This action might not be possible to undo. Are you sure you want to continue?
BUT: This ruling has been tempered by jurisprudence.
Sec. 1. Grounds. Tijam vs. Sibonghanoy Q: When do you file a motion to dismiss (MTD)? A: Within the time for but before filing the answer. A. By filing a motion for Bill of Particulars or a motion for extension of time, you have already submitted yourself to the court’s jurisdiction. Some cases rule that even if summons were not properly served, if it actually came to defendant’s attention, the DEFECT IS CURED! SC: After the CA decided the case, defendant realized that all the while the court had jurisdiction. SC did not dismiss the case. When lack of jurisdiction over the subject matter is not raised at the earliest opportunity, you shall be barred by estoppel. This is the DOCTRINE OF ESTOPPEL BY LACHES (failure to litigate for an unreasonable length of time). Note: the Tijam case should only be applied when the facts are clearly there. The ruling did not overturn the GR.
Query: This argument may just be used to counter the technical requirements under R14,S11 as enunciated in E.B Villarosa vs. Benito. Linger and Fisher vs. IAC Facts: The sheriff served summons improperly on defendant, and defendant subsequently filed a motion to dismiss on the ground that the court has no jurisdiction over his person, SC: If sheriff did not know how to serve the summons, why should the plaintiff’s complaint be dismissed when it is not his fault. The correct procedure is for the court to issue another summons and direct that the sheriff should serve it properly. Remedy: Alias summons will be issued, directed to the sheriff and served again.
4 Principles on lack of jurisdiction over subject matter i. DETERMINED BY THE ALLEGATION in the complaint ii. when used as a ground in filing MTD, defendant HYPOTHETICALLY ADMITS all the allegations in the complaint to be true. iii. ONCE ACQUIRED, COURT RETAINS the jurisdiction over the case until terminated. iv. it MAY BE RAISED IN THE FF: C. this is non-compliance with Rule 4 in the answer in the course of trial after the trial after judgment even for the first time on appeal.
On lack of jurisdiction over your person plus other grounds in one motion to dismiss. OLD RULE- when you file a motion to dismiss based on lack of jurisdiction over your person, PLUS, other grounds like prescription, you are in effect WAIVING the ground of lack of jurisdiction. NEW RULE – When a motion to dismiss citing lack of jurisdiction over your person is filed, PLUS, other grounds, There is NO WAIVER in effect [La Naval Drug Corporation vs. CA, 236 S 78]. Note: This Naval Case has now been incorporated under the Rules of Court (R14, S20).
Rule: If MTD is denied based on this ground, DO NOT FILE AN ANSWER. Remedy: File a Special Civil Action of Prohibition under Rule 65 immediately. If you file your answer and go to trial, you waive the objection (Pangasinan Transporatation Co. vs. Yatco, 21 S 658).
B. One of the most important ground for a MTD.
D. Either: i. plaintiff does not posses the necessary qualification to appear in trial (e.g. minor, insane).
GR: It can be raised anytime (R9), at any stage of the proceedings even for the first time on appeal.
(UPSI vs. plaintiff does not have character or representation (e. Last case in. Magsaysay i. Founded on SAME FACTS ii. CA. . Ocefemia Facts: X filed a case against Y on Jan. plaintiff claims he is a guardian but is not). appropriate action ii. Vde. RTC SC: As a general rule. must object on the ground of LACK OF LEGAL CAPACITY TO SUE. GR: Priority in time rule. But the case of Teodoro may also be followed. Ong (1950) Mortgagor filed a case for annulment of real estate mortgage. Exc: The GR will not be followed thus the first case may be dismissed based on: i. Identity of PARTIES iii. E. Roa Magsaysay vs. While pending. the plaintiff in the first case now files a MTD the second case on the ground of litis pendentia. Identity of RIGHTS ASSERTED & RELIEFS SOUGHT. 5.g. Tambunting vs. the SC said EITHER ONE CAN BE DISMISSED. vs. In applying this. in effect title will automatically be granted to B. In fact. interest of justice SC: The law says “there is another action pending”. Lack of legal CAPACITY to sue Lack of legal PERSONALITY to sue Teodoro vs.ii. there is no cause of action in favor of the agent) Thus in response to the question as to which case must be dismissed. 10 a case against X. SC: The trial court ordered the dismissal of the first case by applying another criterion. bec. B filed a case against A for quieting of title. De Blas A filed a case against B for recovery of piece of land – accion publiciana. Francisco vs. first out. Identity of the 2 cases such that a judgment in one would amount to RES ADJUDICATA. If A wins the case. Pampanga Bus Co. 15 Y received summons as to the first case. it does not mean the second will also be dismissed. such that regardless of what was first filed. the INTEREST OF JUSTICE. vs. Mortgagee then filed an action for foreclosure of the same mortgage. If A loses the case. I: is there litis pendentia? SC: Yes. it must be dismissed and the subsequent case must remain. This illustrates the 4 requisite. it will bar the second. 233 S 86). It does not say “another PRIOR action pending”.one of the most important grounds Requisites of Lis Pendens note: where the first case filed was merely an anticipatory suit. the court determines the more appropriate action to remain. priority in time gives preference in law. but if the first case is dismissed. filed on Jan. On Which Case Must be Dismissed. SC: While it is true that the second case will have no more leg to stand on if the mortgagor in the first case wins. the first or the last one filed. PrinciPle in Litis pendentia: Whoever wins the first case th will bar the second. let the first remain. Dismiss the second case. Mirasol Disability of plaintiff Hence. Plaintiff is not real party in interest Hence. Y not knowing a case was filed against him. iv. Mortgagor. with more reason the mortgagee has the right to foreclose. Victronics Computers Inc. the court should ask which cases is in a better position to serve the interest of justice or which should remain to serve the interest of justice taking into account the nature of the controversy. Lis Pendens . must object on the ground of NO CAUSE OF ACTION. if uses the principle of MORE APPROPRIATE ACTION. On Jan. rendering unnecessary the second case.
Important ground. he HYPOTHETICALLY ADMITS the truth of all the allegations raised in the complaint. ii. It is sufficient that there is identity of interest represented. the court cannot look at the evidence. The test therefore in determining presence of forum-shopping is whether in the 2 or more cases pending. a special promise to answer for the debt. evidence may be considered (Santiago vs. Forum-shopping does not require a literal identity of parties. matters of evidence. you are deemed to admit everything there is true except matters which are 100% false and which the court know to be false. i. Statute of Limitations [R16. On determination of whether there is a cause of action GR: In determining the existence of a cause of action. since he received the summons only after he had filed his case. e. there is identity of a) Parties b) Rights or Causes of Action c) Reliefs sought. . lack of j over subject matter [R16. CA SC: An action becomes pending upon the filing of a case in court and the payment of docket fee. Tan vs. h. but you filed a MTD. Examples of Statute of Frauds (Art. they can still be enforced. surplusage and irrelevant matters i. . MTD. S1 (b)]. Forum Shopping Effect: both may be dismissed. iv. Res Judicata [R16. litis pendentia [R16. erroneous statement of law d. Unenforceable because they were not reduced into writing under Art. All must be base on the complaint. facts unfounded by a record incorporated in the pleading l. Barred by prior judgment (Res Adjudicata) 2. Lawyer may be subjected to disciplinary action. 1403) i. allegations of legal conclusions c. no appreciation of any evidence.no contempt of court ECC vs. or miscarriage of another. contract that by its terms is not to be performed within 1 yr. S1 (f)] G.one case will be dismissed. mere conclusions of law f. Litis Pendentia Effect: . Y opposed saying that at the time Y filed the case. from the making of such contract. Exc: Where evidence has already been presented in the main cause of action because of the application for preliminary injunction.X then filed a MTD the second case on litis pendentia. general averments contradicted by more specific averments. does not admit the truth of the ff: a. ii. mere inferences or conclusions from unstated facts. I. the other will remain. there was NO PENDING ACTION. CA 257 S 717 SC: Forum-shopping exists where the elements of litis pendentia are present. Pioneer Savings Bank). H. hypothetical admissions are limited to the relevant and material facts well pleaded in the complaint and inferences fairly deductible therefrom. Meaning. S1 (f)]. S1 (e)] iii. F. allegations of fact the falsity of which is subject to judicial notice. Hence if you allege something 100% false and the court know it. hence if unenforceability is waived. to legally impossible facts k. Barred by statue of limitations (Prescription) On Prescription of Grounds GR: The grounds on MTD are WAIVABLE (R9. 2 Grounds available 1. 1403 of the Civil Code. default. scandalous matters inserted merely to insult opposing party j. S1) Exc: Grounds NOT WAIVABLE. I: When does an action become pending? Rule: When defendant files MTD under this ground. g. mere epithets of fraud b. The action does not become pending only from the time you receive summons. Unenforceable contracts are valid but unenforceable.
2.then the rule on adherence of jurisdiction does not apply. When the plaintiff does not have the character or representastion which he claims like he claims to be a guardian when in reality he is not. When your motion to dismiss on the ground of improper venue is denied you remedy is : Special Civil Action of Prohibition under Rule 65. not by the allegation of the defendant in his motion to dismiss. Lack of jurisdiction over the subject matter may be raised: In the answer In the course of the trial ADDITIONAL NOTES: MOTION TO DISMISS. 4. When a defendant files a motion to dismiss on the ground that the court has no jurisdiction over the subject matter. J. When there is absence or improper service of summons. Court has no jurisdiction over the person of the defendant. CA ) After the trial After the judgment For the first time on appeal. ( LA NAVAL DRUG CORP. Jurisdiction over the subject matter. GROUNDS: 1. once acquired by the court upon the filing of the complaint. there is no waiver on the defect of lack of jurisdiction. ONLY POSSIBLE EXCEPTION: If the new statute is intended to be curative in character. in effect. an agreement for the sale of goods. VS. and you should resort to it immediately because if you will file your answer and go to trial. The 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. Examples i. When you file a motion a motion to dismiss citing the lack of jurisdiction over your person together with other grounds. 3. you will be waiving the objection. failure to undergo Brgy. the court retains the jurisdiction over that case until the case is terminated. at a price not less than P500… iv. Plaintiff has no legal personality to sue. failure to exhaust administrative remedies ii. Venue is improperly laid.must be raised before filing an answer. OF the the LACK OF LEGAL PERSONALITY TO SUE refers to the fact that the plaintiff is not the real p[arty in interest. the defendant hypothetically admits all the allegations in the complaint to be true.iii. an agreement for the leasing for a longer period than 1 year. Conciliation iii. 151 of the Family Code). v. Jurisdiction over the subject matter is determined by the allegation in the complaint. 2.( in cases under Art. IMPORTANT PRINCIPLES: 1. or for the sale of real property or an interest therein. 2. chattels or things in action. the ground for dismissal would be that . LACK CAPACITY refers to disability of plaintiff. in which case. 3. allegation in the complaint that earnest efforts towards a compromise was made. They are determined in the allegation of the complaint itself. a representation as to the credit of a third person. When the plaintiff does not possess the necessary qualifications to appear at the trial such as when the plaintiff is not in full exercise of his civil right like when he is a minor or insane. Court has no jurisdiction over the subject matter of the claim. > Two possible meaning of plaintiffs lack of legal capacity to sue: 1. 4. Any subsequent development or any amendment of the law will no longer deprive the court of its jurisdiction.
not public officers ) NOT SUBJECT TO 1. GARCIA ) General rule: Averments in the complaint are deemed hypothetically admitted upon the filing of a motion to dismiss grounded on the failure to state a cause of action. 3. Exceptions: (PLS SEE Tan v. parties ( natural persons. amount to res adjudicate in the action under consideration. Conditions precedent has not been complied with. 4. In the interest CONSIDERATIONS: of justice: Nature of the controversy. The lack of cause of action is not a ground for the dismissal of the action under rule 16. Section 1. CA. 9. (MUNICIPALITY OF BINAN VS. regardless of which party is successful. amicable settlement between family members. . Exhaustion of Administrative remedies. Relief must be founded on the same facts. The claim is unenforceable under the statute of frauds. 10. waived. Identity of rights asserted and relief prayed for. Another action is pending between the same parties for the same cause. future support. 5. More appropriate action ( can best resolve the case ). The claim has been paid. Jurisdiction of Courts. and 6. The court shall dismiss the claim. Identity in these particulars should be such that any judgment which may be made on the other action will. CONDITIONS PRECEDENT: THE 1. 4. 2. (LITIS PENDENTIA) REQUISITES OF LITIS PENDENTIA: 1. Barred by prior judgment ( Res Adjudicata) 2. HOWEVER when it appears from the pleadings or the evidence on record : 3. the defendant is allowed to present evidence to prove the ground of his dismissal. 4. 5. 1. The principle to remember: Whether the pleading states a cause of action is determined only by the allegations in the pleading. Civil status of persons. 7. abandoned or extinguished. Barred by Statute of Limitations ( Prescription) The grounds on motion to dismiss are waivable based on Rule 9. And similar factors. he action is barred by prior judgment or by the statute of limitations. DISMISSAL OF ACTION IN FAVOR OF ANOTHER: 2. the ground is the failure of the complaint to state a cause of action which is obviously not the same as the plaintiff having no cause of action. Any ground for legal separation. 2. Comparative accessibility of the court to parties. Barangay Conciliation Law a.the complaint states no cause of action. The pleading asserting a claim states no cause of action.defenses and objections not pleaded whether in the motion to dismiss or in the answer are deemed waived. 2. that the action is barred by prior judgment. There are two grounds here: 1. that the action is barred by statute of limitations. 3. future legitime. 3. GENERAL RULE: On hearing on a motion to dismiss. 1. that the court has no jurisdiction over the subject matter. 6. that there is another action pending between the same parties for the same cause. parties ( residents municipality) ITEMS COMPROMISE: of same city or b. p 44) 8. Priority in time ( action filed first prevails ) 2. Identity of parties between the two actions or at least such as to represent the same interest. 3. Validity of marriage and legal separation.
Has the effect of an adjudication upon the merits. If final. ORDER THE PLEADING AMENDMENT OF THE 3.file another complaint 2.amendment is no longer a matter of right. the plaintiff himself stated that he is dismissing his own complaint with prejudice. 2. the compulsory counterclaim is also dismissed.the case can no longer be re-filed. 2. 2. MOTION TO DISMISS GRANTED ( the claim may be refilled ) EXCEPTIONS: 1. DISMISS THE MOTION) ACTION ( GRANT THE 2. when the ground is payment.with prejudice) 4. Without prejudice ( EXCEPTIONS) 1. Notice clearly says otherwise ( plaintiff has decided ). 2.motion to set aside the order of dismissal and revive the case. claim is extinguished. . RESOLUTION OF MOTION TO DISMISS 1.Dismissal Rule) How to revive the complaint. Dismissal with prejudice. 2.before service of answer or motion for summary judgment. RULE 17 DISMISSAL OF THE ACTION How? By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for Summary Judgment. Failure to comply with any order of the court. the pleading asserting the claim states no cause of action. Rules ( Amendment: a matter of right before a responsive pleading is served despite order to dismiss. 2. Failure to prosecute for an unreasonable length of time. DISMISSAL OF THE ACTION BY PLAINTIFF A matter of right. Lack of jurisdiction over the subject matter 2. In the same action ( notify the court within 15 days from notice of motion to dismiss served by plaintiff) * GROUNDS FOR THE DISMISSAL OF PLAINTIFF’S FAULT 1.EXCEPTION: He is not allowed when the grounds are: 1. The court may dismiss the complaint even without motion. (The Two. Failure to comply with the amendment. Dismissal without prejudice. If not yet final 9 revived within 15 days ).the case can be re-filed. When a notice operates as an adjudication upon the merits when filed by the plaintiff who has once dismissed in a competent court an action based on or including the same claim. 3. In a separate action. EXCEPTION: ( Dismissal is final) 1.filed by the defendant.a court order will be issued confirming such dismissal. bill of particulars ).DISMISSAL RULE – dismiss same complaint twice ( Adjudication upon merits. Exception: The defendant can revive the compulsory counterclaim within PLEADED BEFORE Main action dismissed by plaintiff. COUNTERCLAIM SERVICE OF MOTION Under Section 2: General rule: if you dismiss the complaint. TWO. FAILURE TO APPEAR IN COURT TO REPRESENT EVIDENCE IN CHIEF. By filing a notice of dismissal. waiver.depends on whether the dismissal has become final or executory ( 15day rule): 1. When in the notice of dismissal itself. The cae can be re-filed. Is the dismissal under Section 1 with or without prejudice? A: GENERAL RULE : The dismissal is WITHOUT PREJUDICE. DENY THE MOTION 3.the counterclaim still exists and may be proved: 1. There are two types of dismissal: 1. When the ground is res adjudicate. When the ground is statute of limitations. Ground for Motion to Dismiss pleaded as an affirmative Defense.
The plaintiff fails to prosecute his action for an unreasonable length of time for no justifiable reason or cause. RULE 9 RULE 18 PRE-TRIAL MATTERS TO BE CONSIDERED DURING THE PRE-TRIAL 1. the complaint shows that the court has no jurisdiction over the subject matter. 7. EXCEPTION: When there is a board resolution issued. This is the radical change. The necessity or desirability of amendments to pleadings. A Representative is sent ( fully authorized in writing ) To enter into an amicable settlement. 3. GENERAL RULE: the court should not dismiss the case upon it own initiative. because the grounds for dismissal are waivable. the simplification of the issues.The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint for no justifiable reason or cause. 2. To enter into stipulations or admissions of facts and of documents. Unless the court provides EXCEPTION: otherwise. Such other matters as may aid in the prompt disposition of an action. 6. remedy is motion reconsideration for there is a need to prove meritorious defense remedy is motion to lift the order of default CONTENTS OF A PRE-TRIAL BRIEF: . The propriety of rendering judgment on the pleadings. Under Section 3: The following are the grounds for the dismissal of the case: 1. the court is empowered to dismiss immediately without any motion. 2. In the case of a corporation: GENERAL RULE: ONLY the board of directors have the power to enter into a compromise. 9. The limitation of the number of witnesses. or of dismissing the action should a valid ground therefore be found to exist. 4. 4. or when the action has prescribed. he is waiving the defect.15 days. To submit to alternative modes of dispute resolution. The possibility of an amicable settlement or of a resort to alternative modes of dispute Resolution. 2. When there is litis pendentia. or summary judgment. When on its face. Valid cause is shown to exist. Rule 17 ( Plaintiff’s fault). 8. 5. EXCEPTIONS: 1. The necessity of suspending the proceedings. 2. or res adjudicate. 3. The advisability of a preliminary reference of issues to a commissioner. Under the Summary Rules. GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice. 3. The possibility of obtaining stipulations or admissions of facts or of documents to avoid unnecessary proof. Parties and their counsel should appear in the pre-trial ( Consequence: Dismissal with prejudice ) Non appearance is excused if: 1. failure to answer file an RULE 18 failure to appear during the pre-trial no need to prove defense/ answer already filed. If the defendant fails to move for dismissal. The plaintiff fails to comply with the Rules of Court or any order of the court for no justifiable reason or cause. Section 3.
Statement of willingness to enter into dispute resolution. 3. 4. transient or categorized into other permutations as in the case of a house guests or a sojourner on a visit of a day or two. etc. Failure to appear during the trial for the presentation of his evidence in chief t prove his cause of action. the barangay of the defendant. considering that such residence may be actual but be merely temporary. It only applies to suits between natural persons. Non-compliance with this requisite may result in the dismissal of the complaint.1. CASES NOT SUBJECT TO AMICABLE SETTLEMENT AT THE KATARUNGANG PAMBARANGAY: 1. in said barangays would not be an accurate and reliable criterion. Number and names of witnesses and their testimonies. 2. to member of 2. Where one party is the government or a subdivision or instrumentality thereof: 2. should not suffice since absentee membership would not subserve the avowed purpose of the law for lack of the common bond and sense of belonging generally fostered in members of an identified aggroupment. DISPUTES NOT COVERED BY THE AUTHORITY OF THE LUPON: 1. 5. Those involving parties who resides in barangays of different cities or municipalities unless their barangay are adjoining. CA ) PRIMARY PURPOSE: To provide the conciliation mechanism. Residence alone. not domicile. Habeas Corpus proceeding are called for. Issues to be tried or resolved. mere membership in a barangay. DISMISSAL OF COMPLAINT DUE TO PLAINTIFF’S FAULT 1. without membership. Failure to file a pre-trial brief. without actual residence therein . Failure to appear during pre-trial. Manifestation of the availment of discovery procedures or referral to commissioners. 3. 3. 4. Offenses punishable by imprisonment exceeding one year or a fine exceeding Php 5. the corresponding barangay who are actually residing therein. there should be a prior attempt to conciliate in the barangay level – under the rules. Where one party is a public officer or employee. 2. KATARUNGANG PAMBARANGAY LAW Otherwise known as Barangay Conciliation Law which mandate that before an action can be filed by an individual complainant against another individual. The word “ RESIDES” refers to actual or physical residence.shall control the subsequent course of the action (unless modified) All pleadings are deemed superseded. PARTIES MAY FOREGO THE BARANGAY CONCILIATION PROCESS AND GO DIRECTLY TO THE COURT WHEN: 1. the parties may agree to submit their differences for amicable settlement by an appropriate Lupon. CONTENTS OF THE PRE-TRIAL ORDER. On the other hand.000. for failure to file an 2. Failure to comply with the order of the court. as an alternative to litigations in dispute settlement. Actions are accompanied by provisional remedies such a preliminary injunction. It can only convince the party to settle. 5. Offenses where there is no private offended party. 4. Documents to be presented. delivery of personal property. 3. and the dispute relates to the performance of his official function. Failure to comply with the provisions in the Rules of Court. and 6. Conciliation proceeding at the barangay level are pre-condition to filing an action in court or a government office. In both cases. Failure to file a pre-trial brief. For purposes of the Barangay Law. 2. Summary of admitted facts. Take Note: The barangay cannot decide. attachment. Those involving real property located in different cities or municipalities. stating their purpose. The accused is under detention. PRESENTATION OF EVIDENCE EX PARTE against the defendant: 1. 3. Declared in default answer. Failure to appear during the pre-trial. . ( Graces vs. both of them are residing in the same city or municipality. The barangay court has no power to make decisions. It is a condition precedent.
3. which are in his custody. CA ) So. This is true notwithstanding the mandate of Section 410 (b) of the same law that the barangay chairman shall constitute a pangkat if he fails in his mediation efforts. whether or not the intervenors right may be fully protected in a separate proceeding. Has a legal interest against both. That was questioned. 2. documents or other things under his control. Habeas Corpus cases. GROUNDS FOR QUASHING A SUBPOENA: 1. RULE 20 CALENDAR OF CASES URGENT CASES : 1. and 2. The court of the place where deposition is to be taken. 3. you are required to appear there and testify in court. Subpoena Ad Testificandum. SUBPOENA DUCES TECUM is the process directed to a person where it requires him to bring with him any books. any justice of the Supreme Court or Court of Appeals in case pending within the Philippines. . 2. it was premature. WHEN AUTHORITY OF THE COURT IS NEEDED 1. When the intervenor is a party to a class suit. IT IS UNREASONABLE OR OPPRESSIVE. ANS: The SC cited a new section in the LGC which is section 412 which seems to give the barangay captain the authority to issue a certificate without necessarily referring anymore to the Lupon. we believe that there was substantial compliance with the law. Is so situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or an officer thereof. So the case was filed in the RTC. of for the taking of his deposition. 2. It is noteworthy that under section 412 of the Local Government code. On this score. The court before whom the witness is required to attend. Intervention ( before rendition of judgment ) GENERAL RULE : A matter of judicial discretion. 4. Subpoena Duces Tecum SUBPOENA AD TESTIFICANDUM . Subpoena addressed to a prisoner zsentenced to death. 2. the case of DIU has effectively set aside the ruling in Ramos vs.4. It was not referred to the Lupon. Whether or not it will unduly delay or prejudice the adjudication of the rights of the original parties. RULE 19 INTERVENTION Grounds for intervention ( the intervenors) 1. Section 410(b) should be construed together with Section 412. Special Civil Action cases.is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action. Election cases. With that. Factors to be considered in intervention: 1. reclusion perpetua. the baranagy captain issued a certificate to file action. it is significant that the barangay chairman or punong barangay is himself the chairman of the lupon under the Local Government Code. citing Section 410-d of the Local Government Code. (DIU VS. Legal action is barred by the Statute of Limitations. Has a legal interest in the success of either parties. Although no pangkat was formed. RULE 21 SUBPOENA Types of Subpoena: 1. Therefore. That addressed to one confined in any penal institution. and 2. WHO ARE AUTHORIZED TO ISSUE SUBPOENAS? 1. the confrontation before the lupon chairman or the pangkat is sufficient compliance with the pre-condition for the filing of the case in court. or at any investigation conducted by competent authority. CA. CASE: The parties failed to agree before the barangay captain. 3. 2. The officer or body authorized by law ( investigations) 4. When the proposed intervenor is an indispensable party. or life imprisonment. EXCEPTIONS: 1. we are more interested in his documents. Has a legal interest in the matter in litigation.
deposition pending action (Rule 23) 2. without the SUMMONS directed to a defendant in civil case. can be anywhere Philippines enforced in the SUBPOENA Directed to a witness directs a witness to testify during the trial or to bring documents needed in the case.DISMISS THE CASE EXCEPTIONS: 1. documents or things does not appear. Warrant of arrest issued against a recalcitrant witness 2. is it necessary that leave of court or permission should be sought for deposition to be allowed? A: It depends IMPROPER SERVICE OF SUMMONS. and where an opportunity is givebn for cross-examination Section 1 Q: When there is a pending action. informs the defendant that a case has been filed against him and that he is directed to answer within a prescribed period failure to file an answer by the defendant as required by the summons will be a ground to declare him in default. Improper service but came to know it. 3. EXCEPTIONS: Persons residing 100km away from the place where he is to testify Detention prisonerpermission of the court. failure to appear in court will be a ground for the issuance of a warrant of arrest or declaration of contempt of court. The Modes of Discovery are intended to compel the other party to reveal his evidence and evidentiary facts. when you compel the party to clarify vague statements of ultimate facts. the rules even say that evidentiary matters should not be alleged in the pleading but is only proved in the trial Q: If you want to avoid any surprise. Principle: Lay your cards on the table BUT. in advance of the trial or hearing. DEPOSITION: wirtten testimony of a witness given in the course of a judicial proceeding. Voluntary Appearance 3. physical and mental examination of persons 1 mode 2 types of deposition: 1. 5 Modes of Discovery: (devises which are intended to compel the other party to reveal his evidences before the trial) 1. If date falls on a Sunday or a holidaynext working day The day of the act that caused the interruption shall be excluded in the computation of the period. 2. Depositions Written interrogatories to parties request for admission of adverse parties production or inspection of documents and things 5. Q: Distinguish Bill of Particulars from Modes of Discover? A: Bill of Particulars is Rule 12. The person in whose behalf the subpoena is issued failed to advance the reasonable cost of the production thereof. Defenses not raised are deemed waived. deposition before action or pending appeal(Rule 24) st 1. EFFECT OF SUBPOENA: FAILURE TO APPEAR DESPITE 2. Waiver on the part of the plaintiff . cannot be enforced outside the 100km limit RULE 22 COMPUTATION OF TIME IN COMPUTING THE TIME The first day is excluded and the last day included. He will be declared in Contempt of Court. 3. is there a way of knowing then? A: Yes. RULE 23 DEPOSITIONS PENDING ACTION GR: objections or defenses not pleaded in the motion to dismiss or in an answer are generally waived no such thing as surprised defense because.2. 4. but it is not an instrument to compel the other party to reveal evidentiary facts. upon oral examination or in response to written interrogatories. Remedy is to apply the modes of discovery. The relevancy of the books.
especially if you are dead or when you are residing more that 100 kms E: 1 2 when I am offering your deposition to contradict or impeach you When you offer the deposition of your opponent. However. and is requested to cause their depositions to be taken in due course of law Dasmarinas Garments vs Reyes HELD: You must allege that the commission has been returned unexecuted before resorting to letters rogatory. you course it to the DFA. at the trial 2. If the defendant has already filed an answer and therefore jurisdiction over the person of defendant has been obtained. the deposition officer cannot rule but the objection is recorded. it requires a motion. The court may issue orders to protect the parties and its deponents under S16 or 18. Matter inquired into is not privileged either under the rules on evidence or special law 2. *You can take the testimony of ant person whether a party or not at the instance of any party *2 modes : oral examination and written interrogatories Dasmarinas Garments vs Reyes HELD: Depositions may be taken at any time after the institution of any action. you are now my witness. Limitations in deposition taking: 1. against any party who was present 2. But once I offer your deposition in court. leave of court is not required. whenever necessary or convenient. The matter inquired into is relevant to the subject of the pending action 3. All you have to do is send the questions to the other party 2. There is no rule that limits deposition-taking only to the period of pre-trial or before it. It is the judge who will rule on the objection later during the trial Section 2 *deponent may be examined regarding any matter whether related to the claim or defense of any other party *mode of discovery is a fishing expedition in the hope that you will discover something in the course of a questioning Section 8 GR: by simply taking your deposition.1. If no answer. What matters is that the deposition is taken before a Philippine official noting by authority of the Phil. it can be used for any purpose Section 5 *substitution of parties does not affect the right to use depositions previously taken *depositions taken in the dismissed case will still apply if ever there is a new case Section 6 Q: Can you object to the evidence which is being offered during the deposition taking? A: Yes. because this time leave of court is required. It is only a means of knowing what the witness will testify *If he deviates from the deposition. upon a hearing of interlocutory proceeding Deposition may be used against: 1. embassy Section 12 LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the case and the name of the foreign witnesses. where the court has not yet acquired jurisdiction over the person of the defendant. upon a hearing of a motion 3. Section 4 Deposition may be used: 1. against a party who was represented at the taking of the deposition 3. DFA and in virtue of a commission duly issued by the Philippine court even no diplomatic relation with the other country. *It is even allowed as part of the execution where the trial is already terminated (b) *it is the deposition of the party himself. you are not making hi8m your witness. . The parties are not supposed to communicate directly to the Phil. you can impeach him using the deposition taken under oath earlier Section 9 *you can always rebut the truth of what the other said in his deposition Section 11 *SC Circular: If the judge will authorize the taking of deposition abroad. it will not make you as my witness. It does not exempt the witness from testifying in court. against a party who did not appear or represented but was duly notified of the scheduled deposition taking (a) *deposition can only be used for the purpose of contradiction or impeaching the testimony of deponent as a witness.
developments.Section 15 Note: before deposition is taken. That the scope of the examination shall be held with no one present except the parties to the action and their officers nor counsel 6. Deposition Pending Action 2. Deposition Before Action or Pending Appeal Section 1 *File it in the court of the place of the residence of any expected adverse party bacause there is still no case Q: What kind of questions can you ask under R25 to your opponent? A: 1. defendant questions the plaintiff. You can send interrogatories only to parties. Plaintiff questions defendant. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court 9. embarrassment. That secret processes. That after being sealed the deposition shall be opened only by order of the court 7. There is no third person who will intervene. may be taken. That it may be taken only at some designated place other that that stated in the notice 3. there is no personal confrontation of the witness RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL *If an answer has already been served. GR: 15 days to answer interrogatories. Section 2 *You are mandated by law to answer fully in writing my questions and signed and sworn by you. INTERROGATORIES TO PARTIES (R25) there is officer no deposition the questioning is direct. what court has power to issue the orders? A: 1. Section 6 Q: How do you use the perpetuation of testimony? A: The same uses of an ordinary deposition – for impeachment etc Section 16 Q: What orders may court issue for the protection of parties and deponents. That certain matters shall not be inquired into 5. the deposition of any person may be taken. applies to parties only. RULE 25 INTERROGATORIES TO PARTIES DEPOSITION UPON WRITTEN INTERROGATORIES (R23) the deposition is taken before deposition officer. leave of court is not necessary. anything that is related to the claim or defense provided it is relevant and 2. You cannot ask question to stranger. That the deposition shall not be taken 2. unless the objection is based on a new ground which only come up after the deposition Section 1 Section 25 *questions are prepared already in advance and that is direct interrogatories *practically. or oppression. questions are prepared beforehand. whether he is a party or not. it is not privileged Section 6 (cross reference with R132 S10 – leading and misleading questions) . or research need not be disclosed 8. That it may be taken only on written interrogatories 4. there should be notice to the adverse party Section 4 *If the petition is granted. Section 17 *must be under oath *answers to depositions not objected to cannot be objected to in court during the trial. the court will now allow the deposition of these people to be taken and they are taken simply by following rule 23. The court may make any other order which justice request to protect the party or witness from annoyance. Section 5 2 types of deposition: 1. They are submitted to the deposition officer who will ask the deponent the questions and he will record the answers. when may orders be issued.
since we are questioning the party. The motion must sufficiently describe the document or things sought to be produced or inspected 4. If I do not send. but the latter may delegated to his lawyer the right to answer the request. at least. under his control Section 1 *You request the other party to admit the genuiness of any material and relevant document described in and exhibited with the request or of the truth in the request *apply this at anytime after issues have been joined *leave of court is unnecessary Section 2 Effect of failure to answer the request: deemed to have admitter all the things that is asked of you to admit Po vs Court of Appeals HELD: No need for another denial in the request for admission. 2. if I intend during the trial to call him to the witness stand. RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1 Requisites of production or inspection of documents or things: 1. Breboneria vs Court of Appeals HELD: In a request for admission. . Such is valid so long as there is a valid authorization. then there is no need to ask it all over again. Section 4 *Party admitting is allowed to withdraw. whether a party or not. change or amend his previous admissions provided it is with leave of court SUBPOENA DUCES TECUM UNDER R21 Section 5 *mandatory mode of discovery GR: matters which are objectionable should be pushed by the party concerned or affected E: Unless otherwise allowed by the court for good cause and to prevent a failure of justice is a means of compelling production of evidence which must be brought to court. may be issued upon an ex parte application PRODUCTION OR INSPECTION OF DOCUMENT OR THINGS (R27) is essentially a mode of discovery is limited to parties in the action. I do not have the right to call him to the witness stand * this compels the lawyers to avail of the modes of discovery RULE 26 ADMISSION BY ADVERSE PARTY *also known as request for admission *You are requiring the opposing party to admit the truth or authenticity of certain documents. Service must be mad directly upon the The order under R27 is issued only upon motion with notice to the adverse party. may be directed to any person. a request must be directed to the party whose admission is sought.*Under this section. I am obliged to send him ahead written interrogatories. Notice of the motion must be given to all other parties 3. The document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action 5. A motion (leave of court) must be filed by a party showing good caused therefore 2. What has already been denied is denied and therefore you cannot say that for failure to deny it s already deemed admitted. documents which are not actionable person mentioned in the law and upon no other in order for the notice to be valid PSCFC Financing Corp vs Court of Appeals HELD: A client can always act through the lawyer and hi is bound by the actuations of his lawyer Principles: 1. The document or thing sought to be produced or inspected must be in the possession of the adverse party or. and not to the lawyer. A request must always be directed to the party whose admission is sought. Service of request to any other person is not a valid request at all. When the matter is already effectively denied in the pleading. we should address it to him. The document or thing sought to be produced or inspected must not be privileged 6.
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 2 Rue 28 applies in all actions where the mental or physical condition of a party is in question or controversy a. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. annulment of marriage on the ground of impotency c. a party who refuses to cooperate may lose the case ultimately. physical disability due to quasi delicts Requisites of physical and mental examination of persons under R28: 1. Deposition-discovery rules are to be accorded a broad and liberal treatment. he can be penalized with the ultimate penalty of dismissal of the case or judgment by default. 2. Notice of the motion must be given to the party to be examined and to all other parties the period preceding it. The physical or mental condition must be a subject of controversy of the action.answer filed already Request for admission Production or Inspection of Docs or Things Physical and mental examination of persons RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Republic vs Sandiganbayan HELD: the various modes or instruments of discovery are meant to serve as a device. Let the court decide whether justice will be served by going to trial or not While the modes of discovery are intended to attain the resolution of litigations with great expediency. *modes of discovery can be used to really squeeze everything out of your opponent. annulment of marriage on the ground of psychological incapacity b. thus reducing the possibility. to narrow and clarify the basic issues between the parties and as a device for ascertaining the facts relative to those issues. the remedy is to go to court and get an order to compel him to answer. however. annulment of contract on the ground of insanity at the time of execution d. and 3. they are not contemplated. Section 1 *If a party or deponent refuses to answer a question on oral examination or written interrogatories under R25. Failure to appear at the pre-trial conference (R18) 2.pending action. of surprise. the ultimate effect is that. The depositiondiscovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to Instances when a defendant shall be considered in default even if such defendant has already filed an answer: 1. Thus. *R29 allows a default judgment even if you filed an answer for failure to comply with the modes of discover Insular Life vs Court of Appeals HELD: While it is true that there are sanctions allowed by law in cases of refusal to comply with the modes of discovery. the same is discretionary. as opposed to alternative or mutually exclusive. And he can be held liable for the reasonable expenses incurred in obtaining the order including attorney’s fees. Courts are still given the leeway of whether or not to apply the ultimate sanctions. along with the pretrial hearing. Fortune Corporation vs Court of Appeals HELD: the various methods of discovery as provided for in the Rules are clearly intended to be cumulative. answer filed already required not required required required not required not required Required Required . and 3. no answer filed yet . Failure to cooperate in the mode of discovery R29 RULE 30 TRIAL Section 1 . to be ultimate causes of injustice.before action or pending appeal Interrogatories – no answer filed yet . Failure to file a pre-trial brief. Section 5 *If a party is served with interrogatories and he refuses to answer under R25. Section 4 Depositions – pending action. A motion showing good cause must be filed.
5) jurisdiction of courts. Sec. (GOLDLOOP PROPERTIES INC. (ARTICLE 2035) 1) civil status of a person. 6) future legitime. vs. *It is mandatory that the notice should reach the party or its lawyer at least 5 days before such date. offered to discuss a possible compromise but the other party refused the offer * If the party cannot agree to settle. 7) habeas corpus Section 2 GR: No party shall be allowed a postponement of more that 1 month per postponement but a maximum of 3 postponements. Section 5 Note: the trial shall be limited to the issues stated in the pre-trial order Sec. the procedure is. negligence and mistakes in handling the case Section 4 *A motion for postponement which is not verified upon the ground of illness of a party or counsel without a medical certificate should be granted if it appears that the claim of the movant is meritorious. 2) validity of marriage or a legal separation. Sandiganbayan HELD: A motion for postponement should not be filed at the last hour and that judges are cautioned against granting improvident postponements Tiomico vs Court of Appeals HELD: Motions for postponement are generally frowned upon by courts if there is evidence of bad faith. 4) future support. *Motion for postponement is always addressed to the sound discretion of the court. E: when authorized in writing by the court administrator Section 3 Republic vs. Client is bound by his counsels conduct. or 2) If it appears that one of the parties before the commencement of the action. Trial – an examination before a competent tribunal of the facts or law put in issue in a case. 6 *If the parties agree in writing upon the facts involved in the litigation and they will submit the agreed facts or the case for decision. This is what we call JUDGMENT ON AGREED STATEMENT OF FACTS OR JUDGMENT BASED ON STIPULATION OF FACTS. 8 *This is mentioned in Rule 18.*It is the duty of the clerk of court to send notices to the parties about the date of the trial in such manner as shall insure his receipt of that notice at least 5 days before such date. for the purpose of determining such issue Sec. 2 (h) that discusses the possibility of suspension of the proceedings The possible good legal grounds for the parties to ask for suspension of the hearing are (Article 2030 Civil Code): 1) If willingness to discuss a possible compromise is expressed by one or both parties. malice or inexcusable negligence on the part to the movant. 3) any ground for legal separation. CA) * MATTERS THAT CANNOT BE THE SUBJECT OF COMPROMISE. . let the trial go on.
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