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ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER

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

CIVIL PROCEDURE

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

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

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

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

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

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

Judgment is binding on the whole world.

Ex. Probate proceeding; cadastral proceeding.

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

Judgment binding upon particular persons.

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

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

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

Founded both.

on

The rules on venue of real actions shall govern.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When cause of action. Amendment to conform to or authorize presentation of evidence When issues NOT RAISED in the pleadings are tried with the express implied consent of parties 1. p. if it has no resident agent. Answer of a defendant foreign private juridical entity Answer to a complaint 1. Failure to amend does not affect the result of the trial of these issues.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. entire pleading. NOTE: Some authors are of the opinion that admissions in superseded pleadings need not be offered in evidence pursuant to Section 4 of Rule 129. anew does not require the filing copy of the entire of a new copy of the pleading must be filed.within 15 days after service of summons to him. In case of service of summons by publication – within the time specified in the order granting leave to serve summons by Refers to facts existing at the time of the commencement of the action. 3. 2002. Take the place of the Taken together with the original pleading. CA 229 SCRA 627) AMENDED PLEADING SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading. Amendment is intended to confer jurisdiction to the court. They shall be treated as if raised in the pleading. it has no resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. defense or theory of the case is changed.sor are needed to responsive pleading has yet been filed. 2. Section 4. EFFECT OF AMENDED PLEADING 1. 2. Can be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) court decompres of right as when nosee this picture. a. An amended pleadings supersedes the pleading that it amends. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may be proved by the party relying thereon by formal offer in evidence. Section 7. but it has an agent or officer in the Philippines – within 15 days after service of summons to said agent or officer. Filing of amended pleadings Page 22 of 289 . 3. b. if it has a resident agent. or events which have happened since the date of the filing of the complaint.193) RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. NOTE: The cause of action stated in the supplemental complaint must be the same as that stated in the court should not admit the supplemental complaint (Asset Privatization Trust v. UNLESS a different period is fixed by the court. Supplemental pleadings SUPPLEMENTAL PLEADINGS – is one which sets forth transactions. Formal Amendments Section 5. Amendment to cure a premature or non-existing cause of action. In case the defendant is a foreign private juridical entity. 2. Admissions in the superseded pleading can still be received in evidence against the pleader. and 3. Answer to the complaint Section 2. Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. Opportunity to be heard afforded to the adverse party. 2. Pleadings may be amended to conform to the evidence. c. Instances when amendment by leave of court may not be allowed: 1. and 4. (Regalado. Within 15 days after service of summons. occurrences. Section 6. original pleading. Amendment for purposes of delay. When an amended A supplemental pleading pleading is filed. 3.

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

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

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

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

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

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

Section 11. Service juridical entity

upon

domestic

private

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

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

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

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

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

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

Section 10. Form

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RA 6389) 7) Benefits from private retirement systems of companies and establishments. and 177) 10) Copyrights and other rights in intellectual property under the former copright law (PD 49 cf. employment. Execution of special judgment SPECIAL JUDGMENT A special judgment is one that can be complied with only by the judgment obligor himself. shelter. and farm implements of agricultural lessees. or livelihood 3) 3 horses. vacate the property – the sheriff must oust the party. clothing. work animals. except jewelry 5) household furniture and utensils necessary for housekeeping ≤ P100K 6) Provisions for individual or family use sufficient for 4 months 7) Professional libraries and equipment 8) One fishing boat and accessories ≤ P100K used in livelihood 9) Salaries. NCC) 9) Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24. US Trading With The Enemy Act) 3) Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4) Backpay of pre-war civilian employees (RA 304) 5) Philippine Government backpay to guerillas (RA 897) 6) Produce. if a party refuses to: 1. However. 10 is not necessarily punishable by contempt. deliver – the sheriff will take possession and deliver it to the winning party. cows. ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD but writ of execution must be served w/in 5 years order of demolition ancillary to writ Certiorari is available if requirements for issuance of order of demolition are not followed Section 11. RA 8293) 11) Bonds issued under RA 1000 (NASSCO v. 65. or the sale or delivery of real or personal property Failure to comply with special judgment under Section 11 is punishable as contempt by imprisonment Section 12.3. F. after judgment obligor failed to remove the same 5) Delivery of personal property officer shall take possession of the same and deliver it to the judgment oblige • Failure to comply with specific acts under Rule 39 Sec. and medical attendance (Art. CA 458) 2) Property taken over by Alien Property Administration (Section 9[f]. Effect of Levy on execution as to third persons Section 13. Page 68 of . A demolition order from the court is required to effect removal of an improvement constructed by the defeated party. CIR L-17874 31 August 1963) (Regalado. comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it • No time limit w/in which an order of demolition should be carried out. Remedial Law Compendium Vol. benefits. land necessarily used in connection therewith 2) ordinary tools and implements used in trade. Section 239. with limitations (RA 4917) 8) Labor wages. It requires the performance of any other act than payment of money. except for debts incurred for food. carabaos. pp. or annuities accruing out of any life insurance 12) Properties specially exempt from execution OTHER PROPERTIES SPECIALLY EXEMPT FROM EXECUTION 1) Property mortgaged to DBP (Section 26. 447-448). wages. Property exempt from execution PROPERTIES EXEMPT FROM EXECUTION 1) family home. defeated party is given reasonable period to look for another place. 8th ed. privileges. 1. 1708. 3..Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 special order issued upon motion. 2. subject to limitations (Section21. or homestead. or other beast of burden necessarily used in his ordinary occupation 4) necessary clothing and articles for ordinary personal use. or earnings as are necessary for support of family w/in 4 months preceding levy 10) Lettered gravestones 11) Monies.

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

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

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

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

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

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

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