraining order 0pon showing of insufficiency of the application5 =ther grounds upon affidavit of the party or person en'oined5

(c) Appears after hearing that irreparable damage to the party or person en'oined will be caused while the applicant can be fully compensated for such damages as he may suffer, and the party en'oined files a counterbond5 (d) (e) !nsufficiency of the bond5 !nsufficiency of the surety or sureties.

Du("t!on of TRO

(()

)he lifetime of a )R= is *; days, which is non&e$tendible (A( 0%=0%=0&=S ).

In (el"t!on to RA 75789 ="n on !ssu"nce of TRO o( ,(!t of In0unct!on !n c"ses !n%ol%!n& &o%e(nment !nf("st(uctu(e p(o0ects

(() 0nder 3E (H(H and RA H1+5, in'unction is not available to stop infrastructure pro'ects of the government including arrastre and stevedoring operations ((#l#9#! I!te)r#te" I!"ustries vs. A, +' 10146,, Se*t. 4, 1,,%8 PPA vs. vs. Pier 8 Arr#stre #!" Stev e"ori!) Services, 4&5 S 'A 4%6) .

Rule on p(!o( o( contempo("neous se(%!ce of summons !n (el"t!on to "tt"c'ment

(() !t is not available where the summons could not be served personally or by substituted service despite diligent efforts or where the adverse party is a resident of the 3hilippines temporarily absent therefrom or is a non&resident thereof (Sec. 4).

St"&es of In0unct!on

(() (a) (b) (c) () *)

Seventy&two (1*) hour )emporary Restraining =rder !f the matter is of e$treme urgency and the applicant will suffer grave in'ustice and irreparable in'ury5 !ssued by e$ecutive 'udge of a multi&sala court or the presiding 'udge of a single&sala court5 )hereafter must Serve summons and other documents "onduct summary hearing to determine whether the )R= shall be e$tended to *; days until the application for preliminary in'unction can be heard.

(*)

)wenty (*;) day )R=

(a) !f it shall appear from the facts shown by affidavits or by the verified application that great or irreparable in'ury would result to the applicant before the matter can be heard on notice5 (b) !f application is included in initiatory pleading.

() Fotice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant<s affidavit and bond, upon the adverse party in the 3hilippines5 *) Raffled only after notice to and in the presence of the adverse party or the person to be en'oined.

(c) !ssued with summary hearing (to determine whether the applicant will suffer great or irreparable in'ury) within *, hours after sheriff<s return of service andIor records are received by the branch selected by raffle5 (d) -ithin *;&day period, the court must order said person to show cause why the in'unction should not be granted, and determine whether or not the preliminary in'unction shall be granted, and accordingly issue the corresponding order5 (e) () *) +) (f) (g) (h) !ncluding the original 1* hours, total effectivity of )R= shall. Fot e$ceed *; days, if issued by an R)" or 8)"5 Fot e$ceed :; days, if issued by the "A or a member thereof5 0ntil further orders, if issued by the S". )R= is automatically vacated upon e$piration of the period and without granting of preliminary in'unction5 Bffectivity is not e$tendible without need of any 'udicial declaration to that effect5 Fo court shall have authority to e$tend or renew the same on the same ground for which it was issued.

(+) (a) (b)

3reliminary !n'unction 4earing and prior notice to the party sought to be en'oined5 !f application is included in initiatory pleading5

() Fotice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant<s affidavit and bond, upon the adverse party in the 3hilippines. *) (c) Raffled only after notice to and in the presence of the adverse party or the person to be en'oined Applicant posts a bond

(,)

7inal !n'unction

(a) Fote that a bond is re%uired only in preliminary in'unctions, but is not re%uired in )R=s. After lapse of the *; day )R=, the court can still grant a preliminary in'unction. Fote that irreparable in'ury is always a re%uisite in )R=s. #ut in the 1* hour )R=, grave in'ustice must also be shown. !n the *; day )R=, the ground is great or irreparable in'ury (P#r#s v. 'our#, 16- S 'A 1 [1,88]). -ithout a preliminary in'unction, a )R= issued by the "A e$pires without necessity of court action.

Rece!%e(s'!p 4Rule 85;

(() Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action. (*) !t may be the principal action itself or a mere provisional remedy5 it can be availed of even after the 'udgment has become final and e$ecutory as it may be applied for to aid e$ecution or carry 'udgment into effect.

C"ses #'en (ece!%e( m". $e "ppo!nte

(() )he party applying for the appointment of a receiver has an interest in the property or fund which is the sub'ect of the action or proceeding, and that such property or fund is in danger of being lost, or materially in'ured unless a receiver be appointed to administer and preserve it5 (*) !n an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially in'ured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage5 (+) After 'udgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the 'udgment, or to aid e$ecution when the e$ecution has been returned unsatisfied or the 'udgment obligor refuses to apply his property in satisfaction of the 'udgment, or otherwise to carry the 'udgment into effect5 (,) -henever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation (Sec. 1).

Re1u!s!tes

(() (*)

erified application5 Appointed by the court where the action is pending, or by the "A or by the S", or a member thereof5

Euring the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court or origin and the receiver appointed to be sub'ect to the control of said court. (+) Applicant<s bond conditioned on paying the adverse party all damages he may sustain by the appointment of the receiver in case the appointment is without sufficient cause5 (,) Receiver ta/es his oath and files his bond.

Re1u!(ements $efo(e !ssu"nce of "n O( e(

(() #efore issuing the order appointing a receiver the court shall re%uire the applicant to file a bond e$ecuted to the party against whom the application is presented, in an amount to be fi$ed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause5 and the court may, in its discretion, at any time after the appointment, re%uire an additional bond as further security for such damages (Sec. %).

Gene("l po#e(s of " (ece!%e(

(() (*) (+) (,) (5) (:) (1) (H) (2)

)o bring and defend, in such capacity, actions in his own name )o ta/e and /eep possession of the property in controversy )o receive rents )o collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver )o compound for and compromise the same )o ma/e transfer )o pay outstanding debts )o divide the money and other property that shall remain among the persons legally entitled to receive the same )o do such acts respecting the property as the court may authori6e.

4owever, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. Fo action may be filed by or against a receiver without leave of the court which appointed him (Sec. 6).

T#o 46; +!n s of $on s

(() Applicant<s #ond (for appointment of receiver) 9 )o pay the damages the adverse party may sustain by reason of appointment of receiver5 and (*) Receiver<s #ond (of the appointed receiver, aside from oath) 9 )o answer for receiver<s faithful discharge of his duties (Sec. %).

Te(m!n"t!on of (ece!%e(s'!p

(() -henever the court, /otu *ro*rio or on motion of either party, shall determine that the necessity for a receiver no longer e$ists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person ad'udged to be entitled to receive them, and order the discharge of the receiver from further duty as such. )he court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be ta$ed as costs against the defeated party, or apportioned, as 'ustice re%uires (Sec. 8). (*) Receivership shall also be terminated when (a) its continuance is not 'ustified by the facts and circumstances of the case (S#/so! vs. Ar#!et#, 64 Phil. 54,) 5 or (b) then court is convinced that the powers are abused (2uBue vs. 1I, (#!il#, 1- S 'A 4%0) .

Reple%!n 4Rule >:;

(() Replevin is a proceeding by which the owner or one who has a general or special property in the thing ta/en or detained see/s to recover possession in specie, the recovery of damages being only incidental (A/. 5ur. 6). (*) Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. 0sed in this sense, it is a suit in itself. (+) !t is a provisional remedy in the nature of possessory action and the applicant who see/s immediate possession of the property involved need not be the holder of the legal title thereto. !t is sufficient that he is entitled to possession thereof (H#!) vs. V#l"eD, 1&& S 'A 141).

,'en m". ,(!t $e Issue

(() )he provisional remedy of replevin can only be applied for before answer. A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him (Sec. 1).

Re1u!s!tes

(() A party praying for the provisional remedy must file an application for a writ of replevin. 4is application must be filed at the commencement of the action or at any time before the defendant answers, and must contain an affidavit particularly describing the property to which he entitled of possession. (*) )he affidavit must state that the property is wrongfully detained by the adverse party, alleging therein the cause of the detention. !t must also state that the property has not been destrained or ta/en for ta$ assessment or a fine pursuant to law, or sei6ed under a writ of e$ecution or preliminary attachment, or otherwise placed in custo"i# le)is. !f it has been sei6ed, then the affidavit must state that it is e$empt from such sei6ure or custody. (+) (,) )he affidavit must state the actual mar/et value of the property5 and )he applicant must give a bond, e$ecuted to the adverse party and double the value of the property.

Aff! "%!t "n $on ? Re el!%e(. =on

(() (a) (b)

Affidavit, alleging. )hat the applicant is the owner of property claimed, describing it or entitled to its possession5 )hat the property is wrongfully detained by the adverse party, alleging cause of its detention5

(c) )hat the property has not been distrained or ta/en for ta$ assessment or fine or under writ of e$ecutionIattachment or placed under custo"i# le)is or if sei6ed, that it is e$empt or should be released5 and (d) (*) %). (+) )he actual mar/et value of the property. #ond, which must be double the value of property, to answer for the return of property if ad'udged and pay for such sum as he may recover from the applicant (Sec.

!t is re%uired that the redelivery bond be filed within the period of 5 days after the ta/ing of the property. )he rule is mandatory (H#!) vs. V#l"eD, 1&& S 'A 141).

S'e(!ffFs ut. !n t'e !mplement"t!on of t'e #(!t? #'en p(ope(t. !s cl"!me $. t'!( p"(t.

(() 0pon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith ta/e the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. !f the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be bro/en open and ta/e the property into his possession. After the sheriff has ta/en possession of the property as herein provided, he must /eep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary e$penses for ta/ing and /eeping the same (Sec. 4).

(*) !f within five (5) days after the ta/ing of the property by the sheriff, the adverse party does not ob'ect to the sufficiency of the bond, or of the surety or sureties thereon5 or if the adverse party so ob'ects and the court affirms its approval of the applicant<s bond or approves a new bond, of if the adverse party re%uires the return of the property but his bond is ob'ected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. !f for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party (Sec. 6). (+) A +rd party claimant may vindicate his claim to the property, and the applicant may claim damages against such + rd party, in the same or separate action. A claim on the indemnity bond should be filed within (*; days from posting of such bond. (,) !f the property ta/en is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person ma/es an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to /eep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third&party claimant in the sum not less than the value of the property under replevin as provided in section * hereof. !n case of disagreement as to such value, the court shall determine the same. Fo claim for damages for ta/ing or /eeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty ((*;) days from the date of the filing of the bond. )he sheriff shall not be liable for damages, for the ta/ing or /eeping of such property, to any such third&party claimant if such bond shall be filed. Fothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third&party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action (Sec. &). E2ecut!on9 S"t!sf"ct!on "n Effect of -u &ments 4Rule B5; ,'en e2ecut!on s'"ll !ssue? E2ecut!on "s " m"tte( of (!&'t 4Sec. 1;

(.

*. +.

B$ecution is a matter of right upon the e$piration of the period to appeal and no appeal was perfected from a 'udgment or order that disposes of the action or proceeding (Sec. 1, 'ule -,). =nce a 'udgment becomes final and e$ecutory, the prevailing party can have it e$ecuted as a matter of right, and the issuance of a writ of e$ecution becomes the ministerial duty of the court. =nce a decision becomes final and e$ecutory, it is the ministerial duty of the presiding 'udge to issue a writ of e$ecution e$cept in certain cases, as when subse%uent events would render e$ecution of 'udgment un'ust ((#!)#h#s vs. P#re"es, +' 15&866, 1e$. 14, %00&). )he above principles have been consistently applied. )hus, in a subse%uent ruling the "ourt declared. K=nce a 'udgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of e$ecution the issuance of which is the trial court<s ministerial duty, compellable by mandamusK (+re#ter (etro*olit#! (#!il# Soli" I#ste (#!#)e/e!t o//ittee vs. 5#!co/ <!viro!/e!t#l or*., +' %16-66-, 5#!. -0, %006) . Cudgments and orders become final and e$ecutor by operation of law and not by 'udicial declaration. )he trial court need not even pronounce the finality of the order as the same becomes final by operation of law. !ts finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period (7est#te o4 (#ri# (#!uel V"#. 2e Bi#sc#!, -&4 S 'A 6%18 Vl#so! <!ter*rises vs. A, -10 S 'A %6) .

D!sc(et!on"(. e2ecut!on 4Sec. 6;

(. *.

+.

,. a. b. c. d.

)he concept of discretionary e$ecution constitutes an e$ception to the general rule that a 'udgment cannot be e$ecuted before the lapse of the period for appeal or during the pendency of an appeal. 0nder Sec. (, Rule +2, e$ecution shall issue only as a matter of right upon a 'udgment or final order that finally disposes of the action or proceeding upon the e$ecution of the period to appeal therefrom if no appeal has been duly perfected. A discretionary e$ecution is called JdiscretionaryK precisely because it is not a matter of right. )he e$ecution of a 'udgment under this concept is addressed to the discretionary power of the court (B#!)CoC B#!C Pu$lic o/*#!9 Lt". vs. Lee, +' 15,806, 5#!. %,, %006) . 0nli/e 'udgments that are final and e$ecutor, a 'udgment sub'ect to discretionary e$ecution cannot be insisted upon but simply prayed and hoped for because a discretionary e$ecution is not a matter of right. A discretionary e$ecution li/e an e$ecution pending appeal must be strictly construed because it is an e$ception to the general rule. !t is not meant to be availed of routinely because it applies only in e$traordinary circumstances. !t should be interpreted only insofar as the language thereof fairly warrants, and all doubts should be resolved in favor of the general rule (Pl#!ters Pro"ucts, I!c. vs. A, +' 10605%, .ct. %%, 1,,,) . -here the e$ecution is not in conformity with the rules, the e$ecution is null and void (B#!)CoC B#!C vs. Lee, su*r#.). Re%uisites for discretionary e$ecution. )here must be a motion filed by the prevailing party with notice to the adverse party5 )here must be a hearing of the motion for discretionary e$ecution5 )here must be good reasons to 'ustify the discretionary e$ecution5 and )he good reasons must be stated in a special order (Sec. %, 'ule -,).

/o# " 0u &ment !s e2ecute 4Sec. @;

(.

*. a. b. c.

Cudgments in actions for in'unction, receivership, accounting and support, and such other 'udgments as are now or may hereafter be declared to be immediately e$ecutory, shall be enforceable after their rendition and shall not be stayed by an appeal ta/en therefrom, unless otherwise ordered by the trial court. on appeal therefrom, the appellate court in its discretion may ma/e an order suspending, modifying, restoring or granting the in'unction, receivership, accounting, or award of support. )he stay of e$ecution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party. Cudgments that may be altered or modified after becoming final and e$ecutory. 7acts and circumstances transpire which render its e$ecution impossible or un'ust5 Support5 !nterlocutory 'udgment.

E2ecut!on $. mot!on o( $. !n epen ent "ct!on 4Sec. >;

(.

A final and e$ecutor 'udgment or order may be e$ecuted on motion within 5 years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a 'udgment may be enforced by action. )he revived 'udgment may also be enforced by motion within 5 years from the date of its entry and thereafter by action before it is barred by the statute of limitations.

Issu"nce "n contents of " #(!t of e2ecut!on 4Sec. 7;

(.

)he writ of e$ecution shall. (i) issue in the name of the Republic of the 3hilippines from the court which granted the motion5 (ii) state the name of the court, the case number and title, the dispositive part of the sub'ect 'udgment or order5 and (iii) re%uire the sheriff or other proper officer to whom it is directed to enforce the writ according to its term, in the manner hereinafter provided. !f the e$ecution be against the property of the 'udgment obligor, to satisfy the 'udgment, with interest, out of the real or personal property of such 'udgment obligor5 !f it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the 'udgment obligor, to satisfy the 'udgment, with interest, out of such property5 !f it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the 'udgment, the material parts of which shall be recited in the writ of e$ecution5 !f it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the 'udgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property5 and !n all cases, the writ of e$ecution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the 'udgment. 7or this purpose, the motion for e$ecution shall specify the amounts of the foregoing reliefs sought by the movants.

a. b. c. d. e.

E2ecut!on of 0u &ment fo( mone. 4Sec. 5;

(. a.

!n e$ecuting a 'udgment for money, the sheriff shall follow the following steps. Eemand from the 'udgment obligor the immediate payment of the full amount stated in the 'udgment including the lawful fees in cash, certified chec/ payable to the 'udgment oblige or any other form of payment acceptable to him (Sec. ,). !n emphasi6ing this rule, the S" held that in the e$ecution of a money 'udgment, the sheriff is re%uired to first ma/e a demand on the obligor for the immediate payment of the full amount stated in the writ of e$ecution (Si$ulo vs. S#! 5ose, 4&4 S 'A 464). !f the 'udgment obligor cannot pay all or part of the obligation in cash, certified chec/ or other mode of payment, the officer shall levy upon the properties of the 'udgment obligor. )he 'udgment obligor shall have the option to choose which property or part thereof may be levied upon. !f the 'udgment obligor does not e$ercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal 'udgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the 'udgment and lawful fees (Sec. ,[$]).

b.

E2ecut!on of 0u &ment fo( spec!f!c "cts 4Sec. 1:;

(.

!f the 'udgment re%uires a person to perform a specific act, said act must be performed but if the party fails to comply within the specified time, the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as if done by the party (Sec 10[#]) . !f the 'udgment directs a conveyance of real or personal property, and said property is in the 3hilippines, the court in lieu of directing the conveyance thereof, may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance e$ecuted in due form of law (Sec. 10[#], 'ule -,).

E2ecut!on of spec!"l 0u &ments 4Sec. 11;

(.

-hen a 'udgment re%uires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the 'udgment shall be attached to the writ of e$ecution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person re%uired thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such 'udgment.

Effect of le%. on t'!( pe(sons 4Sec. 16;

(.

)he levy on e$ecution shall create a lien in favor of the 'udgment oblige over the right, title and interest of the 'udgment obligor in such property at the time of the levy, sub'ect to liens and encumbrances then e$isting.

P(ope(t!es e2empt f(om e2ecut!on 4Sec. 1B;

(. a. b. c. d. e. f. g. h. i. '. /. l. m.

)here are certain properties e$empt from e$ecution enumerated under Sec. (+, Rule +2. )he 'udgment obligor<s family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith5 =rdinary tools and implements personally used by him in his trade, employment, or livelihood5 )hree horses, or three cows, or three carabaos, or other beasts of burden, such as the 'udgment obligor may select necessarily used by him in his ordinary occupation5 4is necessary clothing and articles for ordinary personal use, e$cluding 'ewelry5 4ousehold furniture and utensils necessary for house/eeping, and used for that purpose by the 'udgment obligor and his family, such as the 'udgment obligor may select, of a value not e$ceeding (;;,;;; pesos. 3rovisions for individual or family use sufficient for four months5 )he professional libraries and e%uipment of 'udges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not e$ceeding +;;,;;; pesos5 =ne fishing boat and accessories not e$ceeding the total value of (;;,;;; pesos owned by a fisherman and by the lawful use of which he earns his livelihood5 So much of the salaries, wages, or earnings of the 'udgment obligor for his personal services with , months preceding the levy as are necessary for the support of his family5 Lettered gravestones5 8onies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance5 )he right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government5 and 3roperties specially e$empted by law (Sec. 1-, 'ule -,).

P(ocee !n&s #'e(e p(ope(t. !s cl"!me $. t'!( pe(sons 4Sec. 1>;

(.

!f the property levied on is claimed by any person other than the 'udgment obligor or his agent, and such person ma/es an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer ma/ing the levy and a copy thereof upon the 'udgment obligee, the officer shall not be bound to /eep the property, unless such 'udgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third&party claimant in a sum not less than the value of the property levied on. !n case of disagreement as to such value, the same shall be determined by the court issuing the writ of e$ecution. Fo claim for damages for the ta/ing or /eeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty ((*;) days from the date of the filing of the bond.

)he officer shall not be liable for damages for the ta/ing or /eeping of the property, to any third&party claimant if such bond is filed. Fothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the 'udgment obligee from claiming damages in the same or a separate action against a third&party claimant who filed a frivolous or plainly spurious claim. -hen the writ of e$ecution is issued in favor of the Republic of the 3hilippines, or any officer duly representing it, the filing of such bond shall not be re%uired, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor >eneral and if held liable therefor, the actual damages ad'udged by the court shall be paid by the Fational )reasurer out of such funds as may be appropriated for the purpose. *. a. b. c. d. Re%uisites for a claim by a third person. )he property is levied5 )he claimant is a person other than the 'udgment obligor or his agent5 8a/es an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title5 and Serves the same upon the officer ma/ing the levy and the 'udgment obligee.

E2"m!n"t!on of 0u &ments o$l!&o( #'en 0u &ment !s uns"t!sf!e 4Sec. B>;

(.

-hen the return of a writ of e$ecution issued against property of a 'udgment obligor, or any one of several obligors in the same 'udgment, shows that the 'udgment remains unsatisfied, in whole or in part, the 'udgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said 'udgment, re%uiring such 'udgment obligor to appear and be e$amined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place5 and proceedings may thereupon be had for the application of the property and income of the 'udgment obligor towards the satisfaction of the 'udgment. #ut no 'udgment obligor shall be so re%uired to appear before a court or commissioner outside the province or city in which such obligor resides or is found.

E2"m!n"t!on of o$l!&o( of 0u &ment o$l!&o( 4Sec. B7;

(.

-hen the return of a writ of e$ecution against the property of a 'udgment obligor shows that the 'udgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that person, corporation, or other 'uridical entity has property of such 'udgment obligor or is indebted to him, the court may, by an order, re%uire such person, corporation, or other 'uridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be e$amined concerning the same. )he service of the order shall bind all credits due the 'udgment obligor and all money and property of the 'udgment obligor in the possession or in control of such person, corporation, or 'uridical entity from the time of service5 and the court may also re%uire notice of such proceedings to be given to any party to the action in such manner as it may deem proper.

Effect of 0u &ment o( f!n"l o( e(s 4Sec. @7;

(.

*. +.

!n case of a 'udgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the 'udgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person5 however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the truth of the testator or intestate5 !n other cases, the 'udgment or final order is, with respect to the matter directly ad'udged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subse%uent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity5 and !n any other litigation between the same parties or their successors in interest, that only is deemed to have been ad'udged in a former 'udgment or final order which appears upon its face to have been so ad'udged, or which was actually and necessarily included therein or necessary thereto.

Enfo(cement "n effect of fo(e!&n 0u &ments o( f!n"l o( e(s 4Sec. @7;

(. *.

!n case of a 'udgment or final order upon a specific thing, the 'udgment or final order is conclusive upon the title to the thing5 and !n case of a 'udgment or final order against a person, the 'udgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subse%uent title. !n either case, the 'udgment or final order may be repelled by evidence of a want of 'urisdiction, want of notice to the party, collusion, fraud, or clear mista/e of law or fact.

P(o%!s!on"l Reme !es 4Rules 87)>1;

N"tu(e of p(o%!s!on"l (eme !es

(. *. a. b. c. d. +. a. b. c. d. e.

3rovisional remedies are temporary, au$iliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. )hey are writs and processes which are not main actions and they presuppose the e$istence of a principal action. 3rovisional remedies are resorted to by litigants for any of the following reasons. )o preserve or protect their rights or interests while the main action is pending5 )o secure the 'udgment5 )o preserve the status %uo5 or )o preserve the sub'ect matter of the action. 3rovisional remedies specified under the rules are. 3reliminary attachment ('ule 5&)5 3reliminary in'unction ('ule 58)5 Receivership ('ule 5,)5 Replevin ('ule 60)5 and Support pendent lite ('ule 61).

-u(!s !ct!on o%e( p(o%!s!on"l (eme !es

(.

)he courts which grants or issues a provisional remedy is the court which has 'urisdiction over the main action. Bven an inferior court may grant a provisional remedy in an action pending with it and within its 'urisdiction.

P(el!m!n"(. Att"c'ment 4Rule 87;

(. *. +. a. b.

3reliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever 'udgment may be rendered in the case (2#v#o Li)ht #!" PoAer, I!c. vs. A, %04 S 'A -4-). -hen availed of and is granted in an action purely i! *erso!#/, it converts the action to one that is Bu#si i! re/. !n an action i! re/ or Bu#si i! re/, 'urisdiction over the res is sufficient. Curisdiction over the person of the defendant is not re%uired (Vill#re#l vs. A, %,5 S 'A 511). 3reliminary attachment is designed to. Sei6e the property of the debtor before final 'udgment and put the same in custo"i#l e)is even while the action is pending for the satisfaction of a later 'udgment (I!sul#r B#!C o4 Asi# #!" A/eric# vs. A, 1,0 S 'A 6%,)8 )o enable the court to ac%uire 'urisdiction over the res or the property sub'ect of the action in cases where service in person or any other service to ac%uire 'urisdiction over the defendant cannot be affected. 3reliminary attachment has three types. 3reliminary attachment 9 one issued at the commencement of the action or at any time before entry of 'udgment as security for the satisfaction of any 'udgment that may be recovered. 4ere the court ta/es custody of the property of the party against whom attachment is directed. >arnishment 9 plaintiff see/s to sub'ect either the property of defendant in the hands of a third person (garnishee) to his claim or the money which said third person owes the defendant. >arnishment does not involve actual sei6ure of property which remains in the hands of the garnishee. !t simply impounds the property in the garnishee<s possession and maintains the st#tus Buo until the main action is finally decided. >arnishment proceedings are usually directed against personal property, tangible or intangible and whether capable of manual delivery or not. Levy on e$ecution 9 writ issued by the court after 'udgment by which the property of the 'udgment obligor is ta/en into custody of the court before the sale of the property on e$ecution for the satisfaction of a final 'udgment. !t is the preliminary step to the sale on e$ecution of the property of the 'udgment debtor. )he grant of the remedy is addressed to the discretion of the court whether or not the application shall be given full credit is discretionary upon the court. in determining the propriety of the grant, the court also considers the principal case upon which the provisional remedy depends.

,. a. b.

c.

5.

G(oun s fo( !ssu"nce of #(!t of "tt"c'ment

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At the commencement of the action or at any time before entry of 'udgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any 'udgment that may be recovered in the following cases. !n an action for the recovery of a specified amount of money or damages, other than moral and e$emplary, on a cause of action arising from law, contract, %uasi&contract, delict or %uasi&delict against a party who is about to depart from the 3hilippines with intent to defraud his creditors5 !n an action for money or property embe66led or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, bro/er, agent or cler/, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty5 !n an action to recover the possession of property un'ustly or fraudulently ta/en, detained or converted, when the property, or any party thereof, has been concealed, removed, or disposed of to prevent its being found or ta/en by the applicant or an authori6ed person5 !n an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action the action is brought, or in the performance thereof5 !n an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors5 or !n an action against a party who does not reside and is not found in the 3hilippines, or on whom summons may be served by publication (Sec. 1).

a. b. c. d. e. f.

Re1u!s!tes

(. a. b. c. d.

)he issuance of an orderIwrit of e$ecution re%uires the following. )he case must be any of those where preliminary attachment is proper5 )he applicant must file a motion ( e: *#rte or with notice and hearing)5 )he applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced5 that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims5 and )he applicant must post a bond e$ecuted to the adverse party. )his is called an attachment bond, which answers for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment ( #rlos vs. S#!"ov#l, 4&1 S 'A %66) .

Issu"nce "n contents of o( e( of "tt"c'ment? "ff! "%!t "n $on

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An order of attachment may be issued either e: *#rte or upon motion with notice and hearing by the court in which the action is pending, or by the "A or the S", and must re%uire the sheriff of the court to attach so much of the property in the 3hilippines of the party against whom it is issued, not e$empt from e$ecution, as may be sufficient to satisfy the applicant<s demand, unless such party ma/es deposit or gives a bond in an amount e%ual to that fi$ed in the order, which may be the amount sufficient to satisfy the applicant<s demand or the value of the property to be attached as stated by the applicant, e$clusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different 'udicial regions (Sec. %). An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally /nows the facts, that a sufficient cause of action e$ists, that the case is one of those mentioned in Section(, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. )he affidavit, and the bond must be filed with the court before the order issues (Sec. -).

Rule on p(!o( o( contempo("neous se(%!ce of summons

(. *. a. b. c. d.

Fo levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by the service of summons, together with a copy of the complaint, the application for attachment, the applicant<s affidavit and bond, and the order and writ of attachment, on the defendant within the 3hilippines. )he re%uirement of prior or contemporaneous service of summons shall not apply in the following instances. -here the summons could not be served personally or by substituted service despite diligent efforts5 )he defendant is a resident of the 3hilippines who is temporarily out of the country5 )he defendant is a non&resident5 or )he action is one i! re/ or Bu#si i! re/(Sec. 5).

*"nne( of "tt"c'!n& (e"l "n pe(son"l p(ope(t.? #'en p(ope(t. "tt"c'e !s cl"!me $. t'!( pe(son

Sec. &. Att#ch/e!t o4 re#l #!" *erso!#l *ro*ert98 recor"i!) thereo4. K Real and personal property shall be attached by the sheriff e$ecuting the writ in the following manner. (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. -here the property has been brought under the operation of either the Land Registration Act or the 3roperty Registration Eecree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration boo/ where the certificate is registered, and the registered owner or owners thereof. )he registrar of deeds must inde$ attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. !f the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment5 (b) 3ersonal property capable of manual delivery, by ta/ing and safely /eeping it in his custody, after issuing the corresponding receipt therefor5 (c) Stoc/s or shares, or an interest in stoc/s or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stoc/ or interest of the party against whom the attachment is issued is attached in pursuance of such writ5 (d) Eebts and credits, including ban/ deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ5 (e) )he interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the e$ecutor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the cler/ of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. !f the property sought to be attached is in custo"i# le)is, a copy of the writ of attachment shall be filed with the proper court or %uasi&'udicial agency, and notice of the attachment served upon the custodian of such property.

(. a.

"ertain remedies available to a third person not party to the action but whose property is the sub'ect of e$ecution. )erceria 9 by ma/ing an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. )he affidavit must be served upon the sheriff and the attaching party (Sec. 14). 0pon service of the affidavit upon him, the sheriff shall not be bound to /eep the property under attachment e$cept if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the ta/ing or /eeping of the property, if such bond shall be filed. B$clusion or release of property 9 0pon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the e$ecution of the writ of

b.

c. d.

attachment. )he court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. !n resolving the application, the court cannot pass upon the %uestion of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not ( hi!) vs. A, 4%- S 'A -56). !ntervention 9 this is possible because no 'udgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the 'udgment by the trial court (Sec. %, 'ule 1,). Accion Reivindicatoria 9 )he third party claimant is not precluded by Sec. (,, Rule 51 from vindicating his claim to the property in the same or in a separate action. 4e may file a separate action to nullify the levy with damages resulting from the unlawful levy and sei6ure. )his action may be a totally distinct action from the former case.

D!sc'"(&e of "tt"c'ment "n t'e counte()$on

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!f the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment. )his motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movants ma/es a cash deposit or files a counter&bond e$ecuted to the attaching party with the cler/ of court where the application is made in an amount e%ual to that fi$ed by the court in the order of attachment, e$clusive of costs. "ounter&bonds are replacements of the property formerly attached, and 'ust as the latter, may be levied upon after final 'udgment. Fote that the mere posting of counterbond does not automatically discharge the writ of attachment. !t is only after the hearing and after the 'udge has ordered the discharge of attachment that the same is properly discharged (Sec. 1%). Attachment may li/ewise be discharged without the need for filing of a counter&bond. )his is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that. )he attachment was improperly or irregularly issued or enforced5 or )he bond of the attaching creditor is insufficient5 or )he attachment is e$cessive and must be discharged as to the e$cess (Sec. 1-)5 or )he property is e$empt from e$ecution, and as such is also e$empt from preliminary attachment (Sec. %).

a. b. c. d.