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CIVIL PROCEDURE [LAGGUI REVIEWER]

TRANSCRIBED GALLY NOTES WITH RENE NOTES BY:RENE CALLANTA RULE I


Q. When does an action deemed commenced? A. An action is deemed commenced upon the filing of the complaint. This is the provision of the old rule. But this old rule that an action is deemed commenced as of the date the complaint is filed has been amended to include a provision which envisions a case when the action is already filed and is amended to include an additional defendant. Example: The case was filed Dec.2, !!" by A against B only. #nder this rule, the action is deemed commenced on Dec. 2, !!" in so far as only A and B are concerned. $n . Dec %, !!" A filed an amended complaint including now &. Q. When is this action deemed commenced? A. 'nsofar as A and B are concerned, the action is deemed commenced on Dec. 2, !!". But insofar as it concerns A and &, the action is deemed commenced on Dec. %, !!" (as to &). *. Why do we distinguish the date of commencement of an action in this situation where the is an additional defendant? A. Because we have the law on prescription. At the time the case was filed on Dec. , !!", the action against B may not yet have prescribed. But when the complaint was amended on Dec. %, !!", the action of A against B and & may have already prescribed. That is why it is necessary to consider the situation li+e this when the action is being commenced with respect to an additional defendant.
RENE NOTES: 1) An action is commenced by the filing of the complaint and the payment of the requisite docket fees within the prescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period. 2) An action can be commenced by filing the complaint by registered mail. It is the date of the mailing that is considered as the date of filing, and not the date of the receipt thereof by the clerk of court. ) !he amount of damages in the body of prayer of the pleading must enable the clerk of court to compute the docket fees required. ") !he court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive period.

With respect to actions, we have retained the provisions of the old code. With respect to some sub,ect matter under the old rule, a party plaintiff can file only one complaint based on one single cause of action. -e cannot split its cause of action. And when he splits his cause of action, the subse.uent actions maybe the sub,ect of a motion to dismiss. This rule has been retained in the /ew 0ules in &ivil 1rocedure. Example2 (3plitting of causes of action which have been retained) /ote2 3ame parties A is a resident of 3ulu, B is of Batanes. There is a piece of land located in 3orsogon. The causes of action of A against B are as follows2 ) sum of money involving 1244,444.44 2) reindivicacion over the lot valued at 154,444.44 Q. &an A file a complaint against B ,oining in one complaint the action for sum of money and the action for reinvidicacion (if it can, with what court and place)? A. 6et us vary the facts, the claim for money is 124 ,444.44. The value of the property is 1 !,444.44 Q. &an A file only one complaint incorporating therein the sum of money of 124 ,444.44 and reindivicacion of lot valued at 1 !,444.44?

A.

Sec. 5 Rule 2(rules on joinder of causes of action A party may in one pleading assert, in the alternatives or otherwise, as many causes of action as he may have against an opposing party, sub,ect to the following conditions2 a. the party joining the causes of action shall comply with the rules on joinder of parties; b. the joinder shall not include special civil action or actions governed by special rules;

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c. where the causes of action are between the same parties but pertain to different venue of jurisdictions, the joinder may be allowed in the RTC provided one of the cases of action falls within the jurisdiction of said court and the venue lies herein; and d. where the claims in all the causes of action are principally for recovery of money the aggregate amount claimed shall be the test of jurisdiction. The rule on ,oinder is as follows2 A party may ,oin two or more causes of action which he has in his favor in only one complaint. 3o if A has 4 causes of action against B, instead of A filing 4 separate action against B, he may be allowed to file only one complaint, and incorporating therein all the 4 causes of action. Q. 3upposing his causes of action pertain to different venues or ,urisdiction where will A, the plaintiff, file his 4 causes of action embodied only one complaint? A. The rule is, if these 4 causes of action pertain to different venues, the action may be filed in the appropriate 0T& provided that the venue of the action lies therein. 'n the former e7ample, the first action was the sum of money involving 1244,444.44 only and the second cause of action is reinvidicacion involving 154,444.44. 3ince A is not obliged to allege all causes of action in one complaint, he may elect to file two separate actions2 ) A vs. B for sum of money 2) A vs. B for reindivicacion. Q. 'f he were to file this action for sum of money only, in what court of what place may A file the complaint? A. 8ou apply 0ule 9 venue 3ince this is a personal action for sum of money, the venue could be the residence of plaintiff A, or the residence of the defendant B at the election of A. 3o this case can be filed either in 3ulu or Batanes. Q. A. Q. 'n what court in 3ulu or in Batanes may this action of A be filed? &onsidering the amount which is only 1244,444.44, this is within the ,urisdiction of :T&. 3o this case can be filed either in the :T& of 3ulu or in the :T& of Batanes.

'f A were to file an action for reindivicacion, over this lot located is 3orsogon, in what place should A file the case? A. We apply again 0ule 9 ;enue and that would be 3orsogon. Q. A. 'n what court in 3orsogon should the action be filed? &onsidering the value 154,444.44, this action should be filed only in 0T& of 3orsogon.

6et us assume however that A elected to file only one complaint involving these sum of money of 1244,444.44 and this property involving 1544,444.44. The court that has the ,urisdiction over the sum of money of 1244,444.44 is the :T&. The court that has the ,urisdiction over reindivicacion is the 0T& of 3orsogon. Q. A. Where can these two actions be filed? $nly in the 0T& of 3orsogon. 't cannot be filed in 3ulu or Batanes. 't can be filed only in 3orsogon. 6et us get the reverse< The value of sum of money is 1244,444.44 and so this is within the ,urisdiction of the 0T&. The value of the property here is 1 !,444.44, this is within the ,urisdiction of the :T&. Q. A. &an you now ,oin these two? 8es, in the 0T& of 3orsogon. /ot in 3ulu or Batanes, but in the 0T& of 3orsogon.

Example2 A resident of 3ulu, sued B a resident of Batanes, in only one complaint alleging therein these two causes of action2 . =or recovery of 1244,44 .44 sum of money, 2. =or forcible entry over a piece of land located in 3orsogon valued at 1 !,!!!.!!. Q. &an A ,oin only in one complaint on these two (2) causes of action? A. These two cannot be ,oined because one is an ordinary civil action (sum of money) and the other is a special civil action (forcible entry). This is one of the limitation of ,oinder of causes of action. A special civil action cannot be ,oined with another action which is ordinary. Example: A is a resident of 3ulu, B of Batanes, & of >amboanga. A loaned : to B, and the loan is evidenced by a promissory note which B signed. The promissory note matured without B paying the money notwithstanding. A has another cause of action against B and & for another : pesos, a promissory note was also e7ecuted and signed by B and &. The promissory note also matured but they did not pay.

Q.

&an A file only one complaint against both B and & incorporating therein these two causes of action? (The action against B for : pesos and another action against B and & for 1 :) A. /o, A cannot file only one complaint against B and &, otherwise, A will violate one of the limitations (3ec. 5 (a)) provided for in ,oinder of &auses of Action under 0ule 2 3ection 5. 'f A is permitted to do so, it will be a violation of the provision on 0ules on ?oinder of 1arties under 0ule % 3ec. @. & has nothing to do with the first promissory note e7ecuted by B. & has no interest on the first cause of action of A against B alone. Example2 A has the following causes of action for recovery of money against B, all in the promissory notes that matured on2 . ?an. 4, !!A 1 24,444.44 2. ?an. 24, !!A %4,444.44 %. ?an. %4, !!A 94,444.44 9. =eb. 4, !!A 54,444.44 5. =eb. 5, !!A @4,444.44 @. =eb. 24, !!A "4,444.44 BBBBBBBBB 12"4,444.44 A is a resident of 3ulu and B of Batanes. B did not pay on ?an. 4, B did not pay on each and every maturity. But A waited for the maturity on this loan due on =eb. 24, !!A. 3ince he was not paid on =eb. 24, !!A, he now decided to file an action involving all these sum of money. Q. 3hould he (A) decide to file a case on =eb. 25, !!A, against B, in what court should the action be filed? A. 't should be filed in the 0T& of 3ulu or in Batanes. Where all the causes of action are principally for money, the type of ,urisdiction is the totality of the amounts in all the cases. 'f you were A and you want to file only an action for the recovery of 124,444.44 you will file this with the :T&. This is the same with respect to other causes of action. 'ndividually, they are triable by the :T&. But if all these causes of action are ,oined in only one complaint, the totality or the language of the rule, Cthe aggregate,D of the amount furnish the ,urisdictional test. 3o, since the amount is 12"4,444.44, this is an action triable by the 0T&. 3o you file the action not in the :T& but in the 0T&.
RENE NOTES 1) In case the obligation is by installments, each installment constitute a cause of action #$%&'&(, if at the time of bringing of the suit, several installments are already due, all must be included otherwise, others not included will be barred.

Before April , ! , the ,urisdiction of the :T& was limited to 1 44,444.44 and the 0T&Es in the amount in e7cess of 1 44,444.44. 3o under the old rule, before April !, !!!, all claims (money claims) not e7ceeding 1 44,444.44 was triable by the :T&. All claims e7ceeding 1 44,444.44 were triable by the 0T&. This is the provinces. #nder the old rules, where the claim was for the money and the parties thereto was the residents of :etro :anila, the ,urisdiction of the 0T&Es in :etro :anila was in e7cess of 1244,444.44. Beginning, however April , ! , the ,urisdiction of the :T& were e7panded as follows2 'n areas outside :etro :anila, the ,urisdiction of the :T&Es e7tended up to 1244,444.44. But in :etro :anila, Beginning April !, !!!, the ,urisdiction of the :T&Es was 1944,444.44 3o, as of now the ,urisdiction of the :etro :anila :T&Es is 1944,444.44. But in areas outside :etro :anila, the ,urisdiction of the :T&Es is up to 1244,444.44 only. This now the new rule which implemented 3ec. 5 of 0A "@! . 0A "@! e7panded the ,urisdiction of the :T&Es. Q.state the rule on permissive joinder of parties A. Sec. ! Rule " All persons in whom or against whom any right to relief in respect to or arising out of the same transactions is alleged to e"ist, whether jointly, severally, or in the alternative, may e"cept as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any #uestion of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may ma$e such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to e"pense in connections with any proceedings in which he may have no interest. The rule contemplates a situation where there are two or more persons in whom a right to relief e7ist or against whom a right to relief e7ist. These two or more persons can ,oin in one complaint or can be ,oined as defendants in one complaint provided that there e7ist between them a .uestion of law common to both of them. As the term suggests, joinder is not mandatory. 't may be availed of by parties as plaintiffs if they want to. 'f they do not want to ,oin as parties, they cannot be compelled. Example:

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A, B and & are owners of ad,oining houses. F is a driver of a gasoline tan+er. Because of the manner F drove the tan+er, the driver struc+ a :eralco 1ost. As a result, the tan+er turned turtle (naging pagong ang tan+er<) in the process, it e7ploded. The fire burned the houses of A, B, and &. A can sue F for the loss of his house. B can sue F for the loss of his own house. & can sue F for the burning of his own house. 'f these were so, there will be now, three (%) complaints against F. $n the other hand, A, B and & or A and B alone, or A and &, or B and &, sued F in one complaint. A and & sued F in one complaint, B and & sued F in one complaint, or better still, they ,oined in one complaint against F. Q. &an they validly do that? A. 8es, they have each a separate cause of action against F. #nder the rule on ,oinder of parties, all of them can ,oin in only one complaint. Q. Why? A. 0ight to relief e7ists in favor of all of them, A, B and &. Q. What is the basis of their right to relief of A against F? A. The basis of the right of A against F is the negligent act of F in driving. Q. A. Q. A. What is the basis of the right of B against F? The same. The negligent act of F. What is the basis of the right of relief of & against F? The same, the negligent act of F in driving.

'f these were to be tried separately, if the parties A, B and & filed separately the case, there will be only one issue that the court will resolve, which is common to all of them. 3o they can ,oin as parties. This is the rule on permissive ,oinder of parties. Q. &an A, B and & be re.uired or compelled to ,oin in one complaint? A. /o. whether they will ,oin or they will not ,oin is a matter of them alone to decide. They cannot be forced to ,oin.
Rene Notes: Compu so!" #o$n%e!)in the case of* 1) indispensable parties 2) necessary parties + !he non),oinder of an indispensable or a necessary party is -$! by itself ipso)fato a ground for the dismissal of an action. the court shall order ,oinder non)compliance)ground for dismissal + If the court does not order the ,oinder of an indispensable party, the validity of the ,udgment may be questioned on appeal or certiorari. Pe!m$ss$&e #o$n%e!)parties can either be ,oined in a single complaint or may themselves maintained or be sued in separate suits. !his rule also applies to counterclaims. Re'u$s$tes o( Pe!sm$ss$&e )o$n%e! o( p*!t$es. 1) right to relief arises out of the same transactions or series of transactions. 2) there is a question of law or fact common to all the plaintiffs or defendants. and ) such ,oinder is not otherwise prescribed by the provisions of the (ules on ,urisdiction and venue. Se!$es o( T!*ns+*t$ons)separate dealings with the parties but all of which dealings are directly connected with the same type of sub,ect matter of the suit.

#arties to an Action Q. A. Who can be parties to an action? $nly natural persons or persons with ,udicial personality or entities authoriGed by law.

Q. 's it enough that a person is a natural person or ,uridical person to entitle him to sue and be sued? A. /o. 't is necessary that the party, natural or ,udicial be li+ewise a party in interest. %here the person who sues is not the real party in interest, or where the party sued is not the real party in interest, the complaint or suit cannot be maintained. Q. Who is considered a real party in interest? A. 't is defined in 3ec. 2 0ule % Sec. 2 Rule " A real party in interest is the party who stands to be benefited or injured by the judgment in the suit. A real party in interest is the one who is benefited by the ,udgment. -e is one who may be pre,udiced by the ,udgment or it is he who may avail of the

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,udgment. Example: 3o, if A, a tenant of B sues to recover his land from &. Q. 's A the real party in interest? A. /o. -e is not, because whatever ,udgment that he may be rendered in this case will not at all affect the real owner. A is not a real party in interest. 3upposing A is claiming ownership of a lot and he sues &, the tenant of B, to recover the ownership of the lot. Q. 's & the real party in interest? A. /o, because whatever ,udgment that may be rendered in favor of A cannot bind the owner B. & is not the real party in interest. Q. 's it enough that a party be a natural or ,udicial and a real party in interest to be entitled to sue or be sued? A. /o. The party must li+ewise have the legal capacity to sue. :eaning, he has the representation that he claims to have. 3o if the person does not have the capacity which he alleges he has, he cannot sue or he cannot be sued. These are the requirements for suing or being sued& . /atural person or ,udicial personH 2. Intity authoriGed by law to sue and be suedH %. :ust be the real party in interestH and 9. :ust have the capacity to sue or be sued. Q. A. What are the classes of parties to a suit? We have the2 . 'ndispensable 1artiesH 2. /ecessary 1arties. What is the distinction between the two? 'n the case of an indispensable party, he must always be impleaded because without his being impleaded as a party, whether a plaintiff or defendant, the sub,ect matter of the suit cannot be terminated. -e must always be there because without him, whatever ,udgment rendered do not terminate the sub,ect matter of the suit.

Q. A.

Example: (Indispensa$le #art%) Testator F was survived by three (%) children A, B and &. A sued B alone for a partition of alleging in fact the court declared A, B and & the owners of the estate and ordered the estate to be divided into three e.ual parts. 3o A and B agreed on how the estate be divided. They agreed that the estate shall be divided into three e.ual parts as follows2 A B &

Q. A.

's the ,udgment in the partition case binding on &? /o, it is not binding.

When A and B showed & the J% portion allotted to him, & said C' do not li+e that, ' li+e this part.D C/o, this is mine.D Q. What can & now do? A. & can file a case for the partition of the same estate as+ing that this be divided into three (%) e.ual parts. But A and B said, C't is pointless, there is already a declaration that this property be divided into % and it was already divided into three (%). What else do you li+e? Q. 's the reasoning of A and B correct? A. /o, it is not correct. 't is true that there was a division. But & does not li+e his part. Q. &an & be compelled to accept his part? A. /o, because he was not a party to the case. -e is not bound by the ,udgment. Why? Because he has a right to be heard when A and B divided this property in the manner they want.

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As a coKowner he has the right to be heard on how the division should be made. 3ince, he was not heard, he can file a case. This is what we meant when we say that C an indispensable party ought to be impleaded either as a plaintiff or defendant in order to terminate the subject of the case.' 3o, you see here, the first case did not terminate the .uestion. 't is only when all the parties A, B and & have been impleaded in the case may it terminate. 3o, when an indispensable party is not impleaded, in violation of that order of the court, the complaint may be dismissed. Q. Who is the necessar% part%? A. A necessary party is one who ought to be impleaded in order to accord complete relief to all the parties or in order that the claim respecting the sub,ect matter of the case can be fully ad,udicated, nevertheless, his absence from the court as a plaintiff or a defendant does not prevent the case from being settled insofar as the parties thereto are concerned. 'f a case is filed and the necessary party is omitted, the case filed can be terminated. But only partially. But if this omitted party could have been impleaded, the sub,ect matter of the case would be fully ad,udicated.

E&A'#LE: A is the creditor of B and & based in the promissory note signed by B and & for 1 :. The liability of B and & are merely ,oint not solidary. A sued B only. -e did not sue & because at that time when the case was filed & was no longer in the 1hilippines. -e for left abroad. Q. &an this case between A and B be finally settled? A. 8es. Iven without &. But you will +now that the better ,udgment will be rendered in favor of A will cover only the part of B in the 1 :. 3o the court will decide the case awarding A only 1544,444. The claim of A against & remain pending, so that where & is already within the ,urisdiction of the court, A can file a case against him to recover from him his share in the 1 :. & here is merely a necessary party because even without him, this claim of A against B can be settled. 'n order, however, to settle the entire 1 :, if & was with the ,urisdiction of the court at the time when the complaint was filed, A should have filed a complaint against both B and &. Q. What will be the effect of filing by A of his claim against B and & at the same time? A. -is claim of 1 : will be entirely settled in only one procedure. Whereas, in alternative form, the case will be settled insofar as the parties are concerned. That is why, when a party is a necessary party, but he is not impleaded, the reason why he is not impleaded should be stated in the complaint. Q. A. What for is the need to state why & was not impleaded? 3o that the court could determine whether the reason for the nonKinclusion of & is valid or not. 3hould the court find the reason why & was not impleaded to benefit the merit, the court will now order A to amend his complaint and implead &. 3hould A fail to comply in the order of the court. Q. What is the effect of such nonKcompliance on the right of A to recover from the claim filed? A. 3uch failure on the part of A to comply operates as a waiver of his claim against &, so that should A eventually file a case against &, & can file a motion to dismiss the complaint on the ground of Cwaiver of the claim of A against & on the failure of A to implead & in violation of the order of the court.D

Rene Notes: ,- spouses *s p*!t$es G.R. ) spouses sued ,ointly E/+ept$ons* 1) Abandons or fails to comply with marital obligations 2) 0pouse disposes e1clusive property ) (egime of complete separation of property 2- + *ss su$t Re'u$s$tes o( * + *ss0!ep!esent*t$&e su$t 1) sub,ect matter of the controversy is one of the common or general interest to many persons. 2) persons affected are so numerous that it is impracticable to bring them all before the court. ) parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the concerned.

(oncept of Alternati)e *efendants Q. When may a party plaintiff sue defendants in the alternative? A. The rule is this2

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A plaintiff may have the right but he is not certain or sure against whom that right should be asserted. -e +nows he has the right. There are two or more persons who may be liable to him in connection with his right. But he does not +now who of them is liable under this rule, he is entitled to sue all these persons in the alternative. Example2 A bought a machine from #3. The carrier F brought this machine to the 1hils. for delivery to A. this machine did not reach A. -e does not +now who has custody of this machine at the time it was lost. The fact is, there was supposed to be an arrastre operator who should have ta+en upon its being unloaded in the port of :anila. Was it lost while this machine was in the custody of the arrestre? -e does not +now, but he has the right to recover the value of the machine. But who of them is responsible, he does not +now. Q. What can A do? A. A can sue F and 8 (arrestre) at the same time. 'f it is not F who is liable, it must be 8. 'f 8 is not liable, it must be F. This is the concept of alternative defendants.
Rene notes: Un1no2n I%ent$t" o! N*me o( De(en%*nt 3 0ervice of summons is by publication Re'u$s$tes* 1) there is a defendant 2) his identity or name is unknown ) fictitious name may be used because of ignorance of defendant3s true name and such ignorance is alleged in the complaint ") identifying description may be used* sued as unknown owner, heir, devisee, or other designation /) amendment to a pleading when identity or true name is discovered 2) defendant is the defendant being sued, not a mere additional defendant De*t4 o( * P*!t" Dut" o( +ounse 5 inform court within 4 days + !he death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending, or even the appointment of an e1ecutor or administrator, but this time, by a court of probate ,urisdiction. In the case of incapacity or incompetency of the party, this fact will merely entail the appointment of a guardian ad litem by the court trying the case upon being informed thereof by counsel of the parties, the parties themselves, or other reliable sources. + -o summons is required to be served on the substituted defendants. Instead, the order of substitution shall be served upon the parties substituted in the action, otherwise, the court does not acquire ,urisdiction over the substitute party. + !he continuance of a proceeding when a party dies without a valid substitution amounted to lack of ,urisdiction and that the need of substitution is base on the right of a party to due process. #$%&'&(, if there is no notice of death of party and the court has no knowledge thereof, the proceedings are not set aside. + If there is failure to notify the fact of death* the case may continue and the proceedings will be held valid, and ,udgment will bind the successors in interest. + !he court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. $therwise, the entire proceeding is null and void. the court would have no ,urisdiction over the estate, the heirs and the e1ecutors or administrators. T!*ns(e! o( Inte!est + 0ubstitution of parties is not mandatory. 5nless the substitution by or the ,oinder of the transferee is required by the court, failure to do so does not w arrant the dismissal of the case. + A transferee pendente lite is a proper and not an indispensable party.

Sec. 2+ Rule " %hen the action is for recovery of money arising from contract, e"press or implied, and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased person. This is a situation where a contract involving money was entered into2 This contract gave rise to the filing of a complaint against the debtor. When the case is pending against the debtor, the debtor dies. Q. What now will be the status of this case filed upon the death of the debtor, the case not having been determined with finality? &an it continue or must be dismissed? A: Example2 A the creditor sued B to recover the loan, he e7tended. While this case was pending, B died. (nder the old rule, upon the death of B, this case will be dismissed. -ow could A protect his right over his claim, if it was already dismissed in this case? -e can now file his claim as an ordinary creditor in the proceeding, (estate or intestate proceeding) for the settlement of estate of B. This rule presuppose that the estate of B is under administration either in a testate proceeding or intestate proceeding. 3o under 0A A@ A should file his claim in this proceeding. 3o if there was a special proceeding under L31 %9 for the settlement of estate, then A must file his claim in this case. Q. 's that so now?

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A. /o. The death of the debtor B does not e7tinguish the action. This will continue. $f course with proper substitution of B by the administrator or e7ecutor if there is any. 'f there is none, by his heirs. This case will continue litigation until finality. 'n the event A wins the case and the ,udgment becomes final Q. -ow will A enforce his right as ad,udged by the court? A. -e will file the case where the settlement of BEs estate is pending, his claim based on this ,udgment. Q. &an the administrator or e7ecutor contest in that special proceeding this claim now of A? A. /o, because it has already been settled by final ,udgment in that civil case. This is the innovation under the new rules.
RENE NOTES: A+t$on on Cont!*+tu* 6one" C *$ms Re'u$s$tes: 1) !he action must primarily be for recovery of money, debt, or interest thereon, and not where the money sought therein is merely incidental thereto. 2) !he claim sub,ect of the action, arose from a contract, e1press or implied, entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him. + If the defendant dies before entering a final ,udgment in the court where it was pending at that time, the action shall not be dismissed but shall be allowed to continue until entry of final ,udgment thereon. + $nce a final ,udgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving the same. In%$7ent P*!t" + !he amount of docket and other lawful fees shall be a lien on any favorable ,udgment upon the indigent party.

Rule ,: -enue of Actions


The rules on venue are now simplified. Why? Because the rules in venue li+ewise involve inferior court and under the 0T&. =or purposes of venue, actions may either be real or personal. Q. What are the rules on venue involving real property? A. When a suit involves title to, possession of or interest in real property, the venue of the action lie in the proper court of the place where the real or a part of the real property is located. This is true in cases involving title to, possession of or interest in, real property. )n forcible entry cases, however, the venue of the action is the inferior court of the place where real property or part of the real property is located. (:T&) Ta+e note that when it comes to the venue of the property suits involving title to, possession of or interest in, real property, the venue is the proper court of the place where the real property is located. But when it comes to forcible entry, the court where the action must be filed is specified and that is the inferior court. 't does not say proper court. Q. Why the difference in the case involving title to, possession of or interest in real property, venue is the proper court? A. Because under the new law, even the inferior court have ,urisdiction cases depending on the value of the property. Where the value of the property involved in the reindivicacion cases does not e7ceed 124,444.44, in areas outside *etro *anila, that action for reindivicacion is tried by the inferior (:T&) not the regional trial court. Where the value of the property e7ceeds 124,444.44, the action for reindivicacion lands with the 0T&. )n *etro *anila where the action is for reindivicacion for instance, and the value of the property does not e7ceed 154,444.44, the venue is the inferior court. This is the reason why the law does not specify what particular court the case must filed when it involves title to, possession of or interest in real properties. But when it comes to forcible entry, the rule is specific, Conly on :T& of the place where the property or any part of the property is located.D In case of personal actions, the venue is the residence of the plaintiff or any of the principal plaintiffs or the residence of the defendant or any of the residence of the principal defendants at the option of the plaintiff. +owever, where the defendant is a nonKresident, the venue may also be the place where he can be found. 'n this last case, the venue could not be the residence of the nonKresident defendant for a simple reason that, a nonKresident defendant does not reside in the 1hils. (as the term suggested, CnonKresidentD). That is why you cannot sue him in a place where he is not a resident, but he may be found in the 1hils. 3o, it is that place where he may be found, that may be one of the venue. Example2 'f A file a complaint against B, for recovery of money and A is a resident of 3ulu and B is from Batanes. Whether the case is tried by the inferior court or by 0T&, A can file action either in 3ulu or Batanes at his option.

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Q. But if B is not a resident of the 1hilippines, but came to the 1hilippines for a vacation and could be found in Bulan, 3orsogon, where may A, who is a resident of 3ulu file the case? A. -e may file the case in 3ulu or in Bulan, 3orsogon. %here real property is located partly in one place and partly in another, whether the action involves forcible entry or detainer, or an action for reindivicacion its venue should be any of these places where property is located. Example: A vs. B for forcible entry or reindivicacion, the property was located in :anila in part, &aloocan in part, *.&. in part. 3o A can file the case in :anila, &aloocan, in *.&. Example2 A vs. B, an action for declaration of nullity of the marraige of A and B. B the husband is a nonKresident defendant of the 1hilippines whose permanent address is #.3.A., on the other hand, the wife is a resident of :anila. Q. What will be the venue of this action? A. :anila. Example: The action between A and B involved let us say, the recovery of a lot which A claims as his but which B claims is his. This lot is partly located in 1ampanga, Bataan or Batangas. While A is a resident of :anila. The value of this property is 1 !,!!!.!!. Q. What court has ,urisdiction and a court of what place will be the venue? A. :T& of 1ampanga, or of Batanes or of Bataan. Example2 A sued B, a nonKresident of the 1hilippines. But at the time the action was filed, B was found in TawiK Tawi. A is a resident of Batanes. B is a permanent resident #.3. Q. 'f this action is filed, what will be the venue? A. The venue is Batanes, or TawiKTawi at the election of the plaintiff. %here the action involves title to, possession of or interest in real property, the action may be filed in the appropriate or proper court of the place where the property or part of the property is located, e7cept where the action is one for forcible entry, in which case, the action may be filed in the :T& of the place where the property or part of the property is located. )f the action is personal , the venue of the action may be the residence of the plaintiff or it there are two or more plaintiffs, the residence of the plaintiff or the residence of the defendant or in case there are two or more defendants, the residence of the principal defendant, at the option of the plaintiff. %here the defendant is a non,resident defendant, but is found in the -hilippines, and the action is personal , the venue of the action may either be the residence of the plaintiff or the place where the defendant is found. 'n our e7ample, the action was one for money, against the defendant B who is a resident of #.3. But at the time the action was filed, he was found in TawiKTawi, the action by A can be filed in Batanes, AEs residence or in TawiKTawi at the option of A. Q. Where the sub,ect matter of a case is real property, is the rule that the venue of the action involving it should be the place where the property is located or where any part of the property is located absolute? 3o that in all cases, this rule must be followed? A. 't is not absolute. Q. The action involves possession of, interest or in title to real property but the action is not forcible entry. :ust the venue of this action be the place where the property is located or where any part thereof is located or may there be a case where what is located or may there be a case where what is involved in a suit is a real property and yet the venue need not necessarily be the place where that property is found or where any part thereof is found. Example: A and B are litigating who has the better right to timber concession located in &otabato. A is a resident of :anila and B of Batangas. The action by A against B was filed with the 3ecretary of DI/0. The 3ecretary awarded the right to the timber land to A. B now contested the action of the 3ecretary in awarding the right to A. B sued as well as the 3ecretary of DI/0. This action was filed by B in his residence which is Batangas 0T&. The 3ecretary now files a motion to dismiss on the ground that the venue is improperly laid. The venue should be &otabato. 'f you are the ,udge, what will your correct ruling on the motion to dismiss filed by the 3ecretary of DI/0? Issue: What is involved here is a motion to dismiss filed by the 3ecretary, he said Cany action contesting my decision should be filed in the court of the place where the property is located.D C3ince the property is located in &otabato, the venue should be &otabato, not the residence of B in Batangas.D

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Example2 The 1--& awarded the lot in *.&. to a resident of Bacolod &ity. After A paid so many installments on their lot, the 1--& unilaterally cancelled this award and awarded the same lot to B. To annul that order of 1--& canceling the award to A, A now sued 1--& which has its office in *.&. and B, a resident of :anila in the 0T& of Bacolod &ity. The prayer of A is for the cancellation of the resolution of 1--& canceling the prior award to A and awarding the same lot to B. 1--& and B now file a motion to dismiss on the ground of improper venue. They contended that the proper venue of the action is *.&., the location of the property, not Bacolod &ity, the resident of plaintiff A. you are the ,udge, what will be your correct resolution to the motion? Example: A and B agreed in !!4 that any action between them involving this lot in TawiKTawi, be filed in Batanes. A being a resident of :anila and B of Bulan, 3orsogon. The agreement was oral. =or a violation of =orcible Intry, A now sued B in Batanes although, we say, that the lot is in TawiKTawi. B now filed a motion to dismiss, on the ground of improper venue. -e said that the action should be filed in the inferior court of TawiKTawi, not in Batanes. Q. 8ou are the ,udge, what will be the correct ruling on the motion to dismiss? A. Deny the motion to dismiss under 3ec. 9 (b) 0ule 9, the rule on venue shall not apply where parties have not validly agreed in writing before the filing of the action on the e7clusive venue thereof. 'n the above case, the agreement of A and B was an oral agreement. Therefore the agreement is not enforceable. . The agreement between A and B is Cthat any action arising from this lot located in TawiKTawi must be filed only in :T& of Batanes.D A now sued B in Batanes. B now filed a motion to dismiss on the ground of improper venue being the property located in TawiKTawi and therefore TawiKTawi should be the venue.D 0ule on themotion to dismiss filed by B. 2. Agreement in writing between A and B provided as follows22 CAny action arising from this land in TawMTawi, may be filed in Batanes.D &ontrary to this writing, A filed the action in TawaKTawi. B now filed a motion to dismiss on the ground that the venue is improperly laid because the agreement called for the venue to be in Batanes. 0ule on the motion. A. Deny the motion to dismiss because the agreement used the word CmayD. #nder the rule, the agreement to be valid must be one which is in writing and the agreement on the venue must be Ce7clusive venue.D Where the action involving real property concerns the title to the property, or possession of real property or interest in real property, the venue is the place where the property is located or where a part of the property is located. Therefore where the action involving real property does not concern title to the property or it does not concern the possession of real property or does not concern an interest in real property, the rule that the action should be filed in the place where the property is located does not apply. There are, therefore, cases when what is involve is real property and yet the venue of the action need not be the place where the property or a part of the property is located. Example: The action is filed by B against A and 3ecretary of DI/0. The action filed by B here is an action for certiorari against the 3ecretary of DI/0 and A. The sub,ect matter although involving real property is actually the ,udgment of the 3ecretary. This is not an action involving title to, possession or interest in real property. The action in effect is a personal action. 3o venue would be the residence of plaintiff B or the residence of the 3ecretary, not &otabato, the place where the lot is located. 'n the case of the annulment of the award made by the 1--&, the venue need not necessarily be *.&. where the property is located. 3ince the action was filed in *.&. where the defendant 1--& reside. 3o the motion to dismiss filed in Bacolod &ity is not proper because Bacolod &ity could be a venue. #nli+e ,urisdiction which cannot be the sub,ect of stipulation, venue can be the sub,ect of stipulation and therefore the parties can agree that the venue of a particular action as filed and provided the agreement provides for an e7clusive venue. 3o if the property is located in TwiKTawi, but A and B agreed before any suit is filed that the venue of the action arising therefrom be in Batanes and this agreement was in writing before the action was filed, the action can be filed where the property is located or in Batanes. Why? Because the wording of the agreement, Batanes would merely be an additional venue, the venue agreement controls. 3o in our e7ample, A and B agreed in writing before any suit arise, that any action involving this property located in TawiKTawi can be filed ConlyD in Batanes. 'n violation of that written agreement, A filed suit in TawiKTawi where the property is located. B now files a motion to dismiss for improper venue. 's the motion to dismiss proper? 8es, because although the property is located in TawiKTawi, the agreement called for an e7clusive venue, i.e.Donly Batanes.D The motion to dismiss of B here should be granted.

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The rules on venue mentioned in 0ule 9 do not apply in certain cases, in addition to these cases that i.e. an agreement in writing. Q. 's there another situation when the rule on venue does not apply other than the ground that there is an agreement is writing providing for a particular venue? The 0ules on venue do not apply when there is an agreement in writing providing for an e7clusive venue. 'n addition to this, is there another situation where the rules on venue mentioned in 0ule 9 does apply because in this case, we do not file the action, for instance, in the place where the property or a part of the property is located or in the place where the plaintiff or the defendant is residing at the option of the plaintiff. 's there such a situation? Example: A published a libel in :anila. B is a resident of 'locos /orte. -owever, A was a resident of :anila. 1eople vs. A filed in :anila. B, subse.uently filed in the 0T& of 'locos /orte, his residence, an action for damages against A in manila. A now filed a motion to dismiss this action in 'locos /orte. -is ground is that the venue of the action should not be in 'locos /orte, it should be in :anila where the libel cases is filed but B countered this argument, the recovery of damages is a personal action, therefore, under 0ule 9, sec 2 (B) has the option to file any action either in my residence or the residence of the defendant A at my (B) option. :y option is to file my action in 'locos /orte. 3o, the motion to dismiss is not proper 0ule on the merits of the motion to dismiss Ans. The rules on venue found in Rule . do not apply in two cases& . When the parties agreed in writing before any action is filed the venue of the action be in a particular place. :eaning, when the agreement calls for an e7clusive venue 2. where the law provides for a specific venue. 'n the first case, where the agreement in writing does not provide for an e7clusive venue, but merely an additional venue, the action may be filed in the proper venue according to 0ule 9, or in the venue stated in the agreement. 'f the written agreement on venue provides for a specific and e7clusive venue, only the venue specified in the agreement can be the venue. 'n the second case, the law itself provides, for a specific venue, then it should be that venue provided for by law. The libel law provides that where a criminal action is filed in a particular venue, the civil action for damages arising form that libel should li+ewise be filed in the same court where the criminal case is pending. 'n our e7ample, the libel case was filed in :anila. Any action for damages arising form the libel filed must be filed in the place where the libel case was filed. Although B, in this case, is a resident of 'locos /orte, he cannot file the action in 'locos /orte because the criminal case was filed in :anila.
RENE NOTES: Venue o( A+t$ons Re* *+t$ons ) place where real property located Pe!son* *+t$ons 1) residence of the plaintiff 2) residence of the defendant + 9hoice of the plaintiff Re* *+t$ons 1) action for the annulment or recision of a sale and the return of realty 2) to compel the vendor to accept payment of the purchased piece of land ) to compel the vendor to deliver the certificate of title of the land Pe!son* 1) 2) ) *+t$ons action to recover the purchased price of the land an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage action to annul the cancellation of award of land in favor of the plaintiff

Re'u$s$tes (o! &enue to 8e e/+ us$&e: 1) A valid written agreement 2) &1ecuted by the parties before the filing of the action. and ) Agreement to the e1clusive nature of the venue. + In the absence of qualifying or restrictive words, venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule. W4en !u es on &enue NOT *pp $+*8 e 1) when parties agreed in writing for an e1clusive venue before any action is filed 2) where the law provides for e1clusive venue e1. :ibel Libel Law ) where a criminal action is filed in a particular venue, the civil action for damages arising from that libel should likewise be filed in the 0A;& 9$5(! where the criminal case is pending. 6e*ns o( W*$&$n7 &enue: [9O: AR: VS: L] 1) failure to ob,ect by means of motion to dismiss 2) affirmative relief sought in the court where the case is filed

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) ") voluntary submission to the court where the case is filed laches

I9 PROPERTY IS LOCATED AT THE BOUNDARIES O9 TWO PLACES* file one case in either place at the option of the plaintiff I9 CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DI99ERENT PLACES: a) if the properties are the ob,ect of the same transaction, file in any of the two places. b) if they are the sub,ects of two distinct transactions, separate actions should be filed in each place. WHEN ALTERNATIVE RELIE9 IS SOUGHT < venue would depend on the primary ob,ect of the action. VENUE 1. place where the action is instituted 2. may be waived . procedural ". may be changed by the written agreement of the parties #URISDICTION 1. power of the court to hear and decide a case 2. ,urisdiction over the sub,ect matter and over the nature of the action is conferred by law and cannot be waived . substantive ". cannot be the sub,ect of the agreement of the parties

Rule !: #leadin.s
Q. What are pleadings? What are the +inds of pleadings? A. Sec./ Rule ! -leadings are written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

Sec.2 Rule ! (#leadin.s Allo0ed) . complaint The claims of a party are asserted in a2 2. counterclaim %. crossKclaim 9. third (fourth, etc.) party complaint, or 5. complaintKinKintervention The defenses of a party are alleged in the answer to the pleading asserting a claim against him. An answer may be responded to by a reply.
RENE NOTES* ; 1$n%s o( %e(enses t4*t m*" 8e set (o!t4 $n t4e *ns2e! A. -&=A!I'& >&?&-0&0 a. 0pecific denials b. Insufficient denial or denial amounting to admissions 1) =eneral 2) >enial in the form of a negative pregnant @. Affirmative >efenses in the -ature of 9onfession or Avoidance + 5nlike the 9omplaint which alleges only ultimate facts, the Answer may cite legal provisions relied upon for defense

Q. A.

What is the compulsory counterclaim? Sec. 1 Rule ! A compulsory counterclaim is one which, being cogni/able by the regular courts of justice, arises out or is connected with the transaction or occurrence constituting the subject matter of the opposing party0s claim and does not re#uire for its adjudication, the presence of third parties of whom the court cannot ac#uire jurisdiction. 1uch a counterclaim must be with jurisdiction of the court both as to the amount and the nature thereof, e"cept that in an original action before the Regional Trial Court the counterclaim may be considered compulsory regardless of the amount. Q. What is a counterclaim? A. Sec. ! Rule ! A counterclaim is any claim which a defending party may have against an opposing party . Example: 'f A filed a case against B. Any claim by B against A is a counterclaim. 't is a claim by a party defending himself against a party who files a case against him. 20o 3I4*S of counterclaims2 . &ompulsory &ounterclaim

1
2. 1ermissive &ounterclaim These two are different for in their component elements and the effect of their not being pleaded. 'n the language of the rule, a counterclaim is compulsor% when it is one which is cogniGable by the court and arises out or is connected with the transaction or series of transactions which constitutes the basis of the action against him and does not re.uire for its ad,udication the presence of the third person over whom the court cannot ac.uire ,urisdiction. -owever, where the counterclaim is a money claim and the court in which the case is pending is the 0egional Trial &ourt, the money claim irrespective of the amount is a compulsory counterclaim. $n the other hand, a permissi)e counterclaim is one which does not arise out of or is connected with the transaction which is the basis of the sub,ect of the action. Example: A files an action against B for collection for sum of money. B, however, has an action against A for recovery of lot. This action of B against A for recovery of a lot is a permissive counterclaim. Why? Because it is not in any way related. Q. Why is this permissive? A. Because if B wants to he can file his counterclaim against A in the same action. 'f he does not file it as a claim, this case filed against him. Q. &an he file it separately, so that if he can file it separately there are now two cases, A vs. B for recovery of lot. A. 8es. Q. 3upposing he (B) does not file his counterclaim in this case against him, and subse.uently, B files a separate action, can A now file an action to dismiss a second action on the ground that this action of B against A should not be pleaded as a claim counter in nature in the civil case? A. /o, because this is a permissive counterclaim. B can file if he wants in to this main action, he may not file if he does not want to file. Q. 56en is counterclaim compulsor%7 A. ) A compulsory counterclaim is one which is cogniGable by the court of ,ustice. 2) A counterclaim should be connected with the transaction which constitutes the basis of the action of the plaintiff against the defendant. %) This counterclaim does not re.uire for its ad,udication the presence of a third person over whom the court does not re.uire ,urisdiction. 9) This counterclaim is within the ,urisdiction of the court e7cept that where the counterclaim is a money claim and the action is filed in the 0T& irrespective of the amount whether within or not within the ,urisdiction of the court, the counterclaim is compulsory. Example: This is an action of A against B for the recovery of a lot. The counterclaim of B against A is for the recovery of money which represents the unpaid wages of B payable by A and the wages being the result of a contract of employerKemployee relationship. Q. 's this money claim of B arising from the employerKemployee relationship is not cogniGable by the court? A. /o, because the money claimed arising from the employerKemployee relationship is not cogniGable by the courts of ,ustice. This is cogni/able by the 2345 4abor Arbiter or the 64RC. 3o, if A files his complaint and B pleads his money claim arising from the employerKemployee relationship, that counterclaim is not a compulsory counterclaim. 't cannot be filed in this case. The counterclaim must be one which arises from the transaction which is the basis of the action of the plaintiff against the defendant. Example: The action of B is for recovery of lot. The claim of B is for money arising from a contract of loan being B the lender and A the borrower. 3hould B interpose as a counterclaim this action for recovery of money here. Q. &an that be validly done? A. $n the assumption that all the other elements are present, this is allowed. 3upposing, this is the :T&, the action is for reindivicacion because the value of the property is only 1244,444. This an action filed outside :anila. Q. A. 's this counterclaim here allowed to be filed by B as a counterclaim in this case? 8es, because this is a claim that is compulsory.

But supposing B does not file a separate case against A for a recovery of money such that if this is done, there will be now two (2) actions Q. &an A validly file a motion to dismiss this complaint on the ground that since this is a counterclaim, that should have been impleaded by B in the main case?

1"
A. /o, because this amount does not arise from the transaction constituting the claim by A against B, this is a recovery of money. This is a permissive counterclaim the fact that it is not pleaded in the answer in the main case, is not a ground to dismiss it. 'n this case, BEs counterclaim is not compulsory, but merely permissive. Example: The counterclaim of B consists of 1244,444.44 but the counterclaim of B is against A and & over this amount is solidary. B does not plead in his answer in the main case claim and after B files his separate action against A and & to recover his 1244,444.44. A filed motion to dismiss on the ground that this should have been impleaded in the main case because it arose from this main case. Q. 's the motion to dismiss proper? A. /o, because the presence of & is re.uired in their litigation on this 1244,444.44 and & is in #.3. and the &ourt does not ac.uire ,urisdiction over him. 3o, this counterclaim although arising from that action is merely a permissive counterclaim not compulsory counterclaim because it re.uires for its ad,udication the presence of a third person over whom the court does not ac.uire ,urisdiction. This is an action in the :T&. The counterclaim of B arising from this, letEs say, the value of the improvements which B introduced in this lot is 124 ,444.44. -e does not plead his counterclaim in this action. 'nstead, he files a separate action on the recovery of 124 ,444.44. /ow he files a motion to dismiss on the ground that this counterclaim being connected in the claim of A against B should be pleaded. Q. 's the motion to dismiss proper? A. /o, because the amount claimed though arising from the action e7ceeds the ,urisdiction of the :T&. The ,urisdiction being only up to 1244,444.44. 3o, it is not. 3upposing, however, that this case is filed in the 0T&. And on the assumption that the counterclaim of B against A arises out of this action of A against B, and the counterclaim is only 154,444.44 Q. 's this counterclaim compulsory or permissive? A. &ompulsory. 'n the 0T&, as long as the counterclaim is money, irrespective of the amount, it is always compulsory. 6et us now ta+e a case where the counterclaim is compulsory. Example: (ompulsor% (ounterclaim This is an action for the recovery of a lot. The counterclaim of B is for recovery of the value of the property improvements which B introduced. Q. 's it money claim by nature cogniGable by a court whether :T& or 0T&? A. 8es. Q. 's it connected with the case filed by A against B for recovery of the land? A. 8es, because the amount being claimed represents the value of the improvements introduced by B in this lot, which is the sub,ect of the main case. 3o, it is connected. Q. Does this action for recovery re.uires the presence of &, a third person over whom the court cannot ac.uire ,urisdiction? A. /o. Q. 's an action for recovery of a 124 ,444.44 one with the ,urisdiction of the 0T&? A. 8es. 3o, in all these cases therefore, the elements of a compulsory counterclaim are present. Q. What is the rule? A. %hen a counterclaim is compulsory it must be pleaded in the answer, otherwise, that counterclaim is barred . Example: 'n the e7ample that B sues to recover 124 ,444.44 representing the value of improvements introduced on the lot which is the sub,ect matter of the complaint of A. What B did was to institute separate action against A for recovery of the improvements. -e did not plead this as a counterclaim in the action of A. A now files a motion to dismiss on the ground that, the counterclaim is a compulsory counterclaim, the fact that it not was pleaded in the main case, is a ground to dismiss it. Q. 8ou are the ,udge, what will be your correct ruling on this motion of A to dismiss the case? A. Nrant the motion, bec. a compulsory counterclaim not pleaded in the answer is considered barred.
RENE NOTES:

1/
Ru es on Counte!+ *$m 1) A counterclaim before the ;!9 must be within the ,urisdiction of said court, both as to the amount and nature thereof. 2) In an original action before the (!9, a counterclaim may be considered compulsory regardless of the amount. ) If a counterclaim if filed in the ;!9 in e1cess of its ,urisdictional amount, the e1cess is considered waived. ") !he remedy where a counterclaim is beyond the ,urisdiction of the ;!9 is to set of the claims and file a separate action to collect the balance. CO6PULSORY COUNTERCLAI6 A1) one of which arises out of or is necessarily connected with the transaction or occurrence that is the sub,ect matter of the opposing party3s claim. A2) It does not require for its ad,udication the presence of third parties of whom the court cannot acquire ,urisdiction. A ) It is barred if not set up in the action. A") -eed not be answered. no default. PER6ISSIVE COUNTERCLAI6 A1) It does not arise out of nor is it necessarily connected with the sub,ect matter of the opposing party3s claim. A2) It may require for its ad,udication the presence of third parties over whom the court cannot acquire ,urisdiction. A ) It is -$! barred even if not set up in the action. A") ;ust be answered, otherwise, the defendant can be declared in default.

C!oss5+ *$m + filed against a co)party + always arises out of the transaction or occurrence that is the sub,ect matter either of the original action or of a counterclaim therein. + If it is not set up in the action, it is barred, e1cept when it is outside the ,urisdiction of the court or if the court cannot acquire ,urisdiction over third parties whose presence is necessary for the ad,udication of said cross)claim. + !he dismissal of the complaint carries with it the dismissal of a cross)claim which is purely defensive, but not a cross)claim seeking affirmative relief. Rep " E((e+t o( 9*$ u!e to Rep ": new facts that were alleged in the answers are deemed converted. #ence, the filing of the reply is optional e1cept for the denial of the genuineness and due e1ecution of an actionable document used as defense in the answer. T4$!% <(ou!t4: et+- = p*!t" +omp *$nt THIRD5PARTY CO6PLAINT + seeks to recover form a non)litigant some relief in respect to the opposing party3s claim. + !hird party is not yet impleaded. THIRD5PARTY CO6PLAINT + brings into the action a third person who was not originally a party. + initiative is with the person already a party to the action. CROSS5CLAI6 + claim by a party against a co)party. + 9ross)defendant is a co)party. CO6PLAINT IN INTERVENTION +same + initiative is with a non)party who seeks to ,oin the action.

+ TEST to %ete!m$ne 24et4e! t4e t4$!%5p*!t" +omp *$nt $s $n !espe+t o( p *$nt$((>s + *$m * Aa) %here it arises out of the same transaction on which the plaintiff3s claim is based, or although arising out of another or different transaction, is connected with the plaintiff3s claim. Ab) %hether the third)party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff3s claim against the original defendant. and Ac) %hether the third)party defendant may assert any defenses which the third)party plaintiff has or may have to the plaintiff3s claim.

Rule in non89:RU' S;:##I4< ( #nder SE(. 5 RULE 1 The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification anne"ed thereto and simultaneously file therewith& a7 That he has not thereto commenced any action or filed any claim involving the same issues in any court, tribunal or #uasi,judicial agency and to the best of his $nowledge, no such other action or claim is pending therein; b7 )f there is such other pending action or claim, a complete statement of the present status thereof; and c7 )f he should thereafter learn the same or similar action or claim has been filed or is pending, he shall report the fact within five 897 days therefrom in the court wherein his aforesaid complaint or initiatory pleading has been filed :ailure to comply with the foregoing re#uirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or non,compliance with any of the underta$ings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. )f the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. Example: A filed an action against B for forcible entry of a particular lot. While this case was pending, A filed against B for reindivicacion involving the same lot. Q. 's there a forum shopping on the part of A? A. /o, the two cases are different. $ne is for forcible entry and the other for reindivicacion. Example2

12
A filed an action against B in the 0T& for reindivicacion. Branch 0T& of :anila. 'n their action, A filed a petition for receivership. 'n Branch '' of :anila, A filed another action against B also for reindivicacion, for issuance of an in,unction. Q. 's there forum shopping on the part of A? A. /o, there is none because the two cases involves different issues. Q. What is forum shopping? A. 9orum s6oppin. ta=es t0o forms2 ) Where a party files the same action involving the same issues either simultaneously or successively in more than one court. 2) Where a party files two or more actions in different courts, the other action filed in another court not being the result of an appeal or a petition for certiorari. =orum shopping is not allowed because this would be constituting to the ,udicial process ma+ing moc+ery out of the rules. This is the reason why whenever the party files a complaint or an initiatory pleading, he is re.uired to accompany that complaint or initiatory pleading with a certificate. We call the certificate the certificate of non, forum shopping. The certificate is signed by the plaintiff and if there are two or more plaintiffs and one is a principal plaintiff and the other is not, the certificate must be signed by the principal plaintiff. The contents of the certificate, the plaintiff or in the proper case, the principal plaintiffs, certifies the following2 a) That he has not previously filed in another court, tribunal, .uasiK,udicial body or any other agency, the same action involving the same issues. b) That there is no pending action in any other court, tribunal, .uasiK,udicial body or any other agency involving the same issues,and if there is pending action in any other court, the status of this action pending in the other tribunal agency or .uasiK,udicial agaencyH c) 3hould at the time he filed the pleading, he did not +now of the e7istence of pending of another action involving the same issues in another tribunal court, agency or .uasiK,udicial body, but that he subse.uently learns that there is such a pending action involving the same issues, he underta+es to notify the court of that fact that there is a pending action, within five (5) days from his receipt or ac.uisition of +nowledge of the pendency of that action. These are the three (%) matters certified by the plaintiff or the principal plaintiff. Q. What are the sanctions against violations of this certificate? A. ;iolations rule may consist of the following2 ) =ailure to attach to the initiatory pleading in the complaint the re.uired certificate of nonKforum shoppingH 2) 3tatement in that certificate of nonKforum shopping of a false certificate. These are the forms of violation, either you do not accompany or you accompanied the pleading but the certificate contains a falsehood. %) The violation consists in the failure of the party to comply with his underta+ing thereafter. Q. What is the underta+ing there? A. To notify the court to the fact that another action is pending in another court. Therefore, the violations consists of three (%), i.e. nonKsubmission, submitting a false certificate and failure to comply with the underta+ing to inform the court of the pending case in another court. Q. What are the sanctions? A. The failure to accompany the pleading with a certificate results in a dismissal without pre,udice of the complaint or initiatory pleading upon a prior motion and a prior hearing. 'n other words, where the pleading re.uire a certificate is not attached at, the court may not motu proprio dismiss the complaint. There should first be a hearing either a motion of the defendant. 'n this case, the court may dismiss it without pre,udice.

Q. 's this all the sanction? A. /o,The counsel or the defendant may be held in contempt. And in the case of the lawyer, he may be administratively proceeded against2 When there is a false certification, for instance, the certification stated that there was no pending case involving the same issue in another court, when the truth is there is. Q. What is the sanction? A. /ot only the pleading be dismissed, not only may the lawyer be proceeded against administratively, he may be proceeded against criminally. Where the forumKshopping is deliberate. Q. What are the sanctions? A. The pleading will be dismissed with pre,udice and the offending lawyer may be held in direct contempt without pre,udice to administrative proceeding against.

16
Ta+e note that the party on whom the sanctions may be enforced is one who does not comply with this certificate of nonKforum shopping, only in a case where the pleading which is not accompanied with the certificate is a complaint or an initiatory pleading. %here the pleading is other than the complaint, or an initiatory pleading , the rule does not re.uire that the pleading be accompanied by a certificate of nonKforum shopping. &onse.uently, where the counterclaim is compulsory, it does not have to be accompanied by a certificate of nonKforum shopping. Where the counterclaim however, is permissive than the pleading must be accompanied by a certificate of nonKforum shopping. 'n the case of (1T vs. ;ula <.R.=!> ?!@ August !?, ! @ 8> . 1 A@B ). C$nly a complaintD or an initiatory pleading. A compulsory counterclaim is not an initiatory pleading. Why? Q. When is a pleading initiatory? A. As the term suggests, it is one, which is filed for the first time. Where a counterclaim is compulsory it is not an initiatory pleading. Why? Because, you cannot file a compulsory counterclaim unless there is a first complaint. That is why a counterclaim is a reaction to the complaint. 3o, it is all again initiatory, because you cannot file an independent action involving a compulsory counterclaim. Where a counterclaim is compulsory, it must be pleaded in the answer, otherwise, it is barred if it is filed in a separate action. But when it comes to a permissive counterclaim, this is an initiatory pleading because it can be filed even without a prior complaint having been filed against a permissive counter claimant. 3o, in our e7ample for instance, if A filed a complaint against B for recovery of a lot B files a counterclaim for the value of the improvements over the land. 3o you call this a compulsory counterclaim. Q. Do you have to accompany this compulsory counterclaim of B with a certificate of B with a certificate of nonK forum shopping? A. /o, because this compulsory counterclaim is not an initiatory pleading. 't is a reaction. Without this complaint of A, there is no compulsory. But supposing this were a counterclaim for recovery of money which B loaned to A and B pleaded this claim of money as a counterclaim, you call this permissive counterclaim. Q. Do you have to accompany this permissive counterclaim with a certificate of nonKforum shopping? A. (#.3.T. vs. >ula.) 8es. Q. 3tate the rule on Alternati)e causes of action or defenses. A. Rule > Sec. 2 A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses. %hen two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. ) Where a person has one claim or one defense he can state that one claim or one defense in two or more statements either hypothetically or in the alternative. 2) Where two or more statements of a claim or a defense are made and one is made independently of the other which is sufficient, the pleading is not made insufficient by the insufficiency of the other statement of the claim or the other defense. Example: A vs. B, this is an action for recovery of a piece of land. The defense of B is that he (B) is the owner, because ) he bought the land from AH 2) he inherited the land from &H %) this lot was donated to him by DH 9) he ac.uired this by prescription. Q. &ould this be validly alleged as BEs defense? A. Analysis2 The defenses are inconsistent with each other. B can allege these as his defenses in his answer. The statement of BEs defense that he is the owner is made up of 9 inconsistent statements. The rule says that if the statement of the claim or defense is sufficient in itself, if made independently of the other, the pleading is not made insufficient by the insufficiency of the statement.
RENE NOTES: 9*+ts t4*t m*" 8e *&e!!e% 7ene!* ": Aa) conditions precedent A@5! there must still be an allegation that the specific condition precedent has been complied with, otherwise, it will be dismissed for failure to state cause of action. Ab) malice, intent, knowledge, or other condition of the mind Ac) ,udgment of foreign courts, tribunals, boards, or officers Ano need to show ,urisdiction) 9*+ts t4*t must 8e *&e!!e% p*!t$+u *! ": Aa) circumstances showing fraud or mistake in all averments of fraud or mistake Ab) capacity * Two permissible ways of pleading an actionable document*

17
Aa) @y setting forth the substance of such document in the pleading and attaching said thereto as an anne1 Ab) @y setting forth said document verbatim in the pleading * Where the actionable document is properly alleged, the failure to deny under oath the same results in: 1) !he implied admission of the genuineness and due e1ecution of said document e1cept* Aa) when the adverse party was not a party to the instrument. and Ab) when an order for the inspection of the document was not complied with. 2) !he document need not be formally offered in evidence. * Defenses that the opposing party may set up even after failure to deny under oath: Aa) mistake. Ab) fraud. Ac) compromise. Ad) payment. Ae) prescription. Af) want or illegality of consideration. or Ag) estoppel. * BUT the following defenses are waived: Aa) forgery in the signature. Ab) want of authority of an agent or corporation. Ac) want of delivery. or Ad) the party charged signed the instrument in some other capacity. SPECI9IC DENIAL THREE WAYS O9 6A?ING A SPECI9IC DENIAL: Aa) @B specifically denying each material allegation of the party and of the other party and whenever possible, setting forth the substance of the matters relied upon for such denial. Ab) past admissions or past denial. Ac) @y an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party3s pleading. + A denial cannot be general, a general denial is regarded as admission on the facts stated in the complaint. + A negative defense must be a specific denial. $therwise, the denial will be deemed as an admission and entitles plaintiff to a ,udgment on the pleadings A&e!ments $n t4e +omp *$nt NOT %eeme% *%m$tte% e&en $( NOT spe+$($+* " %en$e%: Aa) Allegations as to the amount of damages Aunliquidated). Ab) Immaterial allegations. Ac) Incorrect conclusions of fact. and A&e!ments %eeme% *%m$tte% $( not spe+$($+* " %en$e% un%e! o*t4: Aa) Allegations as to usury in the complaint Ab) !he authenticity and due e1ecution of actionable documents thereto.

Rule ?: Effect of 9ailure to #lead


<eneral Rule2 All of actions and defenses available at the time the pleading is filed, if not raised in the motion to dismiss or as affirmative defense in an answer are deemed waived or abandoned. 3o the general rule therefore is, if you have defenses or ob,ections, if you will file, allege all them either in a motion to dismiss or alternative defenses in an answer. All those defenses, all those ob,ections available but not so raised are deemed waived and abandoned. There are certain defenses or grounds of ob,ections however which may not be abandoned, either if they were not initially raised in a motion to dismiss or as an affirmative defense. E&(E#2I:4S to t6e <.R of 9AILURE 2: #LEA* =or instance, the court has no ,urisdiction over the sub,ect matter of the case. 3uppose the case is already barred by the rule on res ,udicata. 3uppose the action has already, one that has prescribed. 3uppose there is a lis pendencia and all these four are redeemed either on the basis of the pleadings themselves or under the basis of the evidence, the court can dismiss this action based on lac+ of ,urisdiction, res ,udicata, lis pendencia or prescription, or statue of limitation. Example: A vs. B, this is an action for forcible entry. The allegations are filed. This case was filed in the 0T&. 3o B did not file a motion to dismiss for lac+ of ,urisdiction. /either this lac+ of ,urisdiction of the court to try the forcible entry case alleged as an affirmative defense. Q. 's ,urisdiction here waived? A. /o. Although not raised in the motion to dismiss, or although not raised as an affirmative defense, the court can still dismiss the case although lac+ of ,urisdiction was not so alleged.

18
$r where the evidence shows, if proceeded to trial, lac+ of ,urisdiction or where the evidence shows res ,udicata already, or where the evidence shows that the action has already prescribed or the evidence shows that there is lis pendencia, then the court can dismiss the action. *efault. Default #sed to be covered by 0ule A. 0ule A was limited to default, but 0ule A now which covered default, there is another sub,ect of 0ule !. Q. What is the rule of default? A. Default here means, the failure of the defendant who was validly served a summons to file the answer within the reglamentary period. 3o, if for instance, A vs. B was summoned on Dec. 4, !!!. -e has only a period until Dec. 25, !!! or Dec. 2@, !!! assuming that Dec. 2@, !!! is a wor+ing day within which to file the answer or only appropriate pleading. 'f B was validly served under 0ule 9, and fails to file the answer within that period or fails to file any appropriate pleading within that period, we may say that B has already incurred in default. AL2ER4A2I-E A4* SU((ESSI-E RE'E*IES :9 A #R2@ *E(LARE* I4 *E9AUL2 a) file a verified motion in set aside the order of default of any time after discovery of the =A:I and before ,udgment b) if he did not file one or the same was denied, he would file a motion for a new trial at any time after service of ,udgment by default and within %4 days therefrom c) if he fail to file said motion or the same was denied, he could perfect his appeal from and on merits of said ,udgment by default within the balance of said %4Kday period d) if he failed to ta+e any of said steps, he could file a petition from relief of ,udgment within @4 days from notice of the ,udgment but within @ months from entry thereof. Where the defendant has not been validly summoned, under 0ule 9, he cannot be declared in default. Q. -ow will A here secure the default of B? A. -e must file a motion in court. Q. &an the court moto proprio declare B in default? A. /o. Iven if B has not filed an answer, the court cannot moto proprio declare the defendant in default. A must file a motion. Q. 's B, under the new rules, entitled to a notice of the hearing of the motion to declare in default? A. 8es. This is now the amendment to the old 0ule A. #nder the old 0ule A, the ,urisprudence thereunder, a motion to declare a defendant in default could be validly heard without notice to the defendant. -e was not under the same rules and ,urisprudence entitled to a notice of the hearing on the motion. 't means therefore, that a default motion, under the old rule, will be held e7 parte. This is not now the rule. A here, the plaintiff, must file a motion, furnish B with a copy of the motion and furnish B with a notice of hearing on the motion. 0uling of the court on the motion< The court may deny or grant the motion. Q. What are the effects of a declaration of default on the defendant? A. There are many. 'n substance B loses many rights which pertain to a defendant who has not been declared in default2 ) he cannot file an answerH 2) he cannot participate in the proceedingsH %) he cannot present evidence on his behalfH 9) he cannot crossKe7amine, (the witness of the plaintiff) until he regains his standing as a defendant, because the order declaring him in default is set aside, he is in effect outside the ring, loo+ing at A doing his thing. 3o, a case where a defendant is not declared in default, is li+ened to a bo7ing fight where both opponents are in the ring slugging it out. But in the case of a defendant who has been declared in default, the only person in the ring, is the plaintiff A and B, here the defendant is outside the ring loo+ing at what A is doing. Q. What follows after the court has validly declared the defendant in default? A. ) The court may now render a ,udgment. The ,udgment may be either what is solely in the allegations in the complaint without the court receiving evidence from A, the plaintiff in support of the allegations. 2) The court may receive evidence and therafter render a ,udgment on the basis of evidence presented by A. Q. Are there limitations on the ,udgment that the court may render where the defendant is declared in default? A. 8es. The limitations are2 ) The ,udgment cannot award an amount to the plaintiff in e7cess of what was claimed in complaintH 2) The ,udgment that the court may render can never be different from the ,udgment prayed in the complaint. Where a ,udgment is rendered without the defendant having been declared in default, the ,udgment may be different from what has been prayed provided that ,udgment is sustained by the evidence.

24
Example: 'f B was not declared in default and the claim of A in his complaint for damages is 1 :, but what A proved was 1 ,444,444.4 , the court may award A 1 ,444,444.4 though it e7ceeds by one ( ) centavo they are valid. But in a default case, /oOO even though the evidence of the plaintiff proved that sustained damages 1 ,444,444.4 , the court cannot award an amount in e7cess of 1 : (the amount claimed in the complaint). Q. -ow may the defendant regain his standing as a defendant? A. -e must file a motion to set aside the order of default at any time before the ,udgment has become final. 'n other words, if the ,udgment has already become final, a motion to set aside the order of default is no longer proper. Q. What are the grounds of a motion to set aside a default order? A. 3ince the default is by reason of failure of the defendant to file the answer, there must be a reason why he failed to file the answer. And this must be the reason he must alleged when he filed a motion to set aside the order of default. Q. What are these? A. 8ou will say2 P' fail to file my answer because of the following2 ) =raud was committed against me, so ' did not file the answer. 2) An accident befell me. This accident prevented me from filing the answer on time. %) ' committed a mista+e and this mista+e prevented me from filing the answerD 'f he said C ' was negligent in not filing, but my negligence is e7cusable because2 ) 2) %) These are the grounds, fraud, accident, mista+e or e7cusable negligence, which prevented the defendant of filing the answer. (=A:I) Q. 's it enough that these grounds be alleged in the motion to entitle the defendant to a restoration to his status as a defendant? A. /o. The motion must be accompanied by the soKcalled affidavit of merit. The affida)it of merit is composed of two (2) facts2 ) The facts constituting the fraud, the accident, the mista+e, the e7cusable negligence which prevented the defendant from filing the answer. 3o, the defendant here must recite the facts constituting the fraud, mista+e, negligence or accident. -e cannot simply say, C ' failed to file my answer because there was fraud committed against me or that an accident befell me or that ' committed a mista+e or that ' was negligent and that negligence is e7cusable.D Why? Because these are merely conclusions. 3o you must state here, C=raud was committed against me,D 'n what did consist of? 3tate thereO 3ame thing with the accident, mista+e or negligence. 2) The good defenses of the defendant to the action 3o, in the affidavit of merits, the defendant must state there the facts constituting his defense. -e cannot simply say there, C' have a good defense.D /oO 3tate there what are your good defenses. Q. What is the reason why the affidavit of merit indicates therein the good defense of the defendant is re.uired? A. The rule is based on this supposition. The court must first e7amine the defenses of the defendant. To determine whether it is proper or not proper to set aside the order of default and allow the defendant to file his answer and adduced his evidence. Why? Because if the affidavit of merit does not show that the defendant has good defenses so that even if all those defenses alleged in the affidavit of merit were proven, but notwithstanding he will not be still entitled to a ,udgment in his person, it would be pointless to allow him to go to trial and prove to state which do not entitle him anyway to any favorable ruling. But if after the court has e7amined the proposed evidence as stated in the affidavit of merit, and finds that if this evidence are established, the ,udgment may be favorable to defendant, then the court will have a basis of allowing B (defendant) to reac.uire his status as a legitimate defendant.(This is the purpose.) Q. Although a defendant has been validly summoned, can he nevertheless be declared invalidly in default even if he did not file the answer? A. 8I3. When the declaration of default is premature because at the time he was declared B in default, the period of the filing of the answer has not yet e7pire. Example: The last day for B to file the answer is Dec. 2@. The court declared B in default on Dec. 29, !!!.

21
Q. 's the declaration in default proper? A. /o. B was not yet in default. Why? Because he has until Dec. 2@, !!! within which to file the answer. 3o, when he was declared default on Dec. 29, !!!, he has still an additional two (2) days within which to file the answer. 3o B now files a motion to set aside this default order. Q. Does he need to accompany his motion with an affidavit of merit? A. /o, not necessarily. WhyQ because the default order is illegal. 8ou cannot declare a defendant in default ahead of the e7piration of the period of the filing of the answer. Q. 's the failure of the defendant to file the answer within the reglementary period a ground to declare him in default in all cases? A. /o. There are certain cases where a defendant cannot be validly declared in default even though he has not filed an answer within the reglementary period. Q. What are these cases? A. The cases are the following2 ) An action for a declaration of nullity or annulment of a marriageH 2) An action on legal separation. 'n these cases where the defendant does not file the answer, the procedure to be followed by the court is this, the court must re.uire the prosecutor to intervene and determine whether there was collusion between and among the parties, and that if such prosecutor finds that there was no such collusions, to direct the prosecutor to intervene for the purpose of seeing t it that the evidence of the plaintiff they adduced is not manufactured or a product of a concoction, the fiscal should determine. Where there are two or more defendants, some of whom answered and some do not, but the cause of action against the defendants is common to all, meaning, the complaint alleges the cause of action common to all the defendants. Q. What procedure should the court follow in determining the case? Example: A vs. B, & and D. A has a cause of action against B, &, and D. The cause of action is common to all. $nly B answered. Q. -ow will the court proceed to try the case? 's & and D declared in default? 8es. A. Trial< Q. Does this mean therefore that the trial will no longer affect & and D? A. The 0ule is, the court will try the case on the basis of the answer filed by B. The answer filed by B inures to the benefit of & and D. 't is as if this answer filed by B was filed not only for B but also for & and D. This means to say therefore, that a ,udgment rendered binds all the defendants. 3o, if B wins for instance, & and D might also win. 'f B looses, & and D also loose. This rule, however, presuppose that the action of A is against all these defendants is common to them. 3o, you can declare & and D in default for their failure to file the answer but the case shall be rendered against them on the basis of BEs answer. This is the essence of 0ule !.

Rule /+ : Amended #leadin.s


Amendment may be a matter of right or not a matter of right, one that is rest on the discretion of the court. Amendment may also be of substantial matter or only on formal matters Q. What are the rules of amendment? A. They are as follows2 At any time before a responsive leading has been filed, the plaintiff may file an amendment pleading once, as a matter of right . :eaning, the plaintiff does not have to get a prior authority from the court to amend. -e can amend without getting a court order authoriGing him to amend. The plaintiff A filed his complaint against B on Dec. , !!A. The defendant B was summoned on Dec. ", !!A. 3o, he has a period ending Dec. 22, !!A within which to file the answer in conformity of 3ec. 0ule . Sec. / Rule // The defendant shall file his answer to the complaint within fifteen ( 5) days after service of summons, unless a different period is fi7ed by court. 6et us say that B filed the answer on Dec. 24 but served the copy of the answer on A on Dec. 22, !!A. $n Dec. 2 , however, A now filed any motion authoriGing him to amend his complaint. 3o, there was no order for A to

22
amend. B moved that this amended complaint be stric+en off the record on the ground that its filing was not authoriGed because A did not have the authority of the counsel to amend. Q. 's the motion to stri+e by B, legally proper? A. /o. When A file the amended complaint on Dec. 2 , the answer of B which was filed on Dec. 24 was not yet served on A. 't was served only on Dec. 22. The rule is, Cat any time before a responsive pleading is served, the party filing the pleading can amend once, as a matter of right.D The right can be e7ercised only once, not twice. When the amended complaint was filed on Dec. 2 , it is a matter of right, meaning it can be e7ercise without a court order. When the answer of B was already filed a day ahead or on Dec. 24. But because the rule is very clear, there is a difference between filing and serving under 0ule %, and under 0ule 4, the starting point of the right to amend a pleading is not the date of filing but the date of serving a copy of the pleading to the adverse party. The rule says, the right to amend before the responsive pleading is served can be e7ercised only once. When a party therefore see+s to amend for the second or subse.uent times, his pleading, he can no longer do so as a matter of right. =or him to amend again for the second time or any subse.uent time, he must obtain prior leave of court. Illustration: ?anuary 4, !!! A e7amined his amended complaint and found some deficiencies thereunder which he now wanted to correct. And so the only way for his correction would be to file a second amendment complaint. 6et us say that the last day for B to file his answer to this amended complaint is ?anuary 5, !!!. B here filed his answer on ?anuary %, !!! and served A a copy of the answer on ?anuary 5, !!!. A filed his second amended complaint without leave of court. Q. &ould A validly file without leave of court that second amended complaint? A. /o. Q. Why could A not since the answer for the amended complaint was not yet served on him when he filed his second amended complaint? A. Because the right to amend without leave of court can be e7ercised only once. Q. Nive us the instances when the pleading may be amended to conform with the Ividence? Sec. 5 Rule /+ %hen issues raised by the pleadings are tried with the e"pressed or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. 1uch amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment& but failure to amend does not affect the result of the trial of these issues. )f evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby . There are two situations where a pleading may be amended to conform to the evidence2 'nstances when pleadings may be amended to conform to the evidence ) when issues not raised in the pleading or in the trial order are tried e7pressly or implicitly with the consent of the parties theretoH 2) when an issue not raised in the pleading or in the preKtrial order to be proven by a party and ob,ected to be tried if the presentation of the merits of the case and substantial ends of ,ustice are subserved thereby. Example: A vs. B. The complaint of A, he alleged among others that he gave a loan to B. The loan is already overdue. Demands notwithstanding, B refused to pay. The prayer of A is that ,udgment be rendered2 ) ordering B to pay A the amount loanedH 2) ordering B to pay damages to A. The answer of B that he denies that he obtained from A. -e li+ewise denies that he was as+ed to pay A, no demand whatsoever having made. As BEs defenses, he raised the following2 ) the action has already prescribed. This is the only defense that B alleged. During the trial A presented his evidence and the allegations. B presented his evidence to prove his denial. -e now tries to prove prescription. 'n addition, he now tries to prove payment. 'n other words, B said that he already paid. Q. 's payment an issue? A. /o. Because it was not raised in the pleading. /othing was said in the answer of B that he paid. The rule is you cannot prove a defense not alleged, you are limited of proving only which you have alleged. 1rovided of course that, that is disputed.

2
3o, our rule here, under the ordinary rules of pleading particularly under 0ule % there having been no issue raised in the pleading with respect to payment, then this payment cannot be proven. -owever, when B tried to prove this, A did not ob,ect. $n the other hand, A adduced evidence showing that there was no payment. Q. :ay the court now in deciding the case consider the evidence of payment under this rule on amendments of pleadings to conform to the evidence? A. The court may. 't can consider it although there was no issue. Q. 'n order to ,ustify the court ruling or deciding what is allowed to do under 0ule 4? A. The court may now order A and B to amend their respective pleadings to conform to the evidence on payment. 3o, B here will be allowed to amend the answer to allege therein payment. A may now be allowed to amend his complaint to allege nonKpayment to conform to the evidence. 3upposing the court did not order the amendment. Q. &an it pass on the issue of payment? A. 8es. The rule is, whether the pleadings have been amended or not to conform with the evidence, the court can still rule on the issue that was impliedly or e7pressly agreed upon to be tried by the parties. 3o, the nonKamendment of the pleading will not ,ustify the court from refusing to resolve this issue of payment. 'f there was already evidence of payment because there was ob,ection in this case, on the part of A that issue of payment can be resolved by the court with or without the amendment of the pleading. B now introduces his evidence of payment. -owever, A ob,ected on the ground that there was no allegation of payment under the cardinal rule on pleading, Cyou cannot prove what you have not allegeD. The court will say B is allowed to prove and if A cannot show that the reception of the evidence of payment would pre,udice him. $n the contrary, the court believes that presentation of evidence on this issue of payment will be served the merits of the case or in the language of the law, the ends of ,ustice are subserved by the amendments.
RENE NOTES: * When the complaint is amended, 2 situations may arise: 1) If the complaint merely corrects or modifies the original complaint, then the action is deemed commenced upon the filing of the original complaint. 2) If the amended complaint alleges a new cause of action, then the new allegedly cause of action is deemed commenced upon the filing of the amended complaint. * nstances when amendment by leave of court not allowed: 1) when cause of action, defense or theory of the case is changed. 2) amendment is intended to confer ,urisdiction to the court. ) amendment to cure a premature or non)e1isting cause of action. ") amendment for purposes of delay

Supplemental #leadin. Sec. ! Rule /+ (pon motion of a party the court may, upon reasonable notice and upon such terms are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten 8!B7 days form notice of the order admitting the supplemental pleading. Example: A vs. B. When A file this case on Dec. , !!5, he could have allege only facts that occurred before or until Dec. , !!5. -e could not have ascertained in that complaint of his dated Dec. , !!5 facts which would have occurred Dec. , !!@. Why? Because he is not /ostradamus. -e does not +now what is tomorrow. 3o, you cannot allege facts not yet e7isting at the time the pleading is filed. 3upposing there were facts already e7isting on Dec. which facts are material to his case. or before that, but which A forgot to allege and

Q. &an he change his pleadings? -ow? A. 8es, by amended pleading to incorporate therein facts already e7isting at the time of the filing of the pleading or at the time before the pleading is filed. Q. What is a supplemental pleading? A. A supplemental pleading is one embodying therein occurrences, facts and events that transpired after the original pleading was filed. 3o, in the e7ample, where the suppose offer of B to settle was made on Dec. , !!@ and A wants to aver this in a supplemental pleading. Q. Why supplemental?

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A. Because this matter could not have been alleged on Dec. , !!5 because it did not yet occurred. 8ou will notice that the supplemental pleading is intended, as the term suggest, to supplement or to add to the original pleading. #nli+e the amendment pleading, which supersedes the original pleading, a supplemental pleading does not put out of e7istence the original pleading. Example: 'n an amended pleading of B, the moment this is filed and this is accepted, the original pleading or complaint ceases to e7ist. 't is no longer legally a part of the record although it is there. 't is there, but legally it is not there. 't is nonKe7istent. 8ou can physically see it but legally you are blind to it because an amended pleading supersedes the original pleading. Q. -ow about a supplemental pleading? A. /o, it does not supersedes. 't is merely an additional. 3o that when a supplemental pleading is filed, there are actually two pleadings now, the original pleading and the supplemental pleading. Example: Dec. , !!5 A sued B the :I0A6&$ in an action to en,oin it from cutting off the electrical connection of A. A prayed that a restraining order be issued while the case is going on. B, the :I0A6&$, alleged that A stole electricity by installing in its electrical connections a ,umper. The event which is that electricity passing through the ,umper is not recorded in the meter amounting to thousand of pesos. A now filed an urgent motion as+ing the court to resolve the application for restraining order. The court denied the T0$, so :I0A6&$ now threatened to carry out its original desire of cutting of the electricity. To avoid the cutting of the electricity, A paid under protest. The contention of A is that he did not steal it, and therefore he is now entitled to the return of his money. Q. Does he have to file a separate complaint to recover what he paid? A. What he can do is file supplemental pleading alleging therein what happened. Q. What happened here? A. After he filed the complaint, the court denied his application for T0$, :I0A6&$ now threatened to cutoff his, electricity to avoid the cutting of the electricity, he paid under protest. Q. What is now AEs prayer? A. AEs prayer is that :I0A6&$ be ordered to return to him the amount he paid. Q. &ould he pray for that in his original complaint? A. =or obvious reasons, he could not have set forth that fact because it did not have occurred when he filed the original complaint. A supplemental pleading should be answered. Q. When should it be answered? A. A supplemental pleading should be answered within ten ( 4) days from the notice of the order admitting supplemental pleading. Q. What would be the basis now of B in filing the answer to the supplemental pleading? -ow would B +now the contents of the supplemental pleading? A. The court furnishes B with a copy of supplemental pleading of A. #nder 0ule 5, when a motion is filed, the pleadings sought to be admitted are already attached to the motion, so the motion now carries the copy of the supplemental pleading a complaint. A now furnished B, when B received the order admitting the pleading of A, he already had with him a copy. That is why, the ten ( 4) day period is counted from the receipt of the order admitting the supplemental pleading. B in this e7ample, did not file the answer to the supplemental pleading. A now filed a motion to declare him in default with respect to the supplemental pleading. B now engaged Atty. :arte as his counsel. Q. What legal procedure are you (;anny) allowed to involve in order that this motion of A to declare your client in default may be thwarted? A. While it is true that the rule re.uire a supplemental pleading to be answered, the failure of the party to answer is not a ground to declare him in default. Why? Because the answer he already filed to the original complaint serves as his answer to supplemental pleading.
RENE NOTES: A;&->&> C:&A>I-= + refers to facts e1isting at the time of the commencement of the action. + take the place of the original pleading + can be made as a matter of right as when no responsive pleading has yet been filed 05CC:&;&-!A: C:&A>I-= + refers to facts arising after the filing of the original pleading. + taken together with the original pleading. + always with leave of court

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E((e+ts o( Amen%ment P e*%$n7 Aa) Admissions in the superseded pleading can still be received in evidence against the pleader. Ab) 9laims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived.

RULE //:5;E4 2: 9ILE RES#:4SI-E #LEA*I4<S


Q. <ive us the period within which a pleading may be answered 2 ) &omplaint R 5 days after service of summons2 %4 if foreign corp.H @4 days if done thru e7traterritorial service 2) &ounterclaim R 4 days form service %) &rossK&laim K 4 days form service 9) Third 1arty &omplaint R 5 days after service of summons 5) A &omplaintKinK'ntervention R 5 days form notice of the order admitting it @) AnswerKin a case where the motion to dismiss it is denied R balance of period re.uired but not less than 5 days from receipt of notice of denial ")Bill of particularsKwithin 4 days from the notice of the order A)3upplemental pleadingK within 4 days from service Sec. / Rule // (omplaint The defendant shall file his answer to the complaint within fifteen ( 5) days after service of summons, unless a different period is fi7ed by the court. Sec. , Rule // ((ounter8claim and (ross8claim A &ounterKclaim or crossKclaim must be answered within ten ( 4) days from service Sec. ! Rule // (26ird8#art% (omplaint The time to answer a third (fourth, etc.) party complaint shall be governed by the same rule as the answer to the complaint. Sec. , Rule /5 ((omplaint in Inter)ention The complaint of intervention shall be filed within fifteen ( 5) days from notice of the order admitting the same, unless a different period is fi7ed by the court. Sec. , Rule /! ('otion to *ismiss 'f the motion is denied, the movant shall file his answer within the balance of the period prescribed by 0ule to which he was entitled at the time of serving his motion, but not less than five (5) days in any event, completed from his receipt of the notice of the denial. 'f the pleading is ordered to be amended, he shall file his answer within the period prescribed by 0ule counted from service of the amended pleading, unless the court provides a longer period. 'n a case of a bill of particulars where the motion was denied or where the motion is granted, when the bill of particulars was filed. Q. What is the period to file the answer? A. Sec. " Rule /2 Aill of #articulars )f the motion is granted, either in whole or in part, the compliance therewith must be effected within ten 8!B7 days from notice of the order, unless a different period is fi"ed by the court. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading, sending a copy thereof on the adverse party. Q. Where the defendant is a foreign corporation doing business in the 1hilippines. Within what period must it file its answer? A. Sec. 2 Rule // %here the defendant is a foreign private judicial entity and service of summons is made on the government official designated by law to receive the same, the answer shall be filed within thirty 8AB7 days after receipt of summons by such entity. Q. &omplaint, when should it be answered? A. Within fifteen ( 5) days from service of summons to the defendant. Q. -ow about a counterKclaim, within what period should it be answered? A. Within ten ( 4) days from service of the counterKclaim on the defendant with respect to the counterKclaim. The defendant in a counterKclaim is the plaintiff. Q. -ow about the crossKclaim? A. &rossKclaim must be answered within ten ( 4) days from service of this crossKclaim to the proper party answering is the crossKdefendant. A thirdKparty complaint or a fourthKparty complaint or any complaint for that matter must be answered within fifteen ( 5) days from service of the summons.

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&omplaint in intervention must be answered within fifteen ( 5) days from receipt by the defendants in intervention of the order admitting the complaintKin intervention. 'n a case of a complaint which was the sub,ect of a motion to dismiss which was denied. The defendant has a period representing the balance of the original period he has.But in no event should the period be less than five (5) days. 'n the case of a bill of particulars, the defendant whose motion for bill of particulars, is denied or where the bill of particulars was granted, the period within which the defendant must file the answer would be the balance of the 5Kdays period within which he should have filed the answer but in no event less than five (5) days. 'n the case of the supplemental pleading, the answer must be filed within ten ( 4) days from service of the notice admitting the supplemental pleading. 1leadings to be amended shall do so with liberality if the presentation of the merits of the action and the ends of substantial ,ustice will be subserved thereby. The court may grant the continuance to enable the amendments to be made.
RENE NOTES: + !he granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court. !hey may e1tend the time to file the pleadings but may not shorten them. + If the filing of an amended complaint is a matter of right, the 1/)day period to answer is counted from the service of the amended complaint. + If the filing of an amended complaint is not a matter of right, then leave of court is required, hence, the 14)day period to answer runs from notice of the court order granting the same. +If no new answer is filed by the defendant in case an amendment has been made after he has filed his answer, the original answer of the defendant may serve as the answer to the amended complaint and hence, cannot be declared in default.

Rule /2: Aill of #articulars


Q. What is the concept of Bill of 1articulars? A. The complaint or a pleading may be vague or ambiguous. This being so, the defendant may not possibly be in a position to file an answer. Before he files the answer, he has a remedy to secure from the plaintiff a clear allegation of the facts, the defendant considers as vague. Example: This is an action filed by A against B for recovery of a lot. The allegation in the complaint alleges that A is the owner of the lot in *&. Which he has always been in possession of, for a number of years until B e,ected him (A) therfrom. Q. 8ou are B, do you +now what is this lot in *&? A. 'n an action for recovery, the identity of the property must be stated. 3o the owner itself re.uires that the identity by its boundaries (technical description). A should have described in his complaint the boundaries, area etc. of the lot in .uestion. 'f you were B, unless you +now the description of this lot A is tal+ing about. Q. 3o what are you allowed to do before you file the answer? A. 8ou want that land to be identified, so you file a motion to re.uire A to submit a bill of particulars. Q. What is the purpose in as+ing the court to order A to submit a bill of particulars? A. 8our purpose is to allow you to properly file your answer, because unless you +now the lot A tal+ing about, you cannot possibly file an intelligent answer. 3o the purpose therefore is to clarify an ambiguity in order to answer the complaint intelligently. Q. When may a motion for Bill of 1articulars be filed? A. At any time within the period for the filing of the answer. 'n this e7ample, within the period of the filing of the pleading, B can file a motion to re.uire A to submit a Bill of 1articulars. Q. What is the effect of the filing of the motion for Bill of 1articulars on the running of the period of the filing of the answer? A. When a motion for Bill of 1articulars is filed, the period for the filing of the answer is suspended. Q. What does it starts to run again? A. 't starts to run again when a motion for Bill of 1articulars is denied and the defendant received a copy of the order of denial or it starts to run again when, after the motion has been granted, the plaintiff has filed a motion for Bill of 1articulars and the defendant receives a copy of the Bill of 1articulars. Within what period should an answer be filed following the denial of the motion or following the receipt of the Bill of 1articulars? The rule says that2

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The defendant is entitled to the balance of the period he was entitled to, at the time he filed the motion, but in no event should the period be less than five (5) days. 3o, if for instance, A filed the action against B. B received the summons on ?an. 2, !!!. -e filed a motion for a Bill of 1articulars on ?an. !, !!!, so that when he filed the motion for a bill of particulars, he already consumed seven (") days of the original 5Kday period. 3o, therefore he has eight (A) days. 'f B received on ?an. 4, !!! the order denying the motion or he received on this day a copy of a bill of particulars submitted by A. B has eight(A) days counted from ?an. 4, !!!. Therefore, his last day for the filing of the answer would be on ?an. A, !!!. $n the other hand, if B filed a motion for a bill of particulars on ?an. 5, !!! and therefore he has already consumed thirteen days of the original 5 days period, conse.uently he has only two (2) receiving days. When he received the order of denial on ?an. 4, !!!, he received on this day a copy of a bill of particulars, he has still five (5) day period until ?an. 5, !!! within which to file the answer. Q. Why not ?an. 2, !!!, because that is the balance to which he is entitled to at that time? A. Because the rule says, Cin no event shall the period be less than five (5) days.D Q. What are the sanctions against the failure of the plaintiff to comply with the order of the court directing him to file a bill of particulars? A. 3hould A be directed by the court to file a bill of particulars, he must do so within the period fi7ed in the order, but in no event should the period be less than ten ( 4) days. 3o, if the court does not fi7 the period within which A must file the bill, it is understood that he has a 4K day period. That period cannot be shortened, it can be e7tended, but never shortened. The sanctions against the failure of a party plaintiff to file the bill of particulars when ordered by the court, is, the court may order the stric+ing out of the pleading to which the motion for bill of particulars refers. $r the court under 3ec. % 0ule " may dismiss the action for failure to comply with an order. #nder the old rules, a motion for a bill of particular was a litigated motion because thereunder, the court must set for hearing a motion for bill of particulars. This is no longer the case. #nder the new rules, the court can resolve the motion for a bill of particulars e7 parte or with notice to the adverse party. This is why we have a provision that upon the filing of a motion for bill of particulars, the cler+ of court should refer the motion immediately to the court, unless the court desires that that motion be heard with due notice with the adverse party.
RENE NOTES: + If the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of insufficient compliance thereof, the answer may be stricken off the records and the defendant be declared in default upon the motion of the plaintiff.

Rule /": Ser)ice and 9ilin. of #leadin.s


*. Nive the desticntions between 3ervice and =iling. A. Sec. 2 Rule /" Filing is the act of presenting the pleading or other paper to the cler+ of court. Service is the act of providing a party with a copy of the pleading or paper concerned. 'f any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. 9ilin. ('anner ) personally to cler+ of court 2) registered mail, not ordinary mail Example: 3uppose a pleading is filed by ?03 I7press or 6B& ?an. , !!4 R the pleading was delivered to ?03 I7press ?an. 5, !!4 R ?03 I7press delivered it to the court The date it is considered filed is on ?an. 5, which is the date it is delivered and received by the cler+ of court and not on the date of deposit to ?03 I7press. Example: A vs. B ) A resides in 3ulu, B in Batanes. 'n 3ulu, there is no registered mail service, then a copy of the pleading can be served only by ordinary mail. 2) There is a registered service in 3ulu, but there is none in Batanes. 3ervice can be effected by ordinary mail. %) There is a registered service in 3ulu, and there is also a registered mail service in Batanes, service can be done only by registered mail Q. +ow about final order, judgment, resolution, how can they be served ? ) $nly by personal service and 2) By registered mail. 't can never be done by ordinary mail.

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Reason2 There is such a thing as a period of appeal or for the performance of some legal acts. There must be a definite starting point Where the service is by ordinary mail, there will be no definite starting point for the period to appeal or to that other legal acts. Why? There is no record. But when it is a registered mail, there is a record or whether it is a personal service, there is a record. But in the case of ordinary mail, there is none. Q. Where a party wants to serve a copy of his pleading or other papers, either by personal service or by registered mail for that matter, how can such pleading or other papers be served? (8ou cannot serve it personally because, let us say, the office the adverse party is not +nown, his residence is not +nown, he cannot be served by registered mail or by ordinary mail, for the simple reason that, you do not +now where he is. -ow can he be served? The party serving must serve his pleading or other papers on the cler+ of court by proving to the cler+ of court, Cfailure to serve personally or by mail.D Example: B files a motion (this is litigated). 3o he has to notify A of the motion, because a litigated motion cannot be resolved by the court unless there is proof of service of a copy thereof to the adverse party. B cannot serve a copy of the motion to A because the office of A is not +nown. -is residence is not +nown also. -e cannot be furnished by mail (registered or ordinary). The hearing is set on Dec. 4, !!A. 3o, if B cannot prove that he served a copy of his motion to A, the hearing on Dec. 4, !!A cannot proceed because this is a litigated motion. Q. What is the remedy available to B even if A was not personally served with the notice of the motion, this motion can be heard on Dec. 4, !!A? A. All that B does is to serve a copy of his motion to the cler+ of court. But of course, B has to prove that B could not serve it on AEs office or residence either personally or by mail, registered or ordinary. This is a remedy which does not appear to be appreciated R by many lawyers. The service on the cler+ of court on that day it was served to him is e.uivalent to a service of to B. Ser)ice $% re.istered mail. Q. When is service by registered mail deemed complete? A. Example2 A vs. B. A ,udgment was rendered against B. A copy of that decision was sent to him by registered mail on Dec. , !!A. The postmaster sent to B on Dec. 5, !!A a notice to the effect that this mail is pending in the post office. 3o, B received it on Dec. 5. B withdrew this mail on Dec. 24, !!A. 3o, within the fifteen ( 5) days period for the filing of the notice on appeal, B filed a notice of appeal on ?an. 9, !!!. ?an. 5, !!! after receiving the copy of this notice of appeal of B, A now filed a motion to dismiss the appeal on the ground that it was filed late beyond the reglementery period. A contented that under 0ule %, B is deemed to have received the copy of the decision on Dec. 5, !!A. And since he has only a 5 day period from Dec. 5, !!A within which to file the notice of appeal, this period e7pired on Dec. 24, !!A. Therefore, when it was filed on ?an. 5, !!A, @ days already passed. $n the other hand, B in opposing this motion of A argued that he (B) actually received from the mail on Dec. 24, !!A the ,udgment. Therefore, B has a period of 5 days counted from Dec. 24, !!A, within which to file his notice of appeal and the last day of this 5Kday period is ?an. 9, !!!. 3o the motion of A is not legally tenable. Q. What would be the correct ruling on the motion of A? A. Sec. /+ Rule /" Imphasis on 6ast sentence -ersonal service is complete upon actual delivery. 1ervice by ordinary mail is complete upon the e"piration of ten 8!B7 days after mailing, unless the court otherwise provides. 1ervice by registered mail is complete upon receipt by the addressee, or after five 897 days from the date he received the first notice of the postmaster, whichever date is earlier. B was deemed to have received it legally five (5) days after Dec. 5, !!A, although he physically received it on Dec. 24, !!A. =or purposes therefore of the appeal, the 5Kday period is counted from Dec. 4, !!A not on Dec. 24, !!A. Q. What rule will apply if we now consider that he received it legally and physically on Dec. 24? A. 'f there was no notice from the postmaster that he has a pending mail, per 3ec. 4 of 0ule %, he has deemed to have receive it when he physically received it on Dec. 24 in which case the appeal on ?an. 9 was deemed complied. 3o, in the absence of a notice given by a postmaster, to the addressee, the service is deemed complete upon actual receipt, but if there is a first notice and the mail is not received within five (5) days from first notice, the service is deemed complete upon the e7piration of five (5) days from the first notice. #riorit% in t6e Ser)ice of #leadin.s C -ersonal 1ervice

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1leadings and other papers should be served whenever practicable by personal service. Where service other than personal is resorted to, there must be an accompanying e7planation why the pleading was served by means other than personal service. Q. What will be the effect of failure to comply with 3ec. 0ule %? A. Sec. // Rule /" %henever practicable, the service and filing of pleadings and other papers shall be done personally. 5"cept with respect to papers emanating from the court. When a pleading is served other than personal service, and there is no accompanying e7planation of this, then this pleading is deemed not to have been filed. This sec. 0ule % is mandatory and this is e7emplified in the case of 3olar Theme Intertainment 'nc. vs. &AL %244 August 5, !!A, 2!4 3&0A @45. Iffective ?une , !!!, this rule must be strictly followed. 3o whenever you serve, you serve personally. 'f you do not serve personally, then you have to state why you furnish by means other than personal service. An omission of this e7planation is fatal because this pleading shall be considered as not having been filed.
RENE NOTES: + ;odes of 0ervice A. #UDG6ENTS: 9INAL ORDERS AND RESOLUTIONS Aa) @y personal service. or Ab) @y service by mail. Ac) @y service by publication, if party is summoned by publication and has failed to appear in the action, ,udgment, final order or resolution. ) !hey can be served only under the three modes. + ) !hey 9A--$! be served by substituted service. B. PLEADINGS 1. personal service Aa) >elivering personally a copy to the party or his counsel or. Ab) :eaving a copy in counsel3s office with his clerk or with a person having charge thereof or. Ac) :eaving the copy between 7 a.m. and 2 p.m. at the party3s or counsel3s residence, if known, with a person of sufficient age and discretion residing therein < if no person found in his office, or if his office is unknown, or if he has no office. 2. service by mail Aa) If no registry service is available in the locality, of either sender or addresses, service may be done by ordinary mail. Ab) %ith proof of failure of both personal and service by mail. Comp eteness o( * Se!&$+e 1. Personal Service ) by handing a copy to defendant. or ) tendering him a copy if he refuses ) complete upon actual delivery 2. Service by ordinary mail: 9omplete upon e1piration of 14 days after mailing, unless the court provides otherwise. . Service by registered mail* Aa) 9omplete upon actual receipt by the addressee. or Ab) After / days from the date he received the first notice of the postmaster, whichever date is earlier. P!oo( o( 9$ $n7 + ?iling is proved by its e1istence in the record of the case. If it is not in the record, and* ) if filed personally* proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same. or ) if filed by registered mail* proved by < Aa) the registry receipt and Ab) !he affidavit of the person who did the mailing. P!oo( o( Se!&$+e + Croof of personal service* Aa) %ritten admission of the party served. or Ab) $fficial return of the server. or Ac) Affidavit of the party serving

Rule /,: Summons


1ummons is the compulsory process issued by the court notifying the defendant that a case been filed against him and re.uiring him to file the answer within the period stated in the summons with a warning that should he fail to answer within the reglementary period, a ,udgment may be rendered against him on the basis of the evidence that the plaintiff may advance.

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Q. What is the purpose of summons? A. . 3ummons is intended to vest in the court the ,urisdiction over the person of the defendant. #nless a defendant is within the ,urisdiction of the court, the court cannot validly render a ,udgment in the case. This is similar in the case of an accused who has not been arrested and has not been arraigned. The court cannot render ,udgment against on accused who has not been brought under its ,urisdiction. The purpose of the summons therefore is, to confer to the court ,urisdiction over his (defendant) person. ?ust to show you that the ,urisdiction of a court to the person of the defendant is a must, is the fact that 3ec. 0ule @ includes in its enumeration grounds of a motion to dismiss the fact that the court has not ac.uired ,urisdiction over the person of the defendant. 3o, when the court has no ,urisdiction over the person of the defendant, the court cannot validly render ,udgment. Q. -ow is summons served? A. 1ummons is served either by ) personal service2 2)by substituted service,%) service by publication or9) by any other means which the court finds it proper. There are four (9) means2 #ersonal ser)ice R which is preferred. Q. What does personal service consist? A. 't consist of actually giving to the defendant a copy of the summons, the complaint and all other documents accompanying the complaint. Q. 3upposing the defendant said, CAyaw +o, ' will not receive,D the person serving it +ic+ it towards the defendant, is it served? A. 8es, even though the defendant did not sign. Whether he signs or not in the ac+nowledgment of his receipt of the summons, heEs deemed to have already been served. 'f you cannot serve it to him personally because you cannot find him in the place where you thought you could find him. Then you resort to a substituted service. Q. 'n what way may substituted service be effected? A. The sheriff or process server must leave the summons, the complaint and all the other documents attached thereto with a person living in the house of the defendant. Q. With any person? A. /o, only a person of sufficient age and discretion. Q. 3o, the process server goes to the house of the defendant but does not find the defendant there because he is out but finds a neighbor who is visiting in that house and leaves the summons with the visitor, is there a valid substituted service? A. /o, because that visitor is not a person living in that house. 8ou go the house of the defendant, nobody is there. Then you go to his office, if the defendant is not there, leave that summons with the person in charge of the office. Q. What is the ,urisprudence of substituted service? A. 3ubstituted service is the interrogation of the rights of the defendant. Therefore, substituted service can be effected only when the defendant cannot be served personally within a reasonable time. Q. What time will it be reasonable? 3upposing the sheriff or process server went to the house of the defendant once and did not find him there< Q. What is re.uired of a sheriff or process server to do when he resorts to substituted service? A. -e must state in his return of service, a return of service is the report that the server, sheriff or process server renders to the court on what he did with that summons (or sheriffEs returnK other term for return of service). The server, whether he is the sheriff or the deputy sheriff or the process server, is re.uired to render a report on what he did. Where the service is substituted, the sheriff, the process server or whoever was commissioned to serve it must state in his report the following2 . the impossibility of serving the summons personallyH 2. the reason for such impossibilityH %. how the summons was effectedH meaning therein the particulars such as the date of service, on whom it was served and how it was served. #nless all this data appear on the return, the substituted service is null. Q. When may summons by publication be effected? A. )n the following cases, summons by publication may be effected& . where the defendant is sued as an un+nown defendantH 2. where the whereabouts of the defendant is un+nownH they could not be ascertained notwithstanding diligence in ascertaining such whereaboutsH

1
%. when the defendant is a resident defendant but is temporarily out of the 1hilippinesH 9. when the defendant is a nonKresident defendant and the actions against him be any of the following2 a. an action which involves the personal status of the plaintiffH b. the sub,ect matter of the suit is real property

The reliefs prayed for respecting the real property are as follows2 . to e7clude the defendant from any claim that he may have over that propertyH or 2. where the property is a property of the defendant and this property has been attached. Q. -ow may a nonKresident defendant be summoned when the case against him is any of the case aboveK mentioned (action involving the civil status of the plaintiff or an action involving real property in the plaintiff? A. There are several ways of serving2 . by personal service This means to say that the court in the 1hilippines can send somebody abroad to serve personally the summons. 2. by publication in a newspaper of general circulation for such period of time that the court may deem proper. But in this case, a copy of summons and the complaint and all the other papers attached to the complaint must be sent by registered mail to the last +nown address of the defendant. %. by any means that the court may find proper. 'n the Cariaga vs. *alaya case, the then ?udge Antonio :alaya of &=' :anila ordered the defendant residing in #3A summoned by registered mail. The defendants received the registered summons. 3o they file a motion to dismiss the complaint on the ground of lac+ of ,urisdiction of the court over their persons. They argued that the summons effected then by means of registered mail was not a valid summons. They contented, in short, that summons cannot be served by registered mail. 3upreme &ourt overruled this contention. 3upreme &ourt holding that under 3ec. 5 of 0ule 9, service of a summons by registered mail is covered by the phrase, Cany other means that the court may find proper.D 'n the case of a foreign corporation doing business in the 1hilippines, the period depends on whom was the summons served. 'f the summons was served on its agent or representative in the 1hilippines, the period is fifteen days. 'f on the other hand, the summons was served on a government officer, the defendant has a period of thirty (%4) days from receipt of the summons within which to file an answer. Where a defendant is summoned under 0ule 9 under 3ec. 5 thereof, the defendant has a period of si7ty (@4) days from notice within which to file the answer. Sec. /5 Rule /, %hen the defendant does not reside and is not found in the -hilippines and the action affects the personal status of the plaintiff or relates to, or the subject matter of which is, property within the -hilippines, in which the defendant has or claims a lien or interest, actual or contingent, or on which the relief demanded consists, wholly or in part, in e"cluding the defendant from any interest therein, or the property of the defendant has been attached within the -hilippines service may, by leave of court, be effected out of the -hilippines by personal service as under section D; or by publication in a newspaper of a general circulation in such places and for such time as the court may order, in which case, a copy of summons and order of the court shall be sent by registered mail to the last $nown address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than si"ty 8DB7 days after notice, within which the defendant must answer.
RENE NOTES: + %here the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint I? it does not introduce new causes of action. + @5! where the defendant was declared in default to the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. + Se!&$+e o( Summons on D$((e!ent Ent$t$es A. 0&('I9& $- &-!I!B %I!#$5! D5(I>I9A: C&(0$-A:I!B @. 0&('I9& 5C$- ;I-$(0 A-> I-9$;C&!&-!0 ) ) ) ) ) ) 9. 0&('I9& 5C$- C(I0$-&( ) upon any or all defendants being sued under common name. or person in charge of office serve personally and on guardian or any person e1ercising parental authority over him. in case of minors* by serving upon the minor, regardless of age, A-> upon his legal guardian, or also upon either of his parents. In case of incompetents* by serving on him personally A-> upon his legal guardian, but not upon his parents, unless when they are his legal guardians I- A-B &'&-!, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad item for him. 0erve an officer having management of the ,ail or prison

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>. 0&('I9& 5C$- >$;&0!I9 C(I'A!& D5(I>I9A: &-!I!B &. 0&('I9& 5C$- ?$(&I=C(I'A!& D5(I>I9A: &-!I!B ?. 0&('I9& 5C$9$(C$(A!I$-0 C5@:I9 !o the president, managing partner, general manager, corporate secretary, treasurer or in)house counsel ) 0ervice upon a person other than those mentioned is invalid and does not bind the corporation. ) 0erve on A1/) resident agent. or if none. ) =ov3t official A 4) designated by law. or ) $n any officer or agent of the corporation within the Chilippines ) In case defendant is the (epublic of the Chilippines < by serving upon the 0olicitor =eneral ) In case of a province, city or municipality, or like public corporations < by serving on its e1ecutive head, or on such other officer or officers as the law or the court may direct. 1. Re'u$s$tes a) defendant does not reside or is not found within the Chilippines b) the action either* + affects the status of the plaintiff. + relates to or the sub,ect of which is property within the Chilippines on which defendant has a lien or interest. + demands a relief which consists wholly or in part in e1cluding the defendant from any interest in any property within the Chilippines. + property of defendant has been attached to the Chilippines 2. 6o%e o( Se!&$+e a) with leave of court served outside the Chil. @y personal service. or b) with leave of court served 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 c) any other manner the court deem sufficient. 0ubstituted service or with leave of court, personal service out of the Chilippines as under e1traterritorial service. )

=. &E!(A)!&((I!$(IA: 0&('I9&

#. 0&('I9& 5C$- (&0I>&-! !&;C$(A(I:B $5! $? !#& C#I:ICCI-&0

+ %here the defendant is a resident and the action is personam, summons by publication is invalid as being violative of the due process clause. + Any form of appearance in court, by the defendant, by his agent authoriFed to do so, or by attorney, is equivalent to service e1cept %#&(& such appearance is precisely to ob,ect to the ,urisdiction o the court over the person of the defendant. + Inclusion in a motion to dismiss of other grounds aside from lack of ,urisdiction over the person of the defendant/ shall not bee deemed a voluntary appearance.

Rule /5: 'otions


*otion is defined as an application for a relief not embodied in the pleading. Q. What are pleadings? A. They are the complaint, counterclaim, crossKclaim, third party complaint, complaint in intervention, or answer Sec. / Rule /5 A motion is an application for relief other than by a pleading. Example: A vs. B. 8ou have a complaint then an answer and after trial you have the ,udgment or decision. The relief prayed for by A is that a ,udgment be rendered against B declaring A owner of the land and ordering B to turn over to A the possession of the land, ordering B to pay him damages. 'n so far as B is concerned, the relief prayed for by B is the dismissal of the complaint of A. A prayed that he (B) declared the owner of the land. :ay either of the parties secures any relief other than a ,udgment, between the tie this case is pending and times this case is decided. A. 8es, in between the course of the proceedings, there be many relief a party may prayed for but not a ,udgment. There are many incidents while a case is pending, incidents in connection with which a party may want to secure a particular relief. Example: A vs. B. After this complaint was filed on ?an. 2, !!!, B now files a motion to dismiss. Q. What does B want as a relief? A. Dismissal of the complaint.

Q. Will there be a trial on the merits of the case when this case will be dismissedJ A. /one. Example2 Trial is set. Iither A or B is not ready to go to the trial. 3o A or B wants the trial to be cancelled. 3o that if the trial was set on ?an. 29, !!!, either A or B will file with the court a paper as+ing therein that this date of hearing be cancelled. 3o, whatever relief you want to obtain from the court before the ,udgment, you can obtain that only by means of a motion. Why? Because you cannot incorporate in your complaint or complaints in intervention this reliefs which will not constitute a ,udgment on the merits of the case. 3o whatever you want to get from the court, you get that through a pleading called motion. That is why 3ec. 0ule 5 defines a motion as an application for a relief not included in a pleading. But if you want to obtain a ,udgment on the merit, you can prove that by means of a complaint, answer, counterclaim, etc. Q. What are the $inds of motions? A. There are two (2) +inds of motion2 . /onK6itigated motion 2. 6itigated motion A non,litigated motion is one, which a court can act upon without hearing the adverse party because the adverse party does not have the right to oppose application for relief and should the court resolve this motion without hearing the adverse party is nevertheless not pre,udiced. Example2 (6on,litigated *otion7 B the defendant files a motion for e7tension of time within which to file the answer. Q. Does A, the plaintiff have the right to resist this motion such that if he has, this motion cannot be heard unless he (A) be first notified. A. A motion for e7tension of this is one, which the court can resolve e7 parte. :eaning, without the presence of the adverse party. Why? Because even though the court acts on the motion, it will not in anyway pre,udice the right of A. 3o, A may resist the motion. 't is nonKlitigated. 't can be heard without notice of A. Where, however, the motion is litigated, the court cannot validly act on the motion, without the previous notice on the adverse party, without giving the adverse party the opportunity to ob,ect therein. Why? Because a litigated motion adversely affects the right of the adverse party. &onse.uently, unless the adverse party is notified of the hearing of that motion, the court cannot hear it, and if the court hears it, the hearing is void. Example: (4itigated *otion) A vs. B. B files a motion to dismiss. The court resolves his motion to dismiss without a prior notice given, the plaintiff A. Q. 's the action of the court in resolving the motions without giving notice to A proper? A. /o, because this is a litigated motion. Q. Why is it litigated? What would be the effect if the court would now grant the motion to dismiss? A. The complaint will be dismissed even without being heard. This is not proper. The hearing without notice of A, the plaintiff, will pre,udice A. Why? Because had he been notified and would have ob,ected and his ob,ection may be considered by the court, then therefore, the motion to dismiss may be denied. 3o we say that in a motion to dismiss, A the plaintiff has the right to be heard or to resist the motion and unless the motion is heard in accordance with 0ule 5, the court cannot validly rule on the motion. When a party files a motion for the admission of a pleading, that party must attach to the motion the pleading desired to be admitted. Example2 A vs. B. B files a motion to amend the complaint. The amendment not being a matter of right so in this motion, A should already attach the copy of the amended pleading. The advantage is this, the period for the filing of responsive pleading is shortened, unli+e the old rule, under the old rule, if a party wanted to file a motion for the admission of an amended complaint, he could file the amended complaint only after the court has already granted the motion. 3o, there will be considerable delay. #nder the new rule now, no more, if you want the pleading to be admitted, attach that to your motion. A motion must be set for hearing not later than ten 8!B7 days from the date of its filing . 3o if the motion is filed Dec. , !!A, the latest date this motion will be set for hearing is Dec. , !!A. 't could not be set Dec. 2, because it e7ceeds already. This is if you follow strictly the rule. There is one e7ception however to this rule, and that is a motion for summary ,udgment. #nder the rule on summary judgment, the motion should be set for hearing in such a manner that a ten 4Kday period must elapse between the services of the motion to the adverse party and the date of the hearing. 'n other words, under the

"
rule on summary procedure, you cannot set your motion for hearing earlier than ten days. 't must done so within 4 days.
RENE NOTES: ?$n%s o( 6ot$ons a) !otion e" parte < made without the presence of a notification to the other party because the question generally presented is not debatable b) !otion of course < where the movant is entitled to relief or remedy sought as a matter of discretion on the part of the court c# $itigated !otion < one made with notice to the adverse party to give an opportunity to oppose d) %pecial motion < motion addressed to the discretion of the court Gene!* Ru e: A motion cannot pray for ,udgment E/+ept$ons: 1. ;otion for ,udgment on the pleadings 2. ;otion for summary ,udgment . ;otion for ,udgment on demurrer to evidence Gene!* Ru e: 3-day notice rule)service of the copy of motions should be made in such a manner as shall ensure its receipt at least three days before the hearing E/+ept$ons: 1. &1 parte motions 2. 5rgent motions . ;otions agreed upon by the parties to be heard on shorter notice or ,ointly submitted by the parties ". ;otions for summary ,udgment which must be served at least ten days before its hearing + Any motion that does not comply with sections ", / and 2 of (ule 1/ is a mere scrap of paper, should not be accepted for filing, and if filed, is not entitled to ,udicial cogniFance and does not affect any reglamentary period involved for the filing of the requisite pleading.

Rule /!: 'otion to *ismiss


Q. When should a motion to dismiss be filed? A. At anytime within the period for pleading but before the answer has been filed. <rounds of 'otion to *ismiss are specificall% mentioned on Sec. / . lac+ of ,urisdiction of the court over the person of the defendant 2. lac+ of ,urisdiction of the court over the sub,ect matter of the case %. improper venue 9. lac+ of legal capacity of the plaintiff to sue 5. 6itis pendentia @. e7tinction of claim by reason of payment, abandonment, waiver or any other ground of e7tinction of the obligation ". the claim is barred by statute of fraud or barred by res ,udicata A. the action is barred by prescription !. /o cause of action 4. failure to comply with certain conditions precedents With respect to ,urisdiction over the person of the defendant, you +now very well that, unless the court ac.uire ,urisdiction over the person of the defendant, the court cannot validly render a ,udgment. There are two 8>7 ways the court may ac#uire jurisdiction over the person of the defendant 2 . By the issuance of the summons and its valid service on the defendantH 2. By the voluntary appearance of the defendant before the court. With respect to voluntary appearances the voluntarines of the appearance may be manifested by the filing of the pleading with which a party see+s a relief other than the dismissal of the complaint based on lac+ of ,urisdiction of the court over the persons of the defendant. Example: A sued B. B was not summoned. #pon hearing, however, he was sued. 3o, he filed in court a motion for e7tension of time to file the answer. The court granted the motionH B did not file the answer. The plaintiff now moves that B declared in default. B opposes the motion saying that the court has not ac.uired ,urisdiction over his erson because he was not summoned. Q. 's the contention of B correct? A. /o, because when B filed a motion for e7tension of time to file the answer, he prayed for a relief and that is the e7tension of the time. By so filing the motion, he voluntarily recogniGed the ,urisdiction of the court over his person. Example: B, the defendant was not validly summoned. -e nevertheless filed a motion to dismiss on the ground that the court has not ac.uired ,urisdiction over his person. -e prayed for the dismissal of the complaint. The motion was denied.

/
Q. 's B deemed to have voluntarily submitted himself to the ,urisdiction of the court by filing this motion to dismiss? A. /o, because precisely he contested the ,urisdiction of the court over his person. 6et us assume in this e7ample that B files a motion to dismiss on several grounds, the foremost of these is that, the court did not ac.uire ,urisdiction over his person because no valid summons was served on him. 'n addition to this ground, he also invo+e the following2 ) the venue is improperly laidH 2) the facts alleged in the complaint do not constitute a cause of action. Q. The motion was denied, is B deemed to have submitted himself to the ,urisdiction of the court? A. /o, where the motion to dismiss is based on lac+ of ,urisdiction of the court over the person of the defendant, because he was not validly summoned, but in addition to this ground he adds other grounds, the filing of the motion does not amount to a submission of himself to the ,urisdiction of the court. (nder the old rule, if a defendant files a motion to dismiss, on the ground that he was not validly summoned and therefore the court has never ac.uired ,urisdiction over his person, and in addition, added other grounds such as improper venue or failure of the complaint to state the cause of action, he is deemed to have submitted himself to the ,urisdiction of the court. Q. What is meant by, Clac+ of ,urisdiction of the court over sub,ect matter of the caseD? A. ?urisdiction of the court over the sub,ect matter of the case simply means that the court has under the law the authority to decide that particular case. ?urisdiction is conferred by law. 3ee B.1. Blg. 2! The ?udiciary 0eorganiGation Act of !A4 as amended. 3ec. ! Inumerates the cases triable by 0T& 3ec. %% Inumerates the cases triable by inferior court Where, therefore a court tries a case which is not among those enumerated under the law as within the competence to try, we say that the court has no ,urisdiction over the sub,ect matter and therefore that is a ground to dismiss. Example: #nder B.1. 2! 3ec. %% as well as under 0ule " and under the 0ule on 3ummary 1rocedure, an action for forcible entry and detains is triable e7clusively by the :T&. A sued B for forcible entry. -e files this in the 0T&. Q. 's B here within his rights to file a motion to dismiss based on the ground of lac+ of ,urisdiction of the court to try the case? A. yes Q. A vs. B, filed a suit for declaration of nullity of marriage. This was filed in the :T&. But an action for declaration of nullity of marriage is one triable by the 0T&. B, now can file a motion to dismiss. A. 8es Q. :ay there be a situation when a court does not have ,urisdiction over the sub,ect matter of the case and yet the court can validly try and decide the case? A. 8es, there is such a thing as Cestoppel by laches in jurisdiction'. When does the court not have ,urisdiction but it can decide validly the case. This is best illustrated in the case of Tijam vs. 1ibunghanay. This case, A suit was filed by A against B in &=' of :anila to recover an amount. The amount sought to recover was one within the ,urisdiction of the :T&, but the parties went to trial. /o one raised the .uestion of lac+ of ,urisdiction of the court. 3o the case was decided in favor of A. The ,udgment became final. The ,udgment sought to be against & was acted as surety of B. & resisted the action. -e went to trial never raising the .uestion of lac+ of ,urisdiction of then &=' of :anila. & allowed the case to be tried as against him to enforce his liability as a surety of B. & elevated the matter to the &A. &A affirmed the ,udgment of &=' against &. & filed a motion for reconsideration. DeniedO 't was only thereafter that he now files a motion .uestioning the ,urisdiction of the court to decide the case. 0eason2 &=' of :anila did not have ,urisdiction to render a ,udgment because the sub,ect matter was within the ,urisdiction of the :T& not the &='. Therefore, & argued that ,urisdiction can be raised at anytime on appeal. &A denied. The matter reaches the 3&. 'ssue2 Whether the ,udgment of &=' affirmed by &A is valid? 3& ruled that the ,udgment is valid. 0eason2 While it is true &=' has no ,urisdiction to try the case, the parties went to trial without raising the .uestion of ,urisdiction and because of the long passage of time between the rendition of the ,udgment and the time the motion .uestioning the lac+ of ,urisdiction was raised, was already too long. & is estopped already to .uestion the lac+ of ,urisdiction of the &='. 'n another case, ,udgment was rendered by the trial court. The amount involved is more than 1244,444. B appealed to &A. A, the prevailing party, went to &A have this appeal litigated. At the time of the appeal, ,urisdiction over cases involving more than 1244,444. is lodged with 3&. A now contented that the appeal of B would not be entertained by &A for lac+ of ,urisdiction of &A. 3& ruled that because of the doctrine of estopped by laches, A by agreeing that that this appeal be litigated in &A is estopped to .uestion the appellate ,urisdiction of &A. -ere is now the motion to dismiss by B filed in this case of A. B here is the movant.

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Q. What are the re.uirements? A. All the grounds enumerated under 0ule @ as grounds for motion to dismiss must be averred in the motion to dismiss. $n the strength of the omnibus motion rule. 3o, if you have five (5),you must allege all of them, because if you do not allege all the others already available but not raised are deemed waived. 3o, if you have five (5) grounds and you raised only three (%), the remaining two (2) are deemed waived. Therefore, they cannot be proceeded after the motion is filed. $f course A has a right to oppose. -e can file his opposition. The trial of the motion to dismiss may re.uire the presentation of the evidence of the movant. 3o, B may present his evidence to support his motion. A may also adduce his evidence. Therefore, the court will resolve the case. The court may either order the amendment of the complaint or dismiss the complaint. 'f he dismisses, it means it grants the motion to dismiss. 't cannot defer ruling on a motion to dismiss on the ground of the motion is not indubitable. (nder the old rules, the court could defer ruling on a motion to dismiss of the ground that the basis therefore is not indubitable. This is not now. The court must, ta+e positive stand to order amendment, grant the motion or deny the motion. 6et us assume however that instead of filing a motion to dismiss, the defendant files an answer. Q. What is the defendant allowed to do if he files an answer with respect to the grounds of a motion to dismiss? A. The rule is, the defendant may allege in his answer as defenses all the grounds of a motion to dismiss. 'n our e7ample B, instead of filing a motion to dismiss, he filed an answer. 'f in the answer he alleges as defenses the grounds for a motion to dismiss, for instance, improper venue, or lac+ of legal capacity. Q. &an B prove this ground alleged in his defenses even before A presented evidence? A. #nder 0ule %4 on Trial, it is the plaintiff who starts presenting the evidence. 't is not the defendant. #nless for some valid reasons the court may order the trial to be reversed. Q. But in this case, without reverse order of trial under 0ule %4, may B be allowed to prove his defenses even before A has proven his case? A. 8es. B after filing the answer, he may now file a motion for a preliminary hearing on the defenses. 't is as if he filed a motion to dismiss. 'f the motion for preliminary hearing the evidence of A can now receive the evidence of B with respect to those defenses. -owever, the court will grant the motion for a preliminary hearing on the defenses is a matter of discretion on the part of the court. 't is not a right of the defendant. 't is a matter governed by the discretion of the court. Therefore, the court can grant the motion and in this case, it will receive evidence on the defenses or it may deny hearing. 3upposing the motion to dismiss was heard during which the parties presented their evidence and the motion to dismiss is denied. Q. What is the effect of the denial on the evidence of the parties adduced during the hearing of the motion? =or instance, during the hearing of the motion, B presented F, 8 and > and A presented &, D and I, the motion to dismiss was denied. What becomes now the testimony of F, 8 and >, &, D and I? The rule is their testimonies will be deemed reproduced automatically during the trial on the merits of the case. 6et us assume in this e7ample, the court have the defenses founded to be established, the case will dismissed even without A having presented his evidence. 6et us suppose that in the answer, B pleaded a counterclaim against A. Q. What becomes the counterclaim with the dismissal of the complaint of A? A. Where a complaint is dismissed, the counterclaim is automatically dismissed. $n the theory that a counterclaim derives its life from the complaint. This means if the complaint no longer e7ist, there is no longer any legal basis, which a counterclaim is supposed to stand. This is the old rule. The new rule now is,where the defendant alleged as defenses in his answer grounds for a motion to dismiss is granted , the counterclaim pleaded in the answer is not dismissed. The dismissal is limited to the complaint. This means therefore that, even though there is no longer any complaint, which will serve as the basis of a counterclaim, the counterclaim survives the dismissal. Q. 'f the counterclaim can subsist, in what proceeding can it be prosecuted considering that the main case is already been dismissed? A. DonEt worry, because the law has given the defendant two (2) options2

6
. he can move the counterclaim be litigated in the same caseH or 2. B may file an independent civil case based on that counterclaim. Q. 'f the motion to dismiss is granted, can the plaintiff reKfile the case? 3upposing the complaint was dismissed on the ground of improper venue, the complaint does not state the facts constituting a cause of action. Q. &an the case be reKfiled? A. The rule is, depending on the ground of the motion to .uash, that where the dismissal of complaint arising from a grant of a motion to dismiss may bar the reKfiling of that case in the following cases2 . res ,udicata 2. unenforceability of the contract to the bond based on the 3tatute of frauds %. the claim has been paid, abandoned or waived or otherwise e7tinguished 9. 1rescription 'n all these cases, the order of dismissal is res ,udicata. 't becomes final. The action cannot be revived. $n the other hand, if the ground of the motion to dismiss is other than any of these grounds already mentioned, the order dismissing is not res ,udicata, therefore, the same complaint may be reKfiled. Q. When the motion to dismiss has been denied, within what period should the defendant filed the answer? A. #nder the old rule, the defendant was given anew 5 days from receipt of the order denying the motion to dismiss. 'n other words, he was given a new period of 5 days. This is not the rule now. #nder the new rules, he shall be granted a period representing the balance of the period following the CserviceD of the motion. 8ou no longer count the period from the day you filed the motion to dismiss. 8ou count now the period from the date the motion to dismiss was served. (?udge 6agui was wondering whether this could have been an error. This word CserviceD could have been meant CfilingD because it is the usual period. 6oo+ at 0ule 2, when motion of a Bill of 1articulars is denied and that the defendant is to answer, the remaining period is counted from the balance of the pleadings counted from the day he CfiledD the moiton. Loo= at Sec. , Rule /! )f the motion is denied, the movant shall file his answer within the balance of the period prescribed by Rule !! to which he was entitled at the time of Eserving' his motion, but not less than five 897 days in any event, computed from his receipt of the notice of the denial. )f the pleading is ordered to be amended, he shall file his answer within the period prescribed by Rule !! counted from service of the amended pleading, unless the court provides a longer period. Would not this word CservingD meant CfilingD. 'f we apply literally this provision, the situation would be li+e this< Example: A vs. B. B was summoned Dec. A, !!A. #nder 0ule 3ec. , B has a period ending Dec. 2%, !!A within which to file the answer. -e (B) filed his motion to dismiss on Dec. 5, !!A but served a copy of that motion on A on Dec. ", !!A. The motion to dismiss was denied in an order dated ?an. 4, !!!. B served this order on ?an. 5, !!!. Q. 3o, within what period should B file the answer? A. 'f you apply 0ule @, 3ec. 9, you count the period from Dec. ", !!A. 3o, if that is the case, he would have only @ days counted from ?an. 5, !!! so the end would be on ?an. 2 , !!!. But if youEre counting on the date of filing of the motion, he had eight (A) days. 3o A days would give you until ?an. 2%, !!!. (?udge 6aggui is still wondering up to this very moment you are reading this note whether this word CservingD would have been an error. 't could have meant CfilingD because the usual counting of the period starts from the date of filing, not the date of serving. All other provision of the 0ules ma+e the CfilingD the basis, not CservingD. This is only the provision which ma+es the starting point Cthe date of serviceD. But we have to follow because there is no reason why we should not follow.) But in all events, irrespective of the number of days left, the minimum is five (5). 3o that in our e7ample, if we apply this rule, he (B) furnished a copy on A Dec. 2%, !!A, there was no day anymore left of the original 5Kday period. 3o, when he received the order of denial on ?an. 5, !!!, he (B) can still file the answer within five (5) days from ?an. 5, !!! or on ?an. 24, !!!. Where the evidence of the parties is received in support of the motion to dismiss andJor support of the position to the motion and the motion is denied, and the trial should thereafter proceed. Q. What now becomes of the evidence received during the hearing? A. Ividence will be automatically reproduced as evidence of the parties during the trial of the merits of the case.

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That means to say therefore, F, 8 and >, who testified on the motion to dismiss, when court decides the case on the merits, the court can consider the testimonies of F, 8 and > even though F, 8 and > no longer appear during the trial on the merits of the case.
RENE NOTES: 6OTION TO DIS6ISS UNDER RULE ,@ + grounded on preliminary ob,ections + may be filed by any defending party against whom a claim is asserted in the action. + should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him. 6OTION TO DIS6ISS UNDER RULE AA <%emu!!e! to e&$%en+e+ based on insufficiency of evidence. + may be filed only by the defendant against the complaint of the plaintiff. + may be filed only after the plaintiff has completed the presentation of his evidence.

E((e+t o( mot$on to %$sm$ss: ) A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. #owever, such admission is limited only to all material and relevant facts which are well pleaded in the complaint. + An action cannot be dismissed on the ground that the complaint is vague or indefinite. !he remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. E99ECTS O9 ACTION O9 6TD 1. $(>&( =(A-!I-= motion to dismiss is a final order 2. $(>&( >&-BI-= the motion to dismiss is interlocutory RE6EDY 1. appeal from the order of dismissal 2. certiorari and prohibition if there is grave abuse of discretion amounting to lack or e1cess of ,urisdiction

Rule /1: *ismissal of Actions


Q. What are the situations covered by 3ec. , 2, %, and 9? A. The situations covered by 0ule " are dismissal of a complaint or a counterclaim or a crossKclaim or of a complaint in intervention or of a thirdKparty complaint. Sec. / contemplates a situation where the plaintiff initiates the dismissal of the action. Sec. 2 covers the situation where the plaintiff still initiates the dismissal of the action, which is different, whereas under 3ec. , he can dismiss as a matter of right without court authority. 'n 3ec. 2, he cannot dismiss without court authority. In Sec. ", it is a dismissal of the action of the plaintiff either at the instance of the defendant or at the instance of the court. In Sec. ,, it is the dismissal of the counterclaim or crossKclaim. Q. -ow does 3ec. operate? A. There are two (2) situations covered2 The rule says, that anytime before an answer or a motion for summary judgment has been served on the plaintiff, the plaintiff may dismiss his action by filing a notice of dismissal. Q. What is the effect of this notice of dismissal? A. The notice of dismissal produces a dismissal without pre,udice. This means that plaintiff can reKfile the case. Q. When can he not reKfile the case by reason by his having filed a motion of dismissal? A. When in his notice of dismissal he started that the dismissal is with pre,udice. -owever, the rule says, where the plaintiff has filed a notice of dismissal but he previously filed a notice of dismissal. This means to say that he filed a notice of dismissal for the second time. Q. What does the rule say? A. The dismissal filed for the second time produces a dismissal with pre,udice. 't means to say that, where the complaint is dismissed for the second time because of a notice of dismissal filed the second time, the dismissal is with pre,udice. This means to say therefore that the plaintiff cannot reKfile the action for the third time .(25: *IS'ISSAL RULE Q. What is the action that the court must ta+e when a notice of dismissal is filed? Will it order the dismissal of the complaint? A. /o. All that it does is to issue an order confirming the fact that the plaintiff dismissed the complaint. #nder the old rules, the court was not re.uired to do anything upon the filing of the notice of dismissal. Why? Because the filing of the notice of dismissal automatically dismisses the complaint. And so, if you did not +now 0ule " and you went over the record of the case where a notice of dismissal was filed, you would not +now what is the status of the case. But in this innovation now re.uiring the court to issue an order confirming the dismissal. A person goes over the record will now +now what happened with his case. Because with that confirmation, it would now be clear that the case was dismissed.

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Example: Dec. , !!", A filed an action against B who was summoned Dec. 5, !!". #nder 3ec. 0ule , B has until Dec. 24, !!" within which to file the answer. 6et us assume that B filed the answer on Dec. 5, !!". -owever, on Dec. @, !!", A filed a notice of dismissal. Q. &ould A file his notice of dismissal on Dec. @ considering that the answer was filed on Dec. 5? A. 8es, because it (answer) was not yet served. 't was served only on Dec. ". Q. What is the effect of this dismissal of A? A. 't is a dismissal without pre,udice e7cept when the notice of dismissal stated that it is with pre,udice. Q. $n Dec. @ when the notice of dismissal was filed, what happened now with the complaint filed on Dec. ? A. 't is automatically dismissed. Q. Does the court have to the order the dismissal? A. /o. All that the court has to do is to confirm the dismissal. But there will be no legal ob,ection if the court issues an order not only confirming the dismissal but also an order of dismissal. 't is unnecessary. Dec. 24, !!", A reKfiled the same case. B was summoned on ?an. 4, !!A. B now filed the answer ?an. 24, !!A. B has a period until ?an. 25, !!A. -owever, B served on A, a copy of the answer on ?an. 25, !!A. $n ?an. 22, !!A, A filed the second notice of dismissal. Q. What is the effect of the second notice of dismissal? A. 't is a dismissal with pre,udice. Q. 3upposing in the notice of dismissal filed on ?an. 22, A said it is with pre,udice, will the resulting dismissal be also without pre,udice? A. /$, because it is not for the plaintiff to characteriGe the effect of the dismissal as provided by law. Q. Why is the dismissal with pre,udice now? A. Because 3ec. says , a dismissal produces a dismissal with prejudice if filed by a person who previously filed a notice of dismissal. This is now a dismissal with pre,udice regardless of what A stated in the notice of dismissal. Q. 3upposing the court issued the order saying that the dismissal is without pre,udice, is that order valid? A. /o, because the court cannot characteriGe the effect of the second dismissal. The law provides the effect. 't is always a dismissal with pre,udice. :arch 4, !!A, A filed a case against B. B now files a motion to dismiss on the ground of res ,udicata. -e now says Cthis third complaint is barred by res ,udicata. The second dismissal produced by the filing on ?an. 22, !!A is a dismissal with pre,udice. Q. 's the contention of B correct? A. 8es. This must be now dismissed because this is barred by the second dismissal. This section embodies the soKcalled B20o *ismissal RuleD. Sec. 2 Rule /1 is still a dismissal at the instance of the plaintiff, however its dismissal is no longer a matter of right. 'f ever any dismissal is granted, it must be on application of the plaintiff and upon approval of the court. Q. When may a plaintiff dismiss his action with leave of court? A. After a responsive pleading have already been served on the plaintiff or after a motion for summary ,udgment has already been served on the plaintiff. -e can no longer dismiss as a matter of right. -e can dismiss it only upon application of the plaintiff and upon approval by the court of the motion. But the dismissal under 3ec. 2 0ule " even if granted by the court, maybe sub,ect to certain conditions that the court may impose. Q. What is the effect of the dismissal under 3ec. 2 0ule "? A. 't is still a dismissal without pre,udice unless the court provides otherwise. Q. 3hould a compulsory counterKclaim be pleaded in the answer, what would be the effect of the dismissal under 3ec. 2 0ule " on the counterclaim? A. The counterclaim is not dismissed. Q. 'n what proceeding may it therefore be prosecuted? A. 't may be prosecuted in the same case provided that within 5 days from receipt of motion to dismiss, the plaintiff manifest to the court that he desires that the counterclaim be litigated in the same case, otherwise, the counterclaim maybe litigated in a separate action. Example:

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Q. B either serve on A his answer or his motion for summary ,udgment on Dec. 4, !!A. $n Dec. 5, !!A, A now files a motion of dismissal without leave of court. &an he validly do that? A. /o. Q. But can he still file it? A. 8es, but with a proper motion that he be allowed to dismiss. That motion maybe granted by the court. 'f the court grants it, the court may impose a condition for the dismissal. Q. Why is it no longer a matter of right on the part of the plaintiff to file a notice of dismissal after he has been served the answer or a motion for summary ,udgment? A. Where B has a counterclaim, B has a right to have that counterclaim be litigated and resolved. 3o, if he (B) ob,ects, the court may grant the motion but sub,ect now to the dismissal of the action. Q. What would be the effect of a motion of A to dismiss his complaint? A. 'f the motion is granted on the counterclaim the dismissal of the action is limited to the complaint. The counterclaim is unaffected. B, therefore, can litigate the counterclaim either in the same case or B may file in a separate action to enforce the counterclaim. Q. When may B prosecute his counterclaim in the same case? A. 'f within 5 days from receiving the notice of dismissal, he manifests to the court that he desires that his counterclaim be litigated in the same case, otherwise, the counterclaim must be litigated in a separate action. This 3ec. 2 0ule ", with respect to the effect of the dismissal on the counterclaim traces its rules to the case of B.A. :inance vs. CA :acts& A, the corporation sued B. $n preKtrial, A failed to appear. $n motion of B, A was declared nonKsuited and the complaint dismissed. After the dismissal of the complaint, B now moved that a date is set on the reception of his evidence on the counterclaim. (:otion for -earing on the &ounterclaim) A opposed the motion on the ground that, under the rules and ,urisprudence then obtaining, the dismissal of the complaint carries with it automatically the dismissal of the counterclaim. The theory being that, a compulsory counterclaim derives its life from the complaint. 'f the complaint therefore no longer e7ist, there is no longer any basis for the counterclaim to subsist. The 0T& sustained the opposition applying the rule then. B now elevated the matter to &A, .uestioning the order of the 0T&. &A ruled that the order was wrong. :eaning in substance, that the dismissal of the complaint of A and B could no longer litigate and prove his counterclaim. 3o the dilemma cause by this ruling is this< What then would be the remedy of a defendant with respect to his counterclaim if the complaint is dismissed? There can be no way by which the defendantKcounterclaimant can prosecute his counterclaim. This was an obiter dictum. (This is not the ruling of the court, itEs a side issue.) Fustice Bellosillo, the ponente suggested this remedy. Where the complaint is dismissed, and the defendant has a counterclaim, this should be the procedure to be adopted by the defendant. 3o that he can prosecute his counterclaim. 3imply, that the plaintiff be declared CnonKsuited.D Q. What is the effect of a nonKsuit? A. The plaintiff cannot prove his complaint. But the complaint subsists. 't is there but it cannot be proven. Do not move for the dismissal of the complaint. Q. What ne7t should be done by B following the declaration of nonKsuit of the plaintiff? A. -e should now move that A, the plaintiff be declared as in default with respect to the counterclaim. #nder the old rule then (3ec. 2 0ule 24), the failure of a defendant to appear for a preKtrial may be a ground to declare him as in default with respect to the counterclaim. 3o, the defendant with respect to the counterclaim is A. 3ince A did not appear for the preKtrial, he may now be considered as having failed to appear for the preKtrial on the counterclaim. What B should do here is to move that A be declared as in default with respect to the counterclaim. 'f A now be declared as in default with respect to the counterclaim, the ne7t move of B now is to prove with his evidence his counterclaim. Why? Because A is merely nonKsuited, the complaint is there, it is not dismissed. A cannot only prove it, but it is there. 3o, with the complaint still subsisting although it can no longer be proven, there would still be a basis for the counterclaim. This is the basis of this rule now that the dismissal under 3ec. 2 0ule " of the complaint does not operate as a dismissal without pre,udice unless either the plaintiff manifest in his motion that the dismissal be with pre,udice or that the court orders that the dismissal is with pre,udice. When you say Cwith pre,udiceD, it means that the complaint cannot be received or reKfiled. This is the concept of dismissal under 3ec. 2 0ule ". Q. What is the dismissal under Sec. " Rule /17 A. This time, the dismissal is no longer at the instance of the plaintiff. 't is now at the instance either of the defendant or of the court itself. There are three (3 grounds for a dismissal under Sec. 3 !ule "#$

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. the failure of the plaintiff to appear for hearing on a day during which he is supposed to present his evidence in chief on his complaintH 2. the failure of the plaintiff to prosecute for an unreasonably period of time his actionH %. the failure of the plaintiff to comply with this 0ules or with the order of the court. Q. What is the nature of dismissal under this case? A. A dismissal under 3ec.% 0ule " is a dismissal with pre,udice unless the court provides otherwise. When the dismissal order is not .ualified, it simply says that the complaint be dismissed pursuant to 3ec. % 0ule ", the dismissal is with pre,udice. Ta+e note that the absence of the plaintiff for a hearing is not in itself a ground for a dismissal under 3ec. % 0ule ". 't is an absence during the hearing during which he is supposed to present his evidence in chief on his complaint. -is absence on any other hearing is not a ground for dismissal under 3ec. % 0ule ". Example2 =ollowing the preKtrial, the case was set for hearing on Dec. 4, !!A. A received the notice of hearing. $n this day (Dec. 4), he is supposed to present his evidence in chief, meaning, his initial evidence on his complaint. -e does not appear for the hearing on this day without valid reason. #nder 3ec. % 0ule ", the court can dismiss the action of A, or on motion of B, the court may dismiss the action. Q. 3upposing on the hearing on Dec. 4, !!A is for the reception of evidence of B or the reception of the rebuttal evidence of A, but A was not present on this day, may the complaint of A be dismissed under 3ec. % 0ule "? A. /oH for the simple reason that it was no longer his turn to present the evidence in chief on this day. 't was the turn of B. The complaint cannot be dismissed because this situation presupposes that A already presented his main evidence, or his evidence in chief, or part of his evidence in chief. Because let us assume that A did not finish his presentation of his initial evidence in chief. 3ubse.uently, he was absent and the motion of the defendant the court ordered that the presentation of the evidences of the plaintiff so he was unable to complete, but he had partially produced his evidence. Q. &an the action now be dismissed? A. /o. 3upposing on Dec. 4, !!A A was supposed to present his rebuttal evidence, but he did not appear. Q. :ay his action now be dismissed? A. /o, because his absence amounts merely to a waiver of the presentation of his rebuttal evidence. -e already produced his evidence in chief, which will be the basis of that ,udgment The failure of plaintiff to prosecute for an unreasonably long period of time. 0emember that under 0ule A, after the last pleading has already been filed, it is the duty of the plaintiff to move e7 parte for a preKtrial to be held. 't is no longer the duty of the cler+ of court under the new rules to set the case for preKtrial. 't is now the duty of the plaintiff to see to it that after the last pleading has been filed, a preK trial be held. 'f the plaintiff does not move to set for preKtrial case following the filing and service of the last pleading and the intervening period between the filing and service of the last pleading and the inaction of the plaintiff and in the view of the court unreasonable, then the court motu proprio may dismiss the action, or on motion of the defendant, the action may be dismissed. $r, a trial has been set following a preKtrial, but the trial on the merits is postponed, no fi7ed date was set in the order of the court, A simply waits for the court to set the case for hearing. -e does not reset it but still remain unconcern the action may be dismissed. Q. -ow long a period of time should elapse following the filing of the complaint in order that the inaction of the plaintiff to prosecute it may be considered an inaction for an unreasonably long period of time? A. There is no fi7 period considered as reasonable. Iach case must have to be determined according to the peculiar circumstances of the case. 3o, in some cases of an inaction for a year would be unreasonable. There is no fi7 period. 't depends upon the appreciation of the court according to its peculiar circumstances. The failure of the plaintiff to comply with the rules 8Rules of Court7 and with the order of the court. 8ou donEt realiGe how potent a weapon is this in the hands of the court because orders are meant to be carried out, or to be implemented. They are commands from the court and therefore should not be ta+en lightly. Q. 3o, what are the penalties? A. Ta+e for instance this actionable documents. #nder the rule, where an action or defense is placed in an actionable document, a copy of that document must always be attached to the pleading or the te7t of the document should be .uoted verbatim in the pleading without the necessity of attaching to the pleading a copy thereof or an action based on an actionable documents.

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When there is no compliance with this rule such that neither is the te7t of the document .uoted in the pleading nor a copy of the document is attached to the pleading, this is a plain violation of the rule on actionable documents. 3o, under 3ec. % of 0ule ", this failure of the plaintiff to comply with the order of the court may give rise to dismissal. Ta+e note, however, that the order referred to it must be a lawful order. $ne that is authoriGed by the 0ules. But this is not a re.uirement.
RENE NOTES* T2o D$sm$ss* Ru e + !he second notice of dismissal operates as an ad,udication on the merits, when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim ) also applicable to special proceedings + !he court is not required to issue an order of dismissal but is required only to issue an order confirming the fact that the plaintiff dismissed the complaint. 5W4en &o unt*!" %$sm$ss* *pp $+*8 e: 1. @efore a responsive pleading is served 2. @efore a motion of summary ,udgment is served . If none, before introduction of evidence at trial or hearing SECTION ; 1. dismissal is at the instance of the plaintiff. 2. dismissal is a matter of procedure, without pre,udice unless otherwise stated in the order of the court or on plaintiff3s motion to dismiss his own complaint. . dismissal is without pre,udice to the right of the defendant to prosecute his counterclaim in a separate action unless 1/ days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action. SECTION A 1. dismissal is not procured by plaintiff though ,ustified by causes imputable to him. 2. dismissal is a matter of evidence, an ad,udication on the merits. . dismissal is without pre,udice to the right of the defendant to prosecute his counterclaim on the same or separate action.

RULE />: #RE82RIAL


Example: A . &omplaint B & . Answer to AEs . Answer to AEs complaint complaint 2. &ounterclaim against 2. &ounterclaim against A A %. &rossKclaim against %. Answer to BEs crossK & claim 9. Third party against D (After these, the pleadings are filed.) 5. 0eply to AEs answer 5. 0eply to AEs answer to counterclaim to counterclaim @. 0eply to &Es answer @. Answer to BEs crossK to crossKclaim claim ". Answer to counterclaim of D D . Answer to BEs third party complaint 2. Answer to &Es third party complaint %. &ounterclaim against B 9. 0eply to the answer of the counterclaim

2. Answer to counterclaim of B %. Answer to &Es counterclaim

Q. 's there any other pleading re.uired to be filed after these pleadings have been filed? A. /one. 3o, the case is now ready for preKtrial. Q. 3upposing the last pleadings re.uired are not filed, with the period of filing thereof already e7pired, may the preKtrial be held? A. 8es. The rule is this, preKtrial may be held upon the filing of the last pleading without the last pleading having been filed. Where the last pleading has not yet been filed, and the period for filing thereof does not yet e7pire, preKtrial is premature. Q. What things shall be considered in preKtrial? A. They are specified in the rules. #nder the 3ld Rule, it was the duty of the &ler+ of &ourt to set the case for preKtrial upon the filing of the last pleading or the e7piration of the period for the filing thereof. This rule is no longer obtains. The rule now is, the duty to move that the pre,trial be set, is now lodged with the plaintiff. Q. What are the things to be considered during the preKtrial? A. There is a enumeration in the &ode. 3ubstantially, they are as follows2 to consider the possibility of a settlement of the caseH to consider the possibility of stipulations of facts to be arrived atH the possibility of the rendition of a ,udgment on the pleading or of a summary ,udgment

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the limitation of the issuesH the mar+ing of the e7hibitsH stipulations of as to waiver of ob,ections to documentary e7hibits that may be presentedH and all other matters that may lead to speedy disposition of the case.

The preliminary purpose of pre,trial is to terminate as soon as possible a case so that if a case can be settled during the preKtrial, so much the better, but there is no such settlement, that stipulations that may be agreed upon, the mar+ing of e7hibits, the waiver of ob,ections to the admissibility of e7hibits, the limitations of the issues will all contribute towards the early disposition of the case. 4otice2 =or purposes of the preKtrial, the parties must be notified of the preKtrial date. 'f they are represented by a counsel, there is no need for the parties to be notified. Why? Because in this case, their respective counsel will be the one to be notified of the preKtrial and it is now the duty of the counsel to notify their respective clients of the preKtrial. Q. Why is there a need for the presence of the parties during a preKtrial? A. Because, among the many purposes of a preKtrial is to allow the parties to sit down together and enter into a settlement if they can. /ormally, a lawyer cannot enter a settlement on behalf of their clients unless they are specifically armed with written authority. 3o, only the parties can agree on the settlement. This is the reason why they must be present. Q. 3upposing a party is notified of a preKtrial but does not attend the preKtrial, but his lawyer does, will the action now of the plaintiff or defendant for that matter during the preKtrial carry with it a sanction against the absent party? A. Example: A vs. B. A was notified of the preKtrial. A was not present during the preKtrial, but lawyer, Atty. F, was. Q. What is the sanction against A? A. -is complaint may be dismissed with pre,udice. 3upposing it is B who was absent, his lawyer, Atty., 8 was present. Q. What is the sanction against B? A. The plaintiff A will now be allowed to present his evidence e7 parte, meaning in the absent of defendant B. 6et us reverse. A was present during the preKtrial, but his counsel, Atty. 8 was not. Q. Will the absence of the counsel now entitle B to present his evidence? A. /o. Q. 3upposing B was present, Atty. 8 was not, will that now allow A to present his evidence? A. /o. )t is the absence of the parties, not their respective counsels that may give rise to the imposition of the corresponding sanction against the absent party. Q. :ay there be a situation, however, where a party can be absent from a preKtrial and yet the absence will not give rise to the corresponding sanctions? A. 8es. When the absence of the party is ,ustified or when the absent party is represented by a person who is duly authoriGed in writing to act for the party for purposes of preKtrial. 3o, if A cannot personally appear, he may commission another person to appear for him for purposes of the preKtrial. =or instance, his lawyer may appear for him provided that Atty. F carries with him a written authority. 'n the same way if B is not present, he can appoint a third person. -e may appoint his lawyer, Atty. 8 to act for him, provided Atty. 8 carries with him a written authority. Q. 's it enough that the person authoriGed carries with him a written authority in order that he can validly appear for the litigant for purposes of preKtrial? A. /o. Because the written authority must specify these three (%) specific powers of the agent. 3o if A appointed Atty. F as his agent for purposes of preKtrial or if B appoint Atty. 8 as his agent for purposes of preKtrial, the power of attorney of Atty. F or Atty. 8, must state the following2 that F or 8 is authoriGed to the following (F for A or 8 for B)2 . the authority to settle the case by way of a compromiseH 2. the authority to enter into stipulations of facts or admission of documents %. the authority to submit the case to other alternative modes of disputes resolution.

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The written authority must specify these three 8A7 authorities, otherwise, the written authority is incomplete for purposes of pre,trial. 3o, if an agent appears for the plaintiff or a defendant with a written authority, but the written authority does not specify all these three (%) authorities, this written authority is incomplete and he cannot legally appear for the plaintiff or defendant, as the case may be. Q. What is the sanction against the failure of a party to appear a preKtrial? A. 'f it is the plaintiff who is absent and the absence is un,ustified or that he has no authoriGed agent, the sanction is this his complaint is dismissed with pre,udice. 'f it is the defendant who is absent, the sanction is, the plaintiff is allowed to present his evidence e7 parte, meaning in the absence of A. The natural conse.uence of this is< if B has any counterclaim, then the counterclaim, will be dismissed because of his (B) action. Ta+e note that during the preKtrial, the rendition of a ,udgment, summary in character or the rendition of a ,udgment on the pleadings may be proper. Q. &an the court immediately following the preKtrial render a summary ,udgment or a ,udgment on the pleadings? A. Ta+e note that what the 0ules authoriGed to be done during the preKtrial is only to consider the possibility, not that the court will immediately render a summary ,udgment or that the court will render a ,udgment on the pleading. Why? Because there are re.uirements before a ,udgment summary in nature or a ,udgment on the pleadings can be rendered to be complied with. =or instance, in the case of a ,udgment on the pleading, there must be a motion filed for the rendition of a ,udgment. 6i+ewise in the case of a summary ,udgment under 0ule %5, there must be a motion for the rendition of a summary ,udgment. 3o, the court cannot immediately following a preKtrial, render a ,udgment on the pleading for a ,udgment summary in nature. There must first be a hearing in accordance with the pertinent rules. #re8trial Arief The rule re.uires that the parties must file a preKtrial brief. Q. What is the sanction against the failure of a party to file a preKtrial brief? A. The rule says that, the failure to file a preKtrial brief may be given the effect the failure of a party to appear for a preKtrial. 3o, when the plaintiff for instance does not file its preKtrial brief, his complaint may be dismissed. 'f the defendant does not file his preKtrial brief, the plaintiff will be allowed to present his evidence e7 parte. This is the sanction. Q. When must the preKtrial brief be filed? A. A preKtrial brief must be filed at least three (%) days before the preKtrial. :eaning that, at least three (%) days before the preKtrial, the preKtrial brief must have already been filed and served on the adverse party. Ta+e note also that a preKtrial brief re.uires certain matters to be specified therein. Among others , the following are re#uired to be stated in a pre,trial brief& . the numbers of witnesses of a partyH 2. the gist of the proposed testimony of a witnessH %. copies of documents that may be offered for admissionsH 9. the preKtrial brief must state the purpose for which the documents are offered. This re.uires that the gist of the testimony of a witness or that copies of documents intended to be submitted in evidence attached to the preKtrial brief is re.uirement that finds the ,ustification in 0ule %2. 0ule %2 re.uires that before a witness testify, the purpose of the offer must be specified and that no evidence shall be admitted unless it is formally offered and the purpose of the offer is ,ustified. This is the basis of this re.uirement. 3o, the preKtrial brief must include the gist of the testimony of a witness or the purpose for which the documents are offered in evidence. =ollowing the inclusion of a preKtrial, the court is re.uired to issue a corresponding preKtrial order. Q. What is a preKtrial order? What is its importance? A. The pre%trial order is a resumS of what transpired during the preKtrial. 'n effect, it is a summary of what happened. 'f there are stipulations in the preKtrial, those stipulations are reflected in the preKtrial order. Q. What is the importance of a preKtrial order? A. The preKtrial order governs the subse.uent course of the trial so that, the trial will be limited only to those issues that have been raised in the preKtrial order. While this 0ule A does not e7pressly state that the preKtrial must specify the issues, 0ule %4 implies that the preKtrial order must specify the issues. Why? Because under 0ule %4, the presentation of evidence of the party is limited to the issues raised in the preKtrial order. 3o that if there are only two (2) issues mentioned in the preKtrial order, no party is allowed to introduce evidence on any matter other than on these two (2) issues. 'f there is a third

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issue, any party cannot prove it as a matter of right because they are limited only to prove the issues raised in the preKtrial order. $f course we ta+e into account also another rule that is the rule on amendment of the pleadings to conform to the evidence. )ssues that may not have been raised during the pre,trial may be tried during the trial under these two 8>7 situations2 . a party tries the issue and the other does not ob,ectH as a matter of fact he conforms, and in the case this issue can be tried 2. a party see+s to prove an issue which is not incorporated in the preKtrial order, the adverse party ob,ects but the court finds that the presentation of that merits of the case would best be subKserved by allowing this issue to be proven, sub,ect to the amendment of the pleading to conform with the evidence. These are the e7ceptions to the rule that unless otherwise specified in the preKtrial order, no issue can be tried. Q. What is the significance of this rule that the preKtrial order governs the subse.uent course of the trial and the preKtrial order cannot be amended unless necessary, to avoid in,ustice being committed? A. Where a preKtrial order has already been issued, that preKtrial order cannot be changed, so the trial will now be governed in accordance with the preKtrial order. -owever, this preKtrial order may be modified, if necessary to avoid in,ustice being committed if trial is limited to what is stated in the preKtrial order.
RENE NOTES: W4*t *!e +ons$%e!e% *t p!e5t!$* 1. possibility of an amicable settlement 2. submission to alternative modes of dispute resolution a. arbitration b. mediation c. conciliation . simplification of the issues ". amendment to the pleadings /. possibility of obtaining stipulation of facts or admissions of facts 2. limitation of the number of witnesses 6. reference to a commissioner 7. possibility of ,udgment of the pleading ) need for motion 8. possibility of summary ,udgment ) need for motion 14. dismissal of action 11. suspending the proceedings 12. other matters that may aid in the prompt disposition of the action + !he pre)trial and trial on the merits of the case must be held on a separate dates.

Rule /? :Inter)ention
A vs. B. They are litigating for a piece of land. A says, C' am the ownerD. B says, C' am the ownerD. 3o, the issue is, Cwho is the owner?D -owever, a third person, claims that he is the owner of the lot in .uestion. Q. -ow can & protect his right over this land? A. & may come in to the picture as an intervenor. #nless, he (&) is allowed to intervene in this case, his right will be adversely affected and he has no way of protecting himself because he is Coutside the $ulamboD. Q. What is the remedy? A. =ile a motion for intervention. Q. &an anybody ,ust file a motion for intervention? A. /o. Q. What would be the ,ustification for an intervention? A. The party intervening may have an interest against the plaintiff in this case. -e may be interested in the success of B or he may have an interest adverse to A, and therefore he has an interest against for A and B or he may be so situated that any disposition of the property in the hands of the court affect him. 3o, he can now intervene in this case. 3o that he can protect whatever rights he alleges he has. Q. When will & in our e7ample file a motion for intervention? A. At any time before a ,udgment has been rendered in the case. The motion for intervention will have to be heard in accordance with 0ule 5 (:otions). This means to say therefore, that & will notify both A and B of the hearing of this motion for intervention. Q. What may the pleading (intervention) that he (&) can file? A. 't may be a pleading in intervention called a Ecomplaint in intervention'. 'f he (&) ,oins A against B or if he has an interest against both A and B, so he will file a complaint in intervention. $r he may file an answer in intervention if he ,oins B as against A, he will file an answer in

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intervention. Whatever pleading he will file, when a complaint in intervention or an answer in intervention, that pleading must be attached to the motion for intervention. 3o, the motion for intervention is accompanied either by the complaint in intervention or by the answer in intervention. This will now be heard by the court. Q. Will the court grant or deny the motion for intervention? A. The answer depends on the answer to the following .uestions2 . will the intervention delay the case between A and B? 2. may the right of &, & protected in a proceeding other than in this case between A and B? 'f the answer to the first .uestion is CyesD, meaning, the intervention will delay the disposition of the case, then the court may deny the motion. 'f the answer to the second .uestion is CyesD, then the court may deny the motion for intervention. 'f the answer to both .uestions is CnoD, meaning, the intervention will not delay the right of & cannot be protected in another proceeding, then the court may grant the motion for intervention. Q. 'f the intervention filed by & is a complaint in intervention re.uire an answer? A. 8es. A and B if they are the defendants in the intervention may file an answer to the complaint in intervention. Q. Within what period must they file? A. They must file the answer to the complaint in intervention within fifteen ( 5) days from receipt of the order of the court admitting the motion for intervention. Q. -ow will A and B +now what the allegations are in the complaint in intervention since they are not summoned under 0ule 9 with respect to the complaint in intervention? A. 0emember what we said earlier when & filed the motion for intervention, attached to the motion was already a copy of the complaint in intervention. 3o, even before they receive the order granting the motion for intervention, A and B already have with them the copy of the complaint in intervention. 0emember that the complaint in intervention is not served on A and B by summons. 't was served to them by &, by furnishing them a copy. After the intervention is allowed, then the court can hear the case, the case is between A and B and thereafter, the intervention. Q. 'n an intervention and an independent action in the sense that if the complaint is dismissed, the complaint in intervention may li+ewise be dismissed or is a complaint in intervention one that can be treated independently of the main case so that regardless of the outcome of the main case, the intervention remains unaffected? A. (#nanswered< ?udge 6agui became ill<) When he returned< %e have two 8>7 cases of this2 . I7propriation case :unicipality of /orGagaray filed an action against F, 8 and > for e7propriation of lot. While this case was pending, the mayor of /orGagaray manifested his intention to withdraw the complaint. Why? Because the municipality was unable to procure the presidential approval of the e7ercise of the municipality of the right to e7propriate. The law at that time re.uire a presidential approval on the e7ercise by the municipality of the right to e7propriate. The people of certain barrio of /orGagaray, :atictic, having heard of the intention of the mayor to withdraw filed now an intervention motion. Why did this :atictic people want to file an intervention motion? Because through this lot sought to be appropriated was a road, which the people of :atictic used in going to the highway. But they had to pay the owners passage fee. 3o, it was to their interest therefore that this property be e7propriated so that they would be relieved of the burden of paying. The :ayor however, did not file formally a motion to withdraw the complaint. Because of this, the court motu proprio dismissed the complaint for failure to prosecute and of course for lac+ of presidential authority. The dismissal too+ place before the court could rule on this motion for intervention. -e dismissed the case outrightly. The matter reached the 3&. 'ssue2 Whether the intervention of :atictic people could still survive because of the dismissal. 0ule2 The intervention could no longer be entertained because of the dismissal of the case. 8ears later< another case involving the foreclosure of mortgages, of real and chattel. F obtained various loans from different mortgages and to guarantee the payment, F constituted real estate mortgages and chattel mortgages. Among the many assets of F sub,ect of the mortgages was a building (NIA Building). $n this building where installed were aircon units which sub,ect of a chattel mortgage in favor of 8. This building was eventually sold to &. 8 now filed a suit against & for replevin for the recovery of this aircon units claiming that he (8) furnished the aircon units to F, and which F gave 8 by way of chattel mortgage. While this case was pending, A filed a motion for intervention on the ground that if he (A) supplied F the money with which F ac.uired these aircon units. The motion for intervention was granted and so A now filed the complaint in intervention which as a matter of fact was amended later on. 'n the meantime, 8 and & entered into an amicable settlement. By reason of this settlement, this complaint of 8 was dismissed. 6ater on 8 .uestioned the propriety of the court having authoriGed the amendment of the complaint in intervention of A. With the dismissal of the case, this intervention of A can no longer subsist on the theory that an intervention is merely an ad,unct of the main case. This is the theory. This contention was overruled.

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The matter reached the 3&. 'ssue2 Whether the trial court was correct in still maintaining this intervention of A notwithstanding the dismissal. 3& said that this dismissal of the complaint of 8 against & did not affect at all the intervention of A. 'n other words, the intervention of A still continue even if after the main case has already been dismissed. 0eason2 3ince A was already allowed to intervene, he ac.uired a right to participate and therefore, that right cannot be adversely affected by the agreement between 8 and &. Their agreement was binding only on themselves, it did not bind A. Q. What do you notice upon these two (2) cases? A. Apparently, they are contradictory, because in the first, with the dismissal of the complaint, the intervention could no longer be maintained. 'n the second, the dismissal of the main complaint notwithstanding, the intervention could be maintained. Q. But are they in fact conflicting? A. This is how ?ustice 0egalado, our commentator in 0emedial 6aw, tried to reconcile the two. And he came out with a conclusion that actually there is no contradiction between the two. Q. -ow did he reconcile? A. 'n the :atictic case, when the complaint was dismissed, there was as yet no intervention to spea+ of. Why? Because the court never ruled on the interventionH and therefore, the barrio people of :atictic never became intervenors. And so, they have no right whatsoever that could be affected by the dismissal. But in the case of :etroban+, there was already an intervention allowed at the time dismissal of the main complaint was effected. 3o, the right of the intervenor could no longer be adversely affected by whatever agreement the original parties have because it (:etroban+) was not a party to the agreement. The 0ule is clear, an agreement or a contract binds only parties thereto, its heirs and successors in interest. 3o with these, it would seem that as long as an intervention has been allowed, it can be determined independently of the main case. The original comment on this rule is that a motion for intervention is merely an au7iliary proceeding giving ris+ to the implication that if the main case of which it is merely an au7iliary, ceases to e7ist because of the dismissal, the intervention would li+ewise be dismissed. 'n this :etroban+ case, it would seem that itEs no longer correct. Noing bac+ to the last e7ample< where & is interested, the court will hear the case of A and B and receive the evidence of the parties, then the court will also receive the evidence of & and thereafter decide the case. 3o, it is li+e a threeKcornered flight li+e that of CTA0A:B$6A.D
RE4E 4:2ES: W4o m*" $nte!&ene a. one who has legal interest in the matter in litigation b. one who has legal interest in the success of either parties c. one who has interest against both parties d. one who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof INTERVENTION + an ancillary action. + proper in any of the four situations mentioned in this (ule. + defendants are already original parties to the pending suit Ru e ;,: SUBPOENA INTERPLEADER + an original action + presupposes that plaintiff has no interest in the sub,ect 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 + defendants are being sued precisely to implead them.

SUBPOENA SU66ONS + an order to appear and testify or to produce books and + order to answer complaint documents + may be served to a non)party + served on the defendant + needs tender of kilometrage, attendance fee and reasonable + does not need tender of kilometrage and other fees cost of production fee SUBPOENA AD TESTI9ICANDU6 < a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. SUBPOENA DUCES TECU6 < a process directed to a person requiring him to bring with him books, documents or other things under his control. W4o m*" $ssue su8poen*s: a. 9ourt before whom the witness is required to attend b. 9ourt of the place where the deposition is to be taken c. $fficer or body authoriFed by law to do so in connection with investigations conducted by said officer or body d. Any Dustice of the 09 or of the 9A in any case or investigation pending within the Chilippines + !he clerk of court shall issue under the authority of the ,udge. + -o prisoner sentenced to >&A!#, reclusion perpetua or life improsonment shall be brought out of a penal institution 5-:&00 authoriFed by the 0upreme 9ourt. Su8poen* %u+es te+um m*" 8e 'u*s4e% upon p!oo( t4*t: a. It is reasonable and oppressive. b. !he articles sought to be produced do not appear prima facie to be relevant to the issues.

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c. !he person asking for the subpoena does not advance the cost of production of the articles desired. Su8poen* *% test$($+*n%um m*" 8e 'u*s4e%: 1. if the witness is not bound thereby 2. no tender of witness fee or kilometrage Conse'uen+es o( *n Un)ust$($*8 e !e(us* to o8e" su8poen*: a. !he court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seiFure, I? the court should determine that this disobedience was willful and without ,ust cause. b. !he refusal to obey the subpoena shall be deemed a contempt of the court issuing it.

Rule 22:(omputation of time


0ule 22 refers to the computation of a period fi7ed by the law, by the rules, or by an order of the court. Sec. / says2 )n computing any period of time prescribed or allowed by these Rules, or by order of the court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is to be e"cluded and the date of performance included. )f the last day of the period, as thus computed, falls on a 1aturday, a 1unday or a legal holiday, the time shall not run until the ne"t wor$ing day. ?ust +now what Article % of the &ivil &ode says on the matter. Article /" of t6e 4e0 (i)il (ode %hen the law spea$ of years, months, days or nights, it shall be understood that years are of three hundred si"ty five days each; months of thirty days; days, of twenty,four hours; and nights, from sunset to sunrise. )f months are designated by their name, they shall be computed by the number of days, which they respectively have. )n computing a period, the first day shall be e"cluded, and the last day included. Example2 A vs. B. A was summoned Dec. @, !!!. #nder 3ec. of 0ule , B has a period of fifteen ( 5) days from service of summons on him. #nder the provisions of Article % of the /ew &ivil &ode. Ce7clude the first and include the lastD rule, you compute this 5Kday period from Dec. ", !!!. 3o you will have up to Dec. % , !!!. But Dec. % is usually a legal holiday, so the ne7t day will be ?an. , but ?an. is also a holiday, so the 5Kday period will e7pire on the following day, assuming that ?an. 2 is not a 3aturday or is not a 3unday or is not a legal holiday in the place where the court sits. Q. What does 3ec. of 0ule 22 say? A. 'n computing a period, the day of the act or event from which the period starts to run is e7cluded. This is what actually Article % of &ivil &ode is saying2 CThe day of performance is included.D Q. What is Cthe day of performanceD here? A. The filing of the answer. But under Article %, the day of performance here is the last day. CI7clude the first, include the last.D Where an act effectively interrupts the running of a period, the allowable period shall start to run the day following the receipt of the notice of the cessation of the cause thereof. Q. What does this mean? (This provision is very complicated.) A. Sec. 2 Rule 22 1hould an act be done which effectively interrupts the running of the period, the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. The day of the act that caused the interruption shall be included in the computation of the period . Example: B was summoned ?an. 2, !!!. #nder 3ec. of 0ule , B has a period ending ?an. ", !!!. This is the day of performance (?an. ", !!!). 6et us assume however that B filed on ?an. ", !!!, a motion to dismiss. Q. What is the effect of the filing on ?an. ", !!! on the running of this period starting ?an. % and ending ?an. "? A. 't suspended the running of the period. 3ince there were five (5) days of the 5Kday period under 3ec. 0ule , there were ten ( 4) days remaining because between ?an. 2 and ?an. ", a 5Kday period has already elapsed. There was a period of ten ( 4) days remaining. This 4Kday period remaining of the original 5Kday period is the soKcalled Eallowable periodD referred to in 3ec. 2 0ule 22. $n the assumption that this motion to dismiss is denied, Q. What is the effect of the denial of the motion to dismiss on the remaining period within which to file the answer? A. 't will start to run. 't will resume its running. Why? Because it started but when the motion to dismiss was filed, the running was interrupted but when the motion to dismiss was denied, the running must resume. (-intoO < tapos< Ta+boO) Q. When will this Callowable periodD start to run?

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A. 6et us assume that B received the order of denial on :arch 4, !!!. We say that when the order of denial the period of 4Kday starts to run. Why? What interrupts it? The period was interrupted by this order :arch 4, !!!. This is the cause of the cessation of the stopping of the running. Q. What is the allowable period that starts to run after this order denying the motion to dismiss was issued? A. The law says, Cthis allowable period shall start to run the day following the receipt of the notice of the cessation of the period.D 3o, in our e7ample, this allowable period starts to run the day following the receipt. 3o, this starts to run , !!! ( 4 days starting :arch is :arch 2 , !!!). This is still an application of Article % which is Ce7clude the first, include the last day.D (The committee wanted to be different, probably) &onclusion2 0ule 22 did not actually amend Art. % of /&&, e7cept in one respect, there is now an e7pressed provision in the rules that when the last day of performance is a 3aturday, a 3unday, or a legal holiday in the place where the court sits, the date of performance is moved to the ne7t wor+ing day. Ta+e note that the legal holiday referred to here is the legal holiday in the place where the court sits. 3o if the court sits in :anila, and the last day in :anila is Dec. 24, which is not a holiday, but in *.&., Dec. 24 is a holiday. :arch Q. Will the last day of performance be moved to the ne7t wor+ing day? A. /o, because the holiday is not in the place where the court sits, which is in :anila.

'odes of *isco)er% Rules 2"C 2,C 25C 2!C 21 and 2>.


Q. What are the modes of discovery? A. As the term suggests, these modes of discovery are remedies the law allows a party to a case to avail of for the purpose of getting in advance +nowledge of facts related to a case which the adverse party may have +nowledge of so that when trial proceeds, a party to a case already +nows what the adverse party may have. Actually therefore, these modes of discovery are intended to allow a party to discover what the other party has, because if these rules on discovery were not allowed, a party to a case would +now nothing about the adverse partyEs case e7cept those which are alleged in the pleading. 3o, if A, the plaintiff and B, the defendant, all that A would normally +now about the case in so far as he is concerned is what appears in the answer or pleading of B. 'n the case of B, all that he could +now in so far as A is concerned is what appears in the complaint or pleading of A. 3o, rules of relevant facts would be limited to what is disclosed only in the pleadings. But with the modes of discovery we mentioned, A may be able to +now facts that B may haveH B may be able to +now facts that A has, so that when the trial proceeds, each party already +now what the other party has. This is the concept of discovery. This practice is widely used in #.3. 3o, if A and B are litigants, before trial, A could already +now all the facts about AH B could already +now all the facts about A. 3o that when the trial comes, there is nothing that is not +nown to the adverse party. This is how e7tensively these remedies are utiliGed in #.3. While these rules have been with us, for decades, they were never appreciated. Why? ;ery few avail of it. This is why, to compel the resort to modes of discovery, there are certain sanctions that the court may impose on a party who fails to comply with the rules written interrogatoriesH with the rules on re.uest for admission.

Rule 2": *eposition #endin. Action


This is denominated as *eposition #endin. Action. This contemplates a situation where a case is already pending in court. While the case is pending in court, the party may now discover facts either from the adverse party or from any other persons. Example: A vs. B (They are litigating a piece of land) A suspects that B may present as his (B) witness F against him (A). A would want to +now in advance what F is going to say. Q. What is the remedy available to AH so that even before trial A will already +now what F will say so, when he will be called upon to testify? A. A can resort to 0ule 2% (Deposition 1ending Action) Q. 's it necessary for A to obtain leave of court in order that he can ta+e the deposition of F? A. The rule is this2 )f no answer has as yet been served on A , then A must file first a motion as+ing for leave to ta+e the deposition of F. )f an answer has already been served on A, A can now ta+e the deposition of F without leave of court. 3o, whether leave of court is re.uired on that would depend on an answer to a .uestion Cwas an answer already serve on the plaintiff?D 'f there was none, leave of court is re.uiredH if there was, no leave of court. Q. 'f A now were to ta+e the deposition of F, what can be the sub,ect matter of the in.uiries made by A? A. The rule is2

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A can ta$e deposition of G on any matter related to the claim of A or related to the defense of B, provided these matters are not privilege in character . :eaning, that where the matter sought to be in.uired by A from F are privilege, they cannot be the sub,ect of in.uiry, and therefore F may not answer that. Q. 3upposing it is B who suspects that A will present 8 as his witness, can B also ta+e the deposition of 8? A. 8es. Q. 3o, what do we conclude on from this? A. The right to ta+e a deposition belongs to both parties. 't does not belong only to one. Q. 'f you were A now, how will you proceed ta+ing the deposition of F? A. The first is for A to send B a notice to ta+e depositions. The deposition may either be on oral e7amination or on written interrogations. Q. 6et us assume that A would want to ta+e the deposition of F, what will this notice to ta+e deposition contain? A. The notice will be worded this way2 To B, defendant, Nreetings< 1ls. Be notified that the undersigned plaintiff A will ta+e deposition on oral e7amination of F before the notary public > at his office at 2% Timog Ave., *. &. on ?an. 4, !!! at A244 A: 3igned A B received the notice. Q. What will happen on ?an. 4, !!! at A244 A:? A. F and the lawyer of A, if he has any, or A will appear before the notary public. Q. -ow about B? A. -e may appear if he wants to. -e may disappear if he wants to. 'n other words, he may appear if he li+es, he may not appear if he does not li+e. Whatever his wishes are, the plaintiff A can proceed with the deposition of F as long as B was notified. Q. -ow will A compel the presence of F before the notary public on ?an. 4, !!! at A244 A:? A. A can file with the court in *.&. a motion for the issuance of subpoena to F so that F will be subpoena. The rule in a subpoena to a witness in deposition ta+ing may be issued by the court in the place where his deposition is ta+en. Q. What happens on ?an. 4, !!! in the office of the notary public >? A. A will now .uestion F on anything related to the claim of A or related to the defense of B provided they are not privileges. Q. -ow about B? A. 'f B were present or his lawyer is present, B or the lawyer can crossKe7amine F, then F may again be .uestioned by A or by AEs lawyer. This is the second e7amination called the reKdirect e7amination. After he (A) finished the reKdirect e7amination, F may again be e7amined by B or his (BEs) lawyer, we called this word e7amination the reKcross e7amination. Q. What do you notice? A. 'n e7amination of Cdeponent, F in our e7ample, is the same e7amination that may be conducted as if he were actually before the court in which the case is pending. 6et us assume in our e7ample that B received the notice but did not appear either personally or through counsel. 3o that in our e7ample, F testified in the absence of B or the counsel of B. Q. :ay B be allowed nevertheless to .uestion F after F finished his direct testimony? A. 8es. Q. But how about if B is not there? A. 'ts no problem because of personally appearing in court, B can send his written .uestions to the notary public. The notary public will now read these .uestions to F one by one and F will answer them also one by one. 6et us assume that the deposition is going on. 6et us assume also that BEs counsel is present while AEs counsel is .uestioning F, a .uestion appears to be ob,ectionable to B. Q. &an he (BEs counsel) ob,ect? A. 8es. Q. Will the notary public however, rule on the ob,ections? A. /o, he will simply record the ob,ection. #nli+e the ,udge, the notary public or whoever is the deposition officer, is not allowed to rule on the ob,ection.

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Q. =ollowing the conclusion of e7amination of F, what shall be done now? A. The testimony of F as stenographically recorded during the proceedings, will now be transcribed. After its transcription, the transcript is shown to F for him to read or for that transcript to be read to him. 'f there are parts in the transcript which he desires to change, then he can change them out in this case, the deposition officer or a notary public or a ,udge for that matter will have to indicate in the records the reason why F changed his answers. F may sign or may not sign the transcripts. -e may not sign if, for instance, letEs say he agree that there is no need, or F himself for any reason may refuse to sign. 'n any event when F refuses or fails to sign, the notary public or the ,udge who acted as the deposition officer, must have to sign the transcript. After the signing of the transcript or if the deponent refused to sign, that is therefore, after the certification by the notary public or the deposition officer, the proceedings are concluded, the deposition officer forwards now the records of the deposition ta+ing to the court where the case is pending. 3o, if ' were the deposition officer, ' will now forward to the court the entire records. 'f there were e7hibits presented during the deposition ta+ing the deposition officer should also forward it to the court. Q. 's there a duty on the part of the deposition officer to notify the parties of the fact that he has forwarded the records to the court? A. 8es. The law re.uires that the deposition officer must notify the parties of the fact that he already sent the copies of the deposition record to the court. Q. Are the parties entitled to receive a copy of the transcript of the testimony of the witness, in the e7ample of F? ('s A entitled to receive a copy? 's B entitled to receive a copy of the branch record?) A. 8es, provided he pays for the cost thereof. This is only by way of deposition through oral e7amination. #nder the 0ule, A can ta+e also the deposition of F by written interrogations. Q. -ow would this be done? A. A ta+es the deposition of F by written interrogations. Q. -ow will this notice to ta+e deposition of F by written interrogatories be worded? A. This is how it will be done2 B, defendant NreetingsO 8ou are hereby notified that the undersigned plaintiff A will ta+e the deposition of F by means of written interrogatories. Attached herewith is the direct written interrogatories. 3igned by A Q. What is this Edirect written interrogatoriesD? A. 't is that document that F has as+ed all the .uestions on direct e7amination. 8ou call this the Cdirect interrogatoriesD. 3o attached now to the notice is a copy of the direct interrogatories by A. This is now furnished to B. Q. What is he (B) authoriGed to do following his receipt of the notice and of the direct interrogatories? A. 'f B desires, he may within ten ( 4) days from his receipt of the notice and the direct interrogatories also furnish A a soKcalled crossKinterrogatories. -e will give this crossKinterrogatories to A. Q. What are these Ecross,interrogatoriesD? A. They are the .uestions, which B would have as+ed to be answered by F on crossKe7amination. A now has with him the crossKe7amination interrogatories of B. Q. What is A now allow to do, following his receipt of the crossKinterrogatories? A. Within five (5) days from his receipt of the crossKinterrogatories, A may serve on B another set of interrogatories, the soKcalled reKdirect interrogatories. This would have been the .uestion which A would as+ F have had been personally .uestioned by A. 3o, A will serve on B a copy of his reKdirect interrogatories. Q. What is the right of B upon receipt of this reKdirect interrogatories of A? A. Within three (%) days of his (B) receipt of the reKdirect interrogatories, B may serve on A a set of .uestions again, you called the reKcross interrogatories. Q. 3o, what do you notice now? A. A has with him all sets of interrogatories2 . DirectK'nterrogatories (A) 2. &rossK'nterrogatories (B) %. 0eKDirect 'nterrogatories (A) 9. 0eK&ross 'nterrogatories (B) Q. What shall A do with all these sets of interrogatories? A. -e will now proceed to the deposition officer together with F. What for? 3o that the notary public will now .uestion F or the notary public or the ,udge who acted as a deposition officer.

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3o, F is there now< he is now sworn by the notary public or the ,udge. Q. What will the notary public or the ,udge do? A. This is what the notary public or the ,udge will do2 -e will now ta+e the first set, the soKcalled directK interrogatories. -e will now read .uestion no. to F. Then F will answer. 3o, the deposition officer or notary public will read oneKbyKone the .uestions and F will answer them oneKbyKone. This is what the notary public will do. The proceeding after F finished answering the four (9) sets of interrogatories will be the same as if F testified on oral interrogatories. This means to say that the testimonies of F will be transcribed. The transcript will be given to him to read or to be read to him. -e will sign, if he wants to sign. -e will ma+e corrections, if he wants to ma+e corrections. Thereafter, the deposition officer will forward to the cler+ of court where the case is pending the entire records of the case. This is how he deposition is ta+en. Q. -ow will the deposition of F be used? A. 't will be used in accordance with 3ec. 9 0ule 2%. 'ntroduce all of it which is relevant to the part introduced and any party may introduce any other part. 6et us assume that the deposition of F was already ta+en. This was already received in the cler+ of court, Dec. , !!A. Trial is on Dec. 5, !!A. $n this day (trial), A and B are supposed to present their evidence. A said, C8our -onor, my witness is F, he already had given his deposition. -is deposition is now here in court, which ' now as+ed to be mar+ed as e7hibit A. ' will not present F anymore. 8our -onor, ' will now present his deposition, in lieu of his personally testifying in court.D &ourt2 CWhat does B said on the manifestation of A? B2 8our -onor, A does not +now 0ule 2%. /otwithstanding that he (A) claimed that he has been a lawyer for fifty (54) years, he does not +now 0ule 2%. &ourt2 CWhy?D B2 C8our, -onor, the law is clear, this deposition can be used, only under the conditions mentioned in 3ec. 9 of 0ule 2% as evidence.D &ourt2 C0ight, 8ouEre correct.D 0uling2 CThe manifestation is outKofKorder. I7hibit A cannot be used.D Q. 's the observation of the court correct? A. 8es. As long as a deponent is alive and $ic$ing, his deposition cannot be used in court. Why? Because a deposition is used only in anticipation of the inability of the deponent to testify in court . But as long as he is alive, he cannot use his deposition, e7cept for purposes under 3ec. 9 of 0ule 2%. Q. =or what use will the deposition of F be utiliGed? A. 6et us assume that B presented as his witness F. 'n our premise, the deposition of F was ta+en by A. 3o, F is a witness of A for purposes of that deposition. Sec. , Rule 2" At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the ta$ing of the deposition or who had due notice thereof, in accordance with anyone of the following provisions& a. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness; b. The deposition of a party or of any one who at the time of ta$ing the deposition was an officer, director, or managing agent of a public or private corporation, partnership or association which is a party may be used by any adverse party for any purpose; c. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds& !. that the witness is dead; or >. that the witness resides at a distance more than one hundred 8!BB7 $ilometers from the place of trial or hearing or is out of the -hilippines, unless it appears that his absence was procured by the party offering the deposition; or A. that the witness is unable to attend or testify because of age, sic$ness, infirmity, or imprisonment; or .. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 9. upon application and notice, that such e"ceptional circumstances e"ist as to ma$e it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally, in open court, to allow the deposition to be used; and d. )f only part of the deposition is offered in evidence by a party, the adverse party may re#uire him to utili/e G as his witness. Q. &an that be done? A. 8es, it can be done. Why? Because the rule says, C a party who ta$es the deposition of another does not ma$e that party his witness.' 3o, F is not a witness for purposes of the trial of the merits of the case. -e is now a witness of B.

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Q. -ow may this deposition of F be utiliGed by A? A. Ta+e note that under 3ec. 9 of 0ule 2% par.(a), EAny deposition may be used by any party for the purpose of contracting or impeaching the testimony of deponent as witness.' The deposition of a party may be used by anyone. A can use that deposition of F but only for one purpose to impeach F. Q. &an A utiliGe the contents of the deposition of F to prove the truth of what is stated there? A. /o, he cannot do that unless the e7ceptions will apply (3ec. 9 0ule 2%). 'n our e7ample, the only use of deposition of F in the hands of A is to impeach F, nothing more. Q. What is impeachmentH A. 'mpeachment is the process whereby a party tries to ma+e evidence against him worthless by showing that the witness or the evidence is not credible. 'n our e7ample, the only use by A of the deposition of F is to show that F is not a credible witness. 3upposing the issue is2 CWhat is the color of the dog of B?D A said,CThe dog is blue.D B said, CThe dog is red.D F said while testifying for B. CThe dog of B is red.D But in his deposition, he said the dog of B is blue.D Q. Will this statement now prove that the dog is blue and that there A can introduce that in evidence to prove that the dog is blue? A. /o. This is usable only in the hands of A to contradict the statement of F in court that the dog is red. This is only to show that F is not telling the truth. But by this showing, A does not concede that the dog is blue. -e simply said that F is telling a lie. 0emember how a witness may be impeached or recall by a party against whom the evidence is given may impeached a witness giving the evidence by any of the following means2 . by contrary evidenceH 2. by evidence that the reputation of the witness for honesty, integrity and truth is badH %. by evidence that a witness has given statements contrary to what he said in court prior inconsistent statementsH 9. that a witness has been previously convicted of a crime. Q. When, however, may a deposition be used, not only for purposes of impeachment, but for any other purpose? A. 6et us assume in our e7ample that the deponent is no longer F, but B himself. Q. &an A ta+e the deposition of his adverse party? A. 8es, that can be done. Q. 'n the hands of A, for what use may this deposition of B be ta+en? A. The rule says, Cfor impeaching and any other purposes.D 6et us assume now that B testified. A now e7amines him on crossKe7amination. Q. -ow can A use the deposition of B? A. . to impeach BH 2. for any and all other purposes. =or instance, there is something said in the deposition of B favorable to A. Q. &an A introduce in evidence this deposition of B even if he (B) is alive? A. 8es. 3upposing in the deposition of B, he said, CThis land used to be the property of &, the father of A.D 3o, this statement may be favorable to A because it will give credence to his claim that he inherited this lot from &. This would be favorable to him. 3o in this case, A may introduce this deposition even if B is alive. Q. What then is the difference, if there is any, between the use of a deposition of an ordinary witness and the use of the deposition of a party to a case? A. 'n the case of an ordinary witness, it is used only for one purpose, that is to impeach. 'n a case of a party, for two (2) purposes2 ( ) to impeachH and (2) for any other purpose. Q. When can the deposition of witness either an ordinary witness or a party to a case to be used to prove the truth of what is said there? 'n other words, our proponent here is F. When can this deposition of F be introduced as evidence to prove the truth of what is stated there? A. ) when F is already deadH or if alive, cannot testify 2) he lives in a place more than 44 +m away from the court where he is supposed to be summoned to testify.

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#nder the rules of summons , a party who resides in a place more than 44 +m away from the court to which he is summoned, he is not obliged to obey the summons. 'n this case, F resides more than 44 +m away from the court room, he cannot be compelled to appear and so his deposition may be used to prove the truth of what is stated there or if F cannot be subpoena unless the failure to subpoena F was the result of the manipulation on the part of A himself (if he is the one presenting) or there are some circumstances that may be established which would ma+e the presentation of the deposition ,ustified. Rule 2" Sec. , (( sa%s: Ithe deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds& !. that the witness is dead; or >. that the witness resides at a distance more than !BB $m away from the trial or hearing or is out of the -hilippines, unless it appears that his absence was procured by the party offering the deposition; or A. that the witness is unable to attend or testify because of age, sic$ness, infirmity or imprisonment; or .. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or 9. upon application and notice, that such e"ceptional circumstances e"ist as to ma$e it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; andI #nder this section, even though the witness is alive, deposition may be used under any of these circumstances2 $ur e7ample here presupposes that the witness is in the 1hilippines. 3upposing now, A wants to ta+e the deposition of F who is in the #3. Q. &an that be done? A. 8es, it can be done. The deposition can be done. #rocedure: A will give notice to B that he will ta+e a deposition of F in the #3. The deposition of F must be ta+en before the 3ecretary of the Imbassy. 6egation or the consul general or the consul or a vice consul or any other officer in the foreign service of the 0epublic of the 1hilippines in the #3. 3upposing we have no consular officers, or we have no embassy in the #3. Q. -ow may the deposition of F be ta+en by the soKcalled commission? -ow will A go about securities commission? A. -e will file a motion in court as+ing that the commissioner be authoriGed to receive the testimony of F. The court will name the particular person who will ta+e the deposition in the #3 of F. 'n one case, 2asmariJas <arments vs. Reyes ( !AA), the plaintiff wanted to ta+e the testimony of his witness residing in Taiwan. 3o, he filed an application with the trial court in :anila where the case was pending for the appointment of the commissioner. Why? Because at that time we did not have, as we do not now have, any diplomatic relation with Taiwan as we recogniGe the $neK&hina 1olicy, and there is only one &hina i.e. 0ed &hina. Taiwan is a mere province of, according to 0ed &hina, of 0ed &hina. 3o, since we have diplomatic relation with 0ed &hina, we cannot, for obvious reason, recogniGe, Taiwan as another state. 3o, we did not have an embassy or a consular office in Taiwan. But we have an office there euphemistically called :I&$. This is supposed to be an office ta+ing charge of the commercial interest of the 1hilippines in Taiwan. 3o, DasmariUas filed a motion as+ing that the deposition of his witness be ta+en. The :anila Trial &ourt granted the motion. 3o, the defendant elevated the matter to the 3&. 'ssue2 Whether the :anila court can order the :I&$ to ta+e the deposition of F, (witness of DasmariUas). -eld2 #nder this rule (0ule 2%), the 3& sustained the ruling of the :anila Trial &ourt. 3o, as distinguished from a situation where we have a consular officer or when we have diplomatic relations, where the deposition of a witness have been ta+en before those persons already named, even without prior leave of court. 'n the case of a commission, the deposition cannot be ta+en by the commissioner unless there is an authority from the court. Letters Ro.ator% Q. What is meant by letters rogatory? A. I7ample2 A wants to ta+e the deposition of F in Timbu+tu. We do not have any consular office there. We do not have diplomatic relation there. We have no nothing. Q. -ow can the deposition of F be ta+en in Timbu+tu? A. By letters rogatory, the deposition of F may be ta+en. Q. What is letters rogatory? A. 'n our e7ample, A now will file a motion in court as+ing that letters rogatory be issued for the purpose of having the testimony of F ta+en on written interrogatories. The court grants the motion.

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This letters rogatory are letters to the court. The court where the case is pending, say 0T& of :anila, will now address a letter to, letEs say, the &hief ?ustice of Timbu+tu. NreetingsOOO 8ou are hereby re.uested to ta+e the deposition or written interrogatories of F who lives within your territorial ,urisdiction. Attached are the interrogatories. We shall render to you the same assistance when re.uested. 6etters rogatory is a letter from one court to another court, re.uesting the court of the place to ta+e the deposition of F. This is how 0ule 2% wor+sO
RENE NOTES: Pe!sons 8e(o!e 24om %epos$t$ons m*" 8e t*1en: 5 W$t4$n t4e P4$ $pp$nes* Aa) ,udge Ab) notary public Ac) any person authoriFed to administer oaths, as stipulated by the parties in writing 5 Outs$%e t4e P4$ $pp$nes Aa) on notice, before a secretary of embassy or legation, consul general, consul , vice consul, or consular agent of the phil. Ab) before such person or officer as may be appointed by commission or letters rogatory Ac) any person authoriFed to administer oaths, as stipulated by the parties in writing CO66ISSION LETTERS ROGATORY + issued to a non),udicial foreign officer who will directly take + issued to the appropriate ,udicial officer of the foreign the testimony country who will direct somebody in said foreign country to take down testimony + applicable rules of procedure are those of the requesting + applicable rules of procedure are those of foreign court court requested to act + resorted to I? permission of the foreign country is given + resorted to I? the e1ecution of the commission is refused in the foreign country + leave of court is not necessary + leave of court is necessary

Rule 2,: *epositions $efore Action


A party before any action has been instituted in court may ta+e the deposition of himself or of a third person for the purpose of preserving that testimony for use in the event a case would later be filed .(*epositions in #erpetuam Rei 'emoriam Example: A has a piece of land. B has a piece of land too ,oining AEs lot. A and B are neighbors. Their respective properties are divided by fence. The only trouble is, A and B did not believe that good fences ma+es good divide. Why? They first put up a bamboo fence. 3o, here comes a typhoon. B now puts up this fence but intrudes ft. into the property of A. Another typhoon truc+, the typhoon went down. B again put up another fence, this time intruding another ft. 'magine how many typhoons we have in one year. 3o, A anticipates that if all these e7pected typhoon will materialiGe, there will be a time when he will no longer have any inch of land to stay on. By that time he will already be fenced out of the property. Q. What is the remedy? A. To file a case. Q. But who will file the case? A. A said, C' may file the case. But ' donEt have the money right now. -ow can ' file a case?D 3o, he is waiting for B to file a case. But B is not going to file a case because he is still waiting for the many typhoons to come. 3o, he cannot compel B to file a case. 'n the meantime, he e7pects that by that time a case is filed, either by himself against B or by B against himself, he may already be si7 ft. under the ground, or if he is alive, his e7pected witness F may also be already si7 ft. under the ground. Q. What is the remedy? 3o that when the case shall have been filed, and F is already gone, that testimony of F can still be used as evidence? (because it was preserved). -ow will this preservation be made? A. A lives in 3uluH B resides in Batanes. A 3ulu B Batanes

Q. What is the remedy now available to A, so that his testimony or the testimony of F will be preserved? A. -e will now file a case against B in the places where he (B) resides i.e. Batanes. (But A is from 3ulu? /ever mind that is what the law says.) Q. 'n what court will this case be filed by A?

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A. The rule does not say. 't simply says CcourtD. Q. :T&? 0T&? A. An action of this nature to preserve the testimony is an action, which is incapable of pecuniary estimation. 0emenber 3ec. ! of B.1. L 2!, an action incapable of pecuniary estimation is within the jurisdiction of the RTC. 3o, while this rule does not specifically state that the action should be filed in the 0T&, the action by reason of its nature should be filed in the 0T&. Q. What will be the allegations? A. Well principally A will allege the reason why he wants his testimony or that of his witness F be preserved. -e would state in the petition the facts which he wants to prove. Q. What is his prayer? A. -is prayer is that the court may authoriGe him to ta+e his deposition or to ta+e the deposition of F. Q. -ow will B +now that a petition against him has been filed? A. Well, the rule re.uires A to furnish B with a copy of his petition and the notice of hearing thereof. The hearing must be set by A on a date which is not earlier than 24 days from service by A on B of the copy of the petition and of the copies of hearing. Q. $nce the petition is filed, what will the court do? A. The court will now issue a summons to B notifying him of the date of hearing as set in the notice of B. This will be served on B in the manner that the summons is served to a defendant under 0ule 9. 3o while the rule does not specifically state the summons should be issued and served in accordance with 0ule 5. Q. What will happen on the day set for hearing? Will there be a trial, in the sense that evidence may be received by the court for A and B? A. 6oo+ at the provision, there is nothing said on the following2 . That B has the right to file an answer for an opposition. There is nothing said. The rule does not say that B or A will be allowed to present evidence. The rule says that the court will hear the petition and if granting the petition will avoid failure of ,ustice court will grant the petition. Q. What is the meaning of that? A. The court in granting the petition will now authoriGe A to ta+e his deposition or to ta+e the deposition of F or any witness for that matter in accordance with the rule either by means of oral pending appeal, e7amination or written interrogatories. This is how 0ule 29 wor+s. Q. -ow will the deposition of either A or F be used? A. 'n the same manner a deposition is ta+en under 0ule 2%, in other words, 3ec. 9 of 0ule 2% will apply in so far as the deposition of A or his witness is concerned. This is the gist of 0ule 29. Q. Why do you call it Cdeposition before actionD? A. Because at the time it was ta+en there was yet no case. This was only ta+en in anticipation that a case may later on be filed.
RENE NOTES: + >epositions under this (ule are also taken conditionally, to be used at the trial only in case the deponent is not available. + >epositions under the (ule do not prove the e1istence of any right and the testimony perpetuated is not in itself conclusive proof, either of the e1istence of any right nor even of the facts to which they relate, as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. #owever, in the absence of any ob,ection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. + If deposition is taken under this (ule, it may be used in any action involving the same sub,ect matter subsequently brought.

Rule 25: 5ritten Interro.atories to #arties


Q. What are interrogatories? (written) A. *uestions (/a+asulat) Q. 's there an oral interrogatories? A. /aturally. 'f you e7amine a court witness, the interrogation is oral. (.uestioning) Q. When may a party address written interrogatories to the adverse party? A. 3ec. of 0ule 2% applies to 3ec. of 0ule 25 Sec. / of Rule 2" By leave of court after jurisdiction has been obtained over the defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be ta$en at the instance of any party, by deposition upon oral e"amination or written

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interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule >!, depositions shall be ta$en only in accordance with these rules. The deposition of a person confined in prison may be ta$en only by leave of court on such terms as the court prescribes . Sec. / Rule 25 (nder the same conditions specified in 1ec. ! of Rule >A, any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served; or if the party served is a public or private corporation or a partnership or association, by any officer thereof competent to testify in its behalf. Example: A vs. B. 6et us say that A wants to address written interrogatories to B. A can address this written interrogatories to B either with or without leave of court. 'f no answer has yet been served by B on A, the written interrogatories may be ta+en only with leave of court. 'f an answer has already been served on A, written interrogatories may be served without leave of court. Q. What can be the sub,ect of the written interrogatories? A. The sub,ect may be one that relates to the claim of the plaintiff or one that relates to the defense of the defendant, provided that these matters are not privileged. Q. -ow many .uestions may be addressed in written interrogatories? A. There is no limit. The only limitation is that the .uestion relate to the claim of the plaintiff or to the defense of the defendant and they are not privileged. Q. 3o, if you have ,444 .uestions to as+, as+ the , 444 .uestions. 'f you have only !!! .uestions, can you again send another written interrogatories consisting only of one .uestion? A. /o. The rule is, a party can send only one set of written interrogatories . The number of .uestions is not limited. 't could be as many .uestions as a party can conceive of as long as his .uestions are related to the claim of the plaintiff or to the defense of the defendant provided they are not privileged. Q. 's there an e7ception to this rule that only one set of written interrogatories may be sent? A. The general rule is, only one set of written interrogatories may be sent. -owever, in the discretion of the court, another set of written interrogatories may be sent. Q. When must a party reply to written interrogatories? A. The party to whom the written interrogatories were sent must answer then within 5 days from service to him of the interrogatories. 3upposing the written interrogatories include .uestions that are improper, for instance those are .uestions for the ownership of the land. A vs. B. The .uestions as+ed by A is in his interrogatories relevant to the matters concerning the claim of A and defenses of B. But here comes another .uestion, C-ow many wives do you have?D Q. 's the number of wives relevant to the matter on issue? A. $f course not because they are not litigating in the number of wives. Q. What is the remedy available to B here? A. =ile a motion to stri+e out that .uestion. A motion praying therein that B, be not re.uire answer. Q. What is the effect of that motion on the part of B to stri+e out that improper .uestion to the running of the period for the filing of the reply? A. The period is suspended.
RENE NOTES: + A ,udgment by default may be rendered against a party who fails to answer written interrogatories . + Gene!* Ru e* 5nless a party had been served written interrogatories, he may not be compelled by the adverse party* a) to give testimony in open court b) give a deposition pending appeal E/+ept$on: %hen the court allows it for good cause shown and to prevent a failure of ,ustice. Depos$t$ons upon W!$tten Inte!!o7*to!$es to P*!t$es un%e! Ru e ;A Se+. ;B As to Deponent 1. a party or ordinary witness As to procedure 2. with intervention of the officer authoriFed by the 9ourt to take deposition As to scope . direct, cross, redirect, re)cross Interrogatories ". no fi1ed time Inte!!o7*to!$es to P*!t$es un%e! Ru e ;B 1. party only 2. no intervention. %ritten interrogatories are directed to the party himself . only one set of interrogatories ". 1/ days to answer unless e1tended or reduced by the court

RULE 2!: Admission A% Ad)erse #art%


Example:

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6et us say that A and B are litigating over a piece of land. The claim of A is that he bought this lot from D. The claim of A is that this sale is evidenced by a deed of sale purportedly signed by D. This document however, is a private document. A may also have declared this lot for ta7 purposes (ta7 declaration) and A have paid the ta7es on this land. (nder the rules on re#uest for admission, the rules said after the issues have been ,oined, any of the parties may now address to the adverse party a re.uest for admission. 'n this re.uest, the party sending the re.uest as+ the party to whom the re.uest is sent, to admit the truth of the matters of fact stated in the re.uest or the genuineness of the document the copy of which is attached to the re.uest. This is how it is done< 6et us assume that the answer of B has already been served. 'n his answer, B denied the material allegations of the complaint. 3o, issues are now ,oined. Q. When is an issue ,oined? A. When the parties are certained and it is disputed Example: 'f A said, Cthe color of the dog is blue.D B said, Cthe color of the dog is red.D This is an issue because they dispute on the color of the dog. 3o, in our e7ample, the issue is, Cwho is the owner of the land.D Why? Because A says, C' am the owner.D B said, C/o, you are not the owner.D A will have to prove that he is the owner. 3o, he will have to prove that he is the owner. 'f he (A) follows the rules in evidence, he has to prove every facts in accordance with the rules in evidence. =or instance, we have a rule on how to prove a private document. The 0ule says, 3ec. 24, 0ule %A, C/o document offered as authentic document shall be admitted in evidence unless the genuineness and due e7ecution of that document is proven. Q. -ow will these rules on discovery have shortened the time for proving facts in accordance with these rules in Ividence? A. After A have already received for instance, the answer and issues having been ,oined, this is what he will do, he will address a re.uest for admission, B defendant. NreetingsOO 8ou are hereby re.uested to admit under oath within 5 days from receipt thereof the truth of the following facts2 ) A declared a lot for ta7 purposes per ta7 declaration L 2%9, &ity of :anila. 2) A has been paying the ta7es of his lot as evidenced by ta7 receipts, copies of which are anne7es A, B and &. %) The genuineness of the document, copy of which is attached as anne7 CDD &opies of these private documents are now attached for admission. :ore particularly this is what A as+ B in that re.uest for admission. C8ou are hereby re.uested to admit that the signature over the name B in Anne7 B is the genuine signature of B.D A now is in possesion of these documents (The re.uest for admission to which was attached a copy of the documents.) Q. What is the duty of B upon receipt of the re.uest? A. Within the period granted to him under the written re.uest, but no less than 5 days, B, if he denies the truth of these facts, he denies that A has declared his land for ta7 purposes, if he denies that the signature over the name of B is his signature, he will say there, CB denies the truth of the matters stated in the written re.uest an denies that the signature over the name B in anne7 CDD is his signature. B serves his answer to A. Q. What will B do with that copy of answer? A. -e must file it in court. (This is an innovation now, it was not so under the old rule) 3o, B will file his answer to the re.uest and serve a copy thereof on A. Q. What would be the effect of the failure of B? A. To deny under oath the truth of these matters of facts, (the genuineness of the signature), -e is cleared to have admitted the truth of those matters of facts. -e is cleared to have admitted that the signature over the name of B is the genuine signature of him. Q. What would be the effect now of the failure of B to answer in demand within the period mentioned in the re.uest? A. The truth of the matters of facts, the genuineness of that signature is cleared to have admitted them conse.uently.

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Q. Will A still have to prove during the trial that he declared the land for ta7 purposes, that he paid the ta7es, will he (A) still prove the signature over the name of B is the genuine signature of B? A. /o more. Why? Because these are admissions of facts ,udicially made. The rule is, facts ,udicially admitted do not re.uire proof and cannot be contradicted, under the party ma+ing the admission is allowed to withdraw the admission because he can show that the admission that he made was a result of a palpable mista+e or that he did not actually ma+e an admission. 6et us assume that B after he failed to deny made oath the genuineness of that document. Q. &an he (B) now prove during the trial that the signature is a forgery, that he did not affi7 that signature? A. /o, why? Because you are not allowed to contradict your admission. 3o you will now appreciate how this re.uest for admission can help discover the facts. This re.uest for admission will shorten the proceedings. Why? Because if there is no denial under oath of the genuineness of that signature, there is no need for A to prove it, if there is no denial of he truth that A has declared the lot for ta7 purposes, there is no denial of the truth of the fact that A paid the ta7es, A does not have to prove these facts anymore. They are deemed proven. Ta+e note however, that there is a limited use for an admission. This admission of B is only for the purpose, in this case (A vs. B). 't cannot be used as evidence against B in another proceeding. #nder the rules on evidence, A cannot present B as his witness. This is allowed but this right of a party to utiliGe the adverse party as a witness is no longer absolute in the sense that there may be instances when a party cannot call on the adverse party as his witness. =or instance in our e7ample, A called on B as his witness, B ob,ected. 0eason2 A did not send me any re.uest for admission. B said, C#nder 0ule 2@, ' cannot be compelled to be a witness of A. ' can only be compelled to be a witness of A if A sent one re.uest for admission on matters of facts of which ' have of personal +nowledge.D 0uling ob,ect of B is sustained. -e cannot be compelled. Q. 's the ruling correct? A. 8es. Why? Because under the new rule now modifying the rules on evidence, before A can call on B as his witness, A should have first addressed to B re.uest for admission of matters in issue of which B has personal +nowledge. 3o A cannot call B to prove these matters within the +nowledge of B unless A previously sent a re.uest for admission to B on this matter.
RENE NOTES: + !he effect of a failure to make a reply to a request for admission is that each of the matters of which n admission is requested is deemed admitted. + each matter must be denied 0C&9I?I9A::B under oath setting forth in detail the reason why he cannot truthfully admit or deny. USE* An admission under this section is for the purpose of the pending action only and cannot be used in any other proceedings.

Rule 21 : #roduction or Inspection of *ocuments or 26in.s


3upposing in our e7ample, A alleges in his complaint that he brought this lot in .uestion from &, the father of B. B wants to see this supposed deed referred to in the complaint of A has evidence of his claim that he bought this lot from &. B said, CA can you +indly lend me for my securing this document you mention.D Q. Do you thin+ A will agree? A. $f course, in all probability A will refuse. -e will say, C8ou will have the opportunity to see this document in court when ' present it as evidence. 'n the meantime, you (B) doubt that your father & sold this property. 3ince this is a document material to the claim of A. Q. Does A have the duty to produce this document even before the trial for the scrutiny of B, so that before the trial B can now have an idea whether this is a genuine document or not? A. 0emedy, 0ule 2" #nder this rule, a party to a case for good reason shown may file a motion re.uesting the adverse party to produce a document or ob,ect under the control or custody of the adverse party. =or what purpose? 3o that the party as+ing for the production of document may e7amine the document, may copy the document may photograph the document. Q. 's there a particular time when this motion on the part of B may be filed? A. /o, unli+e a deposition pending action or written interrogatories or re.uest for admission, which fi7 a period within which his remedies may be amended of, 0ule 2" does not specify the period when a party can avail of this remedy. Q. 'f you were B in this e7ample, how would you avail of the benefits of 0ule 2"? A. This is what you will do2

24
=ile a motion that A be re.uired to produce that deed of sale he referred to. 3tate in your motion the fact that this document referred to in the complaint contains evidence material to the case that this document is under the custody or control of A. 3tate the reason why you want to e7amine it, and therefore pray that A be ordered to produce the document. $f course, the motion must be filed in accordance with 0ule 5, it must be heard, i.e with due notice of A. $n the day of the hearing, the court will hear the parties and thereafter will rule on the motion whether to deny the motion in which case A will not be ordered to produce the document or grant the motion, in which case the court will re.uire A to do the following2 . to produce the document before a specified person on a specific time, so that B can e7amine the document, photograph the document, copy the document if he (B) wants. /ormally, when an order is issued by the court directing a party to produce the document, the document specifies the officer before whom the document should be produced. /ormally, it is the cler+ of court who is designated as the officer before the document should be produced. 3o in our e7ample, the court may report A to produce that document before its cler+ of court on a particular date and hour. The order will direct A to allow B to go over the document, copy the document, photograph the document. When? $n the date and hour mentioned in the order. Where? Before the person named in the order. Q. &an B however ta+e hold of this document and bring it home for scrutiny? A. /o, he is only authoriGed to e7amine it before the cler+ of court. Q. What will be the advantage of this e7amining? A. 'f after B e7amining the document believes that that is a forgery, he can ta+e steps to have this matter in.uired into. 3o he can now, for instance, move that A be re.uired to submit this document for e7amination by a handwriting e7pert. This rule e.ually applies within respect to real property or an ob,ect for that matter. 6et us assume that A wants to see the land in .uestion, which is now in the possession of B, for what purpose? To determine, for instance, how big is the area thereof developed or planted by B so that A can estimate the damages, that he may have sustained by reason of his having been deprived of the fruits of the property. Q. 'f you were A, you would approach B to allow you enter and see the land and have it surveyed. Do you thin+ B will allow you? A. -e will not. Q. A. Q. A. What is the remedy? A will file a motion. What is the prayer in the motion? That B be ordered to allow A to enter upon the land survey, etc. 3o with the entry now of A upon the land, he will be able to determine the e7tent of the cultivation of B. 3ee, how their discovery will help AOOO
RENE NOTES: PRODUCTION OR INSPECTION O9 DOCU6ENTS OR THINGS + essentially a mode of discovery + the (ules is limited to the parties to the action + the order under this (ule is issued only upon motion with notice to the adverse party SUBPOENA DUCES TECU6 + means of compelling production of evidence + may be directed to a person whether a party or not + may be issued upon an e1 parte application.

Rule 2>: #6%sical and 'ental examination of #ersons


0ule 2A contemplates a situation where the mental condition or physical condition of a party is an issue. And the determination of that issue is re.uired in order that a proper ,udgment can be rendered. Example: W sued the husband - for declaration of nullity of marriage on the ground of fraud. Why? Because whereas before marriage, - represented himself to be more than able to perform what is e7pected of a husband to the effect and dismay of W. The representation turned otherwise. Why? Because what was represented to be a Cdeadly weaponD turned out to be a Cdead weaponD. 3o the answer of - is CAnong sinasabi ng asawa +o sa complaint ay hindi naman totoo.D 3o W moved, by filing a motion that - be directed to submit himself to an e7amination of his physical condition before Dr. F. $f course this motion must be with due notice to -. The e7amination was conducted out of curiosity, - obtained the copy of the report of Dr. F. #pon reading it, he has almost fainted. Why? Because the result confirmed the allegation of the wife. But - is one who is easily daunted by this adverse report, he said, CTarantadong do+tor ito. 3aan +aya nagKaral ito hindi marunong. Taya +oO Taya ni :isterOD 3o he wanted to disprove. 3o what did he do? -e engaged Dr. 8. What for? To e7amine him also on the matter in connection with which Dr. F e7amine him. The e7amination was finished. -e got also a copy of the report, you could ,ust imagine what happen nowO Whereas when he got a copy of the report of Dr. F, he nearly fainted, now that he received the

21
copy of the report of Dr. 8, he actually faintedO Why? Because the result of Dr. 8Es e7amination confirmed the findings of Dr. F. Trial<<<<<<<.. W now called on Dr. 8. 3o in announcing the purpose for which she offered the testimony of Dr. 8, W said CW your honor, offers the testimony of Dr. 8 to prove that - cannot do it.D - said C' ob,ect to Dr. 8Es testifying, ' have not given him my consent to testify, so under the rules on evidence, he cannot.D The court overruled the ob,ection and allowed Dr. y to testify on his findings. Q. 's the ruling of the court correct? A. 8es. Because by obtaining the copy of the report of Dr. F, - waived the benefit that he may have over the testimony of Dr. 8. 3o this is therefore a rule (0ule 2A), which should be ta+en into account in relation to the rule on the confidentiality of the communication between a patient and a doctor. 8ou remember the rule that a doctor of medicine, an obstetrician, a surgeon cannot without the consent of his patient testify on the following2 . The advice that the doctor gave to the patientH 2. The treatment that the doctor administer to the patientH %. The information that the doctor obtained in the course of attending professionally to the patient when information was necessary to enable the doctor to properly attend to the patient and which information if revealed, would embarrass the patient. 3o this rule does not apply when 0ule 2A is involved. 0ule 2A therefore, .ualifies the provision.
RENE NOTES: + %here the party e1amined requests and obtains a report on the results of the e1amination the consequences are* Aa) he has to furnish the other party a copy of the report of any previous or subsequent e1amination of the same physical and mental condition. and Ab) he waives any privilege that he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so e1amined him or may thereafter e1amine him.

Rule 2? : Refusal to (ompl% 0it6 'odes of *isco)er%


0ule 2! enumerates the sanctions that may be imposed by the court where a party does not comply to any of these modes of discovery. =or instance, under 0ule 2%, when a witness in a deposition refuses to be sworn to or refuses to answer, Q. What are the sanctions? A. #nder 0ule 25 (Written 'nterrogatories) when a party to whom written interrogatories are addressed refused to answer, what are the sanctions against him. #nder 0ule 2@, when a party to whom the re.uest for admission is sent, denies the truth of the matters stated therein and subse.uently the party ma+ing the re.uest proves it. Q. What are the sanctions against the party to whom the re.uest was given? A. When a party refuses to allow, in disobedience to a court order, the adverse party to e7amine a document or and ob,ect or to permit an entry into premises. Q. When a party refuses to submit himself when ordered by a court to e7amination of his physical or mental condition, what are the sanctions? A. In .istC t6ese are t6e sanctions: #nder 0ule 2!, the party who refuses may be arrested, the only instance where a party refuses may not be arrested is the case of the party who is re.uired to submit himself to physical or mental e7amination, under 0ule 2A when he disobeys, he cannot be arrestedH in all other cases the refusing party may be arrested. 3econd, a party may be declared in defaultH Third, a ,udgment may be immediately renderedH =ourth, a complaint may be dismissedH =ifth, a party may not be allowed to introduce evidence to support 3upport a factH 3i7th, a contention of a party in connection with certain matters would be deemed established in accordance with his claimH 3eventh, the party who refuses may be ordered to pay the e7penses 1arty including attorneyEs fees.

Rule "+: 2rial


#nless otherwise provided by the court the order of trial is as follows2 The evidence of the parties is limited to the issues in the preKtrial order.

22
The only issues which the parties are allowed to present their evidence are those specified in the preKtrial order. That is why the preKtrial order if there are only two issues the parties cannot present any evidence on any other issues e7cept on the issues in the preKtrial order. -owever, you ta+e into account 0ule 4 which allows amendment on pleadings to conform to the evidence. ?ust a reminder2 there are two instances where issues are not raised in the pleadings may be tried in the court2 . where an issue is tried by a party without ob,ection on the part of the adverse partyH 2. when an issue is tried by a party with the ob,ection of the adverse party, but the court finds that the presentation on that merits of the case would best be served by allowing evidence to be received in this case. 3o, in these two (2) cases, these issues though not raised in the pleading may be proven during the trial. We go now to 0ule %4 proper. #nless otherwise stated by the order of the court, the order of trial is as follows2 ) the plaintiff presents his evidence in support of his compliantH 2) thereafter the defendants will present their evidence on2 a) their answer to the complaint, if there is anyH b) their counterclaim, if there is anyH c) their crossKclaim, if there is anyH d) their thirdKparty complaint, if there is any %) thereafter, the parties against whom counterclaims or crossKclaims were pleaded, they may have to adduce their evidence in support of their answer to these claimsH 9) thereafter, rebuttal evidenceH 5) it may be followed by subKrebuttal evidenceH @) oral argumentsH or ") in addition thereto, memorandaH A) thereafter, decision. This is the order of trial. 6et us apply it. Example2 A vs. B A. . &omplaint R Ividence in &hief 2. Answer to reply to &ounterclaim R 0ebuttal %. Answer to 0eply to &ounterclaim of B R rebuttal evidence of B B. . Answer to complaint counterclaim vs. A 2. B rebut evidence of A %. &rossKclaim vs. & 9. %rd party complaint 5. Ans. R reply to counterclaim R claim of & &. . Answer to complaint of A 2. &ounterclaim vs. A %. Answer counterclaim of B D. . Answer %rd party complaint of B 2. &ounterclaim vs. B A R Answer to counterclaim of B and & B R Answer to counterclaim of D & R Answer to crossKclaim of & Q. What are the pleadings of A? A. A has only his complaint. Q. What is the pleading of B? A. -is answer to the complaint, his counterclaim against A. There being a counterclaim against him (A), the other pleading of A is his answer or reply to the counterclaim of B. 6et us apply the order of trial. #nless otherwise ordered by the court, the initial presentation of the evidence in chief is commenced by A. 3o A now presents his evidence first on his complaint. 8ou call this as his evidence in chief. 'n other words, A must produce evidence to support the factual allegations in his complaint, which are disputed in the answer of B.

2
Q. Will A now prove his defenses to the counterclaim of B? A. /o. -e (A) will limit himself to only his complaint. There will be a time for him to adduce evidence on the second pleading. After A finished presenting his evidence on the complaint, B, if he wants to, may now adduce his evidence. Q. Why do we say C'f B wants to, he may adduce his evidenceD? A. Because B is not compelled to present his evidence. 'f A failed to adduce the .uantum of evidence re.uired to present, which is preponderance of evidence, B does not have to introduce his evidence, and still he (B) will win. 6et us assume that B elects to present his evidence. Q. $n what manners will he now present his evidence? A. -e will adduce his evidence first with respect to his defense in his answer. 3o whatever defenses he alleges in the answer will be the sub,ect matter of his evidence. After he has presented his evidence on these matters alleged in his answer, he may now adduce evidence on his counterclaim. After he has finished presenting his evidence on his counterclaim, he will now rest his case, in so far as the answer to a complaint is concerned. Q. Will this end now the trial? A. /o, not yet. Why? Because A may present now his evidence on these matters (Answer or reply to BEs counterclaim because if B did not, then we say, there is no need for A to present his evidence in support of his answer to reply to the counterclaim. 3o the evidence inKchief now of B has also been terminated. Q. What follows ne7t? A. #nder the order<< 0ebuttal evidence meaning A can rebut the evidence of B. B can rebut the rebuttal evidence of A. 'n actual practice, this is how it is done< you will note that, per rule %4, there is a separate stage for the presentation of evidence against the counterclaim, or evidence against the crossKclaim. There is another stage for the presentation of the rebuttal evidence. 3o, if we follow the order, there will be three (%) stages when A would present his evidence. . When he present his evidence on his complaint. 2. When he present his evidence in support of his answer to the counterclaim. %. 6ater, his rebuttal to the evidence of B. But in the actual practice where the parties are only the plaintiff and the defendant, when A is proving his answer to the counterclaim of B, he may at the same time present his evidence of B. 3o, in actual practice, these two (A presents his evidence, and at the presents at the same time the rebuttal are held simultaneously). Q. What are these rebuttal evidence? A. There may be evidence ta+en up when he presented his own evidence. 3o those matters ta+en up in the evidence inKchief of B, may now be rebutted by A. There may also be new matters ta+en up in the rebuttal evidence of A, in which case B can rebut these rebutting evidence of A. 8ou call these rebutting evidence of B the 3ubKrebuttal Ividence. After the evidence is in, then the court may order the case submitted for decision unless the court re.uire parties either to orally argue or file a memorandum or re.uire both parties to do both (orally argue and submit a memoranda). 'n our e7ample for instance, there are two(2) defendants (B and &). 6et us assume that B filed a crossK claim against &. Q. What will be the pleading of &? A. The pleading of & will be his answer to the complaint of A, and he will have his answer to the crossKclaim of B. Q. This being the case, what would be the added pleading of A? A. -e will have his answer or reply to the counterclaim of &. Q. -ow about B, what are the pleadings will he have? A. -e will have his answer or reply to the counterclaim of &. During the presentation of B of his evidence, since he has a crossKclaim against &, he will also produce his evidence in support of his crossKclaim.

2"
3o you will notice if he (B) has a crossKclaim, this is the order of presentation of his evidence. -is (B) evidence on his answer to the complaint of A, his counterclaim against A, his crossKclaim against &. & now will also present his evidence. =irst he will adduce his evidence in support of his answer to the complaint of A. -e will present his evidence in support of his counterclaim against A. Q. Will he (&) now adduce evidence in support of his answer to the cross claim of B? A. /ot yet. There will be a time for that. 6et us assume that B has li+ewise a thirdKparty complaint against D. Q. What will be the added pleading of B? A. -e will have his %rd party complaint. Q. -ow about the pleading now of D? A. -e will have his answer to the third party complaint of B. -e will now have his counterclaim against B. Q. What then will be the added pleading of B? A. -e will have his answer or reply to the counterclaim of D. $rder of Trial<<<.. The same things still with A in the order he presents his evidence to support his complaint and nothing else. Q. -ow about B? A. B will now introduce evidence on the following2 . Answer to the complaint of A. 2. &ounterclaim against A. %. -is crossKclaim against &. 9. -is thirdKparty complaint against D. Q. -ow about &? A. 3ame (as before) Q. -ow about D? A. -e will present his evidence in support of his answer to the third party complaint of B. -e will now present his evidence in support of his counterclaim against B. This terminates the presentation of the evidence in chief of A, B, & and D. Q. =ollowing that, who now will present his evidence? A. The parties against whom a counterclaim or a crossKclaim have been pleaded. 'n our e7ample, there is a counterclaim pleaded against A by B and &. 3o A now will produce his evidence in support of his answer to the counterclaims of B and &. Q. -ow about B, is there a counterclaim pleaded against him? A. 8es, the counterclaim of D. Q. -ow about &, is there a counterclaim pleaded against him? A. /one, but there is a crossKclaim. 3o & will produce his evidence in support of his answer to the crossKclaim. Q. -ow about D, is there a counterclaim pleaded against him? A. /one. 3o, the only persons who will present their evidence in support of their answers to the counterclaim or crossKclaim are A, B and &. =ollowing this, we go again to the same order 0ebuttal, 3ubK0ebuttal then oral argument or memoranda or both, then decision. This is the order of trial under 0ule %4. #nder 0ule %4, the court may delegate the reception of evidence to a cler$ of court who is a lawyer. T his settles the conflicting decisions of the 3& on the .uestion of whether or not a cler+ of court can be commissioned to receive the evidence. 'n one line of decision held that the cler+ of court have such authority. Another line of decision tells that the cler+ of court have no such authority.

2/
This provision now settles the .uestion. The cler$ of court can receive the evidence provided the cler$ of court is a member of the -hilippine Bar. Q. :ay ,udgment be rendered by the court without a trial during, which the parties may not present their evidence anymore? A. 8es, this is possible when for instance the parties stipulate on facts and the facts stipulated upon are enough to serve as basis of a ,udgment. Q. :ay a ,udgment be rendered on the basis of the stipulations of facts? A. 8es, provided the facts are sufficient as basis of a ,udgment. <rounds of #ostponement 8ou will note that under 0ule %4 that a trial may be postponed on these two (2) grounds2 . absence of evidence 2. illness of party or illness of a counsel

Q. What is the re.uirement in order that a motion based on these grounds maybe validly acted upon and granted by the court? A. The rule re.uires that the motion must be supported by affidavit. 'n case the ground is absence of evidence, the affidavit must state the materiality of the evidence that is not produced and the efforts e7erted to. But even then, if the adverse party states that he does not have any ob,ection to the facts supposed to be established by the testimony of the absent witness, although he may later on ob,ect to their admissibility the rule says, the motion for postponement should not be granted. The only problem on this rule is, it has been interpreted to be merely directory. 3ometime however, during the incumbency of &hief ?ustice :arcelo =ernan, 3& issued a circular directing ,udges of the trial court to implement this rule on postponement strictly meaning postponement should be granted e7cept when there is a compliance with this rule that any motion for postponement based on absence of evidence should be accompanied with its re.uired affidavit. The same thing is true when the ground of postponement is the ailment of the lawyer or of the client such motion for postponement may be granted or acted upon if it is supported by an affidavit showing that the presence of a counsel or a party before the court is necessary and that the character of the ailment is such as to e7cuse the nonKappearance of the ailing lawyer or litigant. Again, the only trouble with this is, it is more often honored in its brea+ than in its compliance. 3o, where a lawyer does not feel li+e going to court, then he ,ustifies it. -e presents a medical certificate. Where did he get this medical certificate? =rom a doctor friend who will say CAnong sa+it gusto mo?D these doctors are not realiGing that for falsely certifying they incur criminal liability under 01&. The lawyer is not realiGing that for introducing in evidence this fa+e medical certificate he can also be held criminally liable. And worst of all, is a situation where the lawyer himself becomes a doctor. =or instance, he cannot find immediately a doctor friend, he ma+es his own medical certificate. These things that actually happen practice. These are unethical practicesOOO ?ust stic+ to the rule and youEll never go wrongOOO
RENE NOTES: Not$+e o( T!$* ) 5pon entry of the case in the trial calendar, the clerk of court notifies the parties at least five A/) days before trial. L$m$t*t$on on A%)ou!nments ) one month for each ad,ournment ) three months over all E/+ept$on AuthoriFed by the 0upreme 9ourt administrator Gene!* Ru e: !he ,udge must himself personally receive and resolve the evidence of the parties. Ho2e&e!: the reception of such evidence may be delegated under the following conditions* Aa) !he delegation may be made only in defaults or e1 parte hearings or an agreement in writing by the parties. Ab) !he reception of evidence shall be made only by the clerk of that court who is a member of the bar. Ac) said clerk of court shall have no power to rule on ob,ections to any question or to admission of evidence or e1hibits. and Ad) #e shall submit his report and transcripts of the proceedings, together with the ob,ections to be resolved by the court within ten A14) days from the termination of the hearing. Suspens$on o( A+t$ons A!t$+ e ;CAC NCC very civil action or proceeding s!all be suspended 1. if willingness to discuss a possible compromise is e1pressed by one or both parties. or 2. if it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible compromise but the other party refused to offer.

Rule "/: (onsolidation or Se)erance


Q. When does consolidation ta+e place?

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A. 'f two or more cases have between or among them common .uestions of fact or of law, they may be consolidated in one court. Example: A collision too+ place between the vehicles driven by A and the vehicle driven by B. These were both passenger buses. As a result of the collision, damages were suffered by the buses and the passengers. 3o A now sued B in the 0T& of *ueGon. The passengers who were in,ured as a result of the collision, F, 8 and >, sued A and B in the 0T& of &avite. Q. What is the fact common to both cases? A. They originated from one and the same incident, i.e< the collision. Q. :ay the two cases be ,oined? A. 8es. Q. 'n what court? A. Iither in the court of *ueGon or in the court of &avite. 'n this particular case, 3& ordered the consolidation of these two cases in the 0T& of &avite. Why? =or practical purposes to minimiGe e7penses. Why? Those who filed the case in &avite are residents of &avite. 'f they were to go to *ueGon, if these case is consolidated there, that would entail much e7pense to the party. $n the other hand, these parties in the court of *ueGon both being bus companies could afford the e7penses of going to &avite. 'f these cases were consolidated in &avite. Q. What is the ,ustification for the consolidation here? A. There is a common .uestion of fact or of law common in both cases. 3ee, what would happen if cases were tried separately. The possibility of a ,udgment rendered by *ueGon 0T& being different from the ,udgment rendered by the &avite 0T& insofar as the cause of the accident is concerned may be conflicting, so to avoid this (the possibility of conflict) it is better that these two cases be tried by only one court so that there will be no possibility of conflicting decisions. When cases are consolidated in one sala, Q. What would be the proper method for the court to adopt in resolving these cases? A. The court where the cases are consolidated may try all the cases at the same time and render only one ,udgment. 'n this e7ample, the &avite court could try the *ueGon case and the &avite case at the same time, render only one decision as if these two cases are only one. There is another method of consolidation. This presuppose that there are several cases of the same nature. #nder this option, the court where the cases are consolidated may try only the principal case, to receive the evidence of the principal case leaving unheard the other cases. 3ay, if there are five (5), under the second mode of trying these cases, the first case (the principal of them) will be heard first, leaving untried the four (9) other cases. After the main case has already been tried, then the court will render only one ,udgment. Q. 's a court obliged to hear cases for consolidation? A. (nder the old rule, if the &avite &ourt did not want to hear *ueGon case, the &avite court cannot be compelled to try. The theory is that the court cannot be compelled to hear the case of another court. (nder the present ruling, no more. As a matter of fact when consolidation is proper, consolidation is mandatory. This is the concept of consolidation. Q. What is se)erance? A. 't is the opposite of consolidation. 'n a case of severance, there may be several claims or several reliefs in which case, instead of the court conducting a hearing on all the claims at the same time it will limit itself to the hearing of a particular claim. . A vs. B. The complaint alleges three (%) causes of action. These different causes of actions and you +now under the rule, a party can ,oin all these causes of action against another in only one complaint sub,ect only to the conditions of ,oinder. There is this complaint of A involving three (%) causes of action. /ormally the trial would be conducted on all these causes of action and thereafter the court will render only one ,udgment. But under this severance, court may hear only one cause of action remaining unheard the other causes of action. 'n our cases here, B now has a counterclaim against A in respect to his first cause of action. #nder this rule on severance, the court will try this first cause of action, including the counterclaim of B. After the reception of evidence in this first cause of action, the court will now render ,udgment leaving undecided these two cases (these two causes of action). Thereafter, the court again can hear these other causes of action. 'n other words, it is a trial by installments.

26
'n the meantime that this case is decided and these two other causes of action are not yet decided. Q. &an this be the sub,ect of enforcement already on it, can be the sub,ect of an appeal? A. 8es, but the court can suspend the enforcement pending the disposition of these two other causes of action. This is how the rule wor+s.
RENE NOTES: Gene!* Ru e: 9onsolidation is discretionary with the trial court. E/+ept$on: %hen consolidation a matter of duty* 1. when tried before the same ,udge. 2. if filed with different branches of the same court having ,urisdiction and one of such cases has not been partially tried. T4!ee W*"s o( Conso $%*t$n7 C*ses a) by recasting the cases already instituted, conducting only one hearing and rendering only one decision. b) by consolidating the e1isting cases and holding only one hearing and rendering only one decision. c) by hearing only the principal case and suspending the hearing on the others until ,udgment has been rendered in the principal case A Test& case method#'

Rule "2: 2rial $% (ommissioner


Q. What is the situation contemplated here? A. Ta+e note that under 0ule %4 the reception of the evidence is by the ,udge himself or the court may in case of a default case, delegate the reception of the evidence to the &ler+ of &ourt, who is a member of the bar. #nder 0ule %2, the party who receives the evidence is other than the ,udge. 't is a third person called the &ommissioner. Q. When may the case be tried by a C&ommissionerD? A. Where the parties agreed in writing that a commissioner be appointed. 3upposing the parties did not agree in writing that a commissioner be appointed or that one wants a commissioner to be appointed, but the other refuses, or both refused to agree to a commissioner. Q. :ay a commissioner nevertheless be appointed? A. 8es. There are three 8A7 instances when the court can appoint a commissioner even without the written agreement of the parties or even over the objection of the parties. They are the following2 . where there is a need for the reception of evidence consisting of a long accounts either from one or both of the partiesH 2. when the ta+ing of the accounts is necessary for the purpose of informing the court before ,udgment is rendered, or of purposes of carrying a ,udgment into effectH %. when a .uestion of fact other than upon the pleadings arises upon motion or otherwise in any of stage of a case. This last situation contemplates that a motion is filed based on facts not on record. Then in the hearing on this motion a commissioner may be appointed to receive the evidence. These are the three (%) situations where a commissioner may receive the evidence even over the ob,ection of the parties. Q. What is the e7tent of the power of the commissioner? A. The general rule is, his powers are specified in the order appointing him. What he can do are specified. 3upposing, however, the order does not say anything with respect to the limits of his authority. Q. What then is the authority of the commissioner? A. 'n effect, the commissioner here would be acting as if he were a ,udge actually trying the case. As a matter of fact, he may even resolve the ob,ections to the admissibility of evidence. That is why this is governed by this rule. When a reference is made, the cler+ shall forthwith furnish the commissioner with the copy of the order of reference. The order of reference here is the order issued by the court appointing a commissioner and stating the commissioner what he is supposed to act on. 3o, if the specific issue for instance is the only matter in connection with which he is authoriGed to receive evidence, then it is only in respect to that issue he may receive the evidence. Example2 A vs. B. The court may refer the reception of evidence with regard to the case in its entirety. 3upposing there are three (%) issues raised. The court may refer this case to a commissioner for a trial of, letEs say only of issue L . 3o, this issue is the one, which is referred to the commissioner. That is what referred to here as the Corder of reference.D Sec. " Rule "2 %hen a reference is made, the cler$ shall forthwith furnish the commissioner with a copy of the order of reference. The order may specify or limit the powers of the commissioner, and may direct him to report only upon

27
particular issues, or to do or perform particular acts, or to receive and report evidence only, and may fi" the date for beginning and closing the hearings, and for the filing of his report. 1ubject to the specifications and limitations stated in the order, the commissioner has and shall e"ercise the power to regulate the proceedings in every hearing before him and to do all acts and ta$e all measures necessary or proper for the efficient performance of his duties under the order. +e may issue subpoenas and subpoena duces tecum, swear witnesses and unless otherwise provided in the order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed in all aspects as it would if held before the court. 3o that in what he can do (underlined provision) if he is not restrained by the order, he can rule on the admissibility of evidence. 'n short, the commissioner conducts the hearing as if he were a ,udge. What the ,udge can do, generally, he can do. Q. What is the first then that the commissioner does when he receives the order of preference involving parties to a conference? A. &onference must be held not later than ten ( 4) days from his receipt from order of reference. Before the commissioner sets the date of the hearing, the parties will appear before him, so he will conduct the trial. 3o he finishes the trial. Q. What shall he now do? A. -e will now prepare a report. 3ubmit the report to the court. Q. What is this report all about? A. The report concerns the proceedings that were conducted before him. 'f he is not prohibited by the order of preference, he can submit his findings of fact. 't is as if he was the one who evaluates the evidence. 3o, he forwards then to the court the entire records including the transcripts of the proceedings, the e7hibits if there are any. Q. What is the duty of the &ler+ of &ourt upon receipt of this report? A. The &ler+ of &ourt is mandated to furnish to the parties A and B copies of the report. Q. What for? A. 3o that A and B can ma+e their comments on the report of their ob,ections to that report. They can do this within ten ( 4) days from their receipt of the copy of the report. Q. What shall be done with this report upon the filing of these commentsJob,ections or upon the e7piration of the period of the filing thereof? A. The court will now set the report for hearing. After the hearing, the court will resolve the report, either to approve the report or disapprove the report, recommit the report to the commissioner or re.uire the parties to present their evidence either before the commissioner himself or before the court itself. Q. What is meant by this? A. The report is not binding on the court, it is merely recommendatory.

Sec. /+ Rule "2 (pon the filing of the report, the parties shall be notified by the cler$, and they shall be allowed ten 8!B7 days within which to signify grounds of objections to the findings of the report, if they so desire. 3bjections to the report based upon grounds which were available to the parties during the proceedings before the commissioner, other than objections to the findings and conclusions therein set forth shall not be considered by the court unless they were made before the commissioner. Sec. // Rule "2 (pon the e"piration of the period of ten 8!B7 days referred to in the proceeding section, the report shall be set for hearing, after which the court shall issue an order adapting, modifying, or rejecting the report in whole or in part, or recommitting it with instructions, or re#uiring the parties to present further evidence before the commissioner or the court. (Thereafter the court will decide the case.)
RENE NOTES: + (efusal of witness to testify or give evidence < deemed indirect contempt of the court which appointed the commissioner.

Rule "": *emurrer to E)idence


Q. What is the situation contemplated by this rule? A. After the plaintiff has rested its case, it is now the turn of the defendant to present his evidence. 'n our e7ample, A finished presenting his evidence. A said C' now rest my case, your -onor.D :eaning, A has no further evidence to adduce. 3o, for instance, his witnesses are F, 8 and >. Then he have e7hibits CAD, CBD and C&D. 3o after these three (%) (F, 8 and >) finished testifying, he (A) will formally offer his documentary e7hibits. A will say, C' have no more testimonial evidence to offer, ' now present formally my documentary e7hibits.D &ourt2 What does B say?

28
B2 C' do not have any ob,ection, 8our honor.D &ourt2 C1roceed AD A2 C' offer, your honor, the following e7hibits2 CAD, to prove the followingH CBD, to prove<H C&D<<<..D &ourt2 What does B say? B2 C' have no ob,ection.D $r C' ob,ect to I7hibit C&D. (When you ob,ect always state the legal ground. 8ou cannot say. C' ob,ectD and then sit down. &ourt2 What is the ground? B2 CBahala na +ayo ,udgeOD 8ou must state the ground for ob,ections so that the court may rule on whether the ob,ection is proper or not, because an ob,ection may be proper but the ground is improper. 't is proper to ob,ect, but the ground raised is improper. 3o the court will overrule the ob,ection. This is the reason why the ob,ection should always be stated with its respective ground. The ob,ection can be ruled upon only on the basis of the ground relied. &ourt2 CI7hibits CAD, CBD and C&D are admitted.D Q. What is now the ne7t thing for B to do? A. 't is now the turn of B to present his evidence if he wants to. Why Cif he wants toD? Because he (B) may not li+e to present his evidence. 8ou cannot compel him because a party has to choose the evidence he presents. -e cannot be compelled. 3o, if he (B) does not want any evidence, no power on earth can compel him. But instead of immediately saying, C' will not present any evidence,D he wants to test whether the evidence of A is sufficient or not. Q. What legal device is he allowed to utiliGe? A. 2emurrer to evidence. Q. What is the concept of demurrer to e)idence? A. When B files a demurrer to evidence, he simply says in effect. The evidence of A consisting of the testimonies of F, 8 and > and the document e7hibits CAD, CBD and C&D even if given all their weight they are utiliGed to is not simply sufficient to prove the case of A. Therefore, it is useless for me to present my evidence because under 0ule %%, it is the duty of A to discharge the burden of proof and since he failed, itEs not my duty anymore to prove my defense. This is the assumption when B files the demurrer to evidence. The evidence of A is insufficient, therefore the complaint must be dismissed. The court has options in ruling on this demurrer to evidence. 't may deny the demurrer to evidence. Q. What is the implication of its denial of the demurrer to evidence? A. =rom the point of view of the court, the evidence of A is sufficient prima facie to support his case. The court may grant the demurrer. Q. What is the implication of the order of the court granting the demurrer? A. 't is a pronouncement by the court that the evidence of A is not sufficient to prove his case. Q. What then would be the effect of grant? A. The complaint of A is dismissed. But this order of dismissal may be appealed by A. The possibilities are, the appellate court may affirm the order of dismissal or it may reverse the order of dismissal, it simply means that the appellate court agrees with the trial court that the evidence of the plaintiff is insufficient. And so, the complaint remains dismissed. The trouble arises when the order says, the order of dismissal is improper. Therefore, the order of dismissal is reversed. Q. What is the implication of that? A. The implication is, that the evidence of A is sufficient to prove his case. 3o, the order of dismissal is set aside. Q. What is the effect of the reversal order of dismissal on the right of B to present his evidence? &an he present his evidence or not? A. -e cannot present his evidence, because by electing to file the demurrer to evidence, he in effect submitted the case for decision solely on the basis of the evidence of the plaintiff (A). But supposing in our e7ample at the time B filed the demurrer to evidence, he said, Cin the event the demurrer to evidence is granted and the order of dismissal is reversed, reserved the right to present my evidence.D Q. Will this reservation allow him to present his evidence? A. /o. 8ou cannot reserve the right to present evidence in the event the order of dismissal is reversed on the appeal.
RENE NOTES: DE6URRER TO EVIDENCE + it is presented after the plaintiff has rested his case 6OTION TO DIS6ISS + presented before a responsive pleading Aanswer) is made by

64
+ the ground is based on insufficiency of evidence TWO ?INDS O9 DE6URRER TO EVIDENCE CIVIL CASES 1. defendant need not ask for leave of court 2. i" t!e court "inds t!e plainti""s evidence insu""icient , it will grant the demurrer by dismissing the complaint. !he ,udgment of dismissal is appealable by the plaintiff. If the plaintiff appeals and ,udgment is reversed by the appellate court, it will decide the case on the basis of the plaintiff3s evidence with the consequence that the defendant already loses his right to present evidence. -o res ,udicata in dismissal due to demurrer. . i" court denies demurrer, defendant will present his evidence. the defendant + it may be based on any of those enumerated in (ule 12 CRI6INAL CASES 1. leave of court is necessary so that the accused could present his evidence if the demurrer is denied. 2. i" t!e court "inds t!e prosecutions evidence insu""icient , it will grant the demurrer by rendering ,udgment acquitting the accused. Dudgment of acquittal is not appeallable. double ,eopardy sets in.

. i" court denies t!e demurrer Aa) if demurrer was with leave of court, accused may present his evidence. Ab) if demurrer was without leave of court, accused can no longer present his evidence and submits the case for decision based on the prosecution3s evidence.

Rule ",: Dud.ment on t6e #leadin.s


This rule presupposes that the answer of the defendant does not tender any issue. Before that, the answer against the material allegations in the complaint. Example2 A vs. B. This is an action for recovery of sum of money. The complaint alleges in substance that A e7tended a loan to B as evidence by a promissory note signed by B. A copy of that promissory note is attached to complaint as Anne7 CAD. B has not paid the loan notwithstanding demand on him to do so, the period for the payment thereof having already become due. Q. What is now the prayer of A? A. That a ,udgment be rendered against B to pay the amount of promissory note. Q. What is the answer of B? A. B denies all the allegations in the complaint. Q. What is his (B) prayer now? A. That the complaint of A be dismissed. Q. 's there an issue tendered by the answer of B? A. #nder the rule on denial, was there a specific denial of the allegations in the complaint? /one. Why? Because for a specific denial, to be specific, the rule re.uire the defendant to do any of the following2 ) specify the matters he deniesH 2) allege the facts in support of his denial. 'f the allegation is made up of two or more facts, part of which he admits, part of which he denies, the rule re.uires him, specify so much of the allegation that he admits as true and deny the rest. %) if he is not in a position to state whether he admits or denies the allegations, he is re.uired to state that he has no +nowledge sufficient to form a belief as to the truth of the allegation in the complaint. This +ind of denial is the effect of the specific denial. This +ind of denial is the effect of the specific denial. Q. Did B complied? A. /o. This is a general denial. Q. What is the effect of a general denial? A. An admission of all the allegations. 3ince the promissory note is an actionable document because that is the basis of the action of A,< Q. What is the effect of failure of B to deny under oath the genuineness and due e7ecution of this document? A. -e is deemed to have admitted the genuineness of the note. 3o, he now admits for his failure to deny under oath the promissory note. 3o, there is nothing to be proven by A here, everything is already admitted. 'n this case, A may now file a motion that a ,udgment be rendered on the basis of only what is alleged in the complaint. Q. Will the court receive evidence either for A or B before ,udgment can be rendered? A. /o more. There is no reception anymore. This is how the ,udgment on the pleading is rendered. There is one limitation, however, with respect to ,udgment of the pleading, where damages, which are not li.uidated are alleged and attorneys fees are also as+ed to be paid, but there is no proof of this amount of the unli.uidated damages.

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Q. &an there be a ,udgment including damages and attorneys fees done in which case if the plaintiff wants a ,udgment include attorneys fees and damages he must produce evidence? A. We have a rule with respect to attorneys fees that, not every litigant who prevails in the case is entitled to attorneys fees, because to do so would be to ma+e pre,udice on the right of A. =or attorneys fees to be awarded, the basis thereof must be stated in the decision. 'n other words, the decision must always state attorneys fees awarded the basis thereof. 'n the absence of that ,ustification, no award of attorneys fees can be rendered unless the attorneys fees is considered as li.uidated damages. Again, in the case of unli.uidated damages, you have to prove the amount thereof. 'n the absence thereof, you cannot render a ,udgment of the pleadings on damages.
RENE NOTES: W4*t +*ses not *pp $+*8 e: 1. nullity of marriage 2. annulment of marriage . legal separation ) ;aterial facts of the complaint shall always be proved.

Rule "5: Summar% Dud.ments


Q. What is the concept of summar% jud.ment? A. A summary ,udgment is one, which is rendered by the court on motion of a party, either of the plaintiff or the defendant where there is actually no genuine issue between the parties. 'n this case, a ,udgment is rendered on the basis of evidence which is not receive in the manner that evidence is received under 0ule %4 (Trial) 0emember that we too+ up in 0ule %4, a plaintiff must present his evidence, the defendant must assert his evidence, thereafter, the court will decide the case. The reception of evidence is governed by 3ec. %9 of 0ule %% (1resentation of Ividence). 'n a summary ,udgment, when a ,udgment is rendered, there is evidence received but it is evidence, which is not formally offered in evidence. Q. Who is entitled to a summary ,udgment? A. Iither the plaintiff or the defendant. )n the case of the plaintiff , the defendant who has a counterclaim, the plaintiff who has a right to a declaratory relief may file a motion for summary ,udgment. When? After an answer to his claim has been served on him. Example2 A vs. B (=or 3um of :oney) The allegations in the complaint are substantially as follows2 A e7tended a loan to B. B signed a promissory note to evidence the loan. The period for payment of the loan has already e7pired and demands notwithstanding, B failed to pay the loan. Q. What is the prayer now of A? A. That ,udgment be rendered ordering B to pay him the amount of loan. Q. What is the answer of B? A. B denies the allegations in the complaint that he obtained money from AH that he signed the promissory note, Anne7 CAD. That the demand was made. Q. What is his (B) defense? A. 'f there was any loan e7tended to me (B), he already paid the loan. =rom the face of the pleadings, there are issues2 ) Did he (A) e7tend the loan? 2) Did he (B) sign the promissory note? %) Did he (B) pay if there was a loan? #nder 0ule %4, a trial should be held during which A and B are to prove their respective sides of the issues. But the truth however is this2 That A indeed gave a loan to B. That B indeed signed the promissory note. That B did not pay the loan. Q. What is the remedy available to A, so that even without a formal presentation in evidence by A and B, a ,udgment may now be rendered in favor of A? A. #nder 0ule %5, this is the remedy available to A< 6et us say A ta+es the deposition of F under 0ule 2%. Q. What did F say in his deposition? C' was as+ed by A to go to B and collect from him the amount covered in the promissory.D B replied to me, CTell A that ' will pay him after ' have sold the tobacco leaves ' e7pect to harvest from my land.D ' went bac+ to B

62
on the date he specified. B said, C' cannot pay A because ' was not able to harvest any tobacco leaf. Why did ' not harvest? Because ' did not plantOD This is the deposition. A sent a re#uest for admission to B. To B, (defendant) NreetingsO 8ou are hereby re.uested to admit the truth of the following statements2 That F went to you to demand in my name that you pay the promissory noteH That you told him that you will pay me after you shall have sold the tobacco leaves you e7pect to harvest from your farmH and That he went bac+ to you on the specified date and you told him that you cannot pay me because you have not planted any tobacco in your field That you do not have any receipt showing that you paid any amount.

) 2) %) 9)

Q. What do we learn about the re.uest? A. That B did not send A within the time mentioned in the re.uest any denial under oath of the matters referred to in the re.uest. A now e7ecuted an affidavit. Q. What is the content of the affidavit? A. The matters related to the law, the failure of B to pay, e7ecution by B of the promissory note, the fact that F went to B to demand payment and the answers of B to the demands of F. Q. What do you notice now? A. A now has in his hands the deposition of F, the re.uest for admission, the affidavit of A. Q. What does A now do with these papers? A. -e will attach them now to a motion in which he prays for a summary ,udgment. Q. What does A do with this motion to which are attached these documents? A. -e will file them and serve a copy thereof on B at least ten ( 4) days before the hearing of the motion. 't means to say, that a motion for summary ,udgment being litigated must be set for hearing strictly in accordance with 0ule 5. /ote that under 0ule 5 (:otions), a motion should be heard not later than 4 days after it is filed. This 0ule %5 is an e7ception to the 0ule 5. Why? Because you cannot hear the motion for summary ,udgment within 4 days from its filing. Why? Because between the filing and the hearing, a period of not less than 4 days must first elapsed to allow the defendant to file his opposition if there is any to the motion. Q. What shall B do after he have been served? A. 'f he (B) so desires, he may also file an opposition to the motion for summary ,udgment. 6i+e A, he may also support his opposition with his sworn affidavit, deposition, or other documents. Q. What will B do with the opposition? A. /aturally he must file it with the court and serve on A a copy later on. $n the appointed day of hearing, which is not earlier than 4 days following the filing thereof< Q. What shall the court do? A. The court will now hear the motion. Q. -ow will the court proceed to hear the motion? A. This is what the court will do2 't will e7amine the complaint, the answer, the motion for summary ,udgment and the documents attached thereto, the opposition if any and the documents attached thereto. The court will e7amine both and if the court find from the documents, the pleadings and the documents attached to the pleadings and motions and oppositions, the court finds that e7cept to the amount of damages the plaintiff is entitled as a matter of law to a ,udgment because the issues raised are not substantial but they are merely sham, then the court will render a ,udgment in favor of the plaintiff. But if the court e7amined the pleadings, documents attached to the motions and oppositions and finds that they are disputed and therefore cannot render a ,udgment on the call of the motion, then the court will, in addition to e7amining the records shall determine what are the facts that are not substantially disputed, separate them and determine the facts which are not disputed, thereafter the court will conduct a trial on the matters that are disputed and thereafter render the ,udgment. 3ee now why it is summary. Because there is no reception of evidence if the court finds from the pleadings that a ,udgment can properly be rendered in favor of the plaintiff.

6
Q. What now would be the basis of the ,udgment? A. $nly the pleadings and the documents attached to the motion and the documents attached to the opposition if there is any. Q. Did you notice in our e7ample whether these documents attached to the motion or to the opposition were personally offered? A. /o, they were not formally offered. They are merely attached. Q. What do we learn about the Coffer of e7hibitsD? A. /o evidence shall be considered unless the offer is made and the purpose of the offer is specified. -ere there was no purpose, here the purpose was not specified, but they were introduced. That is how summary ,udgment wor+s. 'n our case, it was the plaintiff alone who filed it. Q. When will A file his motion for summary ,udgment? A. After B has served his answer on A. Q. &annot B also file a motion for summary ,udgment? A. 8es, the rule says, Cat any time.D Q. Does that (Cat any timeD) mean that even before B has served his answer on A, he can now file a motion for summary ,udgment? A. 8es. This is the distinction between a motion for summary ,udgment on the part of the plaintiff and the motion for summary ,udgment on the part of the defendant. )n the case of the plaintiff , he cannot file the motion for summary ,udgment until he has been served the answer. And this is for obvious reason, how can A determine whether there are issues generally raised if there is no answer which have been filed. But in the case of the defendant, noO -e does not have to file the answer, because on the basis only of the complaint, a summary ,udgment can be effected. A sub,ect for a summary ,udgment on the part of the plaintiff is not limited to the claim he has against B (defendant). 't may also include a claim arising from a right involving a declaratory relief. 3ummary ,udgment for claimant. A party see$ing to recover upon a claim, counterclaim or cross,claim or to obtain a declaratory relief may any time after the pleading and answer thereto has been served, moved with supporting affidavit, depositions, admissions for summary judgments in his favor upon all or any party thereto. Q. -ow does this rule that a summary ,udgment may be obtained in case of a counterclaim or a crossKclaim arise? A. 'n our e7ample for instance, in this action for money, B has a counterclaim against A. Q. &an B file a motion for summary ,udgment on this counterclaim? A. 8es. Q. When? A. After A has served on B his answer to the counterclaim, then B can move a summary ,udgment on the counterclaim. 6et us suppose that B has a crossKclaim against &. Q. &an B file a motion for summary ,udgment on the crossKclaim against &? A. 8es, after & has served on B his answer to the crossKclaim. Q. What will be the procedure? A. The same procedure that may be adopted by A if he files a motion for summary ,udgment against B. The right to file a motion for summary ,udgment belongs both to the plaintiff and the defendant. The only difference being that, in the case of the plaintiff, he can file a motion only after he has been served with the answer to his claim. 'n the case of the defendant, he can file his motion for summary ,udgment at any time even before he serve his answer. A counterclaimant, a crossKclaimant can li+ewise file a motion for summary ,udgment with respect to the counterclaim, with respect to the crossKclaim at anytime after an answer thereto has been served on him.
RENE NOTES: + 0ummary Dudgment is especially applicable to special civil action for declaratory relief. + Croper only in actions 1. to recover a debt 2. for a liquidated sum of money . for declaratory relief

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SU66ARY #UDG6ENT + based on the pleadings, depositions, admissions and affidavits + available to both plaintiff and defendant + there is no genuine issue between the parties, i.e. there may be issues but these are irrelevant + 14)day notice required + may be interlocutory or on the merits #UDG6ENT ON THE PLEADINGS + based solely on the pleadings + generally available only on the plaintiff, unless the defendant presents a counterclaim. + there is no issue or there is an admission of the material allegations. + )day notice required + on the merits #UDGE6ENT BY DE9AULT <Ru e D+ based on the complaint and evidence, if presentation is required + available to plaintiff + no issues as no answer is filed by the defending party. + )day notice rule applies + on the merits

Rule "!: Dud.mentsC 9inal :rders and Entr% 26ereof


Section /. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly, the facts and the law on which it is based, signed by him and filed with the cler$ of court. 3ection of 0ule %@ provides that the court must render a ,udgment. The rule re.uires that the ,udge himself must personally prepare the ,udgment. Q. Does this mean that the rule re.uires the ,udge to be a typist or stenographer? A. /o. Why? The re.uirement that the ,udge must personally prepare the ,udgment simply says that the ,udge must be the one to ascertain the facts that are established by the evidence. The ,udge for instance, cannot commission the cler+ of court to study records of the case, evaluate the evidence and then write the decision. The rule re.uires the court to e7amine the records and evaluate the evidence, come up with the conclusion and thereafter ma+e the decision. The mechanical act of writing a decision can be delegated to a third person. 3o, this is how it is done. The ,udge e7amines the evidence hereafter arrives at a conclusion. Q. 3o what does he (,udge) do? A. -e now calls on his secretary or his stenographer and dictate to the stenographer. The stenographer thus writes the decision. Thereafter the ,udge signs it. Q. 's this a decision that must be personally prepared by the ,udge? A. 8es, because the rule does not re.uire he (,udge) would be the typist or stenographer, otherwise he would not have devoted so many years of his life studying law only to become a typist or a stenographer. The rule further re.uires that the ,udge must ma+e in his decision the complete findings of fact. Q. What is meant by this (complete findings of fact7 H A. A complete finding of fact presupposes that the court has studied the evidence and found out what the facts that have been established in by the evidence. %hat the law re#uires him to do is to ma$e a finding of facts. The rule does not re#uire him to ma$e a conclusion of facts. =or instance, the issue is whether A is the owner of the land in .uestion. The court now assesses the evidence of A consisting of the testimonies of F, 8 and >. Ividence of B consisting of the testimonies of &, D and I. I7hibits of A are I7hibits CAD, CBD and C&D. I7hibits of B are I7hibits C D, C2D and C%D. This is what the court wrote in the decision< CAfter going over the evidence presented by A and B, the court finds that A is the owner of the land. Wherefore, ,udgment is rendered declaring A the owner of the land and ordering B to surrender its possession to A. The court further orders B to pay A in damages in the amount of 1 ,444,444.4 .D Q. 's that a findings of fact? A. /o. That is a conclusion brought on the evidence. Q. What would have been the findings of fact here? A. The court should have stated in the decision the basis of its findings that A is the owner. Q. 'n this e7ample, is there anything said in the decision, which supports the conclusion of the court? A. ThereEs nothing. 3o that when B for instance, appeals from the ,udgment, what will be the basis of his assigned error when there is nothing in the decision for which an error may have occurred. This is what the court should have done to support its conclusion that A is the owner of the land. =or instance, it will say, Cthe evidence shows that this land originally belonged to F, the father of A. This land is covered by a &ertificate of Title in the name of F. (e7hibit CAD), F paid the ta7es of this land. (I7hibit CBD) A has been in possession of this land until he died !A4. After the death of F, A, his son, too+ possession of the land. 3o, from this, you can infer why A is the owner. Those statements after the findings of fact. Those are supposed to be stated.

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A judgment should be in writing, dated and signed by the judge . #nless it is in writing and signed by the ,udge and dated, it is not a ,udgment at all. Q. 3upposing the court promulgated a ,udgment in open court, is that a valid ,udgment? A. /o. Why? Because a ,udgment is supposed to be in writing and duly promulgated. As long as the ,udgment, though signed by the ,udge is not promulgated, it is no ,udgment < Q. When is ,udgment deemed promulgated? A. A ,udgment is deemed promulgated on the day the ,udge gives his ,udgment or decision to the cler+ of court. )t )s the filing of the judge with the cler$ of court that constitutes the promulgation thereof . 'n our e7ample, the court render ,udgment in favor of A, already signed, but +ept his ,udgment on his chamber. Q. 's this a ,udgment within the meaning of 0ule %@? A. /o. Why? Because it has not been delivered to the cler+ of court. 3upposing the ,udge delivers this to the cler+ of court, Dec. , !!A. Q. When is the ,udgment deemed to have been promulgated? A. $n this day, Dec. , !!A. 'tEs the delivery of the ,udgment to the cler+ of court that constitutes its promulgation. Q. What are the parts of t6e jud.ment? A. 8ou have the following2 ) opinion of the courtH 2) dispositive portion of the ,udgmentH %) date of ,udgmentH and 9) promulgation Q. What is meant by the opinion of the court? A. The opinion of the court consists of the findings of fact of the court. 'ts findings of facts would be the basis of dispositive portion of the ,udgment. =or instance, A. vs. B. The court rendered a decision. The first part of the ,udgment is the discussion of the court of the evidence. 3upposing, from its discussion the court concludes that A is the owner of the land. Q. What now is the ,udgment of the court here? A. 't is that part of ,udgment or decision which ad,udicates the rights of the parties. 't says here< CW-I0I=$0I, the court hereby renders ,udgment declaring the owner of the land.D This is the ,udgment. This is the ad,udication of the issues of the parties. Q. 's it possible that there be a contradiction between the opinion of the court and the ,udgment of the court? A. 8es, it is possible. =or instance, in our e7ample here, the discussion and the opinion points to this conclusion that A is the owner of the land. But the dispositive portion says, CWherefore, the court hereby declares B the owner of the land and dismisses the complaint.D 8ou will notice that there is a discrepancy between the opinion of the court and the dispositive portion. Whereas the opinion of the court the discussion of the court, A is the owner, and in the dispositive portion, he is not the owner, it is B. This reminds ?udge 6aggui of an incident where the counsel for the accused appeared for preliminary investigation in the case of theft of large cattle. The owner of the cow supposedly stolen engaged a private counsel. The private counsel appeared for a preliminary investigation. Because there was no prosecutor representing the state, the counsel for the accused moved that the private counsel be dis.ualified on the theory that private counsel cannot appear for the state unless the public prosecutor has authoriGed him to do so. 3ince the public prosecutor was not in court and there was no authority of the private counsel to represent the state he has brought to present the evidences of the state. After arguments, the court ruled the motion to dis.ualify the private counsel is denied. -owever, the counsel for the private party is re.uired to first secure the authority of the fiscal before he can proceed. (/otice that the opinion varies with the dispositive portion. The dispositive portion should prevail) Q. WhatEs the concept of se)eral jud.ments? A. 'n the case of several ,udgments, there are two or more defendants and the liability that they have with respect to the obligation is ,oint.

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'n case li+e this, (,oint) a ,udgment may be rendered against one or some of them in the meantime, the case against the others may be held in abeyance and thereafter, another ,udgment may be rendered. Example: A is the creditor of B and &. The liability of B and & is ,oint. 6et us say, they argued a promissory note in favor of A for 1544,444. 6et us assume that A prosecute his case against B only because in the meantime & although sued and inspite his answer in that in the meantime, in the ,urisdiction of the court. 3o the court tries the case with respect to B only. Q. &an this be done? A. 8es. Q. 'n the meantime that this case against B is being heard, what becomes of his case in so far as A and & are concerned? A. 'ts suspended. 3o this case by A against B can proceed to finality. 3o the court can tender a ,udgment at here. When & is bac+ in the 1hilippines, the court may now hear the case against & and another ,udgment may now be rendered. 3ince the liability is ,oint, the ,udgment that may be rendered here will only cover the liability of B to the e7tent of 1254, 444. 3o the court rendered a ,udgment against B in favor of A. the ,udgment will be limited only to 1254,444.44, it will not affect the other 1254,444.44 which pertains to &. so when the court renders its ,udgment with respect to &, the court will limit its ,udgment to the amount of 1254,444.4 corresponding to the liability of &. Q. 3o what do you notice here? A. There are two ,udgments. $ne with respect to A and B and the other with respect to A and &. 3o we call these ,udgments here several ,udgments. This applies only where the liability of the defendant is ,oint and severable. 'f the liability is solidary, this cannot be done. 3o if the obligation of B and & is solidary. Q. &an you have this case? A. /o. 8ou render a ,udgment only one. Q. -ow about separate jud.ment, what is the difference between a separate ,udgment and a several ,udgment? A. Example2 The causes of action of A are , 2, %. 3o there are three causes of action against B. B has several defenses. 6etEs say, permissive counterclaim against A. Q. What can be done in the trial of this case? A. The court may conduct a trial with respect to these first two causes of action holding in abeyance the hearing on the third cause of action. After the court has heard all these (two causes) causes of action including counterclaims that A had been raised with respect to these two causes of action. Then the court will render a ,udgment on these two causes of action holding in abeyance the hearing on the third cause of action. Thereafter, the court will hear this third cause of action. 3o you will see that there is already a ,udgment on the first two causes of action. Then the court will render a ,udgment on this third cause of action. The court will also hear separately the permissive counterclaim and thereafter render a ,udgment thereof. Q. 3o how many ,udgments now do you have? A. There are three (%). 3o you have separate ,udgments. Q. What do you consider as the difference between separate ,udgments and several ,udgments? A. 'n separate judgments, what is several are the causes of action or claims or counterclaims. 'n the case of several judgments, what are several are the number of defendants. Se)eral Dud.ments (Sec. , Rule "! )n an action against several defendants, the court may, when a several judgment is a prosper, render judgment against one or more of them, leaving the action to proceed against the others . Separate Dud.ments (Sec. 5 Rule "! %hen more than one claim for relief is presented in an action, the court, at any stage, upon 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, may render a separate judgment disposing of such claim. The judgment shall terminate the action with respect to the claim disposed of and the action shall proceed as to the remaining claims. )n case a separate judgment is rendered, the court may order its enforcement until the rendition of a subse#uent judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered.

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Q. 'n this case of separate ,udgments, for instance, after the ,udgment in the first two causes of action has become final, may it be e7ecuted or may be the sub,ect of an appeal? A. /ot yet, because the court may defer the enforcement thereof to await the result of the hearing of the other cause of action. This is what is meant by separate ,udgment. Sec. ! Rule "! %hen a judgment is rendered against two or more persons sued as an entity without juridical personality, the judgment shall set out their individual or proper names, if $nown . This 3ec. @ 0ule %@ refers to a case when the ,udgment involves an entity which has not ,uridical personality. 8ou remember the rule that entities without ,uridical personalities may be sued but when the answer is filed, the names of the persons ma+ing up that entity without ,uridical personality must be stated. This is now what is re.uired when the ,udgment is rendered with respect to group of people who will not have separate ,uridical personality. 3o here, if F, 8 and > are sued as an entity but they do not have a separate ,uridical personality, then the ,udgment against them will set out the names of the parties ma+ing up this entity. 3o, if the entity is sued as F, 8 and >. :ar+eting, the ,udgment against F, 8 and >. :ar+eting, the names of the individual persons who made that namely F, 8 and > will be set up in the answer.
RE4E 4:2ES: Re'u$s$tes o( A #u%7ment 1. It should be in writing, personally and directly prepared by the ,udge 2. ;ust state clearly and distinctly the facts and the law on which it is based . It should contain a dispositive part and it should be signed by the ,udge and filed with the clerk of court. P!omu 7*t$on = !he process by which a decision is published, officially announced, made known to public or delivered to the clerk of court for filing, coupled with notice to the parties of their counsel. + A ,udgment based on a compromise otherwise known as (udicial compromise has the force of law and is conclusive between parties. -ot appealable. + !he power to amend the ,udgment is inherent to the court before ,udgment becomes final and e1ecutory. $nce a ,udgment has attained finality Ae1piration of the period to appeal), no further amendment or correction can be made by the court e1cept for clerical error or mistakes. + Attack of ,udgment may be direct or collateral Direct )ttac* a. before finality 1. motion for new trial or reconsideration 2. appeal b. after finality 1. relief from ,udgment, (ule 7 2. annulment of ,udgment, (ule "6

Rule "1: 4e0 2rial or Reconsideration


This presupposes that a ,udgment has already been rendered either for the plaintiff against the defendant or for the defendant against the plaintiff. Any of them can file a motion for reconsideration. Q. Within what period the motion for new trial or a motion for reconsideration may be filed? A. At any time before the ,udgment has become final. After the ,udgment has become final, the remedy is no longer a motion for new trial, it may be another remedy already such as petition for relief under 0ule %A but certainly, not a motion for new trial. 26ere are onl% t0o .rounds for motion for ne0 trial2 ) :raud, Accident, *ista$e or 5"cusable negligence (9A'E), which resulted in the ,udgment against the movantH 2) 6ewly discovered evidence 84*E7. Ividence which the movant could not have presented during the trial and which if presented will probably alter the result of the cast. Example2 A vs. B The ,udgment was rendered against B. Q. What was the reason why a ,udgment was rendered against B? A. Because of =A:I. 3o this =A:I resulted in a ,udgment, which is pre,udicial to his interest.

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-e now wants that this ,udgment against him (B) is set aside and that a new trial be held. Because after a ,udgment, he discovered evidence which could either be testimonial or documentary and which evidence he could not have presented during the trial because even if he e7erted efforts to procure it, he could not procure it. This evidence if presented will probably alter the result of the case. 3o there are the only two (2) grounds. 1rocedure< now< Q. What are the re.uirements so that B must comply with? A. $f course, he must have to file a motion for reconsideration stating therein the ground(s). Accompanying the motion must be his affidavit of merit. Q. $n what facts may this affidavit of merit may be filed? A. 6et us say, with respect to the ground, for instance, the ground is =A:I, then, the affidavit of merit consists of facts constituting all the fame. 'f the ground is newly discovered evidence, the motion must be accompanied by the statement of the person with whose testimony the newly discovered evidence is based. 6etEs say, the newly discovered evidence is the document or a copy of the document must be attached to it. All the grounds for the motion for new trial must be alleged in the motion . Why? Any ground already available at the time the motion is filed but not alleged therein is deemed waived. Q. What now will happen with this motion filed by B? A. This is a litigated motion and therefore should be set for hearing strictly in accordance with 0ule A. (With respect to the affidavit of merit, in case it is the defendant who filed a motion for new trial, he should accompany his motion with a statement of a fact constituting his defense. 'f it is the plaintiff for instance, who filed, the affidavit of merit shall state the fact constituting his cause of action.) 3o, the motion now is set for hearing in accordance with 0ule 5. 3o, the court will resolve the motion whether to grant it or to deny it. The motion may if it was established that there were =A:I that resulted in the rendition of ,udgment against B in this e7ample, then the motion will be granted. 'f the basis is newly discovered evidence and the court finds that the newly discovered evidence, then the court will grant, otherwise the court will deny. Q. What is the effect of the grant of the motion for new trial? A. The ,udgment already rendered is set aside, as if no ,udgment at all was rendered. 'n this e7ample, if the motion for new trial of B is granted, the ,udgment already rendered against him is set aside. Q. What now is the effect of the order granting the motion for new trial on the evidence already received? A. 'n this case, the evidence of the party consisted of the testimonies of F, 8 and >, and e7hibits A, B and &. Q. What now becomes the evidence? A. 'f the motion for new trial is based on =A:I, the rule says, Ethe evidence affected by the :A*5 will be set aside.D 3o if the evidence that is affected by this fraud is that coming from F, this will be set aside, only there, testimonies of 8 and > and e7hibits A, B and & will remain. 3o the court will conduct a trial. The court may render another ,udgment after conducting the new trial. 'n deciding this case now, Q. What evidence may the court ta+e into account? A. The testimonies of 8 and > and e7hibits A, B and &. 't will disregard the testimony of F. 3o, if another witness will testify and say I, then his testimony will also be ta+en into account. Q. -ow about these testimonies affected by B? A. 'f they are not affected by =A:I, they will be ta+en into account. 'f there was another witness who testified, it will be ta+en into account. 3o the court will render a ,udgment based on these evidence remaining. This is if the ground is =A:I. /ewly discovered evidence, thatEs the basis, letEs say, the only evidence consisting of the soKcalled newly discovered evidence is e7hibit C'D for instance and = testimony. Q. 'n deciding the case, what evidence should be ta+en into account? A. All the evidence previously presented by A, all the evidence previously presented by B including e7hibit C'D and testimony of =. /othing is discovered because they are not affected by these newly discovered evidence. 3o, in the e7ample the witness who already testified do not have to be recalled anymore. Their testimonies will be considered. 'f there are additional witnesses, their testimonies will be considered. This is how the motion for new trial is conducted. Q. -ow many motions for new trial may be filed? A. The general rule is, a party can file only one motion for new trial.

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Q. 's there an e7ception to this rule, meaning that more than one motion for new trial may be filed? A. 8es. When the ground of the second motion for new trial was a ground not e7isting at the time the first motion for new trial was filed. =or instance, the motion for new trial is filed on the basis of =A:I. While this motion is pending, defendantKmovant B found evidence, which .ualifies as newly discovered evidence. Q. &an B now file another motion for new trial based now or newly discovered evidence? A. 8es, because at that time the first motion was filed, this second ground was not yet in e7istence. Q. 's there such a thing as Epartial new trialD? A. 8es. A new trial does not have to cover the entire case. 3upposing there are three (%) issues in the case. Q. :ay a new trial be held only with respect to one of the issues? A. 8es. 3o, the new trial will be limited to a trial of that only issue. The ,udgment on the second and third issues will no longer be disturbed. Q. 'f there are two or more parties in one separate case, may a partial motion for new trial be granted? A. 8es. 3upposing the defendants B and &, the plaintiff being A. Q. :ay a partial new trial be conducted only with respect to B and only with respect to &? A. 8es, because each of these defendants has his own right. 3o, a new trial is conducted with respect to B only, then the new trial will be limited between A and B. 't will not include &. 'f the new trial involves only &, then the case will only be between A and &. 't will not include B. Q. What is the distinction between a motion for new trial and a motion for reconsideration? A. 'n a motion for new trial, the grounds are those we already specified. The .rounds for a motion for reconsideration are different. They are2 ) when the ,udgment has awarded damages which are e7cessiveH 2) when the ,udgment is contrary to lawH %) when the ,udgment is contrary to the evidence. %ith respect to the reception of evidence, in the case of a motion for reconsideration, there is no reception of evidence. 'n the case of a motion for trial, there is a reception of evidence. 3o these two differ. They, however, share a common point and that is, they can be filed only before the ,udgment has become final. Q. Why is it, in the case of a motion for reconsideration, there is no trial anymore, all that the court does is to set aside the ,udgment and amend it? A. 0emember the grounds& ) 5"cessive 2amage R all that the court does is to review the evidence and find out whether the damages are e7cessive or not. 2) Fudgment is contrary to law R all that the court does is to review the law on that matter. %) Fudgment is contrary to the evidence R all that the court does is to review the evidence. ThatEs why there is no need of trial.
RE4E 4:2ES: + ?raud must be e1trinsic or collateral not intrinsic. + ?orgotten evidence is not a ground for new trial. Re'u$s$tes (o! ne2 "5%$s+o&e!e% e&$%en+e a) must have been discovered after trial b) could not have been discovered and produced at the trial c) if presented would alter the result of the action $therwise, it is called forgotten evidence + A motion suspends or tolls the running of the reglamentary period for appeal e1cept when the same is pro)forma. PRO59OR6A 6OTION 5 when it does not comply with (ule 1/ and (ule 6, e.g. it does not point out specifically the findings or conclusions of the ,udgment as are contrary to law, making e1press reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, ans is merely intended to delay the proceedings or if there is no affidavit of merit.

Rule "> : Relief 9rom Dud.mentsC :rdersC or :t6er #roceedin.s

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-etition for relief from judgment , this assumes that the ,udgment has already become final. And the matter of fact that the ,udgment or final order has already been entered. 8ou +now that once a ,udgment has become final, li+e in this case <<<<<. 6etEs say, you receive the ,udgment in favor of A. Dec. , !!A. -e has until Dec. @, !!A within which to do any of the following2 ) :otion for new trialH 2) :otion for reconsideration. 'f he does not, one of these days until Dec. @, !!A, as of Dec. ", !!A, the court can no longer alter its ,udgment. The only thing that the court can do after a ,udgment has become final is to e7ecute it under 0ule %!. $f course, there are certain things that a court may do with respect to a ,udgment that has already become final, but not with respect to the merits thereof. /o matter how the ,udgment is erroneous. 3o the only thing that can be done after the ,udgment has become final is to correct the clerical error or in a proper case, may clarify the ,udgment. These are the only things it can do. 3o, we said, that beginning Dec. ", !!A, in our e7ample, A can now e7ecute this ,udgment. 6et us say that the ,udgment in favor of A declared A the owner of the land. $rdered B to vacate the lot. &ommanded B to pay damages of 1 :. This is the ,udgment. Beginning Dec. ", !!A, A can now e7ecute this ,udgment under 0ule %!. /o matter how erroneous this ,udgment is, there is nothing that can be done but to e7ecute it. -owever, under 0ule %!, the law recogniGes the possibility that B may have lost the case by reason of matters not imputable to him. =or instance, the ,udgment was rendered against him by reason of =A:I. Then the rule recogniGes this. The ine.uity that may result to be, if this ,udgment procured under that circumstances will be made. 3o under 0ule %A, the law gives B the opportunity to be relieved from his ,udgment. ThatEs why 0ule %A spea+s of 1etition for 0elief. 3o, under 0ule %A, if B files the petition, he will as+ that he will be relieved from this ,udgment. That means to say that he as+ed that this ,udgment be set aside. This is the concept of 1etition for 0elief of ?udgment There is another matter covered by a petition for review and this is a situation where a loosing party was prevented from ta+ing an appeal therefrom. 'n our e7ample, the ,udgment was rendered against B. After trial, there was no =A:I which gave rise to the ,udgment. B lost. /evertheless, he is entitled to appeal, for e7ample, he has until Dec. @, !!A within which to file his notice of appeal. But he was prevented from filing the appeal by reason of =A:I. 3o there are t0o t6in.s t6at can $e t6e su$ject of petition for relief. ) A ,udgment rendered by reason of =A:I or a proceeding attended by =A:IH or 2) A deprivation of a party of the right to appeal by reason of =A:I. Q. 'n what court should a petition for relief be filed? 6etEs assume that this case between A and B was filed in the 0T& Branch &aseL2%95. of :anila with &ivil

Q. 'n what court and in what case should B file his petition for review. A. -e should file his petition for relief in the 0T& of :anila Branch and in the same case (&ivil &ase L2%95). 't shows that a petition for relief is a continuation in effect of the case wherein the ,udgment was rendered. 3o if the case was filed in the :T&, then this petition for relief must be filed in the :T& in the same case. There is an amendment of the old 0ule %A in the present 0ule %A. #nder the old rule, a ,udgment rendered by an inferior court (:T& for instance) and which a party thereto desires to file a petition for relief, the petition for relief must be filed with 0T&. 3o, in our e7ample for instance, in !!5, a case was filed against B in the :T&, &ivil &aseL2%95, B now wants to file a petition for relief from the ,udgment rendered. Q. Where will he file the case? A. =ile it in the 0T&. 3o the case will be now B vs. A. This is not so nowO

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The court which rendered the ,udgment is the court before the petition for relief should be filed. #eriod within which a petition of relief must be filed 0it6in !+ da%s from the time the petitioner learned of the ,udgment of the proceedings and in no e)ent $e%ond six (! mont6s from entr% of jud.ment. Q. 's this period e7tendible? A. /o, it is not e"tendible. 3o, if you file a petition on the @ filed out of time.
st

day following your +nowledge of the ,udgment, that petition is already

Q. Why cannot the period be e7tended? A. Because 0ule %A is an act of grace on the part of the state in favor of a party. &onse.uently, the party who desires to avail of this benefit should do so sub,ect to the conditions thereof. But there can be case where this period may be e7tended. 'n one case, the defendant after engaging a lawyer never heard anymore from the lawyer. 3o, he did not +now the status of the case. The only time he had learned of the status of the case was when he received a writ of e7ecution against him. Q. 3o, what did he do? A. -e tried to investigate. Q. What did he find? A. The fact that his own lawyer connived with the plaintiffs for his defeat. A vs B, engaged Atty. &. Atty. & connived with A. Based on these facts, B now filed a petition for relief long after the ,udgment against him has become final. The court allowed the petition for relief to be given course. -e was a victim of a fraud committed by his very own counsel. Q. 's the court truly bound to give due course to a petition for relief? A. /o. 6et us see why<< After B for instance has filed his petition for relief, the court will first e7amine the petition to determine whether it is sufficient in form and substance. 'f it is not, then the court will dismiss it. 'f the court finds that the petition was sufficient in form and in substance, it will give it due course, meaning, it agrees to hear it. But if he denies due course, it does not want to hear the petition. 6et us assume in this e7ample that the court gave due course to the petition of B. Q. What would the court do in this case? A. 't will now issue an order directing A to file a comment on the petition. Q. -ow would A +now that a petition was filed against him by B? A. (Did you notice in our discussion whether B furnish A a copy of his petition. -e did not serve the petition to A.) . the court after giving due course to the petition of B, issued an order commanding A to file his comment. Accompanied in this order is a copy of the petition of B. 'n other words, it is not B, it is the court that serves on A a copy of the petition. $f course the court will grant A a period of time within which to file his comment. 'n the absence of any period, the period shall not be less than 5 days from service of the order. Q. 's it mandatory for A to file a comment or opposition on the petition? A. /o. Why? 'f A files a comment or opposition as if he does not file the comment or opposition, but after the period of filing thereof has e7pired, the court will now set the date for the hearing of the petition. Q. What do you notice here? A. Whether or not there is a comment or opposition, the court will set the petition for hearing to determine whether said petition is meritorious or is not meritorious. 3o, in our e7ample, B must present evidence in support of his petition. A, if he so desire, may present evidence in opposition, thereafter the court will resolve the petition. Q. What are the possibilities? A. ) The court may deny the petition. 3o it says Cthere is no =A:I that resulted into a ,udgment against B.D

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2) The court found that there is =A:I which resulted in the ,udgment and in the case, the court will grant the petition. Q. What now is the effect of the grant of the petition on the ,udgment already rendered? A. The ,udgment previously rendered is set aside. 3o, thereEs no longer any ,udgment to spea+ of. Q. What follows after that? A. The rule says, Cthereafter, the court shall hear the case as if a timely motion for new trial are granted.D The court will now hear the case anew as if a motion for new trial was granted. 3o, the court will receive evidence addressed during the hearing so that it may be considered thereafter the court will render a ,udgment. This case will be the second ,udgment. ?udgment now will be whatever ,udgment. 't may happen that under the second ,udgment may be in favor of B now or may still be in favor of A. There is such a thing as an in,unction that the court may issue while the petition for relief is pending. 'n our e7ample, the ,udgment has already become final. A already filed a motion for e7ecution. 'n the meantime B filed a petition for relief. Q. What is the available remedy to B so that pending the termination of this hearing of the petition for relief, A will not succeed in having that ,udgment he e7ecuted? A. B may file a motion for issuance of an in,unction to restrain the e7ecution of the ,udgment. =or the purpose however of protesting also the right of A, B is re.uired to post an in,unction bond. 3o, before the court restrains the sheriff from enforcing his ,udgment, the court may re.uire B to post a bond in favor of A. Q. =or what is this bond responsible? A. 'n case damages where suffered by A as a result of the issuance of the in,unction and after hearing the petition, the petition was denied or after hearing the case, the motion for new trial having been granted, the ,udgment is nevertheless in favor of A, then whatever damages A may have suffered by reason of the issuance of the writ of in,unction, may now be answered by the bond B posted. 3o that if B does not pay him damages awarded to A, then A can go after the bond. #etition for Relief 't is available only when the other remedies against a ,udgment are no longer available. 3o, if the motion for reconsideration is still available, or if a motion for new trial is still available2 Q. &an you avail a petition for relief? A. /o, Why? Because you can still avail of this other remedies. 3o, this is the last resort that a loosing party can avail of to set aside an unfavorable ,udgment. 6etEs see the other aspect of a petition for relief. 't is said, it involves also the failure of a party to appeal because he was so prevented by =A:I. 3o, in our e7ample, B files a petition to be relieve from the fact that he was not able to file the appeal. 'n our e7ample, B failed to file the appeal. The ,udgment has become final. -e wants now that he be allowed to appeal. Q. What is the remedy? A. =ile a petition for relief. Q. What is the prayer for that petition for relief? A. That he be allowed to appeal. Q. What could be the reason that would ,ustify the grant of his petition? A. The ,ustification was, he was prevented from appealing because of the =A:I. 3o the procedure to be followed by B would be the same as he would have followed if the petition was to set aside the ,udgment by reason of =A:I. 3o, the petition to be relieved from failure to appeal is granted. Q. Then what is the relief that the court would grant? A. Then the court will order the appeal to be given due course and that therefore, the court where the petition was filed and which rendered the ,udgment appealed from will elevate the records tot the appellate court. 3o in our e7ample, the ,udgment was rendered by the 0T& Br. :anila and petition for relief prayed that the appeal of B from the ,udgment be allowed. Then when the petition is granted, the 0T& of :anila Br. will give due course to the appeal of B. 3o, the court will now elevate to the appellate court the entire records.
RE4E 4:2ES: NEW TRIAL0RECONSIDERATION + must be filed within the appeal period. Dudgment not yet final. + A legal right. RELIE9 9RO6 #UDG6ENT + Dudgment is final within 24 days after petitioner learns of the ,udgment to be set aside and within 2 months after such ,udgment is entered. + ;ore on equity A>iscretionary)

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+ ?A;& + Dudgment on final order 3 T2o He*!$n7s Aa) hearing to determine the ,udgment be set aside Ab) if yes, a hearing on the merits of the case + ?A;& only + (elief from ,udgmentGorder on other proceeding.

Rule "?: ExecutionC Satisfaction and Effect of Dud.ments


Q. What is the concept of 0ule %!? A. Example2 The ,udgment commanded B to do these things2 ) vacate the landHand 2) pay A 1 :. This ,udgment became final on Dec. , !!A. Q. &an this ,udgment now be altered on Dec. 2, !!A? A. /o more, that cannot be altered anymore. $f course this is sub,ect to 0ule %A. /o matter how erroneous this ,udgment is, it can no longer be set aside. All that is to be done now is to e7ecute it. :eaning to implement it. When we say, Call that is to be done is to implement that ,udgment, to e7ecute it.D We mean to say that B should now be re.uired to vacate the land and pay 1 : to A. Q. -ow will this command of the court be carried out? A. That is carried out in accordance with 0ule %!. Ivery step that finally leads to the accomplishment or the e7ecution of its ,udgment is provided for in 0ule %!. The sheriff is the officer entrusted by the rules to e7ecute this. 'n carrying out the ,udgment, the sheriff must follow strictly 0ule %!. This is the concept of 0ule %! (I7ecution). The sheriff cannot e7ecute this e7cept in the manner 0ule %! provides. Q. What are the matters to be ta+en up under 0ule %!? Q. What +inds of ,udgment or order can be e7ecuted? A. The rule said, Conly a final ,udgment or order can be the sub,ect of e7ecution.D This means to say that, Cin a ,udgment, if an order has not yet become final, it cannot be e7ecuted.D Q. What is meant by final ,udgment? By final order? A. ?ustice 0egalado points out in his boo+ the concepts in which a final order or ,udgment is considered final, considered in the sense with respect to the appealability of the ,udgment or order. =inal with respect to the appealability of the ,udgment or order. This is how it is distinguished< Q. =rom the point of view of appealability and from the point of view of enforceability<< what is a final order? A. From the point of view of enforceability , a final order or a final ,udgment is one which can already be enforced because the period for an appeal therefrom is already without an appeal having been ta+en. 3o in our e7ample therefore, if a ,udgment was received by A on Dec. , !!A and by B by Dec. 2, !!A, A has only until Dec. @, !!A and B has only until Dec. ", !!A within which to file a notice of appeal, a motion for reconsideration or a motion for new trial. But they have not done this up to this day. Then we say that this ,udgment is final from the point of view of enforceability. Why? Because effective Dec. A, !!A, the prevailing party, A in our e7ample, can already enforce this. This is the meaning of a final order or ,udgment from the point of view of enforceability. From the point of view of appealability'. 6et us say, A vs. B. B filed a motion to dismiss. The motion to dismiss was denied. Q. 's this order of denial a final order from the point of view of appealability A. /o. This is not a final order from the point of view of appealability. Why? An interlocutory order is not appealable. This is the general rule. 8ou cannot appeal from an interlocutory order because by its very nature, it can be set aside at any time. 't is always within the control of the court as oppose to a final order. 6et us see<. 3uppose the motion to dismiss was granted and therefore the complaint is dismissed. =orm the point of view of appealability

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Q. 's this order granting the petition appealable? A. 8es, Why? Bec. the order finally disposes the matters involved in the case. Q. What ma+es an order interlocutory. What ma+es an order final from the point of view of appeallability? A. )n the case of interlocutory order , after its ,udgment, there is still something to be done with respect to the merits of the case. 3o, the order does not put an end to a case. 'n our e7ample, the order denying the motion to dismiss is an interlocutory order. Why? Because after the order has been issued, there is still something to be done with respect to the merits of the case. =or instance, B will file the answer. Thereafter, preKtrial and then ,udgment. This is the essence of an interlocutory order. 't does not put an end to a case. There is something else to be done after its issuance. 6et us ta+e the case of order of dismissal granting the motion to dismiss. Q. What is the effect? A. We said that the complaint is dismissed. Q. 's there anything else to be done in the case after the complaint is already dismissed? A. /o more. There is nothing else to be done on the merits of the case. That is why it can now be a sub,ect of the appeal. 3o, this is the difference between a final order from the point of view of appeallability and from the point of view of enforceability. %hat we are tal$ing about in Rule A is a final order from the point of view of enforceability . Example: A vs. B. The ,udgment has already become final in the 0T&. This ,udgment because final on Dec. , !!A. $ur assumption is, there was no appeal from this ,udgment. 3o, it became final Dec. , !!A. Q. A wants a writ of e7ecution to be issued. Within what period can A file a motion for the issuance of a writ of e7ecution? A. -e has five (5 %ears from finality of ,udgment which is e.uivalent to entry of ,udgment within which to do so. 3o, he (A) has up to Dec. , 244% within which to e7ecute this ,udgment by mere motion. 6et us suppose that Dec. , 244% is the last day of the filing period. This ,udgment was not e7ecuted by motion within his five (5) years. Q. Dec. 2, 244%, can this ,udgment now against B be enforced by motion? A. /o more. Q. 's there a remedy by which A can still enforce this ,udgment after Dec. , 244%? A. 8es, by action. Example2 Within this fiveKyear period from Dec. , !!A to Dec. , 244%, all that A does to secure this writ of e7ecution is to file a motion on the same case &ivil &ase L2%95 0T& :anila Br. . 3o, A will file this motion for e7ecution in the same court. Dec. , 244%, this ,udgment can no longer be enforced by motion. 't can now be enforced by action. Q. What does this mean? A. 6et us assume that the land is located in >ambales. A is a resident 3ulu. B is a resident of Batanes. 3tarting Dec. , 244%, A can file this action. Q. Within what period can A file his action? A. -e has a period ending five (5) years from Dec. 2, 244% or Dec. 2, 244% within which to file the action. Q. Where will the action be filed? A. 3ulu or Batanes. Q. Why not >ambales? A. Because an action to revive a judgment is a personal action. )t is not a real action. This being a personal action, it will be governed by Rule ., the venue could be the residence of the plaintiff or the residence of the defendant at the option of the plaintiff. A now file an action against B for revival of ,udgment in the 0T& of 3ulu or Batanes at the option of A. Q. What do you notice? A. A separate action. 3o this ,udgment rendered in &ivil &ase L2%95 can no longer be enforced by mere motion. 8ou can enforce it if you can procure a ,udgment in this 0T& of 3ulu or Batanes.

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Q. 'f you were A here, what would you allege in your complaint? A. 8our allegation would be this< That you received a ,udgment in your favor in &ivil &ase L 2%95. That the ,udgment was not e7ecuted by motion within five (5) years from its finality of ,udgment. Q. What is now your prayer? A. 8ou now pray that the ,udgment rendered in that case be revived. Q. What do you associate revival? Q. Do you revive a dead man? A. /o. Q. What do you do with it? A. 8ou resurrect him if you can. Q. Who then is revived? A. -e who is unconscious. Q. Why do we call this action to enforce the ,udgment rendered in the civil case, an action to revive? A. Because after the 5Kyear period during which the ,udgment was not enforced that ,udgment in a sense fell into a coma. Q. What do you do? A. 0evive so it can be enforced. Q. Within what period should an action to revive be filed? A. The rule says, Eit must be filed before the action is barred.D Q. Where do you find the rule to apply whether the action is barred or not? A. &ivil code provisions state the periods during which actions may be filed. 'n certain actions, there are periods fi7ed. 3o, in our e7ample, the action to revive the ,udgment should be filed within 4 years from the day the ,udgment in &ivil &ase L2%95 has become final or when it was entered. $ur assumption here is, the ,udgment became final Dec. , !!A. =or the purpose of filing the action for revival, you have 4 years from Dec. , !!A. 'n effect therefore, A has a period of five years from the e7piration of the original 5 years within which to file the action for revival. 'n this e7ample, the five year period ended Dec. , 244%. 8ou now can file the action within five years again, Dec , 244%. 6et us assume that the ,udgment for revival is granted. Q. &an you now e7ecute the ,udgment of revival? A. 8es. Q. Within what period? A. By motion also within 5 years from entry of ,udgment in the revival action. Q. 8ou did not e7ecute the ,udgment in that revived action within the 5Kyear period from its entry. &an you now e7ecute it? A. 8es. Q. -ow? A. By motion again. 3o you can revive the revived ,udgment if it was not e7ecuted within the 5Kyear period. We are tal+ing of a ,udgment, which can be enforced or e7ecuted only after it has become final and that it can be e7ecuted in the court where the ,udgment was rendered. 6etEs ta+e the second possibility<< A vs. B 0T& of :anila, &ivil &ase L2%95. B appealed to &A. &A rendered a ,udgment affirming the 0T& ,udgment of the &A became final Dec. , !!A. 8ou are A who would want the ,udgment of &A be e7ecuted. Q. Where will you file the motion for e7ecution? A. -ere are the possibilities<.. This case is still with the &A but the ,udgment already became final Dec. , !!A. But the records are still there.

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8ou now want that ,udgment in &A affirming the ,udgment of 0T& e7ecuted. Q. 'f you were A, in what court may you now file the motion for e7ecution? A. 8ou can file in the 0T&. Q. But the records of the case are not yet in the 0T&, in what case then will you now file the motion in the 0T&? A. The remedy<< A will secure a certified copy of the &A ,udgment, he will now get a copy of entry of ,udgment duly certified by the &A. Q. What will A do with these two? A. -e will now attach them to the motion for e7ecution. This motion for e7ecution is now accompanied by these two certified copies so that although the records are still in the &A, the 0T& can now act on the motion. Q. &an the 0T& now enforce this ,udgment of &A although the records are still there? A. 8es. =ile in the 0T& a motion for e7ecution. Attached to that motion, certified copy of2 ) &A ,udgmentH and 2) Intry of ,udgment $f course the motion for e"ecution filed in the RTC should be heard in accordance with Rule !9 . That means to say that B must be notified. Why? Because this is a litigated motion. Q. :ay not A file in the &A the motion for e7ecution while the records are still with the &A? A. 8es, A can file with the &A the motion for e7ecution. Q. Will the &A issue the writ? A. /o. Q. What will it (&A) issue? A. 't will merely issue an order directing the trial court, the 0T& in our e7ample, to issue the writ of e7ecution. /ow, you distinguish between the order directing the issuance of a writ of e7ecution and the writ of e7ecution itself. 'n this e7ample, what is issued by the &A is the resolution directing the trial court to issue the writ. What 0T& issues is the writ itself. 3upposing these records are already turned over to the 0T& and thatEs already final. Q. :ay A file still with the &A a motion for e7ecution? (The records are already in the 0T&.) :ay the &A nevertheless issue an order directing the 0T& to issue the writ considering the records are already in the 0T&, no longer with the &A? A. ?ustice 0egalado, a recogniGed writer in 0emedial 6aw opines that the &A may still issue the order directing the 0T& to issue the writ although the records are already with the 0T&. VThis is not a decided case. That is only the view of *r. Regalado. 2on0t be misled by this comment on this as you may find in his boo$ you can opine otherwise and be sustained by the 1C. 3o far we have been tal+ing of e7ecution of ,udgments. Q. :ay a ,udgment or order, which has not yet become final be the sub,ect of e7ecution? A. 8es, but then this is the e7ception. Example: A vs. B , A receive the ,udgment favorable to him on Dec. , !!"H B received the ,udgment on /ov. 2A, !!". 3o A has until Dec. @, !!". B has Dec. %, !!" within which to do any of the following2 ) :otion for reconsiderationH 2) :otion for new trialH or %) /otice of appeal. This is what happens< $n Dec. , !!", B filed a notice of appeal. Q. What is the effect of this notice of appeal filed by B in so far as he is concerned? A. 'nsofar as B is concerned, the court can no longer touch the ,udgment. 't cannot modify anymore the ,udgment insofar as B is concerned. Q. But can the court still modify this ,udgment insofar as A is concerned after Dec. ? A. 8es, because A has until Dec. @ within which to do any of the aboveKstated. 'n other words, the appeal here of B does not affect the rights of A up to Dec. @. 3o, if A files a motion for reconsideration on this ,udgment letEs say on Dec. 5 or four (9) days after the appeal of B has been filed. Q. &an the court still reconsider this ,udgment insofar as A is concerned?

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A. 8es, but it can no longer change the ,udgment insofar as B is concerned. $n Dec. 5, !!", A file a motion for e7ecution. Q. &an A still file his motion for e7ecution considering that the ,udgment is not yet final insofar as A is concerned because this will become final only as to him on Dec. @? A. 8es, he can still file. 6oo+< 's this ,udgment already final insofar as A is concerned? /ot yet. 'nsofar as B is concerned, this is an appeal to the ,udgment, which is not yet final, also as to him. Q. &an this ,udgment nevertheless be e7ecuted? A. 8es. :eaning<. &an the court rule on this motion of A for e7ecution is filed, the court has not yet lost ,urisdiction of the case insofar as A is concerned. 3upposing the records however, were elevated to the &A on Dec. 24, !!". Q. &an the court now rule on this motion for e7ecution on Dec. 2 ? A. /o more. Why? The records are no longer with the court. Q. What would be the ,ustification for the court to issue an e7ecution against B while the case is pending appeal? A. The rule says simply that the court may issue e7ecution for a special reason to be stated in a special order. Q. Do you find any enumeration in the rules particularly 0ule %! on what constitutes special reason which ,ustifies the issuance of the writ of e7ecution pending appeal? A. /one. The court then will determine whether there is or there is no special reason for the issuance of a writ pending the appeal. ('t is the court that determines on a caseKtoKcase basis.) /ow if the court issues a writ of e7ecution pending appeal, the law re.uires that the order must state the special reason why the writ of e7ecution was issued. 'n the absence of the statement in the order of what constitutes a special reason, there will be a violation by the trial court of this 0ule %!. Q. What is a special reason? A. The rule does not say so. 3o this is a matter that is left to the discretion of the court to determine. A ,udgment is rendered against the defendant B to pay a sum of money. B is already on the verge of ban+ruptcy. While the case was pending, the period for appeal has not yet e7pired, he started disposing his properties. Ividently, to place them beyond the reach of the plaintiff A who obtained a ,udgment in his favor. Q. 3hould A file a motion for e7ecution based on this ground? A. The imminent ban+ruptcy of B and the fact that he was disposing his properties with evident intention of depriving A of the benefits of the ,udgment may be considered a specified reason. Why? Because if you wait until the ,udgment become final, there will be nothing left already on the assets of B which can be levied upon to satisfy the ,udgment. Q. Will this be a good reason? A. 'tEs up to the court. 'f it thin+s that it is a good reason to e7ecute the ,udgment is affirmed on appeal, and the ,udgment become final, the plaintiff is already assured of payment. Q. 3upposing the ,udgment ordered the defendant to deliver A a .uantity of perishable goods, letEs say meat for instance, what will happen to these perishable goods if you still wait until the ,udgment become final to e7ecute it. A. By that time, they may have already been spoiled. Q. 3o, may it now be a special reason that because of the nature of the goods, the e7ecution of a ,udgment is proper to avoid these goods being lost? A. Whether the reason is good or not, special or otherwise, it is the court that determines. Q. 's it only in the trial court that the motion for e7ecution pending appeal may be filed? A. /o. When a case is pending in the appellate court, the prevailing party may also file therein a motion for e7ecution. 3o, in our e7ample, the case has been appealed by B to the &A. 3o the case is pending now in the &A. Q. &an A file in the &A a motion for e7ecution of the ,udgment pending resolution of the case by &A? A. 8es, a motion can be filed by A in &A. Q. What is the lifetime of a writ of e7ecution? A. 5 years Q. What is a writ?

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A. A writ is a command of the court addressed to a proper officer normally the sheriff commanding him to e7ecute the ,udgment. Example: $n motion of A, the court issued an order directing that a writ be issued for the e7ecution. Q. Who carries this (writ) into effect? A The cler+ of court. Q. What will the cler+ of court do? A. The cler+ of court will issue in the name of the court the soKcalled Cwrit of e7ecution.D 3o, the cler+ of court issues this writ. Q. To whom is this writ directed? A. To the sheriff. Q. What does this writ command the sheriff do? A. The rule says, the writ must recite the dispositive portion of the decision and thereafter command the sheriff to implement it. 'n our e7ample, the ,udgment ordered B to deliver the land to A. To pay A so much money< Q. What will the writ say? A. CWhereas on ?an. 2, !!A, a ,udgment was rendered by this court the dispositive portion which read, ( the dispositive portion of the ,udgment is .uoted). Whereas this ,udgment has become final on this date (put the date) hence the court in its order dated so directed that a writ be issued. Wherefore, you are commanded to e7ecute the foregoing ,udgment. (There is another directive there<) of the properties of B you are commanded to ma+e up the sum of so much to pay the amount ad,udged in the decision.D Q. 's it addressed to B? A. /o. 't is addressed to the court personnel. Q. What is a lifetime of a writ of e7ecution? A. #nder the old Rule A , a writ has only a lifetime of @4 days counted from the day the sheriff received it. This means to say that if the ,udgment is not e7ecuted within that @4Kday period, that writ can no longer be enforced after the @4th day. Q. What then was the result under the old 0ule %!? A. 'f the writ was not e7ecuted within the @4Kday period, it automatically lost its force beginning the @ st day. Therefore, any service of the writ after the @4 th day would be already be an invalid service. &onse.uently, the party who prevailed and who wants the ,udgment e7ecuted must again file a motion for the issuance of another writ of e7ecution. 3o, under the old rule, there could be as many writs of e7ecution issued within the fiveKyear period for as long as the writ was not implemented within the @4Kday period, another writ can be issued such that by the end of the 5th year, all the writs have not been implemented, there can be no more writ to be issued thereafter. Why? Because you now have to file an action to revive the ,udgment. Q. What is the modification now? A. #nder the new rule, we now have a longer lifetime of a writ of e7ecution. The lifetime corresponds to the period within which a ,udgment may be e7ecuted by mere motion. 't means to say further that during this fiveKyear period, no other writ of e7ecution is re.uired to be issued. The sheriff can enforce that within this fiveKyear period for as long as the ,udgment is not satisfied within the 5Kyear period. There are several +inds of ,udgments that may be the sub,ect of e7ecution. We have a ,udgment for instance which calls for a ,udgment involving special one. Q. Where lies the difference? A. A ,udgment commanding specific acts to be done may involve any of the following2 ) payment of money 2) delivery of property %) e7ecution of deed conveyance These are among the ,udgments calling for specific acts. These are not the only acts involve in a ,udgment. (6et us ,ust ta+e them for illustrative purposes). And we could have a ,udgment called special ,udgment secured by A against B provided that B should tear down a concrete fence with B erected on a lot belonging to A. 3o, this +ind of ,udgment is not any of this ,udgment for specific acts. 3o, there may be a ,udgment commanding the loosing party to turn over the prevailing party the piece of landH there may be a ,udgment commanding a party to e7ecute a deed of conveyance. This is the final ,udgment that ?udge 6aggui would li+e to discuss to us<

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Example: 3upposing in this e7ample, A vs. B, the court rendered ,udgment the dispositive portion of which commanded the following2 ) A is the declared owner of the lot in .uestion covered by T&T /o. 2%95 0egistry of Deeds 1rovince of 0iGal. 2) B is ordered to e7ecute a deed of transfer of this lot in favor of A. %) The 0egistry of Deeds, 1rovince of 0iGal is so ordered to cancel the title and issue another in the name of A. Q. -ow will this ,udgment be carried out? 6et us suppose in our e7ample, B refused to comply with this order, commanding him to e7ecute a deed of transfer in favor of A. Q. What is the remedy under this rule? A. The remedy is this< The court will commission a third person to e7ecute the deed in favor of A. Q. What is the effect of this deed e7ecuted not by B but by &? A. The rule says, the deed e7ecuted by this third person & is ,ust as good as if it were B. 3o that when A, the prevailing party, presents to the 0egistrar of Deeds, 1rovince of 0iGal, this deed signed by & (not by B), the 0egistrar of Deeds will register that and cancel the title of B. ThereEs another remedy, if B does not e7ecute the deed. Q. What can the court do? A. The court will simply say, Cthe 0egistrar of Deeds, 1rovince of 0iGal is ordered to cancel the title /o. 2%95 in the name of B and issue another in the name of A. )n the case of a special judgment < Q. -ow does this differ from a ,udgment involving specific acts. A. The difference lies in this fact. That in the case of judgment involving specific acts, the writ of e7ecution issued to the sheriff is not accompanied by a copy of ,udgment. But in the case of a special judgment, the writ of e7ecution addressed to the sheriff is accompanied with a certified copy of the ,udgment. 'n the enforcement of this writ of e7ecution, involving special ,udgment, Q. Who will e7ecute the ,udgment? 's it the sheriff? A. /o. 't is the party. 'n our e7ample, defendant here. Why? Because he must obey the ,udgment. :eaniing since he was commanded to tear down that concrete fence, B must do it himself. Q. &an he (B) order the sheriff to do it? A. /o. -e himself must do it. But he might say, C' cannot do it.D Bahala +a sa sarili moO Tear it down. B says, C' will not.D Q. What is the remedy? A Declare him in contempt of court. 3o he does not want to tear it down, arrest himO 3end him to ,ail. Q. Will you release him? A. /o. Q. When will you release him? A. When he has obeyed tearing down. 'f he does not tear it down, he will rot in ,ail.
RE4E 4:2ES2 +A %rit of &1ecution to be valid, must conform strictly to the decision or ,udgment which gives it life. It cannot vary the terms of the ,udgment it seeks to enforce. Gene!* Ru e* 9ourt cannot refuse e1ecution UNLESS: <UCNID1. &1ecution is 5-D50! or I;C$00I@:& 2. &quitable grounds like a 9#A-=& I- 0I!5A!I$. Dudgment -$'A!&> by parties ". &1ecution is en,oined /. Dudgment has become >$(;A-! +Eu*s4* o( 2!$t p!ope! 24en: 1. Improvidently issued 2. >efective in substance . Issued against the wrong party ". Dudgment already satisfied

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/. issued without authority 3Reme%$es o( t4e Los$n7 P*!t" 1.Cetition for relief A(ule 7) or 2. >irect or 9ollateral Attack against ,udgment SUPERSEDEAS BOND 5 one filed by a petitioner and approved by the court before the ,udgment becomes final and e1ecutory and conditioned upon the performance of the ,udgment appealed from in case it be affirmed wholly or in part. + 0upersedeas bond guarantees satisfaction of the ,udgment in case of affirmance on appeal, not other things like damage to property pending the appeal. + !he court may, in its discretion, order an e1ecution before the e1piration of the time within which to appeal provided. 1. !here is a motion for e1ecution filed by the winning party 2. !here is a notice of said motion to the adverse party. and . !here are good reasons stated in a special order after due hearing. GENERAL RULE: an order of e1ecution is not appealable otherwise there would be no end to the litigation between the parties. EFCEPTIONS: 1. %hen the terms of the ,udgment are not very clear. 2. %hen the order of e1ecution varies with the tenor of the ,udgment + A revived ,udgment is a new ,udgment thus another /G14)year period to e1ecute and revive is given the party.

Rule "? Sec. ,1: Effects of Dud.ment rendered $% a #6ilippine (ourt The effect of a judgment or final order rendered by a court of the -hilippines, having jurisdiction to pronounce the judgment or final order, may be as follows& a7 )n case of a judgment or final order against a specified thing, or in respect to the probate of a will, or against the administration of the estate of a deceased person, or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will of the administration, or to the condition, status or relationship of the person, however, the probate of a will granting a letter of administration shall only be prima facie evidence of the death of the testator or intestate. b7 )n other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest of title subse#uent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity. c) )n any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto . 8ou will note that 3ec. 9" of 0ule %! groups into three (%) the actions covered by the section. The first section covers2 cases involving title to specific propertyH cases involving probate of a willH cases involving the administration of the estate of the decedentH cases involving the political, legal and personal condition or status of a personH and cases involving the relation of a person to another.

) 2) %) 9) 5)

Q. What does the rule say with respect to the ,udgment that may be rendered in these cases? A. The rule says ( ) the ,udgment is with respect to the specific property, conclusive on the title to the propertyH (2) the ,udgment is conclusive on the probate of the willH (%) the ,udgment is conclusive to the administration of the estateH (9) the ,udgment is conclusive on the personal, political or legal condition of a personH and (5) the ,udgment is conclusive on the relation of a person to another. There is only one e7ception to this rule that ,udgment is not conclusive, and that is when it comes to the probate of a will or the administration of the estate. The ,udgment here is merely prima facie evidence that the testator or the person whose estate is under administration, is dead. 't can be proven that he is alive. Example: A filed an application for registration of title to a lot. $nly B opposed. After the trial, ,udgment was rendered confirming the title of A. The ,udgment became final. The 60A issued the decree of registration pursuant thereto, a corresponding certificate of title $&T L 2%9. This title now is in the name of A. 6et us assume that this ,udgment became final on !"A. 'n !!A, & now files a case against A for recovery of this lot. & said, C' am the ownerD. A said, C/o, ' am the owner.D Q. What is the issue? A. CWho is the owner?D During the trial, A now the defendant, presented in evidence the ,udgment of the court in that 0egistration case, the certificate of title issued in that case, and the decision, I7hibits CAD, CBD and C&D respectively. A says, C' offer your honor I7hibits CAD, CBD and C&D to prove that ' am the registered owner.D &ourt2 CWhat does B says?D &2 C ' ob,ect on the ground that ' was not a party to the case. The parties thereto being only A and B. Therefore, ' am not bound by the ,udgment.D

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&ourt2 C$b,ection overruled.D I7hibits CAD, CBD and C&D are admitted. Q. 's the ruling of the court correct? A. 8es. Why? Because under 3ec. 9" (a) 0ule %!, C the judgment in that registration case is pertaining to as it does to a specific property is conclusive on the title.' 3o, this being a proceeding in res, the ,udgment binds not only A and B but the whole world including & who was not a party. That means to say that & cannot be declared the owner of that land. Why? Because the ownership was already decided with finality in that case. 'f & has any claim over this lot, he should have filed his claim during the registration proceeding. -e should have intervened. -e did not. Then all claims over this land that were not presented were deemed e7tinguished when the ,udgment was rendered. This what is meant by conclusiveness of title. $f course, this does not mean to say that & may not be able to recover this lot. /oO -e may recover, but in another cause of action. 3upposing that he can show that the ownership of the land later on pass from A to him, then he can recover. But if he simply says, C' am the owner.D $n his own right deriving his title from A, that title of A cannot be challenge anymore in any proceeding. This is what is meant by conclusiveness of the ,udgment in a case involving title to specific property. #ro$ate of 5ill The rule says, a judgment in a probate case is conclusive as to the probate . Q What is meant by this? A. Example2 -ere is the will of ?. -ere now is A who filed a petition for the probate of the will. The court admitted the will in probate. The ,udgment becomes final on Dec. , !!!. (DonEt forget that what is decided in a probate case is not the merits or validity of the dispositions in the will.) What is decided in the probate of the will is merely the .uestion of whether or not the will was e7ecuted in accordance with the formalities re.uired by law. 8ou +now that under the /ew &ivil &ode, there are certain formalities that must be followed by the testator so that the will will not be valid. 3o for instance, the law says, Cthe will must be signed by the testator at the end thereof and on every page on the left sideH each page if the will consists of more than one page be numbered and that the will must be attested by three attesting witnessesH they must be ac+nowledged by the testator and the attesting witnesses before a notary public.D These are among the many formalities that the testator must have to follow, so that the will he e7ecutes shall be valid. -ere, the will was admitted for probate. This means to say that the will was validly e7ecuted as to the form. This means to say therefore that his will was signed by the testator. This is the meaning. But, as to whether the dispositions in the will are valid or not, that is not decided. 3o, in the will, the testator said, C' have all these properties described as follows to my L2 for services rendered<D Q. Will the court decide that in the probate? A. /o, because that was into the intrinsic validity. This is not decided. After his will was admitted on probate, A now was sued involving this will now. B now says that this will was a forgery because the signature was affi7ed by F without the +nowledge of T. Q. &an the .uestion of forgery of this will be raised later on? A. /o more. Because the ,udgment in the probate proceeding is conclusive that this will was validly e7ecuted. This means therefore that the testator signed the will. But supposingly, the truth is, as contended by B, that the will was signed by F? /ever mind. The law says, Cthe will was signed by T.D (even if it was actually signed by F. /ever mindO) #nder 3ec. 9" 0ule %!, C' signed itOOOD Whether he did actually or not, no longer mattersOOO This is the meaning. -owever, there is a .ualification here, and i. I., the admission of the will in probate is merely prima facie evidence that T died. Q. 3o, can it later be proven that T is still alive? A. 8es. Why? Because the presumption is that T is dead is rebutted by his appearance. A judgment involving the political, legal or personal condition of a person, or his relation to another is conclusive as to such personal condition, legal or political condition, status or relation. Example: A sues B for compulsory recognition as a natural son of B. B denied the claim of A that he is his son. 3o the issue is2 's A the son or not of B? After trial, the court said, CDB is the father of A.D 8ears later, B died succeeded by his several children. 3ince B has an estate, A sued the heirs of B. A alleged that he is the natural son of B. But the heirs of B alleged that A is not a son of B. Q. &an the relationship of A as a natural son be litigated anew? A. /o more. A is the son of B. This .uestion cannot be litigated again. There is logic here< 3upposing the heirs of B if allowed to prove that A is not the son of B, they may now introduce evidence that A is the son of & and the court believes that & is the father of A.

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Q. -ow many fathers now does A have? A. Two. This is the evil sought to be avoided by this rule. 8ou cannot place the status of a person in a state of uncertainty because if he (A) is now the son of B, tomorrow he will be the son of &, now, where will this end? 3o there can be as many fathers as can be proven< This is not allowed. This is what is meant by the conclusiveness by the ,udgment in a case involving the relation of a person. Q. What do we learn from this? A. The ,udgment in any of these cases mentioned, in 3ec. 9" (a) 0ule %! is binding, conclusive and cannot be altered. Sec. ,1 ($ Rule "? )n other cases, that which has been adjudged in a case or any matter that could have been raised in relation to that matter that has been adjudged is conclusive between or among the parties and their successors in interest by title subse#uent to the commencement of the action or proceeding litigating for the same thing under the same capacity under the same title and in the same capacity. Q. What is meant by this? A. 't simply means that where an issue has already been decided in one case, that issue cannot be litigated again. Why? Because that ,udgment toward this issues which has been raised and decided is already conclusive and can never be changed anymore insofar as the same parties or their successors in interests are involved. This is the soKcalled rule in)ol)in. res judicata. That which have been decided in another case involving the same sub,ect matter, involving the same causes of action. Example: 'f you +ill a cow or a carabao and you want to eat the flesh, what do you do? 8ou s+in the carabao or the cow. &an you s+in the same animal twice? 8ou can s+in it only once. 8ou can litigate an issue only once. 8ou cannot litigate again for the same issue. And if a litigation is brought involving the same issue, the ,udgment rendered in the first case may now be pleaded in the second case. Res judicata is a ground for motion to dismiss.

Example: A vs. B for reindivicacion. What is the issue? A says, C' am the owner.D B says, C' am the owner.D 3o, the issue is2 CWho is the owner?D Trial< A presents evidence to prove his ownership. B presents his evidence to prove his ownership. ?udgment2 CA is the owner.D The ,udgment became final on Dec. 4, !!9. 'n !!5, B now or if he (B) is dead, the heirs of B, file a case against A or if A is not alive, AEs heirs. 3o, itEs either heirs of B against A or -eirs of B against heirs of A. Q. What is the nature of the action? A. 0eindivicacion R Why? BEs heirs wants to recover. AEs heirs wants to recover. BEs heirs said CWe are the owners.D AEs heirs said, CWe are the owners.D 'ssue2 Who are the owners? Q. What did you notice here? A. 'n both cases, the parties are the same. A vs. B or heirs of B vs. heirs of A. Q. Why are the parties the same when A and B are dead and the parties litigating are ,ust their respective heirs? A. Because their heirs merely stepped into the shoes of A or B respectively. The sub,ect matter is the same R the land. The cause of action is the same. 'ssue2 same R ownership. Q. &an this be decided in this case? A. /o more. The ,udgment rendered in the first case on the issue of ownership is binding on all the parties in the second case. Q. 'f these were the situation, what is the remedy available to A or the heirs of A, in order that this second case will not be tried anymore on the merits? A. What the defendant A or heirs of A can do is to file a motion to dismiss under 0ule @ on the ground or res ,udicata. This is a very simple form of res ,udicata. Q. What are the other rules with respect to res ,udicata? A. -ere are the rules< The effects of res judicata cannot be avoided or evaded simply by changing the nature of the subse#uent cause of action. Example:

8
8ou will note that this case between A and B, the issue is2 Who is the owner of the land? That ,udgment was rendered in favor of A. 3o, he was declared the owner. The ,udgment became final. B now sued A for recovery of damages representing the value of this lot, letEs say 1 :. &an this suit for recovery of damages be maintained by B? 6oo+< Q. What is the sub,ect matter of the first case? A. A lot. Q. What is the sub,ect matter of the second case? A. :oney. (3o, they are not the sameO) Q. 6ot and money< is that so? A. /o. Why? Because the money represents the value of the lot. Q. What is the basis now of the claim of B or the heirs of B in recovery of 1 :? A. Their ownership of the land, because if they were not the owner, heJthey would not recover. Q. But was not this .uestion of ownership already decided? A. 8es. 't was decided. Q. What is the cause of action in the first? A. $wnership. A says, C' am the owner.D B says, C' am the owner.D Q. What is the cause of action in the second case? A. Their claim of ownership. 3o, you have here, identity of parties, identity of causes of action, identity of sub,ect matter, then you have here res ,udicata. Q. What does this e7ample illustrate? A. That the effects of res ,udicata cannot be avoided by simply changing the nature of the action. Q. What is the nature of the action in the first case? A. 0eivindicacion. Q. What is the nature now of the second action? A. 0ecovery of money. There was a mere change in the nature of action, but both actions are founded in the same facts. Another ruleE The fact that the parties in the subse#uent case may not be e"actly be the same as the parties in the prior case does not affect the application of the rule of res judicata. 1o long as the parties in the subse#uent case represents substantially the same interest as represented in the prior case . Example2 'n the first case the defendant was only B. 'n the second case, B and 3 are now the main plaintiffs. Why 3? Because 3 is the wife of B. B and 3 now filed an action to recover the value of the land. /aturally A filed a motion to dismiss on the ground of res ,udicata. But B and 3 argued that the rule on res ,udicata does not apply. Why? Because the parties in the first case and the parties in the second case are not the same. 3o, they argued that in the first case, the parties thereof are A, as plaintiff and B, as defendant. 'n the second case, the parties are B and 3 as plaintiffs and A as defendant. 3 was never a party. 3o there is no identity. Q. 's the contention of the plaintiffs B and 3, correct? A. /o. Why? Because 3 being merely a spouse was not an indispensable or even a necessary party in the first case. 'f she were sued then, she could have been sued merely as a nominal party. With her addition as a plaintiff in the subse.uent case, that will not strengthen the case of the husband because with or without the wife impleaded in the first case, the ,udgment will have been applied e.ually to 3. -ere is an illustration of what we said earlier that in the subse.uent case, there is or there are parties who were not parties in the prior case, will not affect the application of the rule on res ,udicata, the additional parties, in our e7ample, were not indispensable parties in the prior case. The third part of 1ec. .? 8c7 Rule A presupposes that there was a prior case between parties and that judgment in the prior case is invo$ed in a subse#uent case between the same parties . Example: A vs. B in &ivil &ase L 2%9. A ,udgment was rendered in that case. 3ubse.uent to that, there is another case between A and B or between B and A. #nder this set of cases, that ,udgment rendered in the first case is introduced as evidence in the second case. But with the introduction in evidence of the ,udgment in the first case, will not be a res ,udicata in the second case. Why? Because under this rule (3ec. 9" (c) 0ule %!), only those matters that have been decided in that prior case is deemed res judicata in the second case . Therefore, there is still a part of the case in the second case, which can now be decided. &an no longer be decided in the second

8"
case. That is why, the rule says, Cthe other cases involving the same parties,D that has been ad,udged in a prior case which appear on its face to have been directly ad,udged or this could have been necessarily included therein. Example2 A vs. B for forcible entry. The issue is, CWho has the right of possession of the land?D 6et us say that the ,udgment was in favor of A. 3o, A was declared the lawful possessor. The court having found that A had been in possession of the land for 24 years continuously until B e,ected him therefrom. Q. What do you recall about forcible entry? A. The only issue in forcible entry in , involving possession. 3o, what is settled in the forcible entry case is the .uestion of possession. The .uestion of ownership is not decided in forcible entry. Although you will recall that in B1 2! as now included in 0ule "4 that, in a forcible entry case, the .uestion of ownership may be decided. But the decision is only for the purpose of determining who is the lawful possessor. 3o, the law says, CWhen the .uestion of ownership is raised and the .uestion of possession cannot be decided without deciding the .uestion of ownership, then the .uestion of ownership may be decided. But only for this purpose. To allow the :unicipal Trial &ourt to determine who is the lawful possessor. But then the findings of the :T& as to who is the owner is not final. 't is only good in that case. The .uestion of ownership can again be litigated. After the ,udgment in favor of A has become final, B sued A, this time for reivindicacion. 3o B says, C' am the owner.D Q. 3o, what is the issue here? A. $wnership. This is what A did. -e filed a motion to dismiss this second case. What is his basis? -e now argued that the ,udgment in the forcible entry case is already res ,udicata. 3ince the .uestion of possession has already been decided in that forcible entry case, this action for reindivicacion can no longer be litigated. This is his (A) contention. Q. 's the contention of A correct? A. /o. #nder the par. & of 3ec. 9" 0ule %!, the rule says, C'n other cases involving the same parties that is deemed decided in the prior case which appears on its face to have been directly ad,udged. Q. What was ad,udged in a forcible entry? A. $nly the .uestion of possession the .uestion of ownership here can still be decided. Q. But can there be now a dispute as to the .uestion of possession, so that if the .uestion of possession can still be disputed, B can prove that A was not in possession of the lot? A. /o more. Why? Because the .uestion of possession was already settled in the forcible entry case. 3o in the reindivicacion, the .uestion of possession is res ,udicata. That cannot be litigated anymore. 't is already res ,udicata. Q. 3o, what do you notice here? A. 1ar (c) of 3ec. 9" of 0ule %! involves partial res ,udicata. That is what is meant by par (c) of 3ec. 9" 0ule %!. Sec. ,> Rule "?: Effect of Dud.ment rendered $% a 9orei.n (ourt The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows& 8a7 )n a case of judgment or final order upon a specific thing , the judgment or final order is conclusive upon the title of the thing; and 8b7 )n case of a judgment or final order against a person , the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subse#uent title. )n either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud or clear mista$e of law or fact. A ,udgment rendered by a foreign court cannot be enforced in the 1hilippines e7cept by action. 'f a foreign ,udgment rendered in an action involving title to specific property, or the action in connection which a ,udgment may have been rendered is a personal action. Example: A vs. B involving specific property or personal action. This case was filed in the #3A. 6etEs say that the ,udgment was rendered in any case in favor of A. 3o, in the case of specific property, he is declared the owner. 'n the case of personal action, B was ordered to pay A money. The trouble was, although this ,udgment has already became final in the #3A, it was not enforced or e7ecuted in #3A. A and B came to the 1hilippines. A now files a motion in court for the e7ecution of that ,udgment in #3A. Q. &an that be done? A. /o. it cannot be done. $ur courts do not enforce foreign ,udgment.

8/
Q. What is the remedy available to A so that he can enforce this ,udgment? A. -e must file an action in the 1hilippine courts for the enforcement of that ,udgment. -e (A) now files in the 1hilippines, 0T& of :anila for the enforcement of an action involving title or he will now file an action to enforce his ,udgment. Q. What is the effect of this ,udgment of the #3 court on the title on that property? What is the effect of this ,udgment of the #3 court with respect to his money? A. The rule says, C'n the case of title to specific property, that ,udgment is conclusive on the title to that property. 'n the case of personal ,udgment, that ,udgment is merely a presumptive evidence that A has a claim against B. That is why under the last paragraph, the rule says, C'n any case, B may repel the ,udgment by proof of lac+ of ,urisdiction of the #3 court to render the ,udgment. 6ac+ of notice a clear mista+e of fact or of law committed by #3 court. *. What is strange here is this< 'n the case of title to specific property, the law says, Cthe ,udgment of the #3 court is conclusive to the title. But in the last part, a party against whom the ,udgment is sought to be enforced in the 1hilippines can still .uestion the ,udgment because it says here, Cin either case,D meaning, whether the ,udgment involves title to specific property or whether the ,udgment involves personal action, Cthe ,udgment or final order may be repelled by evidence of a want of ,urisdiction, want of notice to the party, collusion, fraud or clear mista+e of law or fact.D Whereas under par (a), the ,udgment of #3 court insofar as title to the property is concerned is finalH yet under the last paragraph, Cit can be repelled by proof of want of ,urisdiction, lac+ of notice, fraud, collusion, clear mista+e of fact or of law. Q. What is strange here? A. =inal, but it can be repelled. With respect to the second case, the action for money, well, since this is merely a presumptive evidence of right of A against B, the right can be contested by showing lac+ of ,urisdiction of the court, lac+ of notice, fraud, collusion, clear mista+e of law or fact. 3o that is something strange about this< =oreign ?udgment2 Asiabest 6imited vs. &A N.0. /$. 2AA4% 3ept. 25, !!A (2!@ 3&0A 5%!

Appeals
Rule ,+: Appeal from '2( to R2(
A )s. A . :T& (0ule 94) 'ode of Appeal /otice of Appeal within the :T& Appellate (ourt 0T& (/o trial denovo) #eriod of Appeal Within 5 days from notice of ,udgment and on proper case within %4 days. Where the case in inferior court involves a special proceeding or one which involves multiple appeal is %4 days a record on appeal being re.uired. /.B. When there is a motion for reconsideration of the ,udgment of 0T&, the appeal period is counted from the receipt of the appellant of same ( 5 or %4 days) the order denying the motion for reconsideration. 3ame ( 5 or %4 days) Questions Raised . *= 2. $6 %. $=W6

2. 0T& I7ercise of2 a) $riginal ,. A vs. B for specific performance (A won2 B appeal) issues raised on appeal

/otice of Appeal =iled with the same 0T& that rendered ,udgment (.uestion of law and .uestion of fact or .uestion or fact only.)

&A ( 5J%4)

'ssue raised on appeal

1etition for 0eview on &ertiorari (0ule 95) (.uestion law only)

3&

82
b) Appellate ?urisdiction I7. A vs. B :T&H ?udgment was Appealed to 0T& &A2 1etition 0eview for &A (0egardless of the nature of the .uestion raised) 3ame ( 5 or %4 days)

6et us first ta+e the case of a ,udgment of the :T&. 3o, if the case is one between A and B and B appeals from the ,udgment. Q. What would be his mode of appeal? (:ode of Appeal) A. /otice of Appeal Q. To what court must he direct the appeal? (1eriod of Appeal) A. 0T& 5J%4 days Q. Within what period must he file the appeal? (1eriod of Appeal) A. There is only one mode of appeal from a ,udgment of an inferior court and that is notice of appeal. Q. With what court is this notice of appeal be filed? A. :T& Q. What is the appellate court? A. $nly the corresponding 0T&. There can be no direct appeal from the :T& to any court other than the corresponding 0T&. 3o, B here cannot appeal directly to the &A. -e cannot appeal directly to the 3&. 'f he wants to go to the 3&, he can go there, but not by appeal. The period of appeal is as a rule !9 days from notice of judgment . And on a proper case %4 days. Where the case in the inferior court involves a multiple appeal, the period of appeal is %4 days, a record on appeal being re.uired. 3o, this case now of A and B in the 0T&. Q. -ow will this case of B be resolved by the 0T&? Will there be a trial de novo when this case is before the 0T&? A. /o, there is no trial de novo. Why? Because the 0T& now will decide the appeal of B solely on the basis of the records of the case, the evidence presents as forwarded by the cler+ of court of the :T& to the cler+ of court of the 0T&. Q. What is needed for B here to perfect his appeal? A. Within the period for the ta+ing of an appeal, 5 days or in a proper case %4 days. B should also pay the appellate doc+et fee. 3o, there are two things as an appellant here must do. :ile the notice on appeal on time, and pay the appellate doc$et fee on time. Q. What now is the duty of the cler+ of court of the :T& upon the filing of the notice of appeal and payment of the appellate doc+et fee? A. -e will now e7amine the records of the case preparatory to the elevation of the appropriate 0T& and certify to the correctness of the records, certify to the completeness of the records. Q. What is the duty of the cler+ of court with respect to this certificate issued? A. -e must furnish the parties2 A and B with that certificates. The records of the case are now with the 0T& cler+ of court. Q. What now is the duty imposed by the rules on the cler+ of court? A. #pon receipt of the records, the cler+ of court of the 0T& will now send a notice to both A and B informing them of the fact that, records are already there. =or what? 3o that B , the appellant, may now file his memorandum on appeal. 3o itEs the duty of appellant B to file his memorandum on appeal within 5 days from notice or from within such period that appellate court may grant. Q. What is the effect of the failure of B to file the appellants brief, his memorandum? A. That could be a cause for the dismissal of the appeal of B. The appellee, that is A here may also file the soK called Appellees brief, but in case li+e this, the brief is called memorandum. 3o, A may also file his apelleeEs memorandum within 5 days from receipt of the appellantEs brief or memorandum. Q. 3upposing the apellee A does not file the apelleeEs brief or memorandum, can the court decide the case? A. 8es. Why? Because anyway the memorandum of the appellant B is already there.

86
Q. What now will the 0T& do on the case? A. The court will now decide the case on the basis only of the records and the evidence forwarded by the inferior court to the 0T&. Q. Will not the court then hear A and B and receive their evidence? A. The general rule is2 /$O The court will only decide on the basis of what was presented in the lower court. (6et us assume that A is the appellant<) The appeal may have been the result of the following2 A for instance appealed from an order disposing the case without trial. 6et say B filed a motion t dismiss on the ground that the complaint does not state the cause of action. The appellate court, 0T&, will have the power to affirm the order or reverse the order. 6et us suppose that the motion to dismiss was based on lac+ of ,urisdiction. 3o, the :T&, here dismissed the complaint of A on the basis of the motion to dismiss filed by B. (0eason2 The :T& has no ,urisdiction). 6et us say that the 0T& agrees with the finding of the :T& that it has no ,urisdiction. Q. What will be the action of the 0T& on appeal? A. 't will affirm the order of the court or it can order a hearing to be held as if this case was filed directly with the 0T&. Illustration2 This is an action filed by A against B for reivindicacion in the :T&. The value of the property is 154,444 and this property is outside :etro :anila. 3o, B now files a motion to dismiss on the ground of lac+ of ,urisdiction. 3o, the court dismissed it because the :T& has ,urisdiction over (reivindicacion) cases only when the value of the property outside :etro :anila does not e7ceed 124,444. -ere, since the value e7ceeds 124,444 it (:T&) has no ,urisdiction. 3o, the basis for the motion to dismiss by B is proper. A now appeals. The 0T& affirms the order. 'n fact the 0T& says, Cthe :T& has no ,urisdiction. 3ince the 0T& has ,urisdiction over reinividicacion involving this amount, the court will try the case if this case was originally filed with the 0T&.D 6et us assume that in this e7ample, the court found that, contrary to the holding of the :T&, the :T& has no ,urisdiction. Q. What will the 0T& now do? A. 't will return the case to the :T& for further proceedings. 3o, in our e7ample for instance, the motion to dismiss that the court has no ,urisdiction but the 0T& found that the :T& has ,urisdiction, the 0T& will not try the case. 't will return the case to the :T& for further proceedings. 6et us ta+e the second situation. There was a trial between A and B in the :T&. The court (:T&) has no ,urisdiction. /o ,urisdiction notwithstanding, the court rendered now a ,udgment in favor of A. 3o B appealed. The court found that indeed the :T& have no ,urisdiction. Q. What will be the remedy available to the 0T&? A. 6i+e the first case, it will try the case. 't will not dismiss. 3o there are the effects of appeal in the :T&. This is what is mentioned in 3ec. A 0ule 94. Sec. > Rule ,+ Appeal from orders dismissing case without trial; lac$ of jurisdiction. C )f an appeal is ta$en from an order of the lower court dismissing the case without a trial on the merits, the Regional Trial Court may affirm or reverse it, as the case may be. )n case of affirmance and the ground of dismissal is lac$ of jurisdiction over the subject matter, the Regional Trial Court, if it has jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. )n case of reversal, the case shall be remanded for further proceedings. )f the case was tried on the merits by the lower court, without jurisdiction over the subject matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof, but shall decide the case in accordance with the preceding section, without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. 8n7 6et us ta+e the case of 0T&. The ,udgment of the 0T& can be rendered in the e7ercise of its $0'N'/A6 ?#0'3D'&T'$/ or in the e7ercise of its A11I66ATI ?#0'3D'&T'$/. The distinction is important because the modes of appeals are not the same. 6et us assume that the 0T& decided a case. A vs. B in the e7ercise of its original ,urisdiction. 6et us say that A won the case. B now wants to appeal. Q. What would be the mode of appeal of B? A. 't would be a simple notice of appeal filed with the same 0T& that rendered the ,udgment. Appellate court<. &A

87
+owever, if the only issue raised by B on appeal is .uestion of law, then the mode of appeal is no longer a notice of appeal but under 0ule 95 in which the case, the appellate court would no longer be the &A but the 3&. 4et me stress< with respect to the ,udgment of the 0T& rendered in the e7ercise of its original ,urisdiction, the mode of appeal may be a simple notice of appeal or a petition of certiorari depending on the .uestion that is raised. 'f the .uestion raised on appeal is only a .uestion of fact, or a .uestion of fact and law at the same time, the mode of appeal is a simple notice of appeal filed with the 0T&, the appellate court is the &A. Where the appeal involves only a .uestion of law, the mode of appeal is a petition for review or certiorari under 0ule 95 and the appellate court is the 3&. The period is the same, 5 or %4 days. Q. -ow about the ,udgment of the 0T& rendered in the e7ercise of its appellate ,urisdiction? A. =or instance, this (A vs. B) was ,udgment of the :T& which the court ruled upon on appeal and this ,udgment of the 0T& affirming, modifying or reversing the :T& ,udgment is in turned appealed. What would the be mode of appeal? A. The mode of appeal is a petition for review (0 92). Q. What would be the appellate court? A. 0egardless of the nature of the .uestion raised on appeal. The .uestion raised on appeal may be a .uestion of fact, it may only be a .uestion of law, or it can be a .uestion of fact and law at the same time. 't is the &A that has ,urisdiction. 1eriod of Appeal< The same. But when there is a motion for reconsideration of the ,udgment of the 0T&, the appeal period is counted from receipt by appellant of the order denying the motion for reconsideration. Appeal from ,udgment of 3&KAppellate &ourt is NodO :ode of AppealK1eriod of AppealKIternallyO (?o+e only) Why? Q. 's there an appeal from the ,udgment of 3&? A. /o more thatEs why the only appellate court would be Nod, the mode of appeal is prayer. (=orget thatO)
RE4E 4:2ES: + failure to file appellants brief cause for dismissal of appeal + failure to file appellee3s brief, court can still decide appeal based on appellant3s brief + !he ,udgment on appeal of the (!9 is immediately e1ecutory, without pre,udice to a further appeal that may be taken therefrom. + !he 0ummary (ules no longer apply when the cases is on appeal. 3 Res$%u* po2e! o( t4e +ou!t p!$o! to t4e t!*nsm$tt* o( t4e o!$7$n* !e+o!% o! !e+o!% on *ppe* * 1. to issue orders of the preservation of the rights which do not involve matters litigated by appeal. 2. to approve compromise prior to the transmittal of the record. . permit appeal by an indigent. ". order e1ecution pending appeal under (ule 8 0ec.2 Amotion for e1ecution was filed before the e1piration of the period to appeal) ORDINARY APPEAL + ;atter of right + All the records are elevated from the court of origin + -otice of record on appeal is filed with the record of origin * f lower court dismissed the case without trial on merits: ) (!9 may* Aa) Affirm. or Ab) (everses, in which case, it shall remand the case for further proceedings. * f dismissal is due to lac* of (urisdiction over the sub(ect matter: ) (!9 may* Aa) Affrim* if (!9 has ,urisdiction, shall try the case on the merits as if the case was originally filed with it, or Ab) (everse, in which case, it remand the case for further proceedings. * f the case was tried on the merits by the lower court without (urisdiction over the sub(ect matter * ) (!9 shall dismiss the case, if it has original ,urisdiction, but shall decide the case, and shall admit amended pleadings or additional evidence. PETITION 9OR REVIEW + >iscretionary + -o records are elevated unless the court decrees it + ?iled with the 9A

Ru e G,: Appe* (!om Re7$on* T!$* Cou!ts


+ W4*t +*nnot 8e *ppe* e%H 9lue* AWE PAID) 1. %I!#$5! C(&D5>I9& < $rder dismissing an action without pre,udice 2. &E&95!I$- < $rder of &1ecution . C&->I-= < Dudgments or final orders for or against one or more of several parties or in separate claims while the main case is pending ". ACC&A: < $rders disallowing or dismissing an Appeal /. I-!&(:$95!$(B orders 2. >&-IA:0 < $rders denying C.;.0. ACetition for relief, ;otion for new trial or reconsideration and motion to 0et aside a ,udgment, by consent, confession or compromise on the ground of fraud, mistake, duress or any ground vitiating consent.) * +emedy in cases where appeal is not allowed*

88
) 0pecial civil action of certiorari or prohibition if there is lack of ,urisdiction or grave abuse of discretion or mandamus if there is no performance of duty. + A ,udgment based only on compromise is not appealable and is immediately e1ecutory.

Ru e G; :G!oun%s (o! Out!$74t D$sm$ss*


1. petition was filed out of time 2. required fees were not paid . copies of the petition were not served on the adverse party ) no proof of service ". failure to comply with the proper form for the petition /. petition patently without merit 2. prosecuted manifestly for delay 6. the questions raised are unsubstantial

O!%$n*!" Appe* <*ppe* 8" 2!$t o( e!!o!+ 9ase is decided by the (!9 in its original ,urisdiction Appealed to the 9A + ?ile a notice of appeal or a record on appeal with the court of origin A(!9) and give a copy to the adverse party. + %ithin 1/ days from the notice of the ,udgment for notice of appeal and within 4 days for records on appeal G !he period for filing is interrupted by a timely motion for reconsideration or new trial.

Pet$t$on (o! !e&$e2 <Ru e G;+ 9ase is decided by the ;!9. Appealed to the (!9. Cetition for review with the 9A. + ?ile a verified petition for review with the 9A G Cay the docket and lawful fees, and C/44 as deposits for costs with the 9A G ?urnish (!9 and adverse party copy of such A("2). %ithin 1/ days from notice of the decision to be reviewed or form the denial of a ;( or new trial.

Pet$t$on (o! !e&$e2 on +e!t$o!*!$ Ru e GB + !he case raises only a question of law. + ?ile a verified petition for review on certiorari with the 09 A("/) G Cay docket and lawful fees and C/44 for costs G 0ubmit proof of service of a copy to the lower court and adverse party. + %ithin 1/ days from notice of the ,udgment or order of denial of the ;( or new trial.

Ru e G;: Pet$t$on (o! Re&$e2 (!om t4e Re7$on* T!$* Cou!ts to t4e Cou!t o( Appe* s
+ ,ailure to comply with the re-uirements on form such as* 1) certification against forum shopping 2) non)payment of docket, lawful fees and ) deposit for costs and ") failure to show proof of service of the same petition to the adverse party are grounds for dismissal' + $utright dismissal allowed < Cetition for review is not a matter of right but discretionary on the part of the 9A. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact andGor law. + A9!I$-0 $- !#& C&!I!I$9ourt may 1. require respondent to file comment ) 14 days 2. dismiss the petition if it finds that* a) it is patently without merit b) prosecuted manifestly for delay c) the questions raised are unsubstantial + It is merely discretionary on the 9A to order the elevation of the records. !his is because until the petition is given due course, the trial court may still issue a warrant of e1ecution pending appeal and in some cases such as e,ectment and those of 0ummary Crcedure, the ,udgments are immediately e1ecutory. It is only when the 9A deems it necessary that the 9lerk of the (!9 will be ordered to elevate the records of the case.

See 2a$le

Rule ,": A##EALS 9R:' 2;E (2A A4* QUASI DU*I(IAL A<E4(IES 2: (:UR2 :9 A##EALS
Sec. / Rule ,"

2;E

3ec. of 0ule 9%, the different .uasiK,udicial bodies which decisions are sub,ect to appeal to the &ourt of Appeals are enumerated under. To this list, you add two other bodies whose decisions are appellate to the &ourt of Appeals2 . the orders of the ombudsman is administrative discipline cases

144
'n case of :abian vs. 2esierto, the court declared unconstitutional the provision of the law creating the office of the ombudsman which empowered the 3& to review ,udgment of the ombudsman i/ administrativeK disciplinary cases. 3o, under this decision, ,udgment or orders of the ombudsman in administrativeKdisciplinary proceedings, are reviewable by the &A. =abian vs. Desierto N. 0. L 2!"92 3ept @, !!A 2. 64RC 86ational 4abor Relations Commission ) ?udgment of /60& are not appealable to the 3& but to the &A. Before the decision in 1aint *artin :uneral +omes vs. 64RC, the ,udgment of /60& were reviewable be certiorari before the 3&. 'n this case, (3aint :artin =uneral -omes vs. /60&) N.0. L %4A@@, 3ept @, !!A 2!5 3&0A 9!9, 3& held that there is no law which authoriGes appeals from ,udgment of the /60& to the 3&. 'n this case, the 3& traced the legislative history of the /60& and it came into the conclusion that no one of the laws relative the /60& provided for an appeal from ,udgment of the /60& to the 3&. $f course you will notice that under 3ec. 2 of 0ule 9%, ,udgments of the 6abor 6aw of the 1hilippines are not covered by 0ule 9%. But under this decision now, 3aint :artin case, the decision of the /60& are now covered by the 0ule 9%. I7cept for some differences, the procedure of an appeal from ,udgment of the .uasiK,udicial bodies are practically the same as the procedure for the disposition of an appeal from the ,udgment of the 0T& in the e7ercise of its appellate ,urisdiction. They are practically the same. With this difference only. Both are reviewable by petition for review. Example2 A vs. B in 3I& B lost the case in the 3I&. B now wants to appeal from the ,udgment of the 3I&. Q. What is the mode of appeal? A. 1etition for 0eview Q. 1eriod? A. The same. The period is within 5 days from receipt of the copy of the award, ,udgment or order of the 3I&. 'n case, however, the ,udgment of a .uasiK,udicial body re.uires it to be published in order that a ,udgment may be valid, the 5 days period is counted from the last day of publication. 'n case there is a motion for reconsideration of the ,udgment, order or award of the 3I&, the 5Kday period is counted from the receipt of the resolution denying the motion for reconsideration. &ontents of 1etition, Documents to be attached thereto< ' leave this to you, so we can move< Scope of Sec. / Rule ," ) Appeals from ,udgment or final orders of the court of Ta7 AppealsH 2) Appeals form awards, ,udgments, final orders or resolution of or authoriGed by any .uasiK,udicial agency in the e7ercise of the .uasiK,udicial functions. List of A.encies ) &ivil 3ervice &ommission 2) &entral Board of Assessment Appeals %) 3ecurities and I7change &ommission 9) $ffice of the 1resident 5) 6and 0egistration Authority @) 3ocial 3ecurity &ommission ") &ivil Aeronautics Board A) Bureau of 1atents, Trademar+s and Technology Transfer !) /ational Ilectrification Administration 4) Inergy 0egulatory Board ) /T& 2) Department of Agrarian 0eform under 0. A. /o. @@5" %) Novernment 'nsurance 3ystem 9) Imployees &ompensation &ommission 5) Agricultural 'nventions Board @) 'nsurance &ommission ") 1hilippine Atomic Inergy &ommission A) Board of 'nvestment !) &onstruction Arbitrators AuthoriGed by 6aw 24) /ational 6abor 0elations &ommission (3aint :artin =uneral -omes vs. /60&) 2 ) $mbudsman (=abian vs. Desierto) 22) ;oluntary Arbitrators (ction of the &( on the petition< 't may dismiss outrightly the petition on the ground for instance that ( ) the motion was filed out of timeH (2) the re.uired fees were not paidH (%) copies of the petition were not served by the adverse party, etc.

141
The court may find that petition is not meritorious at all or the court may find that the petition was filed merely for purposes of delay, or the court may find the issues raised in the petition are too insubstantial to re.uire further proceedings. $n the other hand, the court may find it proper to direct the respondent to file a comment with 4 days from notice. 3o if the court gives the respondent time to comment that means to say that the court may grant to determine whether to give due course or not, to this petition. 6et us say now that the comments have been filed Q. What now will the action of the court thereafter? A. The court may then give due course to the petition or deny due course. Q. When will the court give due course here? A. 'f from the pleading, the comment on the petition itself if there is a prima facie showing that the body whose ,udgment is sub,ect of petition may have committed an error. This error is of fact or of law. Q. 's it enough that the error was committed either of fact or of law? A. /o. An error that may warrant a reversal of the ,udgment, order or award appeals from or which may warrant at least a modification of the ,udgment appeals. Q. 'f the court gives due course, how will the &A decide now the case? A. At its option, it may now re.uire the .uasiK,udicial body, 3I& in our e7ample, elevate to the &A the records of the case. 6et us assume that the records have been elevated to the appellate court. Q. Will the case now be submitted for decision? A. /ot yet. &A may re.uire the parties to submit their memorandum within a given period of time. #pon the filing of the memorandum or the e7piration of the period of the filing thereof, the case may now be submitted for decision. (ThatEs how simple it isO) Q. What is the difference between the effect of an appeal from a ,udgment rendered by a .uasiK,udicial body on the e7ecution of the ,udgment appealed from the effect of an appeal in an ordinary case from the ,udgment of &A where the ,udgment is that of a 0T&? A. 'n the case of a ,udgment of the .uasiK,udicial body, the appeal therefore does not stay the e7ecution of the ,udgment. 't is immediately e7ecutory. +owever, this is sub,ect to an e7ception where the appeal from the ,udgment of the 3I& or any .uasiK,udicial body for that matter stay the e7ecution when the &A itself orders the stay of an e7ecution. $n the other hand, a ,udgment of the 0T& appealed from cannot be e7ecuted during the pendency of the appeal, that is the general rule. 'n other words, an appeal from a ,udgment of the 0T& to the &A is stayed. Q. 's there a case however, where a ,udgment is that of a 0T& and yet an appeal therefore does not stay the e7ecution? A. 8es. That is when the ,udgment rendered by the 0T& involves a case which is decided under the rules on summary procedure in which case, the appeal therefore does not stay the e7ecution of the ,udgment. Example2 The 0T& affirmed the ,udgment of the inferior court in a forcible entry case, which ordered the defendant to vacate the premises. The 0T& affirmed the ,udgment. The defendant B filed a petition for review under 0ule 92 (petition for 0eview from the 0T& to 3&). Q. :ay this ,udgment against him be enforced notwithstanding his appeal therefore in &A? A. 8es. 'tEs the only e7ception.
RE4E 4:2ES: G!oun%s (o! Out!$74t D$sm$ss* 1. Cetition filed out of time 2. (equired fees were not paid . 9opies of the petition were not served on the adverse party ". 9ontents of appeal does not follow the prescribed form G!oun%s (o! D$sm$ss* <Upon mot$on1. Catently without merit 2. Crosecuted manifestly foe delay . Iuestions raised are unsubstantial to require consideration

PROCEDURE IN THE COURT O9 APPEALS RULE GG: O!%$n*!" Appe* e% C*ses


T$me to 9$ e a) appellant3s brief ) "/ days from notice of clerk of court b) appellee3s brief

142
) "/ days from receipt of appellant3s brief c) appellant3s reply brief ) 24 days from receipt of appellee3s brief + ?ailure to file appellant3s brief on time is a ground for dismissal of the appeal. + If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the appellant brief, as the same would be unnecessary should the motion be granted. + !he failure of the appellant to make specific assignment for errors in his brief or page references to the record as required in this section is a ground for dismissal for his appeal.

Ru e GB: Appe* 8" Ce!t$o!*!$ to t4e Sup!eme Cou!t


+ Appeals to the 0upreme 9ourt can be taken from a ,udgment or final order for resolution of the 9A, the 0andiganbayan, the (!9 or such other court as may be authoriFed by law and only by a verified petition for review on certiorari on questions of law e#cept in appeals from ,udgments of the (!9 in criminal cases wherein the penalty imposed is life imprisonment, or reclusion perpetua which shall be elevated by ordinary appeal, or wherein the death penalty is imposed which is sub,ect to automatic review. EUESTIONS O9 LAW + doubt of controversy as to what the law is on ceratin facts + if the appellate court can determine the issue raised without reviewing or evaluating the evidence + can involve questions of interpretation of the law with respect to the ceratin set of facts EUESTIONS O9 9ACT + doubt or difference arises as to the truth or falsehood of facts, or as to probative value of the evidence presented + the determination involves evaluation or review of evidence + qeury invites the calibration of the whole evidence considering mainly the credibility of witnesses, e1istence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation

+ As a 7ene!* !u e, the findings of fact of the 9A are final and conclusive and cannot be reviewed on appeal to the 09. E/+ept$ons to Con+ us$&eness o( 9*+ts: 1. %hen the finding is grounded entirely on speculations, surmise of con,ecture. 2. %hen inference made is manifestly absurd, mistaken or impossible. . %hen the ,udgment is premised on a misrepresentation of facts. ". %hen there is grave abuse of discretion in the appreciation of facts. /. %hen the findings of facts are conflicting. 2. %hen the 9A in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees. 6. %hen the findings of fact of the 9A are at variance with those of the trial court, the 09 has to review the evidence in order to arrive at the correct findings based on the record. 7. %hen the findings of fact are conclusions without citation of specific evidence on which they are based. 8. %hen the facts set forth in the petition as well as in the petitioner3s main and reply briefs are not disputed by the respondents. 14. !he findings of fact of the 9A is premised on the supposed evidence and is contradicted by the evidence on record. 11. %hen certain material facts and circumstances have been overlooked by the trial court which, if taken into account, would alter the result of the case in that they would entitle the accused to acquittal. 3 Ce!t$o!*!$ un%e! Ru e GB &s. +e!t$o!*!$ un%e! Ru e @B <spe+$* +$&$ *+t$onCERTIORARI UNDER RULE GB + petition is based on questions of law It is a mode of appeal + involves the review of the ,udgment award or final order on the merits + must be made within the reglementary period + stays the ,udgment or order appealed from CERTIORARI UNDER RULE @B + petition raises the issue as to whether the lower court acted without ,urisdiction or in e1cess of ,urisdiction or with grave abuse of discretion 0pecial civil action + directed against an interlocutory order of the court or where there is no appeal or any other plain, speedy or adequate remedy + filed not later than 24 days from notice of ,udgment, order of resolution appealed from + unless a writ of preliminary in,unction or temporary restraining order is issued does not stay the challenged proceeding + the parties are the aggrieved party against the lower court or quasi),udicial agency and the prevailing parties + ;otion for reconsideration or for new trial is required + ?ile a motion for reconsideration or new trial is filed, the period shall not only be interrupted 8ut *not4e! @C %*"s s4* 8e 7$&en to t4e pet$t$one! A09 Admin. ;atter 442)4 ) + court e1ercises original ,urisdiction

+ the petitioner and the respondent are the original parties to the action, and the lower court or quasi),udicial agency is not impleaded + ;otion for reconsideration is not required

+ the court is in the e1ercise of its appellate ,urisdiction and the power of review

Ru e G@:O!$7$n* C*ses <In t4e CA5nder @C @lg. 128, the 9A has original ,urisdiction to issue writ of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and au1iliary writs or processes, whether or not they are in aid of its appellate ,urisdiction, and it has e1ecutive original ,urisdictions over actions for annulment of ,udgments of (egional !rial 9ourts.

14
T4e +ou!t *+'u$!es )u!$s%$+t$on: A1) $ver petitioner by filing of the petition A2) $ver the respondent by the service on the latter of the order or resolution indicating the courts initial action on the petition and -$! by the service on him of the petition. P!o+e%u!* Out $ne Aoriginal cases in the 9ourt of Appeals) 1) ?iling of the petition 2) $rder to acquire ,urisdiction over respondents $( $utright dismissal for failure to comply to requirements also form and payment of docket and other legal fees. ) (equire respondents to file 9$;;&-! within 14 days from -$!I9& ") 9ourt may require the filing of a (&C:B or such other pleadings as it may deem necessary /) >etermination of ?A9!5A: I005&0 ) the court may delegate the reception of evidence on such issues to any of its members.

Rule ,1: Annulment of Dud.ment or 9inal :rders and Resolutions


(Annulment of ?udgments rendered by the 0T& and Annulment of ?udgment rendered by the 'nferior &ourt) Q. When may a ,udgment of the 0T& be the sub,ect of a petition for annulment in the &A? A. 'f a ,udgment has already become final and the loosing party lost the right to file a petition for review or lost any other remedy against this ,udgment without his fault then he may file a petition for annulment of this ,udgment. This means to say that if the party against whom the ,udgment was rendered lost the right to file a petition for relief or lost any other remedy which could have been available to him because of his fault, then he cannot avail of this 0ule 9". Example: 'n the 0T&, the parties were A and B. A ,udgment was rendered against B. This ,udgment became final. Q. Well, what did we learn under 0ule %!? A. When a ,udgment becomes final, there is nothing left to be done but to e7ecute it. Q. Why did this ,udgment become final? A. Because B failed to file a notice of appeal. Because B failed to file a motion for reconsideration2 because B failed to file a motion for new trialH because B failed to file a petition for relief. The lost of any of these rights was not due to the fault of B. )f the lost of any of these remedies was on account for the fault of B, then B cannot file an action for annulment. 1eriod within which B may now file an action for annulment in &A< The period depends on the ground whether the ground is e7trinsic fraud or the ground is lac+ of ,urisdiction. )f the ground is fraud, he -as four (9) years from discovery of the fraud with which to file an action. )f it is lac$ of jurisdiction, at any time before the action is barred by laches or estoppel. These are the only periods. Q. What are the .rounds? A. 'tEs either e"trinsic fraud or lac$ of jurisdiction These are the only two (2) grounds available to B. Q. What is an e7trinsic fraud as contradicting intrinsic fraud? A. 6etEs illustrate each of them< Example: 3upposing during the trial, in the 0T&, A submitted in evidence a forged document. I7hibit CAD. And on the basis of this forged document alone, the court rendered a ,udgment in favor of A. Q. B files an action to annul this ,udgment on the ground of e7trinsic fraud. 's this ground (forgery) an e7trinsic fraud? A. /o, what then? 'ntrinsic fraud. 6etEs reverse the situation< Example: A and B received the notice of preKtrial setting the preKtrial for specific date. Before the date of the preK trial, A met B and said, CB, ' already filed a motion for postponement. The court has already granted it. 8ou do not have to appear anymore in the court for the preKtrial.D Believing on the truthfulness of A, B did not appear for the preKtrial. $n the day of the preKtrial, however A appeared in court. Because of the absence of B, A now moves that he be allowed to present his evidence e7 parte. Thereafter, the court rendered ,udgment. The ,udgment in favor of A became final. B now wants to file an action for annulment based on e7trinsic fraud. Q. With what e7trinsic fraud consist of?

14"
A. According to him (B), the misrepresentation of A that the preKtrial set on the scheduled date was cancelled. Q. 's it the contention of B here correct? A. 8es, it is correct. Why? That +ind of a fraud committed against him was committed outside the trial. Whereas, the fraud consisting in the introduction of evidence in court of that I7hibit CAD is an intrinsic fraud. Q. What is the difference? A. 'n the case of an intrinsic fraud, there is an opportunity for the adverse party to counteract that fraud. 'n this case, B could have presented on the fact that this document is a forgery. -e did not. That is his (B) fault. But in the case of the second misrepresentation, B would not have rebut it with contrary evidence because that was not committed outside the trial. This is the concept of e7trinsic fraud. $f course the other ground is lac+ of ,urisdiction. -rocedure. 'f B is to file the petition. The contents of the petition are stated in 0ule 9", do not have to repeat, e7cept for this matter. The petition should be accompanied by affidavits of witnesses of the party filing the petition . 'n our e7ample, the petition of B should be accompanied by affidavits of his witnesses. 3o, since he was the defendant in the trial below (0T&), the affidavit of his witnesses must be those which would support his defense against the action of A. 'f it were A who filed his petition, his petition should be accompanied by affidavits of his witnesses on the cause of action of A. The petition is now there in court (&A). Q. What now will be the action of &A, will it immediately give the due course or it can dismiss outright the petition? A. There are two (2) causes of action that &A may ta+e this case2 ) immediately dismiss the petition. Nround the petition in its (&A) view is not impressed with merits. 'n other words, it is not meritorious. Then the court can immediately dismiss it. 2) The court finds the petition to be impressed with merits (with prima facie merit). Q. Then what shall &A do? A. Then it will give it due course. -ow? The rule now says, Cthat this case will now be treated as if it were an ordinary case filed in the 0T&.D ThatEs why the respondent in this case now, A will have to be summoned. Q. What will be re.uired of B here? A. B will be re.uired to file his answer and thereafter, trial shall proceed as if this were a case pending in the 0T&. Q. Will there be an actual trial in the &A or in short may the &A receive the evidence itself? A. There are several options available to the &.A. regarding the Ividence which it is re.uired to receive. 't may authoriGe any of its members to receive the evidences. 'n other words, the members of the &A assigned to receive the evidence will act as if he were a ,udge of 0T& conducting a trial. The &A may delegate the reception of the evidence to another ,udge, an appropriate ,udge. Any ,udge? /o, ?udge of the 0T&. 3o these are the options available to the &A. Q. What is the e7tent of the power of the 0T& ,udge to whom the reception of the evidence of the parties has been delegated by the &A? :ay the 0T& decide the case? A. /o. Why? Because the power delegated to him is the power to receive the evidence, not the power to decide the case. 't will still be the &A that will render the ,udgment. 3o after the reception of the evidence either by the &A itself or by a ,udge of the 0T&, the &A will now decide the case. The decision may be dismissal of the petition. This means to say that the grounds have not been proven. 3o the decision of the 0T& stands. The ,udgment of the &A may be to grant the already e7pired decision. This is what is meant by this suspension of prescriptive period (3ec. A 0ule 9") Sec. 1 Rule ,1 (Effect of Dud.ment A judgment of annulment shall be set aside the #uestioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refilled in the proper court. +owever, where the judgment or final order or resolutions set aside on the ground of e"trinsic fraud, the court may on motion order trial to try the case as if a timely motion for new trial had been granted therein.

14/
Sec. > Rule ,1 Suspension of #rescripti)e #eriod The prescriptive period for the refilling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment . )owever, the prescriptive period shall not be suspended where the e"trinsic fraud is attributable to the plaintiff in the original action. We said that, where the ,udgment is declared void, this action can be refilled. -owever, where the ground, which serves as the basis of the &A in setting aside the ,udgment of 0T& was e7trinsic fraud, instead of having this case refilled, the trial may be declared to hear anew the case as if a motion for new trial was granted . Example: The ,udgment of the 0T& was set aside. The ground was e7trinsic fraud. We say that as a result of this ,udgment, the plaintiff here, A, may reKfile the case or instead of refilling the case, the &A may direct the 0T& to continue hearing the case. 't is as if there was a new trial granted. -owever, if the basis of the &A in setting aside the ,udgment of the 0T& was lac+ of ,urisdiction, obviously, the &A cannot direct the 0T& to hear this case. 't has to be reKfiled. The prescriptive period for the filing of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of ,udgment of annulment. -owever, the prescriptive period cannot be suspended where the e7trinsic fraud is attributable to the plaintiff in the original action. Example: 0T&KA vs. B. 6etEs say that the cause of action that can be brought within four (9) years from the happening. 6et say this cause of action became the sub,ect of a complaint filed by A against B on ?anuary 2, !!%. Q. What do you notice here? A. At the time the action was filed, only one ( ) year of the prescriptive period remained. This ,udgment in favor of A became final on ?an. %, !!9. this ,udgment however, was rendered in favor of A. 3o, in the &A now, B filed an action for annulment on ?an. 5, !!5. A ,udgment annulling this decision of the 0T& that was rendered by the &A and became final on ?an. @, !!". 3ince the e7trinsic fraud by A and A elected to reKfile the case in the 0T&. -e filed this case A vs. B on ?an. ", !!!. Q. -as his action prescribe or did not prescribe? A. The law says< 3ince A was the one guilty of e7trinsic fraud, the period between the time he filed the original complaint (?an. 2, !!%) and the time ,udgment became final (,an. @, !!"). The period between the first time the case was filed and time of the ,udgment of &A (?an. @, !!") became final, this was not suspended. 3o, if you add therefore the period from ?an. , !!4 to the time he filed the second action (?an. ", !!!), you have already a period of nine (!) years. -e only has four (9) years. 1rescribedO 'f however, the ground of the annulment was not in ,urisdiction, not fraud, for purposes of refilling the case, this period is suspended. Therefore, at the time this case was reKfiled, the period may not have yet prescribed. ?anuary , !!4 A vs. B ?anuary 2, !!% The cause of action arose on ?an. , !!4. The cause of action prescribes in four (9) years from happening. A filed a complaint against B in 0T& (original complaint) (at the time of filing, only one ( ) year left in the prescriptive period) ?anuary %, !!9 ?udgment in 0Tc became final. ?udgment in favor of A. (By reason of e7trinsic fraud committed by A) ?anuary 5, !!5 B filed an action for annulment by reason of e7trinsic fraud committed by A. ?anuary @, !!" The ,udgment of &A annulling the decision of the 0T& became final ?anuary ", !!! 3ince the e7trinsic fraud was committed by A, he (A) (elected to) reKfiled the case in the 0T&, A vs. B. /oteV /ine (!) years have elapsed. /ot suspended because e7trinsic fraud by A. The period from ?anuary 2, !!% (first case was filed to) ?anuary @, !!" (&A decision became final) was not suspended because the e7trinsic fraud was committed by a (plaintiff). Therefore, from ?anuary , !!4 to ?anuary ", !!!, the cause of action already prescribed. /ote that the cause of action in the above e7ample prescribes in four (9) years.

RE4E 4:2ES:

Ru e GH: W4en to 9$ e
- i" "ailed to "ile wit!out "ault 1) notice of appeal 2) motion for reconsideration ) motion for new trial ") petition for relief E/t!$ns$+ 9!*u%

142
) ?raud committed outside the trial and not in the course of the trial + e1trinsic fraud shall -$! be a valid ground if* ) it was availed of or could have been availed of in a* a) motion for new trial b) petition for relief E((e+t o( #u%7ment a) annulment based on lack of ,urisdiction < original action may be refilled. b) based on e1trinsic fraud < trial court will try the case. Aas if a motion for new trial was granted)

Ru e GI: P!e $m$n*!" Con(e!en+e


+ -ot mandatory T4$n7s t*1en up: 1. possibility of an amicable settlement 2. clarification of issues . formulation or stipulation of facts ". other matters which may aid in the prompt disposition of the case

Ru e GD: O!* A!7ument


+ -ot mandatory + !he oral argument shall be limited to such matters as the court may specify in its order or resolution.

Ru e BC: D$sm$ss* o( Appe*


G!oun%s (o! D$sm$ss* Aa) ?ailure of the record on appeal to show on its face that the appeal was taken within the period fi1ed by these (ules. Ab) ?ailure to file the notice of appeal or the record on appeal within the period prescribed by these (ules. Ac) ?ailure of the appellant to pay the docket fee and other lawful fees as provided in 0ection / of (ule "4 and 0ection " of (ule "1. Ad) 5nauthoriFed alterations, omissions or additions in the approved record on appeal as provided in 0ection " of (ule "". Ae) ?ailure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these (ules. Af) Absence of specific assignment of errors in the appellant3s brief, or of page references to the record as required in 0ection 1 , paragraph Aa), Ac), Ad) and Af) of (ule "". Ag) ?ailure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order. Ah) ?ailure of the appellant to appear at the preliminary conference under (ule "7 or to comply with orders, circulars, or directives of the court without ,ustifiable cause. and Ai) !he fact that the order or ,udgment appealed from is not appealable. A1a) + An appeal erroneously taken to the 9ourt of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. + An appeal will be withdrawn as a matter of right at anytime before the filing of the appellee3s brief. !hereafter, the withdrawal will be allowed in the discretion of the court.

Ru e B,: #u%7ment
A +*se s4* 8e %eeme% su8m$tte% (o! )u%7ment: A. n ordinary appeals ) 1) %here no hearing on the merits of the main case is held a) upon the filing of the last pleading, brief or memorandum. or b) e1piration of the period for filing 2) %here hearing on the merits of the main case is held a) upon its termination. b) upon the filing of the last pleading or memorandum. or c) e1piration of the period for filing $. n original action and petition for review % 1) %here no comment is filed a) upon the e1piration of the period to comment. 2) %here no hearing is held a) upon the filing of the last pleading. or b) e1piration of the period for filing. ) %here hearing is held a) upon its termination. b) upon the filing of the last pleading or memorandum. or c) e1piration of the period for filing.

Ru e B;: 6ot$on (o! Re+ons$%e!*t$on


+ !he rules now prohibit a second motion for reconsideration. + !he pendency of a motion for reconsideration filed on time shall stay the e1ecution of the ,udgment. + !he rules now require the service of the motion to the adverse party.

Rule 5": 4e0 2rial

146
Q. When may a motion for new trial in &A be filed? A. At anytime after the appeal has been perfected up to the time the &A has not yet lost ,urisdiction over the case. Q. What is the ,urisdiction here? A. Example2 A vs. B in the 0T&. 6etEs say that B appealed to &A. B wants to file a motion for new trial. Q. Within what period must he file it? A. The law says, Cat anytime after the appeal has been perfectedD. 6et us say that the appeal made was perfected on Dec. , !!A, until then the court still retains ,urisdiction. 6et us say that a ,udgment was rendered by the &A on Dec. , !!A. 6et us assume also that B received the copy of the decision on Dec. %, he has a 5Kday period therefrom within which to file a petition for certiorari in the 3&. 3o, the last day for him to file would be Dec. A, !!A. Q. When then can he file a motion for new trial? A. At anytime between the date (Dec. , !!A to Dec. A, !!A) before the court lost its ,urisdiction. Because if there is no perfected petition for certiorari as of Dec. A, !!A, the following day, the ,udgment already becomes final. 3o, the court no longer has any ,urisdiction. 3o, between these two dates (Dec. to Dec. A). There is only one ground for a motion for new trial under 0ule 5%. The motion for new trial in the &A can be based only on one ground that is newly discovered evidence. Ividence which would not have been discovered while the case is pending before trial in 0T& (in our e7ample). Iven with due diligence, B in this e7ample, would not have presented that evidence and which if presented will probably alter the ,udgment of &A already rendered. This is in contrast with the ground of a motion for new trial under 0ule %". There are two grounds where a ,udgment which has been rendered against a party because of =A:I that affected the substantial rights. This is not available in the &A. Q. -ow will the &A here resolve this motion for new trial? A. 't will conduct a hearing. Q. Who may receive the evidence in this case? A. #nli+e a motion for new trial in a criminal case which can be conducted by a trial court, a motion for new trial in a civil case can be heard only by CA itself. This is a distinction between the two. Q. When should this motion for new trial be resolved? A. Within !4 days from the date the motion for new trial is submitted for resolution. Assuming now that the motion for new trial has been granted, what will be the ne7t proceeding? #nless the court otherwise directs, the procedure in the new trial shall be the same as that granted by the 0T&. -ow 0T& conducts a trial following the grant of a motion for new trial.
RENE NOTES:

PROCEDURE O9 THE SUPRE6E COURT Ru e B@: O!$7$n* *n% Appe* C*ses


O!$7$n* C*ses Co7n$J*8 e 1. 9ertiorari 2. Crohibition . ;andamus ". Iuo warranto /. #abeas 9orpus 2. >isciplinary proceedings against members of the ,udiciary and attorneys 6. 9ases affecting ambassadors, other public ministers and consuls + An appeal to 09 can only be taken by petition for review on certiorari & e#cept in criminal cases where the penalty imposed is death, reclusion perpetua& or life imprisonment. G!oun%s (o! %$sm$ss* o( *ppe* 8" SC: a) ?ailure to take appeal within the reglementary period. b) lack of merit in petition. c) failure to pay the requisite docket fee and other lawful fees to make deposit for costs. d) failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition. e) failure to comply with any circular, directive or order of the 09 without ,ustifiable cause. f) error in choice or mode of appeal. g) case is not ,ustifiable to 09. + >iscretionary upon 09 Aand 9A) to call for preliminary conference similar to pre)trial. +GR* Appeal to 09 by notice of appeal shall be dismissed

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E/+ept$on* In criminal cases where the penalty imposed is life imprisonment, or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed A0ec. , (ule 122). + Appeal by certiorari from (!9 to 09 submitting issues of fact may be referred to the 9A for decision for appropriate action, without pre,udice to considerations on whether or not to give due course to the appeal as provided in (ule "2.

PROVISIONAL RE6EDIES Ru e BH: P!e $m$n*!" Att*+4ment


+ P!o&$s$on* !eme%$es AanciliaryGau1iliary) < writs and processes available during the pendency of the action may be resorted to by a litigant to reserve and protect rights and interests therein pending rendition, and for the purpose of ultimately effecting a final ,udgment in the case. C($'I0I$-A: < constituting temporary measures availed of during the pendency of the action. A-9I:IA(B < incidents in and dependent on the result of the main action. +P!e $m$n*!" Att*+4ment a) available even if the recovery of personal property is only an incidental relief sought in the action. b) may be resorted to even if the personal property is in the custody of a third person. c) e1tends to all kinds of property, real or personal or incorporeal. d) to recover possession of personal property un,ustly detained, presupposes that the same is being concealed, removed, or disposed of to prevent its being found or taken by the applicant. e) can still be resorted to even if the property is in custodia legis& as long as the property belongs to the defendant, or is one in which he has proprietary interests, A-> with permission of the court. +G!oun%s a) recovery of specified amount of money and damages, e1cept moral or e1emplary, where party is about to depart from the Chils with the intent to defraud creditors. b) action for money or property embeFFled or for willful violation of duty by public officers, officers of corp, agent or fiduciary. c) recovery of possession of property Aboth real and personal) un,ustly detained, when the property is concealed or disposed of to prevent is being found or taken. d) action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof. e) action against party who is concealing or disposing of property, or is about to do so, with intent to defraud creditors. f) action against party who is not a resident of the Chils and cannot be found therein upon who service by publication can be made. + PRINCIPLE O9 PRIOR OR CONTE6PORARY #URISDICITON <P!e $m$n*!" Att*+4ment) &nforcement of writ of preliminary attachment must be made preceded by or simultaneously accompanied by service of summons, copy of complaint, application and affidavits for the attachment and the bond upon the adverse party. @5! the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Chils temporarily absent therefrom, or the defendant is a non)resident of the Chils or the action is in rem or quasi in rem. + W4en p!e $m$n*!" *tt*+4ment $s %$s+4*!7e% *) debtor posts a counterbond or makes requisite cash deposit < if attachment to be discharged is with respect to particular property, counterbond or deposit shall be equal to the value of the property as determined by the court. in all other cases, amount of counterbond should be equal to the amount fi1ed in the order of attachment. + 'AS( D P)SI* )+ '),-* .$)-D S(ALL S ',. *( PA/0 -* )+ A-/ 1,D20 -* *(A* A**A'(I-2 PA.*/ 0A/ . ')3 . 8) applicant3s bond is insufficient or sureties fail to ,ustify. +) attachment was improperly or irregularly issued. %) property attached is e1empt from e1ecution. e) ,udgment is rendered against attaching party. () attachment is e1cessive < discharge is with respect to the e1cess + Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment. + W4en to *pp " (o! %*m*7es *7*$nst t4e *tt*+4ment 8on% a) before trial. b) before appeal perfected. c) before ,udgment becomes e1ecutory. d) in the appellate court for damages pending appeal, before ,udgment becomes e1ecutory. + %hen ,udgment becomes e1ecutory, sureties on counterbond to lift attachment are charged and can be held liable for the amount of ,udgment and costs upon notice and summary hearing. !here is no need to first e1ecute ,udgment against obligor before proceeding against sureties. + C *$ms (o! %*m*7es +*nnot 8e su8)e+t o( $n%epen%ent *+t$on e/+ept: a) when principal case is dismissed by the trial court for lack of ,urisdiction without giving the claiming party opportunity to prove claim for damages. b) when damages sustained by a third person not a party to the action.

Ru e BI: P!e $m$n*!" In)un+t$on


+ Creliminary in,unction distinguished from Crohibition P!e $m$n*!" In)un+t$on =enerally directed against party to the action but may be against any person >oes not involve the ,urisdiction of the court ;ay be main action itself or ,ust a provisional remedy in the main action + G!oun%s (o! P!e $m$n*!" In)un+t$on P!o4$8$t$on >irected against a court, tribunal, or person e1ercising ,udicial powers ;ay be on the ground that the court against whom the writ is sought acted without or in e1cess of ,urisdiction Always a main action

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a) plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts Alatter is preliminary mandatory in,unction). b) the commission of acts or non)performance during pendency of litigation would probably work in,ustice to the plainitiff. c) defendant is doing or about to do an act violating plaintiff3s rights respecting the sub,ect of the action and tending to render ,udgment ineffectual. + In)un+t$on m*" 8e !e(use% o! %$sso &e% 24en* a) complaint is insufficient. b) defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable in,ury if in,unction granted or continued while plaintiff can be fully compensated. c) plaintiff3s bond is insufficient or defective. + -o preliminary in,unction or !($ may be issued without posting of bond and notice to adverse party and hearing. + PRINCIPLE O9 PRIOR OR CONTE6PORARY #URISDICTION* %hen an application for a writ of preliminary in,unction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple)sala court, shall be raffled only after -$!I9& to and I- !#& C(&0&-9& of the adverse party or the person to be en,oined. In any event, such notice shall be preceded, or contemporaneously accompanied by service of summons, together with a copy of the complaint and the applicant3s affidavit and bond, upon the adverse party in the Chils. @5! the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts, or the defendant is a resident of the Chils temporarily absent therefrom, or the defendant is a non)resdent of the Chils. + %$((e!en+e 2$t4 p!$n+$p e $n p!e $m *tt*+4ment < in attachment, the principle applies only in the implementation of the writ, while in applications for in,unction or !($, this principle applies before the raffle and issuance of the writs or !($. + !($ good for only 24 days from service. 24 days for 9A. until further orders from 09. + !($ can be issued e# parte only if matter of grave urgency and plaintiff will suffer grave in,ustice and irreparable in,ury. =ood for 62 hours from issuance, within which ,udge must comply with service of summons, complaint, affidavit and bond, and hold summary hearing to determine whether the !($ should be e1tended for 24 days. In no case can !($ be longer than 24 days including 62 hours.

Ru e BD: Re+e$&e!s4$p
+ W4en !e+e$&e! m*" 8e *ppo$nte%: a) party has an interest in the property or fund sub,ect of the action and such is in danger of being lost, removed or materially in,ured. b) action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially in,ured and that its value is probably insufficient to discharge the mortgage debt, $( that the parties have stipulated in the contract of mortgage. c) after ,udgment, to preserve the property during the pendency of the appeal, or to dispose of it, or aid in e1ecution when e1ecution has been returned unsatisfied or the ,udgment debtor refuses to apply his property to satisfy ,udgment, or to carry out the ,udgment. d) when appointing one is the most convenient and feasible means to preserve, administer, or dispose of the property in litigation. + W4en !e+e$&e!s4$p m*" 8e %en$e%0 $(te%: a) appointment sought is without sufficient cause. b) adverse party files sufficient bond for damages. c) applicant or receiver3s bond is insufficient. + @oth the applicant for receivership and the receiver appointed must file separate bonds. + In claims against the bond, it shall be filed, ascertained and granted under the same procedure as 0ection 24, (ule /6, whether it is damages against the applicant3s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver3s management Ain the latter case, no longer need to file a separate action).

Ru e @C: Rep e&$n


+ (eplevin a) available only where the principal relief sought in the action is the recovery of possession of personal property. b) can be sought only where the defendant is in the actual or constructive possession of the personal property involved. c) e1tends only to personal property capable of manual delivery. d) available to recover personal property even if the same is not being concealed, removed, or disposed of. e) cannot be availed of if property is in custodia legis& as where it is under attachment, or was seiFed under a search warrant or distrained for ta1 assessment. 4 De"endant entitled to return o" property ta5en under writ i" * a) he seasonable posts redelivery bond b) plaintiff3s bond if insufficient or defective c) property is not delivered to plaintiff for any reason. & replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. !hus, surety not liable for payment of ,udgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant3s deprivation of possession by the plaint

Special (i)il Actions


Rule !2: Interpleader
Q. Why are these called C3pecial &ivil ActionsD? A. Because of their nature, there are special procedures to follow.

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The first of this special civil action is the case of an interpleader. Q. What is the concept of an interpleader? A. Example: A leased an apartment to B. 3o, pursuant to this agreement, B have been occupying this apartment paying the rentals. After the lease period has run, letEs say, si7 (@) months, here now surfaces &. & said, CB does not pay anymore the rentals to A, this apartment is mine. 1ay to me.D B is in a dilemma. 'f he (B) pays to A and it turns out later that & has a better right, he runs the ris+ of paying twice. 'f he pays to &, he runs the ris+s of paying again to A because & may not have the right. Q. 'f you were B, what is the remedy available to you, so that regardless of who is the party entitled to receive, you will be protected? A. =ile a suit for interpleader. B vs. A and &. Why? 3o that A and & can fight it out in this case. 3o, B initiates the complaint against two (2) people who do not want to go to court and litigate. 3o, this process of interpleader, A and & are compelled to fight each other. That is the concept of interpleader. Sec. / Rule !2 %henever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever is the subject matter, or an interest which in whole and in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. We now have this complaint by B against A and &. Q. What is the prayer of B here? A. That A and & be directed to interplead with each other. :eaning, that A and & should fight it out and have this matter of who is entitled to the rental. Actually, it is not B who is fighting A or &. 't is A and & who are fighting each other. Q. But who initiated the fight between the two (2)? A. B. Q. What now is the procedure to be followed by the court when this interpleader action was filed? A. Actually, A and & will also be summoned under 0ule 9. But with this difference, accompanying the summons is an order of the court. Sec. 2 Rule !2 (pon filing of the complaint, the court shall issue an order re#uiring the conflicting claimants to interplead with one another. )f the interests of justice so re#uire, the court may direct in such order that the subject matter be paid or delivered to the court. 3o, the sheriff now serves on A and & the summons. Together with the summon is that order of the court directing A and & to interplead with one other. 3o, A will file his answer. Q. Who will be furnished copy of the answer of A? A. A will furnish B and &. Q. & will file his answer. Who will be furnished with the copy of the answer of &? A. A and B. Q. Do you now see why this is a special civil action? A. 'n ordinary civil action, do the defendants furnish each other copies of their answers? /o. But here, the defendants furnish each other. Why? Because they are the ones litigating. 3o, insofar as A is concerned, the plaintiff against him is &. 'nsofar as & is concerned, A is the plaintiff against him. Q. :ay a motion to dismiss the action for interplead be filed by A and &? &an A and & avail of 0ule @, before they file their answer? (coG remember under 0ule @, the motion to dismiss can be filed only before the answer has been filed. This .uestion is answered by this 3ec. 9 0ule @2. A. Section , Rule !2 %ithin the time of filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader or on other appropriate grounds specified in Rule !D. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but shall not be less than five 897 days in any event, rec$oned from notice of denial. Q. What do you notice with respect to the ground of a motion to dismiss an interpleader action and a motion to dismiss in an ordinary civil action?

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A. 'n an ordinary civil action, the impropriety of the action is not a ground for a motion to dismiss. #nder 0ule @2, it is. 3o, the grounds for a motion to dismiss under 0ule @2 are more encompassing than the ground of a motion to dismiss under 0ule @. 3ec. 5 0ule @2 covers that situation already mentioned earlier. Sec. 5 Rule !2 5ach claimant shall file his answer setting forth his claim within fifteen 8!97 days from service of the summons upon him, serving a copy thereof upon each other conflicting claimants who may file their reply thereto as provided by these Rules. )f any claimant fails to plead within the time herein fi"ed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. The parties in an interpleader action may file counterclaims, cross,claims, third,party complaints and responsive pleadings thereto, as provided by these Rules. After A and & have been summoned, they will file their answer serving the plaintiff B and other defendants of the copy of the answer. 'n the answer of A and &, each will assert his right to the rental in this e7ample. -e will give his reasons why the rental should be paid to him. Q. :ay any of them A and & file also a counterclaim, a crossKclaim? A. 8es. The parties in an interpleader action may file counterclaim, crossKclaims, thirdKparty complaints and responsive pleadings thereto as provided by these 0ules. 3o, there is nothing special about this, e7cept with this provision where they have to furnish each other with copies of their pleadings. Q. What now is the disposition of the court with respect to these cases? A. After the pleadings of the conflicting claimants have been filed and preKtrial have been conducted in accordance with the rules, the court shall proceed to determine their respective rights and ad,udicate their counterclaims. 't means to say following the preKtrial, trial proper will now proceed. After the court has conducted the preKtrial and received the evidence, the court will now determine who between A and & is entitled to this rental. And of course, will ad,udicate the counterclaims. This is how 0ule @2 wor+s.
RENE NOTES: INTERPLEADER 1. an original action 2. presupposes that plaintiff has no interest in the sub,ect matter of the action or has interest therein in whole or in part which is not disputed by the other parties INTERVENTION 1. ancillary action 2. proper in any of the four situations* persons having Aa) legal interest in the matter of litigation, or Ab) success of either of the parties, or Ac) an interest against both, or Ad) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an offer thereof, A(ule 18, 0ec. 1) . defendants are original parties to the pending suits

. defendants are being sued precisely to interplead them

Rule !": *eclarator% Reliefs and Similar Remedies


Q. What is the sub,ect matter of a declaratory relief? A. A person may be interested in a law, (he may be affected by a law), he may be affected by an instrument. -e may want to +now what his rights are or what his obligations are, under a written instrument or a law. Q. &an you now bring an action in court to determine what his rights are, what his obligations are under the law or under a written document? A. Example2 A and B entered into an agreement. There are certain provisions here, which confer on A certain rights and imposes him certain obligations. There are also provisions here, which impose on B certain obligations and also certain rights. But in the case of A, these provisions are vague, he cannot .uite comprehend it. And he (A) fears that there may be a litigation arising out of it. Q. &an he now file an action in court against B for the purpose only of obtaining a declaration from the court on what his rights are, on what his obligations are, on what the rights of B are, or there is a law or ordinance, say regulating sale of li.uor, A is a li.uor distributor, this law affects him so he wants to +now what his rights are, what his obligations are under this law, can he now file an action against the authorities to determine what his rights are or his obligations are under this ordinance? A. 8es. That is the concept of a declaratory relief. Ta+e note that a court is supposed to determine actual controversies. As a rule, a court is not re.uired to give advisory opinions. 't cannot settle abstract matters. 't settles only actual conflicts.

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But under the law on declaratory relief, the court is actually called upon to render an opinion in a case involving these documents agreed upon. $f course, that can be done only before there has been a breach of the written document. Q. What is the situation contemplated by 0ule @%? A. A person whose interest thereunder is a deed, a will, a contract or any other written instrument under a law, an ordinance, e7ecutive order, his rights under this law or instruments are affected. The provisions of the written instrument or the law may be vague giving rise to uncertainties. 3o, the possibility of a suit arising out of this vagueness of this instrument or this doubtful character, the instrument, because if you will not determine this, there will be a suit that will arise. Q. 3o, what is the idea behind the suit now that the party in this written instrument may file? A. The idea here is to secure from the court a declaration as to the validity of the instrument or of the law. 3o, in the case then of the declaratory relief, the idea of the party filing the case is to +now before there is a breach of the law on the agreement or written instrument, what his rights are, what his obligations are, under the contract or under the written agreement or under the instrument or under the law. 3o, in other words, he wants to +now in advance what his rights are. 3o he goes to the court and in effect to as+ for an opinion. We said that the court, does not as a matter of course render an opinion on abstract matters or hypothetical cases. But this is a sort of an e7ception to this. That is why, under this law the court may or may not agree to entertain an action for declaratory relief. 't is being as+ merely to interpret an instrument or a law or it may be as+ed only to declare what would be the proper construction or interpretation of the law or of the written instrument. There are however, suits that may be brought under the provisions of these rules on declaratory relief, which the courts cannot decline to entertain. These are the following actions2 ) an action to .uite title to a property or to remove a cloud over a propertyH 2) an action for the reformation of an instrumentH %) an action for consolidation of ownership where the sub,ect matter of the suit involves a contract of sale with right to repurchase. These three (%) actions mentioned, when brought under the provisions on Declaratory 0eliefs cannot be dismissed by the court. 't must have to entertain. But other cases of declaratory relief may be denied due course by the court. :or this declaratory relief rules to apply, what must be established is the concurrence of all these circumstances2 ) There is an instrumentH there is a willH there is a written contract or there is law 2) This written instrument or this law affects the right of a personH %) A person wants this law or this instrument to be interpreted, to be given a constructionH 9) At the time the suit is brought, there must be a threatened suit that may arise out of itH and 5) This controversy is ,ustifiable. Example: (how this rule wor+s) -ere is a contract entered into between A and B. 6et us assume that in our contract, that A underta+es to deliver supplies to B. A was supposed to load this supplies on a ship belonging to A for delivery to B. This contract calls for a ten ( 4) year period. $n the ! th year of the period, A Assigns his rights under this contract to &. & now is the transferee. 1ursuant to this contract of A and & now says to B, CB beginning this 4 th year, ' will now be the one to supply you the materials which A under the contract supposed to deliver to you.D Q. 's B bound by this contract? A. =or instance, A, & now delivers to B what A was supposed to deliver, and B refuses, may he (B) be held liable? Q. What is the remedy here? A. B here may file an action for declaratory relief against & and A. Q. What will be the prayer now of B here? A. -e will now pray that the court interpret this contract involved here and find out what his rights are, what his obligations are under this contract of & and A. Does this contract bind him or it does not bind him? 3o, before there is any breach by A and B or & on this contract, then B can go to the court to declare what his rights are, what his obligations are, under this contract. Example: 8ou will notice that this case here illustrates that first part of the rule where a party filing the case is interested under a contract. The other sub,ect matter of a rule on declaratory relief, is a law, an ordinance or an e7ecutive order which affects the rights of a person.

11
The municipality of F for instance which passed an ordinance on ta7es, on business establishments selling li.uor. -ere is 8, who is a license dealer of li.uor. This law, affects him, one way or the other. -e doesnEt +now what his rights are, now he is supposed to pay, letEs say, ta7es which are much higher than the amount he is presently paying. But he is in doubt whether this is applicable to him or not applicable to him because of the vagueness of the law. Q. What is he allowed to do before there is any breach of this law by him? A. -e can file an action against the municipality of F for declaration of whether this law is valid or not. This is his main purpose. To find out whether he is liable under this or he is not liable. This is the sole purpose. Q. Who will be the parties against whom, in our e7ample, A, which affected by that law or contract or ordinance? Who will be the defendants? A. The law says, Call those persons whose rights are affected by this instrument must have to be made parties. And those who are not made parties are not affected by whatever ,udgment may be rendered in a case. Although there is a decision cited in the boo+ of :oran to the effect that when a necessary party is not impleaded, then a declaratory relief petition may be filed. Why? Because the party who is necessary can always later on .uestion an instrument or the law in a separate proceeding and so this declaratory relief will not put an end. 6et us now assume that the petition for declaratory relief is filed. The court refuses to give it due course. Nround for instance, whatever ,udgment the court may render will not put an end to the uncertainty that brought about the controversy. 3o, it will be useless. 3o, the court can decline. $n the other hand, the court may opt to consider it so it will hear the case. 't is as if it were an ordinary civil case. Q. What will be the ,udgment? A. 't will simply be a declaration of whatever or not this law is valid or not. 't will simply declare what rights of A has under the contract. What obligations he has. That is allO Q. 's there anything in the ,udgment that can be e7ecuted? A. /o. Why? Because this is merely declaratory. 't does not resolve an actual controversy. 't merely declares, Chere are the rights, here are the obligations.D 't cannot be enforced by e7ecution because there is nothing to enforce. The law says, Cif the petition was entertained by the court but while the case is pending in court, there is a violation of the agreement, or there is a violation of the law, there is a breach. Q. &an the petition for declaratory relief be maintained? A. /o more. 6etEs assume in this e7ample of A filing the action against the :unicipality to contest the validity of the ta7 ordinance. When the case was pending, plaintiff A paid the ta7es. Q. &an this declaratory relief be continued? A. /o more. 't can no longer be continued. Q. What will happen then? A. The court will now treat this as an ordinary civil action. 3o, it will now try the case and render a ,udgment which can be enforced. 3o, in our e7ample here, if ta7payer paid the ta7es while the case is pending, there is already a breach of the law sought to be clarified. 3o, the court can no longer simply declare what are the rights and obligations. The court will now resolve with finality the rights of the plaintiff and his obligations. And the ,udgment there can be enforced by e7ecution. But in a case of validity or invalidity, there is nothing that it can be enforced. Because it is merely a statement, Cthis is your right, this is your obligation, etc<D 3o, this in essence is the concept of Declaratory 0elief. 6etEs go bac+ to the cases mentioned which can be filed under this provision< on rules on declaratory relief namely2 ) an action to .uite title to property or to remove a cloud on a propertyH or 2) an action for reformation of an instrumentH or %) an action for consolidation of ownership. These cases cannot be declined to be entertained by the court. 't must have to decide those cases. 3ince the sub,ect of the petition for declaratory relief is a written instrument or a law or an ordinance. Q. &an there be an action for declaratory relief to declare that a certain person is or is not a =ilipino citiGen? A. /o. Why? Because an action of this nature is not based on any document, it is not based on any written agreement. 'n one case, in !9 when war was about to brea+, F went to the office of the municipal treasurer of his town and registered himself as a &hinese citiGen. After the war, he now instituted an action for declaratory relief against the government. Q. What was his purpose here? A. To serve a declaration that he is a =ilipino.

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'n his petition he alleged that because of his fear, he registered himself as a &hinese citiGen. /evertheless, his having registered himself as a &hinese notwithstanding, he always considered himself as a =ilipino. 3o that he now wants that he be declared a =ilipino citiGen. The petition was dismissed outrightly. Q. &ould the petition for declaratory relief be validly filed to secure a declaration that a person is a =ilipino citiGen? A. =irst, there is a written instrument, which is the basis of this petition. The documents, which is the basis of this petition. The documents, which he signed when he registered himself as a =ilipino does not constitute a written agreement. Why? Because that was a unilateral act on his part. /o one is interested in that document which he e7ecuted e7cept himself. 3o, there can possibly be no .uestion of doubt arising from that unilateral act. 'n one case, the suit was filed by A against B. the ,udgment was rendered against B. B now filed an action for declaratory relief based on this ,udgment. 'n other words, he wanted to find out what his rights are under that ,udgment. Q. 's the remedy of a declaratory relief petition, proper in this case? A. /o. Why not? =irst, there are other remedies available to A to find out what his rights are. =or instance, he could have filed a motion for clarificatory ,udgment. 'f he was in doubt as to what his rights are, he could have filed a motion in court to clarify the ,udgment. There is another remedy. -e could have appealed from the ,udgment. 'n other words, this petition for declaratory relief is available only when there is no other available remedy against a written instrument or against a law. 3o, when there are still available remedies, this cannot be resorted to. But of course, there is one compelling reason why this petition was dismissed and that is the rule on res ,udicata. That has been already resolved with finality. 't cannot be sub,ect of another litigation.
RE4E 4:2ES: Re'u$s$tes (o! De+ *!*to!" Re $e( 1. ,usticiable controversy 2. adverse claim between real parties in interest . sub,ect matter is a written instrument or a statute ". relief sought is merely a determination of the rights and duties /. there must be no breach or violation of instrument or statute 2. no other available or sufficient remedy GR: >eclaratory relief is available @&?$(& there is actual breach or violation of an instrument or statute. E/+ept$ons:, declaratory relie" may still be availed even i" t!ere is breac! or violation I+ * 1. it concerns future application of the instrument or law J=omeF vs. Calomar A2/ 09(A 726)K or 2. not ob,ected to by the adverse party and the court has rendered ,udgment after full blown trial J;atalin 9oconut Croducers A1" 09(A 1)K

Rule !5: (ertiorariC #ro6i$ition and 'andamus


There are two (2) types of certiorari. $ne, as an appealed remedy from a final ,udgment or order of for instance, the 0T& KKKKKKKKKKKKKKKKKKKKKK ,udgment and there is an appeal therefrom on a .uestion of law, the remedy is certiorari under 0ule 95, not a certiorari under 0ule @5. The ,udgments of the 3andiganbayan may be appealed to the 3&. The appeal is by certiorari under 0ule 95. The ,udgment of the &A may be appealed to the 3&. The remedy is certiorari under 0ule 95. 3o, it is in this sense that in this (0ule 95) certiorari is not the certiorari mentioned in 0ule @5 because 0ule @5 does not contemplate an appeal. To better have an idea of what 0ule @5 covers we may have this situation. Example: A sued B in the :T& for nullity of marriage. B here filed a motion to dismiss on the ground of lac+ of ,urisdiction. The motion is denied. -e then said, /o, the :T& has ,urisdiction.D Q. &an you appeal if you were B from this order denying your motion to dismiss? A. 6oo+ the order of dismissal is merely interlocutory. Kou cannot appeal from an interlocutory order. This is clear in 3ec. (c) of 0ule 9 . But definitely, the order of denial is wrong. 3o, if you do not correct this error, and you are B, you will go to a process of getting this case heard and decided by the :T&. 8ou could ,ust imagine the waste of time, money and effort if the proceedings will continue until terminated. Why? Any ,udgment rendered by the :T& here will be void. Q. What is the remedy here if you cannot appeal? A. #nder 0ule @5, B may .uestion the order denying the motion to dismiss. The remedy could be a petition for certiorari.
RENE NOTES: + In a petition for certiorari, the court may order dismissal of the complaint because it is part of the incidental relief A-ewsweek vs. IA9)

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Re'u$s$tes o( Ce!t$o!*!$: 1. there must be a controversy 2. the respondent is e1ercising ,udicial or quasi),udicial functions . the respondents acted without or in e1cess of its ,urisdiction or acted with grave abuse of discretion ". there must be no other plain, speedy and adequate remedy Re'u$s$tes o( P!o4$8$t$on: 1. there must be a controversy 2. the respondent is e1ercising ,udicial or quasi),udicial or ministerial functions . the respondents acted without or in e1cess of its ,urisdiction or acted with grave abuse of discretion ". there must be no other plain, speedy and adequate remedy Re'u$s$tes o( 6*n%*mus: 1. there must be a clear legal right or duty 2. the act to be performed must be practical < within the powers of the respondent to perform such that if the writ of mandamus was issued, he can comply with it, or else the essence will be defeated . respondent must be e1ercising a ministerial duty < a duty which is absolute and imperative and involves merely its e1ecution ". duty or act to be performed must be e1isting < correlative right will be denied if not performed by the respondents /. no plain, speedy and adequate remedy in the ordinary course of law + A writ o" certiorari can never be issued by an (!9 against an administrative agency because an administrative agency when e1ercising quasi),udicial functions is considered as of the same rank as the (!9. (owever, a writ of prohibition may be issued by the (!9 against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi),udicial function. + !he ,urisdiction of the 0andiganbayan over certiorari proceedings is only in aid of its appellate ,urisdiction. G!oun%s (o! D$sm$ss* o( Pet$t$on: 1. patently without merit 2. prosecuted manifestly for delay . questions raised are too unsubstantial to warrant further proceedings + As a GENERAL RULE, a motion "or reconsideration is an essential precondition for the filing of the petition for certiorari as a form of a plain, speedy, and adequate remedy. Its purpose is to give the court a quo the opportunity to correct itself. EFCEPT* 1. if the assailed ,udgmentGorder is a patent nullity 2. when there is e1treme urgency . if the issue has been raised and promptly passed upon by the court ". if the issue is purely a question)of)law /. if for public purpose 2.if suggested by the court a quo GENERAL RULE: If after ,udgment the petition for certiorari is availed of when appeal is plain, speedy and adequate remedy then the petition must fail for certiorari may not be resorted to as a substitute for appeal, in such a case appeal is deemed abandoned. EFCEPTION: If after ,udgment an appeal has been perfected, a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be the plain, speedy and adequate remedy. #ence, in this light, appeal and certiorari are remedies that does not e1clude each other. A:ansang vs. 9A, 17" 09(A 09(A 2 4) + ;ere filing of petition for certiorari under this rule will not stay e1ecution of ,udgment. Creliminary in,unction must be sought. .urpose of the writ' CERTIORARI +Intended as a corrective remedy +Annul and modify a proceeding >iscretionary act &1ercising ,udicial and quasi) ,udicial function PROHIBITION Crevent the commission or carrying out of an act >iscretionary and ministerial act DudicialGor non),udicial function 6ANDA6US Intended to compel performance of an act desired ;inisterial act Dudicial andGor non),udicial function

)ct sought to be controlled. With respect the respondent.

3 I" a motion "or reconsideration or new trial is "iled t!e period s!all not only be interrupted but anot!er 67 days s!all be given to t!e petitioner. A09 Admin. 9ir. 442)4 )

Ru e @@: Euo W*!!*nto


Euo W*!!*nto = A proceeding or writ issued by the court to determine the right to use an office, position or franchise and to oust the person holding or e1ercising such office, position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said e1ercise of position, office or franchise . 8uo warranto may also be used when an association acts as a corporation within the Chilippines without being legally incorporated or without lawful authority so to act. EUO WARRANTO >esigned to try the right or title to the office, the right to the office itself is disputed Euo W*!!*nto $n E e+to!* P!o+ee%$n7 ) !o contest the right of an electoral public officer to hold public office. ) an electoral proceeding under the $mnibus &lections 9ode for the e1clusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold 6ANDA6US Applicable only in cases where the right to the office is -$! in dispute Euo W*!!*nto $n E e+to!* P!o+ee%$n7 ) prerogative writ by wGc the govt. can call upon any person to show by what title he holds a public office or e1ercises a public franchise ) three grounds* usurpation, forfeiture, or illegal association

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the office ) petition must be filed within 14 days from the proclamation of the candidate ) may be filed by any registered candidate for the same office and, who, even if the petition prospers, would not be entitled for that office. ) presupposes that the respondent is already actually holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose ) the petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds.

Ru e @H: E/p!op!$*t$on
& All properties may be e#propriated e/+ept: 1. ;oney 2. 9hoses in action 4 9!en is e#propriation proper: 1. %hen the owner refuses to sell 2. %hen he agrees to sell but an agreement as to price cannot be reached 3Pu!pose o( P!e $m$n*!" Depos$t un%e! Se+. ; 1. provide damages if court finds plaintiff has no right to e1propriate 2. advance payment for ,ust compensation + $nly an A-0%&( is allowed under 0ec. (ule 26, no other responsive pleadings are allowed

3 De+ *!*t$on o( De(*u t ) !he defendant cannot be declared in default. ?ailure to file an answer would result to the court3s ,udgment on the right to e1propriate without pre,udice to the right to present evidence on ,ust compensation. 3 W4en $s T$t e Veste% $n E/p!op!$*t$on: ) i" personal property, upon payment of ,ust compensation A0ec. 14) ) i" real property, upon registration A0ec. 1 ) STAGES IN EFPRORIATION 1. >etermination of the authority of the plaintiff to e1ercise the power of eminent domain and the propriety of the e1ercise in the conte1t of the facts involved, and 2. >etermination of D50! 9$;C&-0A!I$-. + W4en m*" p *$nt$(( ente! $nto possess$on o( p!ope!t"H 1. 5pon filing of complaint, serving notice to defendant and after depositing of assessed value of property for ta1ation purposes with authoriFed government depository A0ection 2) 2. 5pon payment or tender of compensation fi1ed by the ,udgment and payment of the costs by plaintiff A0ection 14)

Ru e @I: 9o!e+ osu!e o( Re* Est*te 6o!t7*7e


3E((e+t $n t4e En+um8!*n+e! $s not Imp e*%e% a. his equity or right of redemption is not affected or barred by the ,udgment of the court A0unlife Insurance vs. >ieF) b. his right is not affected because he is merely a necessary party not an indispensable party c. the remedy of the senior encumbrancer is to file an I->&C&->&-! proceeding to foreclose the right to redeem by requiring the ,unior encumbrancer to pay the amount stated in the order of e1ecution or to redeem the property in a specified time +Reme%" o( 6o!t7*7e *7*$nst t4e Bu"e! o( t4e 6o!t7*7e P!ope!t": ) ;ortgagees can substitute or implead the buyer. A0ec. 18 (ule ) #owever& t!is rule s!all not apply i": a) the property is covered by the !orrens 0ystem. b) buyer bought the property in good faith ) !o prevent this, the mortgagee must annotate a notice of lis pendens in the certificate of title so that subsequent buyerAs) have notice. + Inst*n+es 24e!e Cou!t +*nnot !en%e! De($+$en+" #u%7ment 1. (ecto law 2. -on)resident mortgagor unless there is attachment . 0ec. 6 (ule 72 when mortgagor dies, the mortgagee must file his claim with the probate court ". !hird person owned the property mortgaged but not solidarily liable with the debtor #UDICIAL 9ORECLOSURE (equires court intervention !here is only an equity of redemption Alternative remedy to personal action for the amount due to satisfy mortgage debt EEUITY O9 REDE6PTION ) right of the defendant mortgagor to e1tinguish the mortgage and retain ownership of the property by paying the debt wGin 84)124 days after the entry of the ,udgment or even after the foreclosure sale but prior to confirmation ) governed by (ule 27 EFTRA#UDICIAL 9ORECLOSURE -o court intervention necessary (ight of redemption e1ists Croper only when provided for in the contract RIGHT O9 REDE6PTION ) right of the debtor, his successor in interest or any ,udicial creditor or ,udgment creditor of said debtor or any person having alien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property wGin one year from the registration of the 0heriff3s certificate of foreclosure sale ) governed by 0ecs. 28) 1 of (ule 8

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#UDG6ENT I" actual partition o" property is made CONTENTS O9 #UDG6ENT !he ,udgment shall state definitely* A1) by metes and bounds and adequate description, A2) the particular portion of the estate assigned to each party !he ,udgment shall state* 1. the fact of such payment, and 2. the assignment of the real estate to the party making the payment !he ,udgment shall state* 1. the name of the purchaserAs), and 2. a definite description of the parcels of the real estate sold to each purchaser E99ECT O9 #UDG6ENT !o vest in each party to the act, in severally the portion of the estate assigned to him. !o vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action !o vest the real estate in the purchaserAs) making the paymentAs), free from the claims of the parties to the action.

I" t!e w!ole property is assigned to one o" t!e parties upon !is paying to t!e ot!ers t!e sum or sums ordered by t!e court I" t!e property is sold and t!e sale is con"irmed by t!e court

T2o <;- Issues $n *n A+t$on (o! Pet$t$on 1. %hether or not a co)ownership e1ists 2. #ow to actually partition the property + !he appointment o" 'ommissioners is mandatory unless there is an e1tra),udicial partition between the parties.

Ru e HC: 9o!+$8 e Ent!" *n% Un *2(u Det*$ne!


T4!ee <A- ?$n%s o( A+t$on (o! Re+o&e!" o( Possess$on ACCION INTERDICTAL +summary action for the recovery of physical possession where the dispossession has not lasted for more than one year. +e,ectment proceeding under (ule 64, either forcible entry or unlawful detainer +All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the ;!9. ACCION PUBLICIANA +a plenary action for the recovery of the real right of possession has lasted for more than one year. ACCION REINDIVICATORIA +an action for the recovery of ownership wGc necessarily includes the recovery of possession.

+(!9 has ,urisdiction if the value of the property e1ceeds C24,444 outside ;etro ;anila. C/4,444 within ;etro ;anila. +;!9 has ,urisdiction if the value of the property does not e1ceed C24,444 < outside ;etro ;anila. C/4,444 within ;etro ;anila

+(!9 has ,urisdiction if the value of the property e1ceeds C24,444 outside ;etro ;anila. C/4,444 within ;etro ;anila, +;!9 has ,urisdiction if the value of the property does not e1ceed C24,444 < outside ;etro ;anila. C/4,444 within ;etro ;anila

9ORCIBLE ENTRY +possession of the land by the defendant is unlawful from the beginning as he acquires possession by ?orce, Intimidation, 0trategy, !hreat or 0tealth A?I0!0) +no previous demand for the defendant to vacate the premises is necessary +the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant +the 1 year period is generally counted from the date of actual entry on the land Teno! o( Dem*n%: a. Cay AND 'acate. or b. 9omply with the condition of the lease AND 'acate

UNLAW9UL DETAINER +possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract wG the plaintiff +demand is ,urisdictional if the ground is* 1. non)payment of rentals, or 2. failure to comply with lease of contract +the plaintiff need not have been in prior physical possession +period is counted from the date of last demand or last letter of demand

+#u%7ment on E)e+tment P!o+ee%$n7 *!e Imme%$*te " E/e+uto!" Un ess t4e De(en%*nt: A1) perfects his appeal, A2) files sufficient superseades bond to pay the rents, damages and costs occurring down to the time of ,udgment appealed from. and A ) deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract, the reasonable value of the use and occupation of the premises on or before the 14 th day of each succeeding month or period. + #owever t!e .*' may issue a writ o" preliminary mandatory in;unction to restore plainti"" in possession i" t!e court is satis"ied t!at * 1. defendant3s appeal is frivolous or dilatory, or 2. appeal of plaintiff is prima facie meritorious, upon motion of plaintiff within 14 days from perfection of appeal. ) If there is no formal contract between parties. there can still be unlawful detainer because e,ectment considers implied contracts. Cossession by tolerance creates an implied promise to vacate the premises upon the demand of the owner* ACeran vs. 9?I of 0orsogon) +!he doctrine of tolerance applies only if possession is lawful from the start. In short said doctrines applies only to unlawful detainer cases and not to forcible entry because* 1. the violation of the right in forcible entry authoriFes speedy redress. 2. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible entry can really prescribe. A;unoF vs. 9A, 21" 09(A 212) +Euest$ons to 8e !eso &e% $n *n *+t$on (o! (o!+$8 e ent!" *!e* 9$!st, who had actual possession over the piece of real propertyH Se+on%, was the possessor ousted therefrom within one year from the filing of the complaint by force, threat, strategy or stealthH T4$!%, does the plaintiff ask the restoration of possessionH A>iFon vs. 9oncina) 4 *!e court can award damages in e;ectment cases provided t!e damages re"er only to *

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a. the fair and reasonable value of the use and en,oyment of the property or the rent arising from the loss of possession. b. arrears. c. liquidated damages since they are already part of the contract

Ru e H,: CONTE6PT
DIRECT CONTE6PT +summary in nature =($5->0* a) misbehavior in the presence of or near a court as to obstruct or interrupt the proceedings b) disrespect towards the court c) $ffensive personalities towards others. d) (efusal to be shown or to answer as witness or to subscribe an affidavit or deposition. INDIRECT CONTE6PT Cunished after being charged and hearing =($5->0* a) misbehavior of an officer of a court in the performance of his official duties or in his official transactions. b) >isobedience of or resistance to a lawful writ, process, order, or ,udgment. 5nauthoriFed intrusion to any real property after being e,ected. c) Any abuse or any unlawful interference wG the proceedings not constituting direct contempt d) Any improper conduct tending to degrade the administration of ,ustice. e) Assuming to be an attorney or an officer of the court wGo authority. f) failure to obey a subpoena g) (escue, or attempted rescue, of a person or property in the custody of an officer. If committed against* a. (!9 < fine not e1ceeding C 4,444 or imprisonment not e1ceeding 2 months or both. b. ;!9 < fine not e1ceeding C/,444 or imprisonment not e1ceeding A1) month or both

If committed against* a. (!9 < fine not e1ceeding C2,444 or imprisonment not e1ceeding A14) days or both b. ;!9 < fine not e1ceeding C244 or imprisonment not e1ceeding one A1) day, or both.

+Reme%$es to C4* en7e Contempt #u%7ments: D$!e+t Contempt ) !he person ad,udged in direct contempt may avail himself of the remedies of certiorari or prohibition. !he e1ecution of the ,udgment shall be suspended pending resolution of the petition, provided such person files a bond and conditioned that he will abide by and perform the ,udgment should the petition be decided against him. In%$!e+t Contempt 5 !he person ad,udged for indirect contempt may appeal such ,udgment or final order to the proper court as in criminal cases. !he e1ecution of the ,udgment shall -$! be suspended until a bond is filed by the person ad,udged in contempt. )!he ,udgment against a person ad,udged to be in contempt is immediately e1ecutory and can be stopped only by filing a bond.