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CivPro Finals Reviewer 6 MODES OF DISCOVERY: Depositions pending action (Rule 23) Depositions before action or pending appeal

(Rule 24) Interrogatories to parties (Rule 25) Admission by adverse party (Rule 26) Production or inspection of documents and things (Rule 27) Physical and mental examination of persons (Rule 28) Refusal to comply with the Modes of Discovery (Rule 29) 4 Uses of Depositions (Sec 4, Rule 23) (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 taking 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 an 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: (1) that the witness is dead; or (2) that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition; or (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (4) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make 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) If only part of a deposition is offered in evidence by a party, the adverse party may require him to introduce all of it which is relevant to the part introduced, and

any party may introduce any other parts. Depositions may be (1) oral examinations or (2) written interrogatories Leave of court is necessary when (1) no answer is yet filed provided that jurisdiction over the defendant is acquired or jurisdiction over the property which is the subject matter of the litigation is acquired; or (2) when the deponent is confined in prison. Leave of court not necessary when (1) there is joinder of issues already; or (2) deponent is not confined in prison. Who may take depositions: Within the phils, judge, notary, any person authorized to take oaths stipulated by the parties. Outside, secretary of embassy, consul general, consul, vice consul, agent of consul, any authorized person to take oaths stipulated by the parties. Who are not allowed: Relatives within the 6th degree of consanguinity, counsel or employee of a party, those financially interested in the action. Refusal to comply: The court may issue an order striking out pleadings or parts therof The court may issue an order staying further proceedings until the order is obeyed The court may issue an order rendering a judgment by default against the disobedient party RULE 30 TRIAL It is a judicial process of investigating and determining the legal controversies starting with the production of evidence by the plaintiff and ending with his closing arguments.

RULE 31 CONSOLIDATION OR SEVERANCE >CONSOLIDATION Involves several actions having a common question of law or fact which may be jointly tried. >SEVERANCE Contemplates a single action having a number of claims, counterclaims, crossclaims, third-party complaints, or issues which may be separately tried. RULE 32 TRIAL BY COMMISIONER >A person to whom a case pending in court is referred, for him to take testimony, hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered. >The commissioner's report is not binding upon the court which is free to adopt, modify, or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions. RULE 33 DEMURRER TO EVIDENCE >After the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied he shall have the right to present evidence. If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence. >It is a motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case. The aim of this rule is to discourage prolonged litigation. >Does not apply to: election cases, land registration, cadastral, naturalization, and insolvency proceedings. RULE 34 JUDGMENT ON THE PLEADINGS >Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may; on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved.

>Does not apply to: Actions for the declaration of nullity of a marriage, Actions for annulment of marriage, and Actions for legal separation. >6 Requisites of a valid judgment: (1) Authority of the court to hear and determine the case. (2) Jurisdiction over the parties and the subject matter. (3) The parties must have been given an opportunity to adduce evidence. (4) The evidence must have been considered by the tribunal in deciding the case. (5) The judgment must be in writing, personally and directly prepared by the judge. (6) The judgment must state clearly the facts and the law on which it is based, signed by the judge and filed with the clerk of court. RULE 35 SUMMARY JUDGMENT >It is also called as accelerated judgment which is proper where, upon motion filed after the issues had been joined and on the basis of the papers and pleadings filed, the court finds that there is no genuine issue as to any material fact except as to the amount of damages. >It is triggered by the absence of a genuine factual issue. Even if there is a complicated question of law, if there is no issue as to the facts, a summary judgment is not barred. RULE 37 MOTION FOR RECONSIDERATION >It is one that is directed against a judgment or final order. It is not the motion for reconsideration of an interlocutory order which precedes a petition for certiorari. Yet, such motion is prohibited motion in a case that falls under summary procedure as well as under the Rule of Procedure for Small Claims. >It is filed within the period for appeal which is 15 days. No motion for extension of time to file a motion for reconsideration shall be allowed. >The motion must be in writing, a written notice of which must be served on the adverse party, and may be anchored on the following grounds (1) That the damages awarded are excessive; (2) That the evidence is insufficient to justify the decision or final order; (3) That the decision or final order is contrary to law. >"Fresh Period" Rule, (Neypes v CA), If the motion is denied, the movant has a fresh period of 15 days from the receipt or notice of the order denying or

dismissing the motion for reconsideration within which to file a notice of appeal. RULE 37 MOTION FOR NEW TRIAL >It is a motion for the rehearing of a case already decided by the court but before the judgment rendered thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record or new evidence is introduced, or both steps are taken. >Such motion must be filed within the period for appeal. No motion for extension of time to file a motion for new trial shall be allowed. >Grounds: (1) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against by reason of which such aggrieved party has been probably impaired in his rights. (2) Newly discovered evidence, which could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result. RULE 38 PETITION OF RELIEF FROM JUDGMENT ORDERS >It is a legal remedy whereby a party seeks to set aside a judgment rendered against him by a court whenever he was unjustly deprived of a heating or was prevented from taking an appeal because of: FAME >The petition for relief from judgment shall be filed within 60 days from knowledge of judgment, order, or proceedings to be set aside or within 6 months from entry of such judgment, order, or other proceeding. RULE 39 EXECUTION OF JUDGMENTS >Execution is the remedy afforded for the satisfaction of a judgment. It is the fruit and end of the suit. >A decision becomes final and executory from the expiration of the period to appeal and no appeal was perfected. >Modes: (1) Execution by motion if the enforcement if the judgment is sought within 5 years from the date of its entry; and (2) Execution by independent action if the 5-year period has elapsed and before it is barred by the statute of limitations. >Remedies available to a third-party claimant in levy of real property: (1) Summary hearing before the court which authorized the execution; (2)

Terceria or third party claim filed with the sheriff; (3) Action for damages on the bond posted by judgment creditors; or (4) Independent reinvindicatory action. APPEAL (RULE 40-45) >Is a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law. It is not a constitutional or a natural right. The general rule is that the remedy to obtain reversal or modification of judgment on the merits is appeal. >The remedy in case the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65. >Issues that may not be raised on appeal: (1) A party may not change his theory of the case on appeal. Thus, he may fundamentally change the nature of the issue in the case; (2) Defenses not appealed in the answer may not be raised for the first time on appeal. >The appellate court shall consider no error unless stated in the assignment of errors. >The court may consider an error not raised on appeal provided the same falls within any of the following categories: (1) It is an error that affects the jurisdiction over the subject matter; (2) It is an error that affects the validity of the judgment appealed from; (3) It is an error which affects the proceedings; (4) It is an error closely related to or dependent on an assigned error and properly argued in the brief; or (5) It is a plain and clerical error. >Instances wherein a record on appeal is required: (1) Special proceedings and (2) Cases of multiple or separate appeals. >It shall be the duty of the appellant to submit a memorandum. Filing of a memorandum is vital to his appeal; otherwise, it is a ground for the dismissal of the appeal. It shall briefly discuss the errors imputed to the lower court. >Modes of Appeal: (1) Ordinary appeal: Lower court, in the exercise of original jurisdiction (questions of fact or mixed questions of fact and law) (2) Petition for review: RTC, in the exercise of appellate jurisdiction (questions of fact, of law, or mixed questions of fact and law) (3) Petition for review on certiorari: elevated to the SC (only on questions of law) >"The Material Date" Rule: Indicate the specific material dates showing that it

was filed on time. >Every appeal to the Supreme Court is not a matter of right but of sound judicial discretion with the exception of cases where the penalty of death, or reclusion perpetua where an appeal is a matter of right leaving the reviewing court without any discretion. >Appeal from decisions of Quasi-judicial bodies (Rule 43): File a special civil action of certiorari under Rule 65 within 60 days from notice of the decision. In the observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA. >Appeal from COMELEC and COA: It may be brought to the SC on certiorari under Rule 65 within 30 days. RULE 47 ANNULMENT OF JUDGMENT AND FINAL ORDERS >Is a remedy in law independent of the case where the judgment sought to be annulled was rendered. The purpose of such action is to have the final and executor judgment set aside so that there will be a renewal of litigation. >Grounds: (1) Extrinsic fraud (2) Lack of jurisdiction (3) Denial of due process. RULE 50 DISMISSAL OF APPEAL (1) Failure to file the notice of appeal or the record on appeal within the period prescribed (2) Failure to show on its face that the appeal was taken within the period fixed (3) Failure of the appellant to pay the docket and other lawful fees (4) Unauthorized alterations, omissions or additions in the approved record on appeal (5) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided (6) Absence of specific assignment of errors in the appellant's brief (7) Failure 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 (8) Failure of the appellant to appear at the preliminary conference or to comply with orders, circulars, or directives of the court without justifiable cause (9) The fact that the order or judgment appealed from is not appealable

(10) By agreement of the parties, as where the case was amicably settled by them (11) Where the appealed case has become moot or academic (12) Where the appeal is frivolous or dilatory (13) Error in the choice or mode of appeal RULE 56 ORIGINAL CASES WITH THE SC >Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceedings against members of the judiciary and attorneys, and cases affecting ambassadors, other public ministers and consuls may be filed originally in the Supreme Court. >Appealed cases: An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. PROVISIONAL REMEDIES (RULE 57-61) >Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for the purpose of the ultimate effects, of a final judgment in the case. (1) Preliminary attachment (Rule 57) (2) Preliminary injunction (Rule 58) (3) Receivership (Rule 59) (4) Replevin (Rule 60) (5) Support pendente lite (Rule 61) Above not exclusive. Other PRs: (1) Temporary custody over a minor (2) Deposit in Actions for Annulment of Sale (3) Restraining order against the accused in cases of violence among immediate family members living in the same domicile and household (4) Hold departure orders issued by Regional Trial Courts in criminal cases

(5) Interim reliefs under Writ of Amparo (must have supporting affidavits): (a) Temporary Protection Order (b) Witness Protection Order (c) Inspection Order RULE 57 PRELIMINARY ATTACHMENT >It is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so that the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case. >Attachment places the property under the custody of the court (custodia legis) and the property is held by the court for the satisfaction of whatever award which may be obtained by the plaintiff in his favor. >Proper when: (1) Actions for the recovery of a specified amount of money or damages; (2) Actions for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment; (3) Actions to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (4) Actions against a party who has been guilty of a fraud in contracting the debt or incurring or performance the obligation upon which the action is brought; (5) Actions against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; (6) Actions against non-residents not found in the Philippines, or person upon whom summons may be served by publication. >3 Requisites: (1) Filed at the commencement and before final judgment (2) Affidavit showing ground, sufficient cause of action, no other security. (3) Filing of a bond. >Discharged when: (1) The attachment was improperly or irregularly issued or enforced; (2) That the bond of the attaching is excessive and must be discharged as to the excess; (3) That the property is exempt from execution, and as much is also exempt from preliminary attachment.

RULE 58 PRELIMINARY INJUNCTION >It is an ancillary or preventive remedy where a court requires a person, a party or even a court or tribunal either to refrain (prohibitory) from or to perform (mandatory) particular acts during the pendency of an action. >Its sole objective is to preserve the status quo until the merits of the case can be heard fully. >"Status Quo" is the last actual, peacable, and uncontested situation which precedes a controversy. It is the situation existing at the time of the filing of the case. >4 Requisites: (1) Verified application stating the grounds for its issuance (2) Applicant must establish that he has a right to relief (3) Applicant must establish that there is a need to restrain the commission or continuance of the acts complained of and if not enjoined would work injustice to the applicant (4) Bond executed in favor of the person enjoined to answer for all damages. >Quantum of evidence required: The evidence to be submitted by the plaintiff need not be conclusive and complete. The plaintiffs are only required to show that they have an ostensible right to the final relief prayed for in their complete. >"TRO" is an order to maintain the status quo between or among the parties until the determination of the prayer for a writ of preliminary injunction. >If the matter is of extreme urgency, a judge may issue a TRO effective for only 72 hours from issuance. Within this period, the judge shall conduct a summary hearing to determine whether or not the TRO can be extended to 20 days. >If TRO is issued by RTC/MTC 20 days from notice, if issued by CA 60 days from notice, if issued by SC until lifted. RULE 59 RECEIVERSHIP >Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action. It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect. >6 Requisites: (1) A verified application must be filed by the party applying for the appointment of a receiver (2) The applicant must have an interest in the property

or funds subject of the action (3) The applicant must show that the property or funds is in danger of being lost, wasted or dissipated. (4) The application must be with notice and must be set for hearing. (5) Before issuing the appointment of a receiver, the court shall require the applicant to post a bond in favor of the adverse party. When the receiver is appointed, he shall also file a bond. (6) Before entering upon his duties, the receiver must be sworn to perform his duties faithfully. >10 Powers of a receiver: (1) Power to bring and defend actions in his own name (2) Take and keep possession of the property in controversy (3) Receive rents (4) Collect debts due to himself as receiver or to the fund, property, estate, person or corporation of which he is a receiver (5) Compound for and compromise debts collected (6) Make Transfers (7) Pay outstanding debts (8) Divide money and other property that shall remain among the persons legally entitled to receive the same (9) Invest funds in his hands only by order of the court upon written consent of all the parties to action (10) Generally to do such acts respecting the property as the court may authorize. >Discharged when: (1) Posting of counterbond by adverse part (2) Appointment of receiver was made without sufficient cause (3) Insufficient or defective applicant's bond (4) Insufficient or defective receiver's bond (5) Receiver no longer necessary. RULE 60 REPLEVIN >Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession in specie, the recovery of damages being only incidental. >Applies only to personal property capable of manual delivery wrongfully detained by a person. >Primarily possessory in nature and generally determines nothing more than the right of possession. >6 Requisites: (1) Application for the writ must be filed at the commencement of the action or at any time before the defendant answers. (2) The application must contain an affidavit where the applicant particularly describes the property that he is the owner of the property or that he is entitled to the possession thereof. (3) The affidavit must state that the property is wrongfully detained by the

adverse party, alleging therein the cause of the detention. (4) The affidavit must state that the property has not been distrained or taken for tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise, placed in custodial egis. If it has been seized, then the affidavit must state that it is exempt from seizure or custody. (5) The affidavit must state the actual market value of the property (6) The applicant must give a bond executed to the adverse party and double the value of the property. >Redelivery bond: which must be double the value of property, to answer for the return of property if adjudged and pay for such sum as the advesrse party may recover from the applicant. RULE 61 SUPPORT PENDENTE LITE >It is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for support. Here, the main action is for support and support pendente lite is the provisional remedy. >5 Requisites: (1) The application for support pendente lite may be filed at the commencement of the action and prior to the judgment or final order (2) The application must be verified, stating the grounds for the claim and the financial conditions of both parties. (3) The adverse party shall be asked to file a verified comment on the application within 5 days from service upon him of a copy of the application and supporting documents to it. (4) The application shall be set for hearing and a hearing shall be conducted. (5) If the application is granted, the court shall issue an order where it shall fix the amount of money to be provisionally paid as support. If the application is denied, the principal case shall be tried and decided as early as possible. >Restitution: When the judgment finds that the person giving support is not liable therefore, the court shall order the recipient to make a restitution of what has been received with legal interest from the date of actual payment. Should the recipient fail to do so, the person who gave the support may file an action against the person legally obliged to give support.

SPECIAL CIVIL ACTIONS (RULE 62-71) (1) Interpleader (Rule 62) (2) Declaratory relief and similar remedies (Rule 63) (3) Review of judgments and final orders of the COMELEC and COA (Rule 64) (4) Certiorari, prohibition and mandamus (Rule 65) (5) Quo warranto (Rule 66) (6) Expropriation (Rule 67) (7) Foreclosure of real estate mortgage (Rule 68) (8) Partition (Rule 69) (9) Forcible entry and unlawful detainer (Rule 70) (10) Contempt (Rule 71) >By petition: DRCQC >By complaint: IEFPF >Special civil actions granted with the lower courts: 1. Interpleader, provided that the amount is within the jurisdiction of such inferior court 2. Ejectment suits 3. Contempt RULE 62 INTERPLEADER >It is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their conflicting claims among themselves. >3 Requisites: (1) There must be 2 or more claimants with adverse or conflicting interests to a property in the custody or oppression of the plaintiff (2) The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an interest at all, such interest is not disputed by the claimants (3) The subject matter of the adverse claims must be one and the same.

>Procedure: (1) A complaint for interpleader is filed by the person against whom the conflicting claims are made. The person who files the complaint shall pay the docket and other lawful fees and shall bear the costs even if he has no interest in the subject matter. However, they shall constitute a lien or charge upon the subject matter of the action, unless the court shall rule otherwise. (2) Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. This order shall be served upon conflicting claimants together with the summons and a copy of the complaint. (3) Within the time for filing an answer, each claimant may file a motion to dismiss. The rule may be based on Rule 16 except sufficiency of just cause since it is not necessary in a special civil action. In addition to the grounds is provided for in Rule 62impropriety of the action for interpleader. (4) The period to file an answer is interrupted by the filing of the motion to dismiss. If the motion is denied, the movant may file his answer within the reglementary period to answer, but which shall not be less than 5 days in any event, reckoned from the notice of denial of the motion. (5) The answer shall be filed within 15 days from the service of summons upon him. The answer shall set forth the claim of the claiming party and shall be served upon each of the conflicting claimants. (6) A reply to the answer of the other may be filed by each of conflicting claimants. The parties may also file counterclaims, cross claims, third-party complaints and responsive pleadings thereto in accordance with Rules of Court. (7) A pre-trial shall be conducted (8) After the pleadings shall have been filed, and pre-trial has been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims. >Jurisdiction: (1) If the subject matter is personal property valued at not more than P300,000.00 outside Metro Manila, and in Metro Manila, at not more than P400,000.00, the MTC. (2) If the subject matter is a real property with an assessed value at not more than P20,000.00 outside Metro Manila, and in Metro Manila, at not more than P50,000.00, the MTC has jurisdiction. RULE 63 DECLARATORY RELIEF >A special civil action brought by a person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance or any other governmental regulation, before

breach or violation thereof, asking the court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder. >2 Purposes: (1) To determine any question of construction or validity or constitutionality of an instrument, ordinance or regulation (2) Declaration of rights and duties thereunder >Kinds: (1) Petition for declaratory relief (2) Action for reformation of an instrument (3) Action to quiet title (4) Action to consolidate ownership >7 Subject matters: (1) A deed (2) A will (3) A contract or other written instrument (4) A statute (5) An executive order or regulation (6! An ordinance (7) Any other governmental regulation. >When unavailable: (1) To obtain judicial declaration of citizenship; (2) To establish illegitimate filiation and determine hereditary rights; (3) The subject of the action is a court decision; (4) Actions to resolve political questions; (5) Those determinative of the issues rather than a construction of definite status, rights and relations; (6) Terms of assailed ordinances are not ambiguous or of doubtful meaning; (7) In a petition to seek relief from a moot and academic question; (8) Where the contract or statute on which action is based has been breached; (9) hen the petition is based on the happening of a contingent event; (10) When the petitioner is not the real party in interest; and (11) Where the administrative remedies have not yet been exhausted. >4 Requisites: (1) There must be a justifiable controversy (2) The controversy must be between persons whose interests are adverse (3) The party seeking the relief must have a legal interest in the controversy (4) That the issue is ripe for judicial determination. RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OF THE COMELEC AND COA >Constitution: Sec. 7, Art. IX-A of the Constitution reads, unless otherwise provided by the Constitution or by law, any decision, order or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy thereof. >It shall be filed within 30 days from notice of the judgment, final order, or resolution of the Commission on Elections and the Commission on Audit sought

to be reviewed. RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS >Certiorari: A writ issued by a superior court to an inferior court, board or officer exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law. An original action for certiorari, prohibition, and mandamus is an independent action. As such, it does not interrupt the course of the principal. >Grave abuse of discretion: It is where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility. >Procedure: (1) The person aggrieved may file a petition in the proper court alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of the tribunal, board, officer and granting such incidental reliefs as law and justice may require. (2) The petition shall be accompanied by a certified true copy of the judgment, order, or resolution subject of the petition, copies of all relevant pleadings and documents, and a sworn certification of non-forum shopping. >Rule 45 v Rule 65: Rule 45 is a mode of appeal, it is a continuation of the appellate process over the original case. Whereas Rule 65 is a special civil action that is an original and independent action and not a mode of appeal. Rule 45 seeks to review final judgments or final orders. Whereas Rule 65 may be directed against an interlocutory order or matters where no appeal may be taken from. Rule 45 raises only question of law. Unlike Rule 65 which raises questions of jurisdiction because the tribunal, board or officer exercising judicial or quasi-

judicial functions has acted without jurisdiction or in excess of the jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. Certiorari under Rule 45 does not require a prior motion for reconsideration. On the other hand and as a general rule, a prior motion for reconsideration is required in Rule 65. Certiorari under Rule 45 stays the judgment appealed from. However, in Rule 65, it does not stay the judgment or order subject of the petition unless enjoined or restrained. In Rule 45 the parties are the original parties with the appealing party as the petitioner and the adverse party as respondent without impleading the lower court or its judge. In Rule 65, the tribunal, board, officer exercising judicial or quasi-judicial functions is impleaded as respondent. >Prohibition: is an extraordinary writ commanding a tribunal, corporation, board or person, whether exercising functions that are judicial, quasi-judicial or ministerial, to desist from further proceedings when said proceedings are without or in excess of its jurisdiction, or with grave abuse of discretion, there being no appeal, or any other plain, speedy and adequate remedy in the ordinary course of law. >Mandamus: It is an extraordinary writ commanding a tribunal, corporation, board or person, to do an act required to be done: (1) When it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty, and there is no other plain, speedy and adequate remedy in the ordinary course of law; (2) When one unlawfully excludes another from the use and enjoyment of right or office to which such other is entitled. >It is eesential that the petitioner should have a clear legal right to the thing demanded and it must be imperative duty of the respondent to perform the act required.

RULE 66 QUO WARRANTO >Quo warranto means by what authority and the object is to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded or if he has forfeited his right to enjoy the office. >It is a special civil action commenced by a verified petition against: (1) A person who usurps a public office, position, or franchise; (2) A public officer who performs an act constituting forfeiture of a public office; (3) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so. >Petitioner: While as a rule, a quo warranto proceeding is commenced by a verified petition brought in the name of the Government of the Republic of the Philippines by the Solicitor General or in some instances by a public prosecutor, the petition may be commenced by a private prosecutor, the petition may be commenced by a private person in his own name where he claims to be entitled to the public office or position alleged to have been usurped or unlawfully held or exercised by another. >It must be filed within 1 year after the cause of the ouster, or the right of the petitioner to hold such office or position arose. >Omnibus Election Code: Under the Code, a quo warranto proceeding may be instituted with the COMELEC by any voter contesting the election or any member of Congress, regional, provincial, or city officer within 10 days after the proclamation of the results of the election. >Grounds: (1) Ineligibility to the position; or (2) Disloyalty to the Republic of the Philippines. RULE 67 EXPROPRIATION >It is the right to take or reassert dominion over the property within the state for public use or to meet a public exigency and is said to be an essential part of governance even in its most primitive form and thus inseparable from sovereignty. >4 Requisites: (1) An ordinance enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private

property; (2) It is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; (3) There is payment of just compensation (4) A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. >2 Stages: (1) Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involvedits necessity and the public purpose. (2) Determination of just compensation through the court appointed commissioners. >Just Compensation: The market value of the property is the price that may be agreed upon by the parties willing but not compelled to enter into the contract of sale. RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGES >Modes: (1) Judicial foreclosure pursuant to Rule 68 (2) Extra-judicial foreclosure pursuant to Act No. 3135 as amended by Act No. 4118 >Equity of redemption: It is the period in the judgment of the court within which the mortgagor may start execising his equity of redemption, which is the right to extinguish the mortgage and retain ownership of the property by paying the debt. >Right of redemption: It is the right granted to a mortgagor to repurchase the property even after the confirmation of the sale and even after the registration of the certificate of sale. RULE 69 PARTITION >It is the separation, division, and assignment of a thing held in common among those to whom it may belong. It is a process of dividing and assigning property owned in common among the various co-owners thereof in proportion to their respective interests in said property. It presupposes the existence of a coownership over a property between two or more persons. The rule allowing partition originates from a well-known principle embodied in the Civil Code, that no co-owner shall be obliged to remain the co-ownership. Because of this rule, he may demand at any time the partition of the property owned in common. >No partition: (1) There is an agreement among co-owners to keep the property undivided for a certain period of time but not exceeding 10 years. (2) When

partition is prohibited by the donor or testator for a period not exceeding 20 years. (3) When partition is prohibited by law (4) When the property is not subject to a physical division and to do so would render it unserviceable for the use for which it is intended. (5) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled. >Modes: (1) By agreement of the parties (2) By judicial proceedings under Rules of Court. RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER >FE: It is entry effected by force, intimidation, threat, strategy, or stealth; the action is to recover possession founded upon illegal possession from the beginning. >UD: It is unlawful detention by a person who has acquired possession rightfully, but who detains the property after the right to keep possession has ended. >3 Requisites for UD: (1)Possession of any land or building is unlawfully withheld from a lessor, vendor, vendee, or other person after the expiration or termination of the right to hold possession by virtue of any contract express or implied; (2) Action is brought within 1 year after such unlawful deprivation or withholding of possession; and (3) Demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee. RULE 71 CONTEMPT >It is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with, or prejudice litigant or their witnesses during litigation. >Direct vs Indirect: D-Committed in the presence of or so near a court. I-Not committed in the presence of the court. D-Summary in nature. I-Punished after being charged and heard. D-if committed against: 1. RTC fine not exceeding P2,000 or imprisonment not exceeding 10 days or both 2. MTC fine not exceeding P200 or imprisonment not exceeding 1 day, or

both. I-If committed against: 1. RTC FINE NOT EXCEEDING P30,000 OR IMPRISONMENT NOT EXCEEDING 6 MONTHS OR BOTH 2. MTC fine not exceeding P5,000 or imprisonment not exceeding 1 month or both D-Remedy: Certiorari or prohibition I-Remedy: Appeal (by notice of appeal) >Grounds for DC: a. Misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings b. Disrespect towards the court c. Offensive personalities toward others; d. Refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so e. Acts which constitute forum-shopping f. Unfounded accusations or allegations or words tending to embarrass the court or to bring it into dispute contained in the pleading >Grounds for IC: a. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; b. Abuse or any unlawful interference with the proceedings not constituting direct contempt. c. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court or unauthorized intrusion to any real property after being ejected. d. Failure to obey a subpoena duly served. e. Assuming to be an attorney or an officer of the court without authority. f. Rescue or attempted rescue, of a person or property in the custody of an officer. g. Any improper conduct tending to degrade the administration of justice h. failure by counsel to inform the court of the death of his client constitutes

indirect contempt. WRIT OF KALIKASAN >3 Requisites: (1) That a person, corporation, or public officer is violating or threatening to violate the right of the people to a balance and healthful ecology as guaranteed by the Constitution by performing an act ir series of acts; (2) That the damage is so immense and material that such cannot be ignored; and (3) That the damage covers 2 or more cities or provinces. >The court may order the respondent to permanently cease and desist in the performance of the acts which imoairs the right of the people by violating an environmental law, or the court may compel te respondent to preserve, protect, and restore the environment. The court may also issue an order requiring the respondent to show its strict compliance with the foregoing.