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Remedial Law Review Lecture and Recitation Notes

Glenn Tuazon, 4-A

Atty. Tranquil Salvador
SY 2010-11
Stuf to take note of in jurisdiction:
What is the defnition of jurisdiction?
Jurisdiction over the case or the subject matter? (Subject matter
Jurisdiction over the person or the defendant?
Know the rules on fling fees.
N.B. vis--vis for criminal cases:
Defnition the same, as conferred by law, except you have to add that
venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in
civil cases, where parties can agree on venue or it can be subject to
Jurisdiction over the ofense. This is essentially the same as
jurisdiction over subject matter.
Jurisdiction over the person. This is jurisdiction over the person of
the accused.
Filing fees are not necessary.
What is the defnition of jurisdiction?
o The power of the court to hear, try, or decide the case
o As conferred by law
How will the court know that it has jurisdiction?
o From the allegations of the complaint.
Where do you take jurisdiction over the case?
o Conferred by law as well.
o Study BP 129, amended by RA 7691.
Do not assume that RA 7691 tells all. There are other
laws too.
What is the jurisdiction of the RTC?
o 1. Right/title/interest over real property, where value is: Value is
> 20K (OMM), > 50K (MM)
Claim for ejectment due to unpaid rentals of over
400K. Which has jurisdiction?
MTC. Ejectment is always under MTC,
regardless of the claim over unpaid rentals.
Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?
RTC, based on assessed value (not FMV)
which is over 50K. Recovery of possession
does not necessarily mean ejectment (ex.
Accion publiciana).
Value is determined by assessed value if it
involves right, title, or interest
Ouano case?
There was discussion whether FMV or
assessed value dictates. Assessed value
o 2. Amount incapable of pecuniary estimation
Examples: rescission, reformation of contract, specifc
Is expropriation capable of pecuniary estimation?
Expropriation is always fled with the RTC.
Though the subject matter is capable of
pecuniary estimation, the action is
exclusively instituted in the RTC.
What about declaratory relief?
RTC always has jurisdiction, and the SC
does not except when there is an issue of
There is no such thing as determination of
value; just a determination of validity.
What about support?
Even if its amount can be determined, the
law confers it to the Family Courts.
Foreclosure of mortgage?
Two views: one says that its always with the
RTC, because it only covers the security of
the property. The original action is always for
recovery of money.
The other view is that it must be governed by
the value of the security.
o 3. Family cases/marriage
Includes support, annulment, nullity, etc.
o 4. Juvenile/agrarian case
o 5. Other claims, where claim exceeds 300K (OMM) or 400K
The original text gives lower values. When was it
Original costs took efect March 25, 1994
1999 adjusted OMM from 100K to 200K
2004 adjusted both MM and OMM to 400K
and 300K respectively
Always take note of the word exceeding so the exact
amount is for the lower court.
o 6. Probate of will, determination of inheritance same amounts
Considering that the MTC has jurisdiction over
probate cases, at times, what if the value of the
estate is 100K? Can the probate of a will be
subject to summary procedure?
No. The rules on summary procedure
explicitly exclude probate proceedings.
Note that the MTC has a number of procedures.
There are ordinary proceedings and summary
proceedings, and now, small claims.
So the not exceeding 100K (OMM) and not
exceeding 200K (MM) only applies for
summary proceedings. But it explicitly
excluded probate proceedings.
What is the jurisdiction of the MTC over small
Not exceeding 100K.
o 7. Admiralty cases same amounts
In determining the 300K/400K, can you include damages, interest,
attorneys fees, litigation costs, etc?
o NO. Only limit the amount to the demand or the claim.
o But remember that there can be a principal action for damages,
in which the amount of damages claimed determines the
amount. This is not covered by RA 7691, this is covered by
Small claims
o What is the amount?
Not exceeding 100K.
o Is there a distinction between OMM and MM in small
o What should be included in the 100K?
The claim itself.
Exclusive of damages
What if the principal action is for damages?
Does not apply. Actions for damages are not
covered by small claims actions, because
these have to be ascertained. These are not
akin to sum-of-money cases.
o Does it cover quasi-delicts?
Yes. (Covers: fault/negligence, quasi-contract, or
o What if it arises from commission of an ofense?
Yes for the civil aspect of such (fault/negligence).
Just remember that when you fle a criminal case, the
civil aspect is likewise fled (unless reserved, waived,
or fled ahead). So it cannot be the subject of small
o Do you need a lawyer to fle the complaint? Do you need
to prepare a regular complaint.
No need for a lawyer. There is also a standard form
o How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
There is an overlap here between summary procedure and
small claims procedure. Which is preferred?
This is still open for discussion, and is not yet clear.
Sir suggests that the option is upon the complainant,
since there is concurrent jurisdiction of both small
claims court or court of summary procedure.
What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
o Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies
What is the jurisdiction of the SC?
o Also both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, disciplinary actions
over PLUS
Actions against members of the Bar [concurrent with
actions against ambassadors, public ministers,
consuls, etc.;
constitutionality of treaties, laws, proclamations, etc.;
declaratory relief only when there is a question of
o Appellate:
decision of CA, decision of CTA en banc, decision of
SB, decision of RTC on pure questions of law;
REMEMBER this motherhood statement: the only
way to go up to the SC is for petition for review on
certiorari (RULE 45). This applies to civil and criminal
cases, except if the penalty in a criminal case is
death, RP, of life imprisonment.
Jurisdiction over the person of the defendant:
o 1. Voluntary appearance
By submitting to the jurisdiction of the court; ex.
Appearing in court or fling an answer or fling motion
for extension of time without disputing the courts
o 2. Proper service of summons
Rule 14
Filing fees:
o Rule #1: payment of fling fees is jurisdictional in civil cases
o Rule #2: how does the court determine fling fees?
You include interest, damages, attorneys fees etc.
pay everything that you allege for court fees
But for jurisdictional purposes, just the principal claim
o Rule #3:
Sun Insurance
Filing fees must be paid within prescriptive period or
reglementary period (for appeals or compulsory
counterclaims), or else it is deemed prescribed
o Rule #4:
Alday v. FGU Insurance
Permissive counterclaims require docket fees
The claim does not arise from the principal
action, but involves the same parties. This
could easily have been fled separately.
Compulsory counterclaims do not require docket fees
BUT read Korean Technologies case of 2009 this
is how you answer the question whether compulsory
counterclaims require fling fees
From nowhere, this case required that even
compulsory counterclaims have docket fees
paid. Korean Technologies cited Rule 141.
But in practice, based on an SC Resolution,
the collection of fling fees on compulsory
counterclaims is suspended. This has not
been lifted yet.
Alday: Payment of fling fees for compulsory
counterclaims is not required. But you have
to take note of Korean Technologies now
o Lien on the judgment?
If there are damages granted to the complainant, but
there has been lack of payment of fling fees. The
payment of docket fees is a lien on the damages.
What if the claim has already ripened upon the
fling of the complaint, but by omission, but you
were not able to allege it. Can this be a basis for a
lien on the judgment?
Proton Pilipinas v. Banque Nacional
There was a claim that has ripened but was
not included, and there were interests that
would ripen once the action is pending.
SC said that a claim ripened during the
pendency of the case, it can be a lien on the
But if you did not allege it, the court cannot
grant an award because you did not pay
docket fees.
o What is the rule on defcient or insufcient payment of
fling fees?
Rivera v. Del Rosario
You have to pay full fling fees. The defciency must
not be based on the fault of complainant. But if the
fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the defciency.
Jurisdiction is not automatically lost. Clerk of court
makes a defciency assessment.
There must be no intention to defraud.
o Husband fled for habeas corpus in RTC Makati to recover child
from wife
o What are the two kinds of habeas corpus?
N.B.: there are two kinds of habeas corpus custody
of minors and regular habeas corpus in the Rules of
o RTC Makati dismissed the case because the child was
allegedly in Basilan.
o What is the efectivity of writs of habeas corpus?
N.B.: Efectivity of writ issued by regular court only
enforceable in the territorial jurisdiction. But CA and
SC everywhere.
o Filed with the CA, but was denied because the RTC (Family
Courts) have original jurisdiction over custody of minor Habeas
Corpus cases.
o HELD: Can fle with CA. It has jurisdiction. SC has
jurisdiction, too. The CA and SC have concurrent jurisdiction
over habeas corpus cases.
o But always remember that when you talk about concurrent
jurisdiction, you still have to follow hierarchy of courts.
Herrera v. Bollas
o Ejectment case (1 year period). Filed within the proper period,
but the complaint was amended to add additional defendants
beyond the 1 year period. Does the court still have
o After the lapse of the year period for ejectment, has the
claim prescribed?
No. N.B. One year period is not prescriptive period.
You just fle action pubiciana with the appropriate
court (RTC or MTC, depending on the assessed
value), not the MTC by default (for ejectment).
o HELD: MTC still had jurisdiction for ejectment (based on
original complaint.)
o Repetition of Tijam v. Sibonghanoy estoppel by laches. After
active participation in a case, you cannot question the courts
jurisdiction anymore.
o Went up to the SC through Rule 43 (appeal to CA from a QJA)
Usually decisions of QJA go up to the CA under Rule 43. What are
the exceptions?
o 1. HLURB decisions, as provided in charter, appealable to the
Ofce of the President
o 2. CTA decisions, under amended rules, appealable to the CTA
en banc, then SC
o 3. NLRC decisions, although by a QJA, are reviewable by the
CA although not under Rule 43, but Rule 65 (GADALEJ).
o 4. OMB decisions go to the CA, under Rule 43, for
administrative cases. But if there is GADALAEJ, go to the SC,
under Rule 65.
o Which court has jurisdiction over enforcement of foreign
RTC, because enforcement of foreign judgments are
incapable of pecuniary estimation.
ALWAYS, regardless of amount of judgment, since it
is not based on the amount of the claim.
In this type of action, you dont need to prove the facts
again, etc.
o Marcoss group that docket fees must be based on the
value/amount of the claim, which is up to the Billions. Is
this correct?
This rule applies to money claims against an estate,
but without judgment yet. Here, there already was a
judgment in DC of Hawaii.
o How do you impugn a judgment?
Lack of notice
Lack of jurisdiction
o What is the rule on Arbitral awards?
These must be should be enforced or recognized
An arbitral award is not a foreign judgment (Under
ADR Rules)
Zamboanga Barter Goods:
o N.B. Rule 65 is not an appeal. It is a special civil action.
o Being one, RTC, CA, and SC have concurrent jurisdiction.
When you discuss concurrent jurisdiction, you cannot avoid
discussing hierarchy.
o But when you talk about appeals, no need to consider
hierarchy. The law already makes a decision for you.
What are the kinds of actions?
o Civil
Protection or enforcement of a right, or prevention or
redress of a wrong
Two types?
o Criminal
Once the information is in court, only then does it
become a criminal action, that has already been
prosecuted by the State through the prosecutor.
o Special proceedings
Establishes a right, status, or condition
Are civil actions always based on a cause of action?
o No.
Distinguish ordinary civil action from special civil action?
o There is Cause of Action in ordinary civil action.
o Ex. Special Civil Action like declaratory relief does not need
cause of action
Requisites of cause of action?
o 1. Right of one party
o 2. Obligation of the other to respect
o 3. Breach MOST IMPT!
Is splitting cause of action a ground for MTD?
o No it is Res Judicata and Litis Pendentia
Can there be joinder of cause of action?
o Yes.
o BUT it is not mandatory.
Does there have to be just one breach or numerous violations?
o Numerous.
o For every cause of action, there is one breach.
o For as many breaches as there are, there are as many causes
of action.
If there is a claim for sum of money, and several claims for
damages (moral, exemplary, etc.) are there multiple causes of
o No. Just one, because claims for damages are incidents of the
one breach (failure to pay).
There are three promissory notes, with amounts of 50K, 100K, and
200K, and there is just one loan. There was failure to pay. How
many causes of action do you have?
o Three PNs, three causes of action.
Can there be joinder of alternative causes of action?
o Yes. Example is shipping of goods. First cause of action is
based on breach of shipping contract. In case it is void, the
alternative is to sue based on quasi-delict.
If you join cause of action should it arise from the same series of
transactions, or can it be totally unrelated?
o Scenario 1: X versus Y (just two parties). Can join as many
causes of action, even if totally unrelated.
o Scenario 2: X versus ABCD (multiple defendants). Can only
join the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law Rule 3 Section 5)
Can you join ordinary civil actions with special civil actions?
o No.
Can you join two special civil actions?
o No. Because they have their own special rules.
Can you join recovery of sum of money and ejectment?
o No. Ejectment is summary proceeding, so it has its own rules.
What is the totality rule?
o When all of the claims are claims for sums of money, even if
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o But you cannot do this when not all are for sums of money.
There is a sum of money claim and recovery of property in Cavite.
Can you join the action in Cavite?
o Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the property
o N.B. as well that venue is not jurisdictional in civil cases, unlike
criminal cases. Note as well that venue is waivable.
o Answer: Theoretically, you can join. But the other party is
expected to fle a motion to dismiss on the ground of improper
venue. FOLLOW THE GENERAL RULE: The higher court
absorbs the claim (RTC > MTC).
What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
o What happens to the balance?
Its lost. So its better to fle a separate action in this
Is misjoinder of cause of action a ground for its dismissal?
o No, it will NOT cause dismissal of the principal action.
It is severed and these proceed with separately.
Although there can only be separate proceeding when
there is separate fling.
o The court is not duty-bound to proceed with it, especially when
it appears that it has no jurisdiction.
What is a special civil action?
o Covered by special rules.
Who can be parties to an action?
o Natural persons
o Juridical persons
o Those authorized by law
What is the general rule?
o All those with capacity can be a party.
o For natural persons, that is the age of majority.
Can a six year old boy be a party?
o Yes, but with assistance of parent, guardian, or guardian-ad-
o A minor can sue, a minor can be sued if assisted.
What is the rule on married parties?
o Sue and sued jointly.
o What are the exceptions?
Judicial separation of property
Exclusive property of spouses
Involving practice of profession
What if the natural person is incapacitated?
o Can sue and be sued, but must be assisted.
o What if the person becomes incapacitated (supervening
incapacity), will the case be dismissed?
No. Sec. 18 provides that the court will provide
When can we say that a juridical person has capacity?
o Duly incorporated and registered with the SEC.
[Mild segue into summons] If the defendant is a natural person, how
do you serve summons?
o Priority is personal service. It must be served to the persons,
wherever he may be found. (Ex. The James Yap rule they
tried serving it to him in Araneta)
o If he cannot be found, substituted service to a a) person of
sufcient age and discretion and b) residing therein. Either
residence or ofce.
What is sufcient age and discretion? Recent
ruling says age of majority.
Should not be a transient. Must reside therein.
Can a foreign corporation sue and be sued?
o If its an isolated transaction, a foreign corporation can sue and
be sued.
o If its doing business but not licensed, it CANNOT sue, but can
be sued.
o If its doing business and is licensed, it can sue and be sued.
Service of summons to a domestic corporation?
o Rule 14, Sec 11
How do you serve summons to a foreign corporation?
o Resident agent one named to receive summons
o Representatives and ofcers found in the Philippines (if it has a
branch, for instance)
What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
o No separate juridical existence.
o They can be parties, as defendants, and named as such
(under the name under which they are generally and commonly
o They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
How do you serve summons to a non-juridical entity?
o To anyone or person in charge of the ofce.
Who are those authorized by law? Give examples.
o Political parties
o Labor unions
o Archdiocese
o Estate
How do you serve summons?
o Depending on the entity they have diferent rules.
Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
For public corporations?
o Province executive head (governor)
o City city mayor
o Municipality municipality mayor
Who is a real party in interest?
o A party who stands to be beneftted or prejudiced by the
Does the concept extend even to defendants and third party
plaintifs/defendants? What about an intervener?
o The law does not limit it to plaintifs only it uses party as a
generic term, so it can encompass any party impleaded, if he
will beneft or be injured.
Does this concept of real party in interest apply to all cases?
o No. The concept of real party in interest will only apply to
private suits.
o Does it apply to a taxpayer suit?
No. Locus standi applies here.
o Does it apply to criminal cases?
[Not answered, but I think not]
o What is the diference from legal standing/locus standi?
This is from public suit fled by a private party. There
is a broader policy concern here, even if there can be
beneft or injury as well.
o A Congressman does not believe in the act of the
President, so he questions it as part of his legislative
prerogative. Is he a RPII?
No. Locus standi applies as well.
Thus, diferentiate RPII from locus standi:
o Locus standi pertains to acts of government. By reason of this
act, you sufered injury.
o You do NOT use legal standing in private suits. Only in public
Who is a necessary party?
o A) They are not indispensable, B) but ought to be joined if one
needs complete determination of the case.
Who is an indispensable party?
o If not impleaded, there can be no fnal determination.
o N.B. The codal does not use the word complete. So they are
compulsorily joined.
What if there is a suit against joint debtors?
o The other parties not sued are necessary parties.
o Can you sue one of them only?
Yes. The court can issue a valid judgment, although
not complete.
o Can you then proceed against the other one, though not
impleaded at frst?
What if there is a solidary obligation, not joint? Ex. X and Y
solidarily owe Z PHP 100,000. Z sues.
o [Neither necessary nor indispensable (?)]
o Can you sue X only?
o Can there be judgment?
Yes, because the obligation is joint and several
o Can you sue Y later on, having recovered from X?
No, because you recovered already.
o Can you sue at the same time?
Yes. The case can proceed against either, or both.
There is an action for recovery of title AND possession. X holds
title; Y has possession of the property. The action is just for
recovery of title. Can you sue X?
o Yes, because X is the proper party.
Same facts. Can you sue Y for recovery of title, without suing X?
o No. Y is a mere possessor. The court cannot render judgment
without impleading X. X is an indispensable party in this case.
What is the failure of failure to implead?
o If it is a necessary party, the general rule is that failure to
implead is non-prejudicial. There is no waiver of right to
implead. There is no waiver UNLESS there is an order to
implead from the court.
o If it is an indispensable party, the court should order that the
indispensable party be impleaded (Domingo). If despite this
order to implead, the plaintif did not comply, the case should
be dismissed.
o What if the court did not notice non-joinder, and thus did
not order to implead the indispensable party, and renders
a decision?
The judgment is null and void.
When is there substitution of parties in a civil case? There are
o 1. Death
Who should die?
Any party. The law does not distinguish.
This is the most common.
o 2. Change of holder of public position (death, resignation,
removal, cease to hold position)
This is a very limited application, since it just applies
to public ofcers.
o 3. Transfer of interest
What are the requisites of substitution by death?
o 1. A party dies
o 2. The pending action is not extinguished by reason of death
o Why does the law need to say this?
Because there are actions that are extinguished by
death. Examples are actions that are purely personal
to the party
Give examples.
Ex. Contract for Michael Jackson to sing in a
Ex. Receipt of a widow of support. When
she dies, the support from widowers estate
is gone.
What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.
When is the 30 day period counted?
From the FACT of death, and not from the
knowledge thereof.
o 2. Give names and addresses of the legal representatives
Who should be legal representatives?
Legal heirs, administrator, or executor
N.B. The law provides for legal heirs,
because there is procedure to be done
before appointment of administrator or
executor (ex. probate of the will for the latter).
o 3. Court orders substitution and for the substitute to appear
There is action of A and B against C, D, and E. What if E dies?
o The counsel of E names a substitute. The court will then act
Same facts. However, there was no successful substitution (i.e.
the duties were not complied with). What happens?
o There can be a valid judgment, but only against C and D.
o There can be no valid judgment against E.
Same facts. No substitution of E either. But C and D are
incidentally, heirs of E. Can there be a valid judgment as to C and
D? Is there a need for substitution?
o There is still a need for substitution, even if C and D are
already parties. That C and D are incidentally Es heirs as well
does not change the result.
o This is the Brioso case. There is valid judgment only against
C and D. It is wrong to say that C and D automatically
substitute for E. There are other heirs who are afected by this
improper automatic substitution.
o [Non-recitation question what is the efect if E is
necessary? If E is indispensable?]
Relate the provisions above. If necessary, you can
subsequently fle a suit against Es heirs to complete
the judgment. If indispensable, the judgment is null
and void, even against C and D.
What are the requisites for substitution of public ofcer?
o 1. Removal/death of public ofcer and appointment of
successor within 30 days unless otherwise provided
o 2. Successor adopts, continues, or threatens to continue the
action sued against
o 3. There is substantial need to continue the action
Substitution is no automatic. What are needed to be done to
substitute the new public ofcer?
o 1. Give notice to the new public ofcer
o 2. Opportunity to be heard for the new ofcer
Mere fact that he is inclined to continue the action of
the predecessor is not enough
Give an example of transfer of interest.
o A sues B for judgment for sum of money based on contract. B
assigns the contract to C and C accepts.
o Can the case continue against B despite the transfer of
o Can the court order that C be impleaded?
Yes. But there is no substitution here. C is just
o How then can there be substitution?
The court has to order a substitution, not mere
impleading. BOTTOM LINE: there has to be a court
In case of death of a defendant in a sum of money case, will there
be substitution? (VERY IMPORTANT)
o Section 20. It will NOT go to the heirs, but it will continue
against the estate. (Remember Succession!)
o This is the special rule against sum of money cases.
o Ratio for this?
Because you ultimately deal with the executor or
administrator anyway.
But its wrong to say there is substitution, because the
law does not mandate it.
o This position is further supported by Rules 86 and 87.
o What are the requisites for this rule to apply?
1. The DEFENDANT must die
2. It must be a sum of money case based on contract
o What if the plaintif dies?
The general rule will apply, even if its a sum of money
Indigents Algura v. Local Government of Naga: Resolves the
apparent confict between Rule 3, Sec. 21 and Rule 141, Sec. 19.
o If the indigent fts within the parameters set by Rule 141, Sec.
19, then the court must declare him to be an indigent.
What is the Rule 141 requirement?
Gross income + family income does not
exceed twice of monthly minimum wage
And owns real property whose FMV is less
or equal to PHP 300K
o If he doesnt, he falls under Rule 3, Sec. 21 and must apply for
indigent status. (Indigency test) Here, the court exercises
discretion as to whether you are an indigent or not.
o So can a person owning real property with FMV of PHP
300,001 be declared an indigent?
Yes, but under the indigency test.
If you are declared an indigent, you do not pay fling fees. But
what happens when there is a judgment?
o There is a lien, as regards fling fees.
What is the rule on stenographic notes?
o It is free. There is no lien on the judgment.
What happens when the court fnds out you are not an indigent?
o The court can require you to pay.
o What if you refuse to pay?
The court can order execution.
o What if you fail to pay or ignore the execution?
The court can dismiss the case, for failure to comply
with an order of the court.
Planters v. Fertiphil:
o Planters did not pay appellate docket fees. But this was in
1992, prior to the 1997 Rules on Civil Procedure, which began
the requirement of appellate docket fees. The 1997 Rules
must not apply retroactively.
Atlantic Erectors:
o Collection for sum of money over construction project over
property. The plaintif attempted to make an annotation of lis
pendens on the title of the property. HELD: You cannot do
this. This is an action in personam, not in rem, as regards the
o A notice of lis pendens will only lie if it is a right, title, or interest
over real property. Outside of this, you cannot avail of a notice
of lis pendens.
o Rule 43, up to the CA. Attached duplicate of decision, but not
pleadings. This is enough for CA to give due course to the
o The main case is for declaratory relief (SCA). The question is
whether there can be execution of such (yes). There can also
be a counterclaim, even if declaratory relief is an SCA and the
counterclaim is an ordinary action.
Tolentino v. Natanauan:
o There is no res judicata between recovery of possession and
nullity of deed of sale.
o Requisites of res judicata?
A) Former judgment fnal
B) Court had jurisdiction
C) judgment on merits
D) Identity of parties, subject matter, causes of action
Do not make the mistake of confusing venue and jurisdiction in civil
procedure. Jurisdiction is the power given by law to hear, try, and
decide cases. Knowing what court is one thing, but knowing where to
fle it is diferent.
There was an agreement to development of a piece of land in
Tanay, Rizal to become a memorial park. The duty of the owner
(living in Quezon City) of the piece of land is to provide property.
The duty of the developer (located in Pasig) is to dig up the land,
put drainages, etc. The owner of the land died, and the heirs are
now substituting for their father. They want to rescind the
agreement to develop. Where do they fle?
o There are two steps in venue problems. First, determine: is it
a real action or a personal action?
Its a personal action. It involves rights and
obligations of parties, although the subject matter
involves land.
o Where do you fle it?
At the option of the plaintifs. Either in their principal
residence (Quezon City) or the defendants (Pasig)
o Which court has jurisdiction?
RTC, because it is an action incapable of pecuniary
estimation (rescission)
Aileen Marcos case:
o In cases where there are several plaintifs and defendants, the
codal provides the word principal before plaintif and
defendant, so that the plaintifs will not fle the case before far-
fung or inconvenient areas.
o In this case, Aileen Marcos is fling a case to enforce a trust,
and some nominees live in Batac, Ilocos. Marcos lives in
Makati. She fled in Batac.
o HELD: Should have fled in Makati, because she is the
principal plaintif.
Where do you fle an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
Its not covered by the Rules of Court, but Act 2135. For
purposes of EJ foreclosure, it should be fled where the
property is located.
o But the mere fling and payment of fees (for multiple properties
in various areas0 can be paid in one ofce, as long as it can be
established that it covers all areas. But the actual sale will only
be done in the place where the properties are located.
What about judicial foreclosure?
o Rule 68 does not provide for venue for this SCA. But it is fled
where the property is located.
o But if it is for collection of a sum of money, fle it as a personal
Where do you fle an action for nullity of marriage?
o RTC where the plaintif resides, where the defendant resides,
or where their conjugal home is located (special rule in Family
Courts issuance)
What should be your frst consideration? What is the general rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specifc
law provides otherwise.
On specifc venues, as provided by law
o Give an example.
Actions for Quo warranto
o What if you want to fle an action for perpetuation of
This is covered by Rule 24 (deposition before action
or pending appeal).
Special rule: Place of residence of any expected
adverse party or defendant
o What about adoption?
Where the prospective adoptive parents reside
o What about probate?
Where the deceased last resided at his time of death
o Writ of habeas corpus on residence of minors?
General rule: RTC where the minor is supposed to be
Thornton: But if unknown or cannot be found, in the
CA or SC
Can the parties stipulate on venue?
o Yes, they can.
o In an ejectment case, the property is located in Cebu.
Plaintif resides in Makati, defendant in QC. Where do you
fle it?
In the MTC of Cebu. Residence in general does not
o What if I fle it in Makati?
But what will you expect?
Motion to dismiss on the ground of wrong
venue, coming from the defendant.
But what if there was no motion to dismiss, and in
the answer, there was no allegation of improper
There is waiver on the rules of venue.
Remember Rule 9, Section 1. This is the general rule on waivers and
objections on grounds not raised in an answer or MTD. Failure to raise
these grounds in MTD or answer is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
What is the distinction that you have to make as to stipulations?
o If there are no words of exclusivity, then it is only an additional
o If there are words of exclusivity (ex. can only be fled in Cebu,
waiving all other venues), then you can only fle it there.
o (PBCom v. Lim is an example of a case with restrictive words)
In this case, the stipulation on venue in the principal
agreement (PN) applies to the accessory contract,
which is the surety agreement which cannot exist
without the prior agreement.
What if there was no Motion to Dismiss and no answer fled?
Apparently, the defendant did not notice the improper venue, or he
decided to waive it. Can the judge later motu propio dismiss the
case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground of
improper venue. (Gumabon)
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
fling an ejectment case in the MTC.) Here, while the rules on summary
procedure include MTD as a prohibited pleading, an exception is lack of
jurisdiction (contra. wrong venue).
What is the local version of forum non conveniens?
o Prohibited forum shopping (Read Bank of America)

Summary procedure
1. Filing of the complaint
o In summary procedure, after fling the complaint, what can
the court do?
A) Dismiss the case outright
B) Issue summons
o What is the responsive pleading?
Can you fle a MTD?
In general, no. It is a prohibited pleading.
When do you fle the answer?
10 days, not the usual 15.
o Can the plaintif fle a reply?
No. Its also a prohibited pleading.
o What if there is no answer?
The plaintif can fle a motion for the court to render
A motion to declare the defendant in default is a
prohibited pleading. Just ask the court to render
o After the fling of the last pleading, move on to next stage.
2. Preliminary conference.
o Take note, in SP, it is NOT pre-trial but preliminary conference.
o When does the court set this?
Period of 30 days.
o What happens here?
The parties can compromise, identify issues, etc.
o Can the court render a judgment based on what was
presented in the preliminary conference?
Yes, the court can, if it is convinced at this point in
o Assuming there is no judgment in steps 1 and 2, move to the
next step
3. Submission of judicial afdavits or position papers
o Is there a hearing in summary proceeding or trial?
No hearing, no trial.
o Within how many days do you submit afdavits?
Within 10 days
o Can the court render judgment?
General rule: 30 days from the fling of the last
NOT submission for resolution, but
submission of the last pleading
Exception: 15 days, if the court asks for further
clarifcatory documents
What are the prohibited pleadings?
o 1. MTD
Except lack of jurisdiction over subject matter
Or failure to refer to lupon
o 2. Reply
o 3. Bill of particulars
o 4. MR or MNT
o 5. Petition for relief from judgment
o 6. Motion to declare in default
o 7. Third party complaint
o 8. Memoranda
o 9. Dilatory motions for postponement
Does this cover motion for cancellation of
If is not dilatory. But be careful with this,
because the judge has to determine frst if it
is dilatory.
o 10. Motion for extension of time
o 11. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
o 12. Interventions
Jalique v. Dandan:
o This is a case where the respondents fled a joint counter
afdavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintif. RTC afrmed. CA moved to
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
Bonifacio v. Bellosillo
o The judge was sanctioned here, because there was no answer,
and instead of promulgating judgment, he still called for a
preliminary conference.
Pascual v. Jovellanos
o The defendant fled a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
Boy v. CA:
o May the MTC pass upon questions of ownership in an
ejectment case?
YES, only provisionally and for the purpose of
resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This special
authorization is a valid cause for someone else to appear in the
plaintifs or defendants behalf.
o What happens when the plaintif is absent in preliminary
Case is dismissed
o What happens when the defendant does not appear?
As if he didnt fle an answer. The court can render
o What is the stopgap?
Have an explanation OR send a representative
o Where does this rule come from?
Provision on authorization does not appear in the
rules on summary procedure. But the SC applied to
Rule 70 suppletorily, the rules of Rule 18 on pretrial
and appearance by representative.
Small claims
What should a plaintif fle?
o 1. Statement of claim
o 2. Together with certifcate of non forum shopping
o 3. Authentic copies of document from which the action stems
from (actionable documents)
Who signs the statement of claim?
o The claimant. No need for the lawyer.
o [Atty. Salvador: maybe this special rule is for bar funkers to
practice, because the claimant still needs to fle certain
documents he may not know how to execute]
What happens after?
o Court fles notice for defendant to submit response
o Defendant has 10 days to fle a response
o What are the formal requirements?
There is already a form provided for the plaintif and
defendant to fll in.
They just need to attach documents.
o Can there be a counterclaim in a small claim action?
And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o Can a claimant apply as an indigent litigant?
Yes. (Aldura)
o Will there be presentation of evidence?
Yes, but it is not a strict and formal trial. You can only
present the evidence attached to the claims.
o Is there a preliminary conference?
None mentioned.
o Do the parties have to appear?
Yes, or at least their representatives. Failure for the
plaintif to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same efect as not fling a response.
What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral by
JDR judge
Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception. Failure to refer to the lupon is not an exception.
Can it be appealed?
o No. By express provision, it is fnal and executory.
o What then, is the remedy?
Rule 65 (petition for certiorari) because there is no
plain, adequate, speedy remedy
What must be in the complaint?
o Claims a cause of action
o Must contain allegations brief and concise statement of
ultimate facts, devoid of evidentiary matters
You can also allege as to fraud, mistake, malice,
illegality, condition of the mind, etc.
As to matters of fraud, how must it be alleged?
o With particularity
As for mistake, how must it be alleged?
o With particularity
If its a condition of the mind (malice, intent, knowledge, etc.)?
o Generally
You can also base your claim on an actionable document. How to
do you allege it?
o 1. You can attach or append the document
To show the court that this is where your cause of
action arises
o 2. You can reproduce the contents of the document in the
pleading en toto
(But in practice, just always append anyway)
How do you deny an allegation under an actionable document?
o Specifcally denied, under oath
o What is the exception to when you need to specifcally
deny under oath an allegation from actionable document?
1) When the adverse party is not a party to the
2) When there is an order for inspection and it is
What is the efect of failure to specifcally deny under oath an
actionable document?
o It is an admission ONLY as to the genuineness and due
execution of the actionable document
But what about the rights and obligations of the parties arising
from that document?
o It is up to the court to determine it.
What is the period to fle an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?
For foreign corporation and service is done to
government ofcial designated by law
What are the defenses available in answer?
o 1) Afrmative defense
If you only hypothetically admit, without raising
any defense, what happens?
In this case, there is no more issue. This will
lead to a judgment on the pleadings (Rule
This occurs when the answer does not
tender an issue or admits the material
o 2) Negative defense
Specifc denial of facts alleged essential to the cause
of action.
What are the kinds of specifc denial?
1) general denial
2) specifc denial
3) disavowal of knowledge (lack of
knowledge and belief to form a specifc
Is the counterclaim or cross-claim in a separate pleading?
o No.
What is a compulsory counterclaim?
o Arises out of the transaction constituting subject matter of the
What is a permissive counterclaim?
o Arising from an event unrelated.
What is the period to answer a counterclaim?
o 10 days
o (In practice, you only answer a permissive counterclaim. In
practice, a compulsory counterclaim is not answered.)
What is a cross claim?
o Made against a person/party on the same side.
Can there be a counterclaim defendant cross claim?
o Yes. The counterclaim defendant is the original plaintif. He
can fle a cross claim against a co-party.
Is there a period to answer a cross claim?
o 10 days
Do you need leave of court to fle a counter or cross claim?
o No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
For a third party complaint, do you need leave of court?
o Yes. You cannot just fle a third party complaint.
o Who is usually the third party plaintif?
The defendant in the main case, who feels that he
should fle a complaint against someone that court
has yet to acquire jurisdiction from.
This is the reason why there is need for leave of court.
You need to have the third party impleaded.
Why would you want a third party complaint?
To contribute or indemnify
o Classic case: car crash a hit b hit
c. C sued B. B sued A for
Any other similar ground
o What is the period to answer a third party complaint?
15 days, because it is treated as an entirely new
Is the reply a mandatory pleading?
o No.
What is the period to fle a reply?
o 10 days.
What do you do in a reply?
o To controvert the new matters raised in the answer
What is the efect of failure to fle a reply?
o All new matters stated in the answer are deemed controverted
o What is the reason for this?
[Didnt answer]
What happens after answer, etc?
o Pre-trial
Three important things:
o Signature, verifcation, and CNFS
What is the efect of a lawyer afxing his signature in a pleading?
o Indicates that he has read the pleading, and to the best of his
knowledge, the information is correct
o And that the fling of the same is not for the purposes of delay
There are some pleadings that are left unsigned. What happens?
o It has no legal efect at all.
o Is there a way to cure it?
If counsel can show it is due to mere inadvertence
and not for delay
o Will the court just give efect to the pleading or will it still
require actual signing?
[Didnt answer]
If a lawyer changes his address, what is his duty?
o Inform the court. Failure to do so may lead to disciplinary
What are the contents of the verifcation?
o That the afant has read the pleading and the allegations are
Must it be under oath?
o Yes.
Is it mandatory?
o No. Only when the law requires you to verify.
Is it jurisdictional?
o No. Failure to attach is not fatal.
o But why do the SC and CA dismiss cases for failure to
attach verifcation?
Although it can be cured, the court may dismiss a
pleading for failure to comply with procedural
Who signs the verifcation?
o The party fling the pleading.
Can the lawyer sign it?
o General rule, no. Unless there is some compelling reason.
o For example, the partys father is to be buried on the day of
fling of the petition the court allowed it.
o Also, the distance of the petition from the counsel (ex. the
petitioner is in the USA and the counsel is in Manila, and there
are only 15 days to fle.)
Can a minor sign?
o Must be assisted.
Can a married person sign by himself or herself?
o One spouse is enough, but only if there is common interest.
(N.B. but see note below)
For co-owners or those in the same residence?
o Signature of one is enough if there is common interest. (N.B.
but see note below)
TAKE NOTE: The key when it comes to multiple parties, all of them
have to sign. However, if there is a common interest among the parties,
a signature of a number of them may be enough.
o BUT in practice, do not take chances.
CNFS: What about a juridical entity? Who can sign?
o [Anyone, as long as authorized by a board resolution]
What are the contents of the form?
o Plaintif/principal party shall certify under oath that he has not
fled a similar complaint involving the same issues in another
court, tribunal, QJ agency
o If there is any other pending claim, provide status
o If he learns about similar action, report fact within 5 days to the
Why does the law require that it is the party that signs?
o Because it is only the party, and not even the lawyer, that
knows whether there is another action.
For those with no separate juridical existence, who signs?
o All the parties, since there is no juridical personality.
What is the efect of absence of CNFS? (Note: non-compliance is
diferent from absence)
o It will be dismissed. It can be re-fled because it is without
Can it be amended to cure?
o No, the defect cannot be cured by an amendment. Just re-fle.
What is the efect of non-compliance? (Note: this occurs when there
is a CNFS, but you did not respect your commitment under the CNFS)
o Indirect contempt (Failure to comply with order or process of
o Administrative and criminal cases (since you lied under oath)
o Dismissal of the case
What if there is willful and deliberate forum shopping?
o (Meaning, its not only false, but you also deliberately disregard
o Dismiss the case with prejudice
What kind of dismissal?
Summary dismissal cannot contest
o Placed in direct contempt without opportunity
o There was a CNFS fled in the frst place. What was not
attached was the board resolution showing the authority of the
Vice President to sign the CNFS on behalf of the company.
This authorization was submitted on the MR.
o NOTE: There was a valid CNFS. There was liberal
interpretation of this provision for these reasons.
o Here, the lawyer signed the verifcation, not the party. This was
validly excused by the court since the party was in the US, and
could not sign the pleading in time given the 15 day period.
There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
Young v. Seng
o There was no forum shopping, because the frst case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and that
party can fle the same case again.
o Failure to disclose this fact is not a violation of the CNFS.
OSM Shipping
o Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
Tan v. Kaakbay
o No need for a CNFS for a compulsory counterclaim
New Sampaguita
o There was no forum shopping here, because the frst case
questioned whether there can be a writ of execution when the
parties agreed to compromise in the frst place, when the court
dismissed the initial case. The second case was whether the
court approved the compromise agreement in the frst place.
These are diferent.
o Is the rule on personal service mandatory?
Yes. The rule is priority is by personal service. If you
cannot do it by personal service, you can do it by
registered mail, but you have to make an explanation.
o In this case, it was made by registered mail and there was no
explanation. For this reason, the decision of the court to allow
it was based on its reasonable discretion. BUT this is not the
o What are the material dates here?
Period only commences to run from date of receipt of
the decision
Date of fling of the MR
Date of receipt of denial of the MR
Amendments and supplements
There is amendment for civil cases and there is amendment for criminal
For civil cases, amendment may either be:
o 1) As a matter of right
o 2) With leave of court
When is it a matter right?
o Before an answer or within 10 days of service of reply
o What do you need to fle?
NOTICE to amend
When do you need leave of court?
o After an answer has been made
o What do you need to fle?
Motion to amend
For criminal cases, the reference point is not an answer. Instead, it is
Before plea, can you amend?
o Yes, whether as to matter of form or substance
After plea, can you still amend?
o Yes, but only as to matters of form, for as long as it will not
prejudice the rights of the accused
Dont forget that last bit!
o What is the test when it will prejudice the rights of the
accused, even if its a matter of form?
If the original defense of the accused will not change.
What is amendment to conform to evidence?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o If the evidence you presented went beyond the allegations, you
may fle a motion to amend the pleading to conform to
There are two kinds of amendments to conform to evidence. What
are these?
o First kind no objection on the part of the other party. For this
reason, it will be allowed even after judgment.
o Second kind if the other party objects, the amendment is left
to the sound discretion of the court.
Can you amend a complaint when it originally has no cause of
o If in the frst place there is no cause of action, no amendment
will cure such an absence.
o Can the court order an amendment even if there is no
application to amend?
1. Yes, if it is a mere formal (typo) amendment
2. For bill of particulars, the court can either order
compliance OR an amendment
3. Motion to dismiss the court can either grant, deny,
or order an amendment
There was an amendment of an original complaint, which was the
basis for the issuance of summons. If the original complaint is
amended and that is granted by the court, is there a need for
issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o It is a question of jurisdiction over the person, not a question of
o HOWEVER, if there are additional defendants, new summons
must be served to them.
What is a supplemental pleading?
o A pleading fled in addition to a prior one that has been fled,
pursuant to new transactions, occurrences, or events that have
o Can there be a supplemental complaint?
o Can there be a supplemental answer?
o Can there be a supplemental reply?
o Can there be a supplemental petition?
So what is the general rule?
o You can fle a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the fling
of the frst pleading.
o What is the exception?
Usually you cannot do this to the Supreme Court,
because you cannot fle something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
What is the diference between amendments and supplements?
o Amendments pertain to events, transactions, or occurrences
that exist during the fling of the original pleading, but were not
placed in the pleading. There was just an omission.
May be fled without leave of court (before responsive
o For supplements, the events, transactions, or occurrence only
arose after the fling of the original pleading.
Always with leave of court
N.B. 1: What is the rule on objections?
o General rule: all objections on grounds not raised in an answer
or motion to dismiss are deemed waived.
o What are the exceptions?
1. Lack of jurisdiction over SM
2. Res judicata
3. Litis pendentia
4. Prescription
o What is the ffth exception provided by jurisprudence?
5. Lack or absence of cause of action
This is diferent from Rule 16 (that the
pleading states no cause of action)
N.B. 2: What is the rule on failure to allege a counterclaim?
o Any compulsory counterclaim or cross claim not set-up: barred
o In special proceedings a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the exception?
If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.
There are no defendants, so notice is made to the
public that all oppositors have to come forward and
object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial
Called as in default in the 1964 Rules of Court
If the defendant fails to attend, the plaintif can present
evidence ex parte
When do you know when a party is in default?
o 1. Did not fle responsive pleading
o 2. There is proof of such failure
You have to show the return
How can you set aside an order of default?
o 1) File a motion on any of these grounds:
1. Fraud
2. Accident
3. Mistake
4. Excusable negligence
o 2) It has to be under oath
o 3) State that you have a meritorious defense, without
necessarily giving an answer
o What kind of fraud is needed?
Extrinsic fraud.
o Is the fraud needed here the same fraud needed for motion
for new trial, petition for relief from judgment, and motion
for annulment of judgment?
YES. For all of these, you need extrinsic fraud.
How do you set aside an order of as in default [or allowance for
plaintif to present evidence ex parte for the plaintif]?
o Saguid: Remedy is to fle an MR or relief from order of default
also on the ground of FAME
o Do you have to add that you have a meritorious defense?
No need. Youre already in pre-trial.
Can there be partial default?
o Yes.
o In a case where you fle a case against A, B, C, D, and E. E
did not fle an answer, while A to D did. Will A to D be
allowed to present evidence?
o Will E be allowed to present evidence?
No. He is in default.
o Can A to Ds evidence be used against E or in favor of E?
Yes. In fact, E can still win the case along with the
Can the court render a judgment after an order of default, without
presentation of evidence ex parte?
o Yes. This is a new provision introduced only in the 1997 Rules
of Civil Procedure.
o This has not been asked in the Bar examination yet. So be
Where can there be no order of default?
o 1. Nullifcation/annulment/legal separation
o Can there be default in Summary Procedure?
No. When there is failure to fle answer, there can be
judgment rendered by court.
o 2. Certiorari, Prohibition, etc. Some SCAs require a
comment, so there can be no declaration of default
Are there SCAs where there can be declaration of
Yes, like interpleader where the special rules
are defcient so there is suppletory
application of the ROC
Cerezo v. Tuazon:
o Order of default failure to submit an answer, so the defendant
is declared in default
o Judgment by default after the defendant is given notice of the
court processes, the court renders a decision without hearing
defendants defense, which he lost
o Remedy for an order of default?
Motion to set aside or lift an order of default based on
FAME (under oath, and you have to show you have a
good defense)
SSS v. Chavez: This must be accompanied by a
verifcation (under oath), afdavit of merit (that you
have a good defense), and notice of hearing. If this is
missing, the motion is lost.
o Remedy for a judgment by default?
MR or MNT (FAME) within period for fling an
After the reglementary period (i.e. when there is entry
of judgment) Petition for relief from judgment
6 months from entry of judgment AND within
60 days from knowledge
If there is GADALEJ, Rule 65 certiorari
Remington Steel:
o When there are multiple defendants, even if one has already
answered, you may amend the complaint as a matter of right
as to the other since there is no defense yet that would be
afected or altered by the amendment.
Philippine Export and Foreign Loans:
o When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-fle a case or fle for a petition for
o Amendment to conform to evidence What if it was not
allowed, but the evidence was proven, can there be a valid
judgment based on that evidence?
Yes. It is valid, even if it is not consistent with what
was alleged.
Bill of particular
Can there be Bill of Particulars in criminal cases?
o Yes. Rule 116, Sec. 9.
Only four things to remember in BOP:
o 1. What is the defnition of BOP?
o 2. What is the period to fle a BOP?
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to
fle a BOP?
When you fle for a BOP, what do you want to achieve?
o A more defnite statement of facts that appear in the complaint
that are not averred with sufcient particularity
o You are to identify the defects and the details desired.
Can you fle a motion for BOP after an answer has been fled?
o No more, because issues have already been joined.
What is the efect of fling a motion for BOP on the period?
o The period is interrupted upon fling, but you always have at
least fve days to fle the answer after.
Deadline to fle an answer is December 15. You fled a motion on
December 5. How many days do you have?
o TWELVE, not eleven. You dont count the day causing the
interruption. [VERY IMPT]
o This is the same way you count a motion to dismiss.
[Same facts] If you fled a motion for bill of particulars on
December 14, the motion is interrupted. How many days do you
o You still have Five days.
What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB) Rule 17, Sec 3:
non-compliance with court order
What if the person fails to fle an answer in the time left?
o Will be declared in default
Service and summons
What are the modes of fling?
o 1. Personal
o 2. Registered mail
Can there be fling by ordinary mail?
o None. Because here there is no way the court can fnd out
when you fled it.
o But there can be service by ordinary mail.
What are the requirements for personal and registered mail?
o PERSONAL: Stamped, dated, and signed by the clerk of court.
o REGISTERED MAIL: Pay for registry receipt and you have to
accomplish a return card
What is the proof that you personally fled?
o Primary: if the pleading is found in the records of the court.
o If it does not appear, you can present the received copy
What is your proof of registered mail fling?
o Registry receipt
o Afdavit of the person mailing
o Return card
What are the modes of service?
o 1. Personal
o 2. Registered mail
o 3. Ordinary mail
What does rule 14 cover?
o 1. Covers party serving to another party,
o 2. party serving to court,
o 3. and the court itself serving notices (section 9)
If the person to whom you are serving is not available, then how do
you fle substituted service?
o Delivery to the clerk of court with proof of failure of both
personal service and service by mail.
o There should be proof of both failure of personal service and
service by mail.
o [This is diferent from substituted service of summons]
How do you prove service by ordinary mail?
o Afdavit
What is completeness of personal service?
o Actual delivery
What is completeness of registered mail?
o Actual receipt or 5 days after notice of postmaster
o whichever comes frst
What about ordinary mail?
o 10 days after mailing
What are the proofs of personal service?
o Written acknowledgement
o Afdavit of the person serving
o Ofcial return of server
This refers to service by the court
What are the proofs of registered mail?
o Registry receipt
o Return card
What are the proofs of ordinary mail?
o Afdavit of person serving
What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed). What
do you do to prove delivery?
o You have to fle the return card plus the unclaimed document,
plus before you fle, secure a certifcation from the post ofce.
Take note that a return card is required by law to be fled, but in practice,
we do not.
What is the priority of service?
o Personal service is always preferred
o What is the efect of fling by registered mail?
Put an explanation why you did not serve it through
personal service
o What if you dont comply?
As if the pleading was not fled.
Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
What if service was made to a security guard on the ground foor
of a condominium building and your ofce is on the 3oth foor?
o You cannot. You have to serve it to counsel.
What is Lis Pendens?
o In an action involving right, title, or interest over a property, you
annotate it on the title of the property.
I fle a case in the bureau of lands to declare null and void a title.
Can this be subject to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
Atlantic Erectors: You can only apply for Lis Pendens if the property is
the subject of the action.
o Can you put a notice of lis pendens in a partition case?
Do you need court approval to efect a notice of Lis Pendens?
o Not at all. Just send a memorandum to the ROD, even without
court involvement.
When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
1) purpose is to molest other party
2) no need for the notice to protect the rights of the
parties who caused it
o Priority of service is ALWAYS personal. If you cannot do it
personally, you give an explanation
o Same as fling priority is personal. Otherwise, you give an
United Pulp:
o Hypothetical There is a principal who is out of the
Philippines, and he designates X as his attorney-in-fact.
Can X sign the certifcation against non-forum shopping?
In general, he cannot. But in this special case, he
can, because the principal is out of the country.
o What is the test?
Mere representation is not enough. There must be a
specifc authorization and clear authority given in the
SPA that he can sign the CNFS.
Can personal service and substituted service work
o No. Personal service frst, and this is the priority. You cannot
have these simultaneously.
o WHEREVER HE IS FOUND. Always remember the James
Yap rule.
What are the requirements for substituted service? Under what
o Only if personal service is IMPOSSIBLE.
o Proof of this: defendant cannot be served summons after all
eforts have been exhausted.
Is there a set of standards given by law on how
many times you have to try to serve?
A case says that it must be at least three
times on two diferent days.
o There has to be an explanation.
o Where will the explanation appear?
In the sherifs return
Summons must be served within reasonable time. What do you
mean by this?
o For the sherif, 15-30 days according to jurisprudence. After
the 30
day, the court will require the sherif to submit the
o Why is this important?
If you fle a complaint and you dont see to it that the
summons is served, your complaint can be dismissed
for failure to prosecute.
What is alias summons?
o If the original summons has been lost or the original summons
was returned to court, unserved.
o Then you can apply for alias summons.
When do you talk about suitable age or discretion, to what kind of
substituted service does this apply?
o To service at the residence.
When you talk about suitable age or discretion for substituted
service, what do you mean?
o There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistent
jurisprudence that it must be age of majority.
Who must it be? Could it be a house helper?
o She or he must reside therein. This must concur with suitable
age or discretion. So these are two elements.
o A visitor or a transient cannot receive summons. But a house
helper can.
For ofces, to whom must it be served?
o To a a) competent person b) in charge.
o Can a middle manager the same rank as Mr. X receive
summons for Mr. X?
He must be in charge of receiving summons in the
o What does in charge mean?
In charge of the ofce. President or manager.
For corporations, what is the special rule?
o President, General Manager, Managing Partner, Corporate
Secretary, Corporate Treasurer, In-house Counsel
o Memorize this. It is a closed list.
But for personal cases of an individual, will the ofce receive it for
Can substituted service be served on non-residents?
o No. None as a general rule. You cannot do substituted service
to a non-resident.
o [Sec. 15 does not talk about this situation. Sec. 15 talks about
non-resident and cannot be found.]
o Is there an exception?
Yes, but its very narrow. But there must a a) resident
spouse b) who was previously appointed as attorney-
In Secs. 14, 15, and 16: how can summons be done?
o By publication.
o Section 14: Defendant is unknown or his whereabouts are
How do you do this?
Just publish.
Do you even have to try personal service?
No need for personal service (since you
dont know him or where he is).
In what kind of case?
Whatever kind of action, whether in rem or in
personam you can do it by publication, as
clarifed by the SC.
Not just in rem or quasi in rem anymore.
How does publication in 14 difer from 15 and 16?
In 14, ONLY publication is needed. It does
not require service by registered mail in the
last known address.
o Section 15: Extra-territorial service
Against who?
Against a defendant that does not reside in
the Philippines and is not found in the
In what subject matter?
1. Involving personal status of the defendant
2. Property of non-resident defendant
3. Property is attached
4. Where defendant has actual or contingent
interest over property
What are the modes of service?
1. Personal service outside the Philippines
2. Publication AND service by registered mail
in his last known address
o N.B. Both must concur. Take note
of this.
3. Other modes deemed applicable by the
o Section 16: Temporarily absent
Can he be a resident of the Philippines?
Yes. But hes just temporarily absent.
What is the length of time needed here?
None provided
How do you do serve summons?
Any of those in Sec. 15.
Add: Substituted service, if there is
impossibility and there are earnest eforts to
What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
the person.
What is the proof of service of summons?
o Sherifs return.
Note the rules on:
o Provinces
o Prisons
What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
What is the rule on Motions to Dismiss?
o If you fle a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o Old rule: you have to separate the MTD based on lack of
Maximo v. Montalban:
o In this case, his residence is known and he is just temporarily
absent. So substituted service is not proper.
Samarino v. Ralu:
o Here, the sherif did not prove that facts and circumstances that
would allow substituted service (repeated failure to personally
serve, etc.) it must be shown in the sherifs return
o There are only a few remedies when the judgment is already
fnal and executory. Here, the petitioner fled a petition to
annul the judgment based on lack of jurisdiction over the
person (because lack of jurisdiction is used, it can cover both
lack of jurisdiction over both SM and the person).
Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?
You can still do personal service, in case you fnd him
somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.
What is a motion?
o It seeks relief, but not a pleading.
o It does not raise a claim, nor does it raise defenses in an
o Does a motion to dismiss take the nature of an answer?
No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
o A notice of hearing.
o Directed to whom?
To parties.
But also give notice to the clerk of court (even if the
provision does not say it), because he schedules the
o Absence of a notice of hearing has what efect?
The motion becomes a mere scrap of paper.
When must notice be given?
o The motion must be fled in court and served to the other party
at least three days before the date of hearing. (Three day
notice rule)
What is the ten day rule?
o The hearing itself must be scheduled no later than 10 days
from the fling of the motion
Ex. you fle it December 6. The last date you can set
the hearing for is December 16.
o Understand this along with the three day rule.
What is the Omnibus Motion rule?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
1. Lack of subject matter jurisdiction
2. Res judicata
3. Litis pendentia
4. Statute of limitations
What is motion day?
o Friday afternoon.
o If it is a holiday, set it on the next working day
o Is this mandatory?
Yes. But some judges apply the rule liberally.
But since 2008, this rule has been applied strictly.
Motion to dismiss
What are the kinds of dismissal in Civil Procedure?
o 1. There is a motion to dismiss in Rule 16, prompted by
defendant. MOST COMMON
o 2. But there is also a motion to dismiss in Rule 17, fled by the
very same plaintif who fled.
Rule 17 also covers failure to prosecute, which is
another form of motion to dismiss.
o 3. Demurrer to evidence
What are the grounds in Rule 16?
o 1. Lack of J over the SM
How do you determine subject matter
It is the law that confers the right to hear, try,
and decide a case
The most common source is RA 7691
amending BP 129
o 2. Lack of J over the defendant
Look again into proper service of summons
Or voluntary appearance
o 3. Improper venue
Fall back to Rule 4, or special rule under law
o 4. No legal capacity to sue
Minor age of majority
Corporation must be duly registered with SEC
Attorney in fact look into scope of authority
o 5. Pleading Asserting the Claim States no COA (PACS-COA)
Does not go into the falsity or truthfulness of the claim
The pleading does not appear to state a COA
o 6. Res judicata
What are the elements?
1. Final judgment
2. J over SM and person
3. Judgment on merits
4. Identity of parties, SM, cause of action
o 7. Litis pendentia
Same as RJ, but without
o 8. Prescription
o 9. Failure to comply with condition precedent
Ex. Failure to refer to Katarungang pambarangay
Is this waivable?
o YES. Because it is not
Ex. Earnest eforts to compromise
Ex. Exhaustion of administrative remedies
Does this fall under this ground?
o Some commentators say yes. But
some say failure to exhaust must
fall under PACS-COA
o 7. PWEA (Payment, waiver, extinguishment, or abandonment)
o 8. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-fled?
o Except [F,H,I]
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
4. Extinguish of claim or demand (PWEA)
When can you fle a MTD?
o Within the reglementary period. Fifteen days.
How do you count a period?
o Just remember the rule on interruption. [Read up Bill of
Particulars portion.]
There was MTD fled on basis of lack of J over the defendant. The
court, instead of dismissing the action, dismissing the MTD, or
ordering amendment of the complaint, fled alias summons. Is this
grave abuse of discretion?
o There was none. Instead of dismissing the case and waiting
for re-fling, the court issued alias summons which will produce
the same efect.
Preliminary hearing of the afrmative defenses. What is this?
o You can fle an answer, and the court has discretion to hold
preliminary hearing of your afrmative defenses and use it to
dismiss the complaint. Thus, an answer can be treated as a
This is a new feature of the 1997 Rules of Court. This
has never been asked in the Bar.
o What is the reason for this new rule?
Note: a MTD is not a prohibited pleading, but when it
issues summons, the court persuades parties not to
fle an MTD, but to fle an answer with an afrmative
o Why is such court attitude?
Because issues will be joined, and pre-trial sets in
where parties can compromise.
o What is the diference between fling a MTD and an
There is no preliminary hearing of defenses in a MTD.
If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main
No. Even if there is a pending petition for certiorari,
the main proceedings will not be suspended unless
you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly abused,
invoking judicial courtesy here, does not apply anymore.
o Can the Court of Appeals dismiss the case if it feels the
RTC committed GADALEJ? Or should it only remand?
The court, subject to its discretion, can either dismiss
or remand it. There is no hard and fast rule.
Dismissal of Actions
What are the ways by which a plaintif can dismiss a case?
o Filing a notice of dismissal any time before the answer is
served. Dismissal is a matter of right.
o What happens to the counterclaim?
There is no counterclaim yet, because there is no
o Can this case be re-fled?
What is the exception?
Dismissed a second time under this section.
What if there is already an answer? See Pingga case
o File a motion for dismissal.
o What happens to the counterclaim, if there is?
It does not get dismissed. Pingga limits the dismissal
to the complaint, not the counterclaim. This
abandoned BA Finance rule.
Does this rule cover both permissive and
compulsory counterclaim?
This is why the provision says that within 15
days, the party would have to manifest its
willingness to prosecute it in the same
action; otherwise it will be prosecuted in a
separate action.
When is pre-trial conducted?
o Rule 18 Sec 1 does not say, it just says that the ex parte
motion by the plaintif to move the case for pre-trial must be
done promptly
o BUT the 2004 guidelines say it must be within 5 days after the
last pleading has been fled
What if the plaintif fails to move for pre-trial?
o The 1997 rules are silent. Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specifc outcome.
o 2004 rules: DUTY OF THE CLERK OF COURT to move for
Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o They explore possibility of compromise, etc.
o This is almost like a mini pre-trial.
Expect two dates in one notice
o One setting the preliminary conference
o One setting the pre-trial itself
On the frst day of pre-trial what is the order of the day?
o The court issues an order referring the case to a court-annexed
mediator. Forward the records to him.
o You have to pay fees for a mediator.
o For the time-being, the pre-trial proceedings are suspended.
o What is the period for suspension?
30-60 days.
But in the same order, the court will say that if within
this period, there is no compromise, there will be
resumption of pre-trial on a later day.
What if there is inability to compromise?
o Records returned to court. The court will resume pre-trial.
o The Judge with all tact, patience, and impartiality, endeavor
[Missed something]
Judge talks to counsel and parties
Judge talks to only parties
[stepped out]
What do you need to submit at pre-trial?
o Pre-trial brief.
o What if you fail to submit a PTB?
Same efect as if you didnt appear at pre-trial.
Request for admissions: Rule 129 Section 4 Judicial Notice:
o No need for introduction of evidence
o You want an admission to abbreviate the proceedings
o You are submitting just proposals. If accepted by the other
party, it becomes an admission.
Issues to be submitted for resolution
Documentary and testimonial evidence to be presented:
o One day examination of witness rule if you can direct,
cross, re-direct, and re-cross a witness in one day, do so. (This
is in the guidelines, not in the Rules of Court.)
o Submit the most important evidence frst.
o Evidence will be pre-marked.
What is the efect of failure to pre-mark?
You can no longer present the evidence if
you failed to pre-mark it.
Unless the court allows you in the interest of
justice, or if newly discovered.
o What if you fail to name the witness in court?
You cannot present the witness anymore.
What are the other contents of the brief that you may put?
o Referral to Commissioners
o Explore possibility of compromise
o Possibility of judgment on pleadings or summary judgment
o Avail of deposition/modes of discovery
How do you avoid consequences of absence?
o According to the provision, if there is a good excuse for
absence, the consequence will not vest. You can also
authorize someone to appear on his behalf in pre-trial.
What happens next?
o Pre-trial order is issued by the court.
o What if it is a criminal case and the prosecution is absent.
What happens?
It will be re-scheduled.
o What if the accused is absent?
The prosecution CANNOT present evidence ex-parte
because it will violate the accused persons right to
confront witnesses.
o For an admission of the accused to take efect against
him, what must be done?
It must be in writing and signed, by both the counsel
and accused.
No such requirement in civil admissions in pre-trial.
Judicial Dispute Resolution
o In the past, the JDR process only applies in Makati. Now it
also applies in QC and Manila.
o The judge here is both a mediator and a conciliator and an
independent evaluator.
o Unless the parties consent to continue with the JDR judge, it is
mandatory that there will be a new rafe and the new judge
who will hear, try, and decide the case is the trial judge
o This step happens when the Clerk of Court receives the
Mediators Report of a not settled mediation
o Check
What is the concept of intervention?
o A third party takes part in a case between other parties
o Because he has a legal interest in the subject matter of the
case or he will be adversely afected by distribution/disposition
of property in custody of the court
What does the court look at?
o Legal interest of the intervener
o 1) Such intervention will not unduly delay or prejudice the
proceedings of the parties
o 2) Or if the right of the intervener can be protected in a
separate action
When can you intervene?
o You can intervene any time before rendition of judgment in the
trial court
o There is nothing in the rules talking about intervention in the
Appellate Court. But the court can exercise discretion to allow
intervention in the Appellate Courts.
After judgment, can there still be intervention?
o As a rule, no.
o But if the rule is an indispensable party, the court will allow
intervention even after judgment.
Can there be a complaint intervention or answer in intervention, or
a complaint against either/all of the original parties?
o Yes, for all.
o There was a mortgage over a vessel to secure a loan. There
was a default in the payment. For this reason, there was an
Extra-judicial foreclosure. While the petition was there, there
was a subsequent case fled.
o There was a complaint fled by the crew members of the vessel
against the vessel in RTC Manila (sum of money case).
o The mortgagee sought to intervene in the sum of money case,
because it held a Preferred Ship Mortgage.
o HELD: No legal interest, no cause of action. There must be a
personal cause of action in order to intervene. Here, the
mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
foreclosure case.
Types of subpoena?
o Ad testifcandum: appear and testify
o Duces tecum: appear and bring with him the documents or
N.B. Must appear too. Cannot just mail or send.
Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Ofcer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
Can the OMB issue a subpoena?
o Yes.
Can the ofce of the prosecutor issue?
o Yes.
Is the receipt of a subpoena by a respondent in a case fled before
the ofce of the prosecutor necessary for the ofce to acquire
jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the
Ofce of the Prosecutor is a statutory right, not constitutional
right. You can altogether dispense with it, or waive it. It is not
essential for DP.
o There is an express provision in Rule 112(D) that says failure
to receive the subpoena will not bar the prosecutor from issuing
a resolution. It is not imperative.
Can a regular court judge subpoena a convict?
o The judge examines if it is for a valid purpose
o For those under death/RP/Life and confned: must be
authorized by the SC to appear under subpoena
Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o How do you quash a subpoena as testifcandum?
1. Witness is not bound thereby
What is an example of this?
o If the witness is not qualifed. Ex
the witness is the spouse of the
person he/she is testifying against
2. Witness fees and kilometrage allowed by the Rules
were not tendered
Witness must live within 100 KM of the place
where hearing is conducted
You can also be arrested to compel you
o How do you quash a subpoena duces tecum?
1. Unreasonable and oppressive
2. Relevancy of the books, documents, etc. does not
3. Failure to tender the costs of production
4. Kilometrage/witness fees Not in the duces
tecum part but you need the witness to appear too
5. Failure to describe with particularity N.B. not in
the rules
Can the clerk of court issue a subpoena in the absence of a judicial
action? (Note, this is not referring to investigation by a quasi-judicial
o No.
Depositions (Rule 23)
What can be subject of deposition?
o Any matter, as long as not privileged
o AND relevant
o What do you mean by not privileged?
When the witness is disqualifed (e.g. attorney-client,
physician-patient, penitent-priest, husband-wife, public
ofce in related to State)
Ayala Land applied section one (see Modes notes). It explained how to
commence depositions.
o Can a judge before whom the action is pending take
Yes. (Ayala Land)
o Before whom should deposition be taken?
If in the Philippines, 1. Judge, 2. Notary public, 3. Any
party authorized to administer oath, 4. The parties by
In foreign country, 1. Embassy, legation, consular
ofcer/agent 2. One authorized by commission or
letters rogatory, 3. Stipulation of parties
o Dulay v. Dulay A brother duped his brother; both are
Filipinos. One brother is a naturalized American, and applied
for the latters naturalization. The US government approved it.
The later, once there, was made the trustee of the deposits of
the former. He spent the money. Filed case in Philippines.
Took deposition of bank manager in US. The local court
communicated the request with foreign authority (letters
rogatory communication by one judicial authority to another
to follow the rules of the latter). This is distinguished by
commission where a person is appointed commissioner; the
deposition is governed by Philippine rules.
o In this case, the court of Boston ignored the letters rogatory, so
they applied for deposition before a notary public. The local
court refused to accept, requiring a consular certifcation.
o The court here allowed because the letters were ignored and
there was no consular ofce in Boston, so they allowed
deposition before NY notary.
When is there need for leave of court?
o Whether an answer has been fled or not. When there is an
answer, you do not need leave of court, just notice. When
there is no answer yet, you need leave of court.
o Contrast with amendments: You need leave of court after
answer; before answer, you just need notice.
What is the process to take deposition?
o Rule 23, Sections 19-21.
o Who does the recording?
A stenographer, clerk, secretary under the direction
and supervision of the ofcer
o Then?
The deponent examines it and signs it
Can signing be waived?
o After the signature, what next?
The ofcer certifes it frst
Then fles it in court with indication that it is authentic
and complete
If the procedure is not followed, what will happen? What is the
o A party can fle a motion to suppress deposition because the
procedure was not followed
o What is the Ayala doctrine?
The rules can be relaxed because the deposition was
taken before the judge in the main case. The judge
knows its authentic and complete by personal
What are the uses of deposition?
o 1. Impeach testimony of witness
[For prior inconsistent statements]
o 2. Against other party (or ofcer of corporation that is another
party) for any purpose
o 3. Used in place of oral testimony if the deponent:
A) Lives more than 100 KM from the place of trial
except if the absence was procured by the party, or
out of the Philippines
B) Is dead
C) Unable to attend to due age, sickness,
imprisonment, etc.
D) Cannot compel attendance of witness through
E) Exceptional circumstances
Can a subpoena be issued by reason of deposition taking to make
sure the deponent comes?
o Yes. Rule 21, Sec. 5
Can a deposition of a deceased person be presented in court? Is
this not hearsay?
o It can be presented, as long as it was subjected to cross
examine. It is hearsay, but it can be submitted.
o Is cross examination a necessity?
Yes. This is necessary to exempt it from the hearsay
If you take a deposition, are you compelled to present it in court?
o No.
If you use a part of a deposition, can the rest be presented?
o Yes.
Always distinguish between take and use.
Who are disqualifed to be deposition ofcers? [Memorize; this has
not yet been asked]
o 1. Sixth degree of consanguinity from party/employees
o 2. Sixth degree of consanguinity counsel of parties/employees
o 2. Financially interested in the action
Re: irregularities on taking of deposition. What is the general rule
on errors/irregularities on taking depositions?
o General rule is that it is waivable
o What is the exception?
Relevance or competency of evidence failure to
object is not a waiver
Unless a timely objection could have obviated the
When is the period to object?
o The same as the period to fle the responsive pleading.
o So to question direct: 10 days (period to fle cross)
o To question cross: 5 days (period to fle re-direct)
o To question re-direct: 3 days (period to fle re-cross)
Can you take deposition even after pre-trial?
o Yes.
o Do you need to reserve?
No need, even if you do not reserve it during pre-trial.
Jonathan Landoil
If you take a deposition of a person, do you still have to present the
person as a witness?
o You still have to present him in court, in general. Depositions
cannot take the place of actual physical testimony in court.
o If you fail to cross examine the witness in the deposition,
can you still cross-examine him in court?
Yes, you defnitely can! Sabio
What are the consequences for non-compliance with order for
o Can it be dismissed?
Yes, the court can dismiss. There can even be a
judgment by default
However, in the old case of Arellano, the court
dismissed the case due to refusal to be subjected to
deposition. But the SC said it was wrong. In this
case though, the matter subject to deposition is an
incidental matter only, not the main issue of the case.
Bottom line: it IS a possible result, but fall back on
materiality of the matter
Can the court regulate the deposition? (Ex. excluding certain
o Yes.
Can the other party oppose the taking of a deposition?
o Yes.
o Under what grounds?
Annoy, embarrass, oppress memorize these
It is irrelevant
Depositions before action or pending appeal
What is perpetuation of testimony?
o See below
If there is no pending case can you take a deposition?
o No. You fle a case for the perpetuation of a testimony
o So you fle a case for the purpose of perpetuating a testimony
What is the special rule on venue here?
o Place where the expected adverse party resides
When could you apply for deposition pending appeal?
o Before judgment becomes fnal
o There is a pending case for certiorari, can you take a
deposition pending appeal?
No, certiorari is not an appeal
Interrogatories to parties
Distinguish Rules 23 and 25:
o Rule 25 Interrogatories to PARTIES. Always to parties.
o Rule 23 Party or a witness, or any person for that matter
How must the questions be answered?
o Rule 23 there is direct, cross, re-direct, and re-cross
o Rule 25 Just one set of questions to be answered by the
other party
Re: time to answer
o Rule 23 no fxed time to answer, because what dictates the
period is the ofcer (since they have to appear before the
o Rule 25
Are the uses of the depositions the same?
o Between Rule 23 and 25, the same
What is the efect of failure to serve written interrogatories to
o You cannot compel the adverse party to testify if you did not
serve written interrogatories
o Can you call the adverse party to the witness stand?
YES! In general, YES. The answer is in Rule 132,
Sec. 12
It is diferent if you call on the witness the accused
himself (in a criminal case)
Request for admission
What is a request for admission?
o 1. Requesting to the other party that he admit the genuineness
of any material/relevant document
What else do you need to do?
Attach the document so it can be examined
Does an admission cover the contents of the
No, just the genuineness so you do not
have to prove it exists and it is genuine
The contents can be up for contentions
Case: There was a pre-trial. One party submitted a
list of equipment, and wanted the other party to
accept it. The other party said it was incomplete, and
asked that the frst party prepare a new list to submit
to the court within X days. Instead of submitting it to
court, the frst party submitted a request for admission
to the other party. Instead of answering, the second
party kept quiet. HELD: It was an implied admission.
o 2. Or truth of any material and relevant matter
The admission must be directed to whom?
o The adverse party (Not the counsel it must be served to the
other party) (Duque)
o But the partys counsel may answer (Larada)
What if the other party fails to respond?
o Considered an implied admission
Who will sufer the cost?
o The other party who refused to admit, if it is eventually proven
to be genuine or true
o But in the meantime, advanced by the party requesting
Producting or inspection of things/documents
What do you apply for?
o Request that a party produce and permit inspection of
documents, papers, objects, other tangible things
o OR to allow entrance into a place under control of the latter and
allow inspections, etc.
Is production of documents the same as subpoena duces tecum?
o No.
Is production required for presentation of secondary evidence?
o Yes, apart from a mode of discovery, it can be a preparatory
act to present secondary evidence. If you require production
and the other party refuses or says it is lost, then you can
produce secondary evidence.
o But there is need for request to produce
o So if you get a request to produce but it is targeted to a specifc
document, most likely it is for secondary evidence
You applied for production of books/papers/documents, and you
are allowed to examine. Are you bound to present it as your
o No, youre not required. It is a mode of discovery a way of
discovering evidence. If you like what you see, you still have to
go through the process of presenting it in court.
N.B. Under 2004 guidelines, it is the duty of the judge to issue an
order to the parties to avail of Modes of Discovery under Rules 23, 25-
Physical and mental examination
So limited in its use that even the 2004 guidelines do not include it
When can you apply for this?
o Mental or physical condition is in controversy
This is the only mode of discovery where the court can motu propio
issue it. The other modes, you have to apply for.
What is the consequence if the copy of the examination is given to
the requesting party?
o You waive the privilege.
o Because of your request, the other party can now also ask for
previous or subsequent examination, too.
o What if the requesting party refuses?
If by chance, the requesting partys physicians were
allowed to testify, their testimonies can be excluded.
N.B. Privilege of doctor-patient only applies to civil case, not criminal
Consequences of non-compliance
If there is refusal to answer, what are the consequences?
o 1. The case can be dismissed if he is plaintif
o 2. If the defendant, judgment by default
o 3. Pleadings can be stricken out
o 4. Held in contempt
He can be arrested
When does arrest as a consequence not apply?
Request for physical or mental examination
Segue: deposition in other proceedings
Can you use modes of discovery in criminal actions?
o Yes.
Can you use modes of discovery in special proceedings?
o Yes.
o Special proceedings do not provide for an answer. But the
general principle of suppletory application (Rule 72, Sec. 2).
Is there criminal deposition?
o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
about a pending criminal action, but it is not yet trial.
o You can call witnesses even before trial and obtain their
o But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
For prosecution examination before trial can only be
done in the court where the action is pending because
the law wants it to be harder for prosecution.
For the accused, it should be made before either any
judge, before any member of the Bar (good standing,
etc.), any inferior court designated or appointed by a
superior court.
o But the law does not say its deposition. But its akin to such,
according to Supreme Court decision.
Does physical and mental examination as a mode of discovery
apply in criminal trial?
o Its inherent.
Both civil and criminal procedures will not provide for conduct in
examination of a witness. Where is it found? Evidence.
What is the order of presentation of evidence?
o 1. Plaintif, to support complaint
o 2. Defendant, present defense
o 3. Third party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
Can it be reversed?
o Yes, it can, if there is an afrmative defense.
o Plaintif in the usual and ordinary course of things presents
before the defendant.
o [Check for midterms: can there be reverse order if it is a civil
case? ]
Can there be judgment without trial?
o When parties agree on facts
o [spaced out]
What are the grounds for cancellation of hearing?
o 1. His presence is indispensable and illness is excusable
N.B. it does not say the party must be indispensable;
just his presence
o 2. Absence of evidence, and the evidence is material and
cannot be procured despite due diligence
Who can receive evidence?
o Generally, the judge
o Exception: to the clerk of court delegated authority to receive
1. There are default proceedings
2. Ex parte
Examples of ex parte proceedings?
o Default
o Application of indigent
o As in default [did not appear
during PT]
3. Parties agree in writing
Can an adoption case proceeding be delegated to the clerk of
court for reception of evidence?
o No.
o Always with the judge
Can a clerk of court issue a subpoena?
o Yes, if it is a subpoena ad testifcandum. If it is a subpoena
duces tecum, there must be order by court.
Can the clerk of court resolve objections raised in an ex parte
o No.
o Just note the objections, and forward to the judge.
o The other party is not there who will object?
Well, the clerk of court just has to note it down if
clearly objectionable.
Cf Trial by commissioner
Who is a commissioner?
o Person authorized by the court to
o Ex. auditor, referee, examiner
Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
But if the parties do not agree, what can be referred to the
o 1. Requires examination of long account
o 2. Taking of account necessary for courts information for court
to render judgment/execute it
o 3. Question of fact arising from motion
Can a commissioner issue a subpoena?
o Yes.
o Can he issue a subpoena duces tecum?
Yes, as long as within the order of reference (his
Can he resolve objections?
o Yes.
o N.B. this distinguishes him from a clerk of court
When are commissioners mandatory?
o Expropriation mandatory in second stage
o Partition only optional
If the parties stipulate how the property will be
partitioned, there is no need to go to the second stage
where commissioners are required
Report of a commissioner is not a judgment. It only aids the court.
What are the options of the court?
o It may adopt, modify, or reject the report
Who shoulders the cost?
o The losing party, in general. But the court may apportion
What is the diference between consolidation and joinder?
o In consolidation, the cases are already pending; in joinder, the
cases are just being fled
There was a case where the court allowed for the consolidation of cases
in two diferent judicial regions even when it was not even an issue in
the case!
Demurrer to evidence
When do you apply for demurrer?
o In civil, when plaintif has completed presentation of evidence
o In criminal, when the prosecution rests its case
o When is this exactly?
After formal ofer of evidence
Do you need leave of court?
o In civil cases, no need for leave of court.
o But if you fle leave, is it okay?
Nothing really wrong, but youre just delaying your
o In criminal cases, can you fle demurrer without leave of
Yes, but if it is denied, the consequences are serious.
If there is no leave, and demurrer is denied
accused waives the right to present evidence
If there is leave of court, and demurrer is denied
accused can still present evidence
What is your remedy of the losing party defendant if the demurrer
is granted? (civil)
o Can still appeal, because demurrer is a fnal disposition of a
If your demurrer is denied, what do you do? (civil)
o You can submit evidence, and continue until judgment.
o Can you fle for an MR of the denial?
Yes, you can fle. As long as there is an order, you
can fle an MR. You can even fle it to a judgment,
although it is not a prerequisite for appeal.
o If the MR is denied, what can you do?
File certiorari
But in criminal demurrer, can you fle for certiorari after denial of
the MR?
o You cannot appeal a denial or fle for certiorari until fnal
disposition of the case.
Dayap: Criminal demurrer. What is the efect of dismissal in a
criminal case?
o It amounts to an acquittal. This is not a dismissal without
prejudice. You cannot re-fle.
o But is it reviewable by appeal?
No. It is an acquittal. Double jeopardy has set in.
o But is it reviewable by another mode?
Petition for Certiorari (Rule 65)
Salazar: Demurrer to evidence takes the nature of a motion to dismiss.
If he fles it without leave of court, he waives his right to present
evidence and he submits the case for submission purely on the
evidence presented by prosecution.
o If the demurrer is granted and the accused is acquitted,
can the accused adduce evidence on the civil aspect of
the case?
Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.
So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
Radio Wealth: Civil demurrer. What is the consequence of a
reversal by the higher court, after the initial granting of a
o The defendant cannot adduce evidence anymore. The court
will render judgment on the available evidence.
o This efect does not apply to criminal cases
P v. Cachola: N.B. In a bar exam, demurrer was once coined as
motion to dismiss on the ground of insufciency of evidence. This
case used the very same terms.
Judgment on the pleadings
When is there judgment on the pleadings?
o 1. The answer fails to tender an issue
o 2. Or the answer admits the material allegations of the adverse
partys pleading
What do the material allegations mean in the second ground?
o It means the cause of action
o See the next section on Summary Judgment as to what the
diference is with that concept
Who fles a motion for judgment on the pleadings?
o The plaintif, always
Can there be partial judgment on the pleadings on this ground?
o No. Its ALWAYS a full judgment on the pleadings.
o N.B. This is diferent from summary judgment, where there can
be partial or complete summary judgments.
Can the defendant fle a motion for judgment on the pleadings?
o Based on a counterclaim.
If youre the plaintif, when can you fle a motion for judgment on
the pleadings?
o After the defendant fles an answer.
o Can it be during pre-trial?
Yes under Rule 18, Section 2g.
But as a rule of strategy, fle it upon frst chance to do
o Can you fle a motion for judgment on the pleadings after
Yes. But this is really belated.
If youre the defendant, when can you fle?
o Anytime.
Can the court motu propio render a judgment on the pleadings
without motion of the parties?
o No. It must always be upon application.
o Very important: But during pre-trial, the judge may prompt the
parties during pre-trial to have judgment on the pleadings (Rule
18). But its still, ultimately with the parties consent. So in the
end, the judge still cannot grant it on his own.
Summary judgment
What is summary judgment?
o There is no genuine issue as to a material fact. Memorize this
What is the diference between this and the answer does not
tender an issue?
o There is no issue as to a material fact (note: not on the issues)
But can you have a summary judgment based on a tort?
o No. Because damages here are unliquidated, and the court
has to hear the case.
When can there be summary judgment?
o Declaratory relief
o Liquidated sum of money or action to recover a debt
The court could rely on documents, papers, afdavits, depositions.
o Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must fle motion for summary judgment and
attach the document.
Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fctitious. In JOP,
the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
Promissory note with no date when it is due and demandable. X
owes Y 500K. Y sues X. X claims its not yet due! Is this
something that would lead to summary judgment or judgment on
the pleadings?
o Summary judgment; although there appears to be an issue (X
made an issue out of nothing). It is ostensible, but its actually
sham or fctitious.
o Cannot lead to judgment on the pleadings, because there was
no admission of material claims.
What is immutability of judgments?
o General rule: judgments are immutable; they cannot be
modifed once fnal and executory
What are the exceptions?
o 1. Nunc pro tunc
o 2. Clerical or typographical errors
o 3. Void judgments
o 4. But some judgments cannot really obtain fnality like
Is the judge required to take notes during course of hearing in
order to be able to render valid judgment?
o No.
Is it required that the judge who heard the case is the same who
renders the decision?
o No. But the judge must personally review it. He must have
authority [missed this]
Is fling of memoranda by the parties (after the trial, after
submission of evidence) required/mandatory?
o It is not mandatory. It is not essential.
o Non-submission is not fatal.
What is a separate judgment?
o If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o Ex. In expropriation there are two judgments:
1. Authority to expropriate
2. Just compensation
o Ex. Summary judgment (one case has several judgments
summary as to the one with no genuine issue, and trial over
the ones with genuine issue)
What is the diference between a separate judgment from a several
o Several refers to parties, separate refers to claims
Can the court render a judgment to a non-juridical entity?
o Judgment will be against the members, not the entity itself
Motion for reconsideration
Is an MR a prerequisite to appeal?
o No.
In a case involving summary procedure, is MR allowed?
o No, it is a prohibited pleading
How many days to fle?
o 15 days
o Can it be extended?
Cannot be extended
This rule has never been changed. You cannot fle an
extension on an MR
o So whats the remedy?
Some lawyers suggest fling a supplement. But
actually, there must be a new event or fact that arises
to do this. So this is dangerous.
How long must an MR be resolved?
o Within 30 days
Can there be a partial MR?
o Yes, when the court fnds that the MR afects only a part of the
judgment (ex. just one of the issues).
Distinguish an MR from an MNT.
o The grounds are diferent. In MNT, the grounds are FAME and
newly discovered evidence.
What fraud is needed here?
Extrinsic fraud.
What is mistake?
Mistake of fact in good faith
If theres a mistake of law, the remedy is an
MR, not MNT
What is newly discovered evidence?
1. It must be material
2. It was not available during trial despite
exercise of due diligence
3. If considered by the court, it could
later/change the result
o What are the grounds for MR?
1. Evidence not sufcient to support the judgment
2. Excessive damages
3. Decision contrary to law
What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
Does the Neypes ruling apply to other kinds of appeal?
o Rules 40 and 41 (ordinary appeal) covered by Neypes ruling
o Rule 42 (petition for review) no need for Neypes ruling,
because the provision itself provides for it
o Rule 43 (review of QJA) no need as well
o Rule 45 (petition for review on certiorari) 15 day period for
MR is counted already in the period to fle an appeal
o N.B. So the Neypes ruling is only targeted to Rules 40 and 41
(ordinary appeal)
How many times can you fle an MR?
o Just once
How many times for a MNT?
o Can be multiple, as long as on grounds not existing when the
frst MNT was fled
What is the efect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial
without retaking
Can there be MNT in the appellate court?
o Yes, but with diferent rules and only to the Court of Appeals
(not all appellate courts).
o Rule 53 covers MNT in the CA. So that MNT is diferent from
the MNT here. The MNT in the Court of Appeals only has one
ground: newly discovered evidence.
o There are diferent periods as well
In the MNT in trial court: 15 days from judgment
In the CA: for as long as its an active case (no need
to wait for a judgment in the CA)
Is there a MNT in the SC?
o Rule 56
o As a rule, an MNT cannot be entertained in the SC.
o But it is left with the sound discretion of the court if it feels that
it should do it in the interest of justice.
Petition for relief
How many kinds of petition for relief do we have?
o 1. From judgment
o 2. From denial of appeal
Where do you fle it?
o From judgment: before the court that rendered judgment, not
before the appellate court
o From denial of appeal:
A lawyer forgot to fle an appeal on time. He fled late, and it was
denied. What do you apply for?
o Cannot use petition for relief from denial of appeal, because
there is no ground
o You fle an MR.
o Why?
You fle a petition for relief from denial of appeal if you
were prevented from fling it. Here, he was not.
What is the time period for fling petition for relief?
o Within 60 days from knowledge from the judgment of order
(count from entry of judgment)
o BUT NOT more than 6 months after entry of judgment/order
o N.B. both periods must apply
The sixty days can only move around the six months.
If you found out the day before six months expire, you
are left with one day, not 60 days.
Can you fle a petition for relief from judgment when there is still
an available remedy of MR, MNT, or appeal?
o No. As long as there are still available reliefs, you cannot
resort to petition for relief from judgment. Take note, that there
must be entry of judgment, which means if there is no fnal
judgment yet, you can still do an MR/MNT/appeal.
Where else does FAME apply?
o 1. MNT
o 2. Petition for relief from judgment/denial of appeal
o 3. Motion to reconsider order of court in pre-trial declaring that
the plaintif can present evidence ex parte due to failure of the
defendant to appear in pre-trial
o 4. Motion to lift order of default
What are the grounds for annulment of judgment (Rule 47)?
o 1. Extrinsic fraud
Prescribes 4 years from time of discovery
o 2. Lack of jurisdiction (covers both SM and person)
N.B. This is the only provision that uses lack of
jurisdiction both ways
Mr. X died, leaving an estate. Juan claims to be the sole heir. The
estate court adjudicated the entire estate in favor of Juan.
Judgment became fnal and executory. After 2 months, the rest of
the heirs who learned of the judgment came forward and fled a
motion to set aside the judgment. Court denied the motion to set
aside the judgment. So they went to the CA on an annulment of
judgment. (N.B. a petition for annulment of judgment is an original
action; it is not an appeal. You fle this for a decision of the MTC, to the
RTC and for a decision of the RTC, to the CA.) Did they use the
proper remedy for fling petition for annulment of judgment in the
CA and not petition for relief to the court that issued the judgment?
(Alaban v. CA)
o Petition for relief.
o 1. Although section one states that only a party may fle a
petition for relief from judgment, it is an action in rem. It
requires publication, so the heirs have been notifed and
deemed as parties.
o 2. The learned of the judgment 2 months (60 days) from
learning of the judgment. So the proper remedy is petition for
relief, since it falls within the period.
When is execution a matter of right?
o Judgment is fnal and executory USUAL CASE
Ex. period appeal has already lapsed
When is execution a matter of discretion?
o For good reasons, when t is not yet fnal and executory
o Execution of several, separate, or partial judgment
Which court issues the writ of execution?
o Court that rendered judgment
o RTC issued a decision, it was appealed to the CA, then to
the SC. Who issues the writ of execution?
The RTC the court of original jurisdiction
o Are there instances wherein the writ will be issued by an
appellate court, or a court other than that of original
In the interest of justice, you can apply to the
appellate court. But the general rule is that it is still
the court that rendered the decision.
o Can the CA issue a writ of execution, other than in this
When it exercises original jurisdiction.
Where do you fle a motion for execution?
o File it in the court that rendered the judgment.
o Can it be fled with the appellate court?
Same with above.
Do you need to fle a bond to apply for discretionary execution?
o The obligor need to fle a supersedeas bond to stay
discretionary execution; but the obligee does not need to fle a
supersedeas bond to apply for discretionary execution.
o What does the obligee need to present then?
Proof showing good reason
o What are examples when discretionary execution vest?
1. Perishable goods
2. Old age + sickness [?]
Intramuros: Discusses when the judgment becomes fnal and
executory. A fnal judgment or order is one that fnally disposes of a
case. This is the only thing that could be subject to execution.
What is the diference between discretionary execution and
execution pending appeal?
o They are the same. And both require good reasons.
Should the writ of execution conform to the dispositive portion?
o Execution must conform to the dispositive portion. What is
reproduced in the writ is the dispositive portion of the judgment.
Is a full blown trial required for a motion for execution?
o No.
Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
Do you need a bond to stay a writ of execution that was issued as a
matter of right?
o No. You cannot stay it anymore even with a bond. Its a
matter of right.
o What is the exception?
Get an injunction or TRO, claiming GADALEJ.
What are the judgments not stayed by appeal?
o Injunction, receivership, accounting, support, other judgments
saying its immediately executory
Can an MR stay a motion for execution?
o The provision only says an appeal cannot stay a judgment
theoretically, jurisdiction is still with the court of original
o But there is no clear answer.
In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?
Mina: Discretionary execution can be entertained by
the RTC.
Who has to make reports?
o The sherif, on any matter of execution, esp. the conduct of
Is a motion for execution indispensable before the court can
o Yes, even for those immediately executory in nature.
o Cagayan de Oro: A lawful levy for execution is needed before
there can be a sale can be efected.
o Can the court motu propio issue a writ of execution?
OCA v. Corpuz: Court on its own, cannot issue a writ
of execution without motion of another party
What is revival of judgment by an independent action?
o If you went beyond 5 years from entry of judgment, but are still
within the prescriptive period, you can fle an independent
action to execute.
When can you fle a motion for execution?
o Within 5 years from entry of judgment
After lapse of period of ten years, can you still revive it?
o No.
o Is it always ten years?
YES. This is the fat prescriptive period for
Death after judgment:
o If the judgment oblige dies, then the executor/administrator
applies for execution
o If the judgment obligor dies, and judgment is for recovery of
real/personal property there is a lien over his property
o What if levy has already been efected?
Proceed to sale of the property to satisfy the
o What if the judgment is for money, not property?
File a claim against the estate
Section 8: Contents.
o Do the contents have to always be there?
No. Only to the extent applicable.
Money judgments
o Payment must be in what form?
In cash.
o Payment must be made to whom?
To the judgment obligee, if available
What if he is not available?
To his representative
What if he is not available?
To the sherif
o Can payment be efected not by cash (Ex. check or PN)?
Certifed bank check is allowed
Or any other form of payment acceptable to the latter
o What if there is no cash?
Go to
Levy on real or personal property
o What will be disposed frst?
Choice of judgment obligor
If he doesnt make a choice, personal property is
prioritized over real property
o What if there is no property?
Go to
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?
5 days from receipt of notice. The custodian/manager
has 5 days to report if there is money.
o What does the court do next?
It issues an order requiring transfer of funds.
o Can you garnish without prior demand of payment?
Specifc acts
o If the court requires the obligor to do something, but he
refuses, what happens?
The court can require another person to perform it.
o If the other person does not comply?
The court may consider that it has been DEEMED
complied with.
Give an example.
The court orders that there must be
execution of deed of sale in favor of Y, done
by X. X refuses. The court orders Z to
perform it. Z refuses. The court will deem it
complied with. This deed of sale will be
forwarded to the Register of Deeds or
whoever/whatever ofce
o Can an order for demolition be given along with the writ of
No. It is punitive in nature, so there must be a
o When can there be contempt?
ONLY applies for special judgment, and there is
refusal to comply.
What are the properties exempt from judgment?
o Family home, homestead, and the land
If you mortgaged your Family Home, will it still be
exempt from execution?
[See last sentence?]
What are homestead lands?
Public lands given to people giving them a
chance to cultivate
o Libraries of professionals not beyond 300K
o Furniture for the family not beyond 100K
o Beasts of burden (up to 3)
o Tombstones
What about mausoleums?
o [Among others]
When can you apply for a motion for execution?
o Section 14. This also tells you the life of the writ.
o What is the life of the writ?
5 years, before it expires.
Sec. 15-34:
o Important parts:
Requirements of sale
Certifcates of sale
Redemption period
Who will be in possession of the property sold in
public sale
Who will be entitled to fruits/profts of the property
What if after participating in the sale, you are unable
to take possession of the property remedies
o What are the requirements for sale?
TWO NOTICE REQUIREMENT: one to the judgment
obligor, one to the public
Public posting in conspicuous places, or
even by publication
What if it is a perishable good or personal
Perishable goods within reasonable time
(no strict timeframe)
Personal property at least 5 days notice
Real property within 20 days
o N.B. not at least
What if the value of the real property
exceeds 50,000, what is needed?
o There must be publication
Should you notify the judgment obligor?
Perishable goods just notice before the
In all cases, notice at least 3 days before the
What time must the sale be?
9 am to 2 pm, and it must be in the ofce of
the Clerk of Court. But usually, it is done
outside the hall of justice
What if it is personal property capable of
It must be done in the place where the
property is located
o Is a certifcate of sale mandatory for personal properties
capable of manual delivery?
No, it is not.
For real properties, you need a certifcate of sale.
What are the contents of a certifcate of sale?
[See this]
o Can you redeem personal property sold on public sale?
No. Personal properties cannot be redeemed, only
real properties.
Who can redeem?
The judgment obligor can redeem
Who else?
Those who have interest on the property,
either by credit, encumbrance
What is the distinction?
Judgment obligor always has a period of 1
year, non-extendable
Once the judgment obligor redeems, no
further redemption is allowed.
What about the redemptioners?
o Theirs rights were never
extinguished. It still exists, over the
If the judgment obligor does not redeem,
can the redemptioners redeem beyond
the 1 year period?
o No. This is the view sir subscribes
to, even if some commentators say
there can be endless redemption
beyond the 1 year period in 60 day
intervals. But sir said that after 1
year, the last redemptioner gets the
o Who has possession during redemption period?
o Who is entitled to fruits and profts?
N.B. The obligor cannot change the nature of the
property during the period. He must not modify it.
o How must redemption be made?
It must be willingness and intention coupled with
tender of payment. Willingness and intention without
tender is not enough.
Case: The redemptioner wanted to redeem in
installments, and not full payment. This was held to
be invalid.
Beyond the redemption period, can it still be
It is not anymore redemption as
contemplated by law; just a contractual
arrangement between the redemptioner and
whoever purchased the property.
Amount subject to sale + interest + taxes, if
before the one year period; however, after
the period is over, the amount can be
dictated by the parties freely.
o I purchased property in a public sale, but someone with a
better interest came forward, so I wasnt able to get
possession and transfer of the property. But I already
parted with my money, and paid the sherif. What should I
1. You can recover its value in the same action or
separate action
2. You can have the judgment revived in the name of
the purchaser he steps into the shoes of the
judgment obligee.
In this case, he can execute just like any
other judgment obligee.
[So if he cannot pay, he can levy, and if not,
he can garnish.]
In execution, you need to remember the word satisfaction. Sections 44
and 45 have this end in mind. The books of the case will not be closed,
even if you won, if judgment has not yet been fully satisfed.
What are your remedies?
o 1. Call the judgment obligor and have him examined in court,
through subpoena
o 2. Call on the stand the debtor of the judgment obligor to be
examined in court, through subpoena
What if in the course of examination, we fnd that
he owes the obligor?
He can then be charged.
o 3. Pay directly to the sherif, and the sherif issues a proper
o 4. Amortization payments
o 5. Court appoints a receiver
Akin to the provisional remedy on receivership
This is the only provisional remedy that can be given
by the court even after judgment
The reason: to preserve the property.
o 6. If it is later discovered that the obligor has an interest over a
property, the court can order a sale
o 7. If person who has possession of the property of the obligor
refuses to recognize the title of the obligor, the obligee could
ask for an order to have the property sold for a period of 120
days. If there is sale within this period, the obligee (!) will be
the one penalized (odd).
What are the 3 scenarios to show full satisfaction?
o 1. The writ of execution has been returned to court
Every 30 days, the sherif has to report on the status
of the writ
o 2. Written acknowledgement of the judgment obligee or
o 3. When there is an endorsement on the face of the records of
the case
Even if the other party does not consent, but the court believes that it
has been satisfed, the court may enter that it has been satisfed.
What are the efects of domestic judgment? (MEMORIZE)
o 1. As against a specifc thing, condition/status/relationship of a
person conclusive upon it
Where a will has been probated, is death of the
party conclusive?
Its only presumed
o 2. Res judicata
Baretto v. CA: Two aspects of RJ 1. judgment bars
the prosecution of the same claim, demand, or cause
of action, 2. Precludes the re-litigation of a particular
fact or issue in another action between the same
parties in a diferent claim or cause of action
o 3. Preclusion of issues/conclusiveness of judgment
As to other litigation actually and necessarily included
What are the efects of foreign judgment?
o 1. Conclusive as a specifc thing
o 2. Presumptive evidence of rights between parties
How do you enforce foreign judgments?
o 1. File a verifed petition in the RTC
o 2. There was jurisdiction of the court over the subject matter
and over the parties
o 3. Prove the law of that jurisdiction
How do you impugn that foreign judgment?
o 1. Want of jurisdiction/notice to party
o 2. Collusion
o 3. Fraud
o 4. Clear mistake of law/fact
How about foreign arbitral awards?
o You fle an action for recognition. It is not a foreign judgment.
What are the three modes of appeal?
o 1. Ordinary appeal (Rules 40 and 41)
o 2. Petition for review
o 3. Petition for review on certiorari
What are the ordinary appeals?
o Notice of appeal
o Record on appeal
When is there record on appeal?
o Multiple appeals
o Special proceedings
What are the periods?
o Notice of appeal 15 days
o Record on appeal 30 days
Can you extend the period of 15 days?
o Not extendable
o But if you fle an MR and it is denied, following Neypes, you get
a fresh period
Can you extend the period of 30 days?
o No
o Except when there is an authorized alteration or modifcation of
the record
Where do you fle a notice of or record on appeal if you are in the
MTC going up to the RTC?
o MTC. Always on the court that issued the judgment.
What is a record on appeal?
o Its a sequential compilation of the pleadings, orders, etc. of the
o Unlike a notice of appeal, which is just a statement when you
received the decision, that you paid appeal docket fees within
period, and you intend to appeal
If you go from the MTC to the RTC, what is the process?
o Take note that the RTC is an appellate court here.
o Parties fle a memorandum to the RTC. The RTC will not
reexamine the evidence and witnesses.
In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
o Because its only been decided on once, and will be reviewed
for the frst time.
o As opposed to Petition for Review this deals with cases that
have been twice decided on.
What is the procedure in the CA?
o Filing of appellants and appellees brief. The procedure is
found in Rule 44, not 41.
Period for fling of briefs?
o 45 days, appellants brief
o 45 days, appellees brief
o 20 days, for reply
When does the court of original jurisdiction totally lose
jurisdiction, during appeal?
o When all the periods for appeal have expired
o Or when all the parties have appealed in due time
What are the two kinds of petition for review?
o Rule 42
o Rule 43 (quasi judicial agencies)
o What about petition for review of the decisions of the
It is technically not a petition for review because it is
for criminal procedure, and is in the executive branch
When does Rule 42 apply?
o There is denial in the MTC, and then denial in the RTC, and
then it goes up to the CA through Petition for Review.
o What about summary proceedings in the MTC?
When you lose in the MTC, you cannot fle an MR.
BUT you can appeal to the RTC, then petition for
review to the CA.
o What about small claims in the MTC?
You cannot MR or appeal a small claims decision. It
is fnal and executory. But if there is GADALEJ, you
can go up to through a petition for certiorari.
When does Rule 43 apply?
o When the body with original jurisdiction is a quasi-judicial
What are the periods?
o Same for Rule 42 and 43 15 days
o Can you ask for an extension?
Yes, you can ask for one during the reglementary
o Can you ask for a second extension?
General rule is that no further extensions are allowed,
except for the most compelling reasons.
What are the requirements of a Rule 42?
o 1. It must be verifed MEMORIZE
o 2. Attach a copy of the decision or a duplicate original
o 3. Afdavit of material dates (date of receipt of decision, date of
fling of MR, date of denial of MR)
o 4. Parties, issues, grounds relied upon, errors, explanation if
service is other than personal
o What are some of the causes that will dismiss your case?
1. If the jurat does not comply with the requirements
of the notarial law
2. Failure to attach registry receipt
What are the requirements of a Rule 43?
o SAME, but you attach all certifed true copies
o Why?
Because it came from a QJA. So the court will not be
able to verify if the issued resolutions, etc. are
Is the enumeration in Rule 43 of QJAs exclusive?
o No.
o Can the decision of the Ofce of the President be reviewed
by the CA?
o Can the decision of the HLURB be reviewed by the CA?
No. By express provision, it must go through the
President before the CA.
o NLRC by the CA?
Yes, but under Rule 65, not 43
o DARAB by the CA?
o CTA by the CA?
No. It must be CTA en banc, then SC.
The only way to go up to the SC is through Petition for Review on
o Except: In a criminal case where the punishment is Life
Imprisonment, Death, or RP you go to the SC through
Ordinary Appeal
Petition for Review on certiorari what is the period?
o 15 days.
o Can there be extension?
ONLY ONE extension for 30 days, for good reason
o I asked only for an initial extension of 15 days. But I
realized I needed more time. Can I ask for the last 15?
NOPE. You only get one extension.
Rules 44-56 CA
How is jurisdiction acquired over persons for original cases fled in
o Service of order/resolution or voluntary submission to the
courts jurisdiction
o What does service of order or resolution mean?
Akin to Rule 13 service
o What if there was an efort to serve and it was not
received? Is the court deemed to have acquired
No. There must be proper service of the resolution or
order. Not like summons, but the same as Rule 13.
Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings
or arguments for certiorari, annulment of judgment,
mandamus, prohibition, quo warranto.
o N.B. Annulment of judgment is an original action seeking
annulment of judgment of an RTC decision.
Can you seek an annulment of judgment of an
MTC decision?
Yes. You fle annulment in the RTC.
Can you seek an annulment of judgment of a CA
No. Fall back to the usual rule that you can
only go up to the SC through Rule 45.
o Can the justices hear the case?
Yes. Alternatively, it can ask the RTC to receive
Preliminary conference is the equivalent of pre-trial in the CA. Whether
it is an original or appealed case, the CA can set it for preliminary
o What is the efect if the appellant is absent here?
The appeal will be dismissed. This is provided in Rule
Rule 50 enumerates grounds for dismissal of appeals.
Browse through this.
Ex. paid docket fees outside of reglementary
period, even if you fled the appeal within the
period; failed to fle within the reglementary
Ex. failure to fle an appellants brief
o Can the parties stipulate on the facts?
Yes, if it is an original action, or there is a grant of new
trial on the ground for newly discovered evidence
(Note: newly discovered evidence is the only ground
for the CA; FAME is not included)
Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases
But if the CA feels that there is a need for the parties
to ventilate their arguments through oral discussion,
then it can do it in its discretion.
o 2. Do you hear motions in the CA?
While for trial courts, motions will be heard, except
those that will not prejudice the rights of the other
BUT in the Court of Appeals, motions in the CA need
not be heard (same with the SC)
Comply with minimum requirements of Rule 44 and 50.
o What if you dont have an assignment of errors?
Your appeal will be dismissed.
o What if you dont comply with court circulars?
Rule 51 provision on judgment. (For trial courts, it is Rule 36.)
<spaced out>
Can you fle an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds except that the period to resolve in the
CA (90 days) is longer than the TC (30 days)
Can you fle a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?
TC reglementary period within receipt of adverse
CA from the time appeal is perfected and as long as
the CA has jurisdiction
Rule 56 Supreme Court
Remember Sec. 1 and 3. Memorize the cases that will be originally fled
in the SC.
What are the cases that can be originally fled in the SC?
o Certiorari, prohibition, mandamus, quo warranto, disciplinary
actiosn against members of the Bar/bench, against
ambassadors, consuls, other public ministers, etc.
But if you fle a case against a member of the Bench,
it will be referred to the Court Administration. If
against a member of the Bar, it will be referred to the
o Found in the Constitution: Constitutionality of law, treaty,
ordinance, tax imposition, EO, etc.
What do you need to follow for original cases?
o Rule 46 original cases
o PLUS: Rule 48 (preliminary conference), Rule 49 (oral
argument), Rule 51 (judgment), Rule 52 (MR)
o Is there a MNT?
For appealed cases to the Supreme court, what is the mode?
o Rule 45 the only way to go up to the Supreme Court
o PLUS: Rule 48 (preliminary conference), Rule 51 (judgment),
Rule 52 (MR)
o Is there oral argument?
Rule 57 attachment
Manguila: citing Davao Light and Power. Question is when should
jurisdiction over the defendant?
o Distinguish between issuance and implementation of the writ of
attachment to determine when jurisdiction is needed over the
o Remember you could fle an attachment will the initiatory
pleading and apply for it ex parte. You can also apply for it
upon motion.
o To answer the question: there are three stages for attachment

1. Court issues order granting application

2. Writ of attachment issues pursuant to the order
3. Implementation of the writ
FOR THE FIRST TWO STAGES, jurisdiction over the
defendant is not yet required because it is an ex parte
application. However, when you are implementing the
writ, you need jurisdiction over the defendant.
o Thus, how can the writ be implemented?
You have to get jurisdiction over the defendant frst.
o Summons should be served prior to, or contemporaneous with
the order (for implementation). Contemporaneous is better.
o Summons belatedly served does not cure fatal defect in the
enforcement of the writ.
Either personal or substituted service.
Grounds for attachment? MEMORIZE
o 1. Any claim for money or damages except moral/exemplary, if
the claim arises from an obligation (law, contract, quasi-
contract, delict, quasi-delict) AND defendant is about to depart
with intent to defraud
What if claim is recovery for sum of money only?
No. You could only apply for attachment if
the defendant is about to depart with intent to
o 2. Embezzlement/abuse of trust by one with a fduciary
For all intents and purposes, this is estafa
o 3. Action to recover property and there is willful fraudulent
concealment of the property
o 4. Fraud in contracting the obligation or fraud in the
performance thereof most asked ground
First: If not for the fraud, the other party would not
have entered into the transaction
Second: In the manner of the performance, it was
o 5. Action against a person who removes/conceals property
Unlike (3), this is directed against a person
o 6. Defendant is a non-resident
Fraud not required here, because he can leave at any
How do you discharge an attachment?
o 1. Most common: post a counter-bond
When do you post a counter-bond?
Can be posted after enforcement of the writ.
You cannot anticipate its enforcement.
o 2. Improper, irregular, or excessive attachment
What is improper?
Grounds are not present in the case
What is irregular?
Wrong process.
When can this be raised?
ANYTIME, even before enforcement.
Can you recover damages?
o Yes, Section 20 if there is improper, irregular, or excessive
o Section 20 applies to all provisional remedies except support
pendent lite.
o Where can you apply for it?
In the trial court; during or after trial.
You can apply for it within reglementary period, or
when appeal has been perfected. AS LONG AS it is
pending, and not yet fnal and executory.
o Yu v. Ngo: Evidence required for wrongful attachment. When
there is wrongful attachment, defendant may recover actual
damages, without need of proof of bad faith. When there is
malicious attachment, defendant may recover actual, moral,
and exemplary damages.
o What is the scope of the award of actual damages from
1. With best evidence obtainable, fact of loss or injury
2. Amount thereof
o Can actual damages cover unrealized profts?
Yes. But the amount must be supported by
independent evidence of mean income of the
business undertaken.
o How do you prove moral/exemplary damages?
Prove that the wrongful attachment was with malice or
bad faith.
o How about attorneys fees?
Generally, attorneys fees cannot be awarded when
moral or exemplary damages are not granted.
Exception: when a party incurs expenses to lift
wrongfully issued writ of attachment.
Metro Ink: Referred to Section 1d of Rule 57. It must be shown that the
debtor intended to defraud the creditor by contracting the debt. The
fraud must be related to the execution of the agreement and must have
been the reason that induced the party to give consent.
o If the writ of attachment is issued for a ground that is also the
cause of action of the plaintif, the only way to dissolve it is to
post a counter bond.
o If you post a counter bond, does this waive any further
claim for damages arising from wrongful attachment?
Rural Bank of Sta. Barbara: A motion to release property from
attachment was treated as a third party claim (can also be found in Rule
57, Sec. 14). Works as the same manner as a third party claim, except
for one diference: [READ THIS CASE TO CLARIFY]
o Usually, in execution The applicant posted a bond when he
applied for a writ of attachment (to cover whatever damages
defendant will sufer due to attachment) By reason of a third
party claim, with no bond, the process will be suspended. Now
it is the burden of the applicant to post another bond to cover
the third partys damages.
o In attachment more or less the same procedure. The third
party claim suspends the attachment procedure. But the right
of the third party claimant in execution in attachment could be
vindicated in the same or in a separate action. In execution, it
could only be done in a separate action.
o Why?
Because in execution, the judgment is already fnal.
o In Rural Bank, a motion was fled to release property from
attachment, giving afdavit of title to the sherif. The court said
that the fling of the motion can be deemed the same as a third
party claim (because 3P claim must be fled with sherif). It can
also be treated as a form of intervention.
Case: Levy on attachment duly registered takes preference over a prior
unregistered sale. The preference created by attachment is not
defeated by the subsequent registration (to the attachment) of a prior
sale, because attachment is a proceeding in rem.
Magaling v. Ong: Irregular and improper issuance of attachment.
When the attachment is challenged for being illegally or improperly
issued, there must be a hearing.
o The hearing embraces the right to present evidence, and also
the establishment of rights of other parties.
o Mere fling of opposition is not equivalent to a hearing.
Absence of a hearing does not discharge attachment.
o The discharge of an attachment, whether through counterbond
or irregular, improper, or excessive can only be done through
Security case: Two ways to secure discharge of attachment. 1) Party
whose property or his representative has been attached can post a
security. 2) Said party can show that the attachment has been
improperly or irregularly issued. Mere posting of counter bond does not
discharge the attachment. There should be a specifc resolution for the
Contents of afdavit for attachment?
o 1. Cause of action
o 2. Statement that the grounds apply
o 3. There is no sufcient security
What if the court renders a judgment and there is a previous
attachment, duly registered, what will the subject of execution?
o If there is money duly garnished or obtained through sale of
perishable goods, the money will be applied.
o If not sufcient, use real or personal property that has been
attached. But these properties have to be sold on public sale.
Procedure is consistent with Rule 39.
What if the properties attached are not sufcient to satisfy the
o Court proceeds with ordinary execution to cover the balance.
Rule 58 - Injunction
N.B. Rule 58 has been amended on Dec 2007. It was amended
alongside Rules 41 and 65.
What was afected by the amendment?
o Rule 48, Sec. 5. [Discussed later on]
Bacolod City v. Labayo: Can there be a principal action for
o Yes. There could be a principal action for injunction. There is
a distinction made in this case between principal action and
preliminary injunction:
o Principal action seeks a judgment for a fnal injunction which
is separate and distinct from
o Preliminary injunction object is just to preserve status quo
Greenfeld, Dela Cruz v. DECS: What are the requisites for a PI?
o 1. A clear and unmistakable right
o 2. The right has been violated, and invasion has been material
and substantial
o 3. There is an urgent and permanent necessity for the writ to
prevent serious damage
Types of PI?
o 1. Preliminary injunction to prohibit or stop (status quo ante)
o 2. Preliminary mandatory injunction an injunction which
requires you to do something or perform something that you do
not ordinarily want to perform, in order to maintain the status
Estares: A writ of PI based only on initial and incomplete evidence
is this allowed? What kind of evidence is required?
o You dont need to present your entire case. Only a sampling of
evidence is needed, to give the court an idea to justify why you
need to obtain the PI.
Can a judge issue a PI without a notice and hearing?
o No. Its an absolute no. (Dela Paz)
Can the court issue a TRO without notice and hearing?
o Today, yes. (This is the amendment)
o If great and irreparable injury, court can issue a TRO ex parte
(without notice and hearing) for 20 days.
When stations where there is an executive judge, or the presiding judge
of a single-sala court, there can be an issuance of a 72-hour TRO ex
parte if the matter is of extreme urgency and the applicant will sufer
grave injustice and irreparable injury
Can an injunction have an efect if enforced outside the judicial
district? (ex. enforced in Makati and Mandaluyong, and the judge
is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
What is the purpose of the bond?
o To protect the person against whom the writ of injunction has
been issued
o The posting of a bond in connection with PI does not operate to
relieve the party obtaining the injunction from paying damages
the bond only gives additional protection in favor of the
o So Rule 57, Sec 20 also applies here. Read above, on the
rule re: damages.
A court issued a writ of PI. What is the duty of the court in relation
to the main case?
o The main case has to be decided within 6 months or else the
judge can be disciplined by the court. This is a new provision.
Aquino: Dissolution of the injunction, even if it was obtained in good
faith, it amounts to a determination that it was wrongfully obtained. A
right of action against the bond accrues.
Garcia: Posting of a bond is a condition sine qua non to issue a writ of
Borromeo: Where the parties stipulated in their credit agreement, PN,
contract, etc., that the mortgagee has the right to foreclose in case of
default, this defeats any future claim for the issuance of a PI.
SC Circular (2007): On issuance of PI on extrajudicial and judicial
foreclosure cases.
o 1. Today it is not enough to say that you have paid the amount.
Mere allegation of payment without showing actual payment is
not basis for issuance of PI.
o 2. Mere claim/allegation that the interest is unconscionable or
excessive does not justify issuance of the PI unless the legal
interest is paid.
What is a Status quo order?
o It is not a preliminary injunction. Minimum requirements of
TRO/injunction do not apply to status quo orders.
o It can be applied in TC or appellate court. A status quo order
can be issued without a bond, or without a fxed term.
o BUT in the SC Circular (2007): requirements for TRO must
apply to status quo orders if issued for judicial or extrajudicial
foreclosure of mortgage.
Can the court require you to post a bond for a TRO?
o Yes.
What are the two kinds of TRO?
o 72 hour TRO can only be issued by executive judge of a
multi-sala court, or presiding judge of single sala court
Without notice and hearing
Can these 3 days become 20 days?
Yes, after rafe and it is assigned to a regular
court judge, who can now conduct a
summary hearing to determine w/n it must
extend the TRO from 3 to 20 days.
o Normal 20 day TRO issued by a regular court judge after
Without notice and hearing
Great and irreparable injury
Can a 20 day TRO be extended?
No, it automatically expires w/ or w/o a
Unless you obtain a preliminary injunction
Can a preliminary injunction be issued without notice and
o No. NEVER. There must always be notice and hearing.
o The hearing is always summary in nature whether TRO or
preliminary injunction.
If you fle a petition for certiorari against the PI, does it suspend
the main case?
o No, it does not. This is an amendment introduced in 2007.
o Can you extend the period by which you can fle a petition
for certiorari (60 days)?
No more.
Before the 2007 amendment, you can ask for a 15
day extension. This was removed already.
How can you dissolve a writ of PI?
o Is insufciency a ground to dissolve a PI?
NO. It just a ground to deny, not to dissolve
o 1. File afdavits showing there is no reason for the PI
o 2. File a counterbond + an afdavit showing that he will sufer
more damage than applicant will
Is a counterbond enough?
Is the statement enough?
Rule 59
The only provisional remedy that can be applied for post-judgment and
even if it is already fnal and executory.
o 1. Property is in danger of being lost
o 2. Property is in danger of being wasted/dissipated
o 2. Stipulation in a mortgage contract and the security in the
mortgage is not enough to cover the value of the application
o 3. Other reasons the court fnds convenient
Requires a bond
How do you dissolve the bond?
o 1. Show no cause
o 2. Post a counterbond
Rule 60 Replevin
Can property held as evidence in criminal case be subject to a writ
of replevin?
o Superlines: NO. In the afdavit of the afant, the property is
not subject of custodia legis, execution, or attachment. The
deprivation, to be validly subject to replevin, must be illegal or
o Property can be said to be in custodia legis, not only when it is
in ofcial custody, but if it pursuant to a legal order in a case
Can one quash a writ of replevin?
o Of course, it may be quashed or dissolved
o How do you dissolve?
1. If you want to regain immediately custody or
possession, you just simply post a counter-bond
[take note of this]
2. Attack the sufciency of the replevin
Here, you cannot efect an immediate
What is the value of the bond?
What are the contents of the afdavit?
o Memorize this for the bar
o 1. The applicant is the owner of the thing
o 2. Property is wrongfully detained
o 3. Property is not lawfully taken
o 4. The fair market value of the property
When can replevin be applied for?
o You can only apply for this AT ANY TIME BEFORE AN
o For the other provisional remedies, you can apply anytime
while the action is pending (or for receivership, even after)
What is your remedy after an answer is fled?
o You fle an attachment, but the efects are diferent.
o What are the diferences?
1. In replevin, the property subject of the action is
taken. In attachment, properties, whether real or
personal are attached to secure the judgment
2. In replevin, when the writ is served, the sherif takes
possession, and delivers it to the applicant (unless a
counterbond is fled within 5 days). In attachment,
personal property is taken by the sherif and delivered
to the court; for real property, the sherif annotates at
the dorsal portion of the title.
Note that the main action is recovery of possession of property. The
issuance of a writ of replevin is just a provisional remedy.
Can there be a principal action for replevin as a provisional
o No, just like everything else, it is a provisional remedy.
o BUT because of the ADR rules, you can fle any provisional
remedy as a main action in aid of an arbitration clause. (!!!)
Pinggol: A replevin bond was deemed invalid because the ofcer who
signed the bond is without authority to do so from his company.
Danao: Can you subject to replevin a motor vehicle in custody of
another court?
o No. It is in custodia legis.
Can goods under custody of an agency of the government (here,
ex. Bureau of Forestry) be subject to a writ of replevin?
o No. It is under lawful process.
In attachment and replevin, there are rules for third party claims.
What are these?
o 1. Rule 39 Sec 16
o 2. Rule 57 Sec 14
o 3. Replevin
o Note that unlike execution, in attachment and replevin, a third
party claimant can vindicate his right in the same or a separate
action. In Rule 39, a third party claimant can only vindicate his
right in a separate action, because judgment is fnal and
o What is the rule on intervention (Rule 19)?
You can intervene anytime before judgment. But this
only applies to trial courts.
What about appellate courts?
You can still intervene, but subject to the
appellate courts sound discretion.
Rule 61 Support pendente lite
This is the only provisional remedy that does not require a bond. The
four others require a bond. The person applying for support obviously
needs money.
o N.B. For all these other provisional remedies, just follow Rule
57 Rule 23. The general rule is you can only recover damages
from a bond while the action is pending.
o So what is the rule if you are wrongfully compelled to give
You dont recover damages. You ask for
What if there is refusal to comply with court order to give support?
o The court can order execution.
o There are only two instances where there can be writ of
execution even when there is no fnal judgment:
1. Support pendente lite
2. Indigent (which the court fnds that you are not an
indigent and requires you to give fling fees)
What if a person believed that he is the father and he gave
support? Then, it turns out he is not the father.
o If the action is still pending, you can apply for reimbursement in
the same action.
o If there is a judgment already, you can apply for it in a separate
Can you dissolve support pendente lite?
o When there is no reason to give support pendente lite.
Rule 62 Interpleader
Can there be a counterclaim in an interpleader case?
o Yes.
Stuf to remember:
o In the interpleader case, the one fling the case was not
violated. There was no breach.
o The person fling the action can either have an interest which is
not in confict with the claiming parties, or has no interest at all.
Are there fling fees for an interpleader action?
o Yes.
o However, the applicant, not being violated nor is he a Real
Party in Interest is entitled to a lien on the judgment award
What is the diference with intervention?
o In intervention, there is already a pending case. Here, you
initiate the action.
Rule 63 Declaratory relief
Almeda: Enumerated the requisites of declaratory relief:
o 1. Subject matter is a deed, will, contract, or other written
instrument, statute, EO, or regulation
o 2. The terms of the documents are doubtful and require judicial
o 3. There must have been no breach of the documents in
o 4. Actual justiciable controversy
o 5. Ripe for judicial determination
o 6. Adequate relief is not available
Bottomline: purpose is for interpretation and determine validity. Its not
about constitutionality.
o Also, there must be no breach
What if there is breach?
o There will be conversion to an ordinary civil action. This is the
only such action that can be converted.
Do you need to pay fling fees when it is converted?
o Yes, you need.
Which court has original jurisdiction?
o RTC.
o What if there is an allegation of unconstitutionality?
The RTC has no exclusive jurisdiction; you can fle it
elsewhere like the SC. The RTC only has exclusive
jurisdiction if it is a pure question of declaratory relief
An action for declaratory relief must be dismissed if there is a pending
action for unlawful detainer.
Malana: Reiterates that declaratory relief presupposes no actual
Second paragraph of Sec. 1: -- covers other similar remedies
o Removal of cloud
o Quieting of title
o Reformation of instrument
When can you reform?
There must be mutual mistake.
Can there be execution in a declaratory relief case?
o Yes, nothing prevents the fling of a counterclaim in a
declaratory relief, and there can be execution pursuant to this.
Rule 64 Review of judgments and Final orders of COMELEC/COA
1. This is actually a petition for certiorari. If you fle under Rule 64, it will
be named a Petition for Certiorari
2. The period to fle a petition for certiorari under Rule 64 is 30 days,
o But the period can be interrupted, if an MR is allowed. In which
case, you get the remaining period.
3. This has a limited application; it only covers decisions by the
NOTE: For 43 and 64, all the attachments are certifed true copies.
The reason is you involve Quasi Judicial Agencies.
Rule 65 Petition for certiorari, mandamus, prohibition
First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule
65: you do not talk about Rule 65. You have to fght on your frst night.
Real frst rule of Rule 65: this is not an appeal
Elements of certiorari?
o 2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?
o Yes. The same is required GADALEJ. No plain, available,
speedy ordinary remedy.
o It is the same as certiorari.
Certiorari whose decision can you question?
o Judicial or QJA
Prohibition whose decision can you question?
o Judicial, QJA, or ministerial
What is the diference between prohibition and mandamus?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
Can the OMB be compelled by mandamus to fle an information?
o No. It is not ministerial.
If you entered into a contract with X to build a house for you, and X
received the advance of the contract price, and X did not build the
house, can you compel his performance by mandamus?
o No; it is not ministerial. It is a contractual obligation specifc
Can an OMB judgment be reviewed?
o Generally, under Rule 43.
o However, if the decision of the OMB in a criminal case is
tainted with GADALEJ, Rule 65 Certiorari can be fled with SC.
In prohibition, you cannot prohibit an act that has already been
performed. It is already moot.
Quo Warranto
Who commences an action for quo warranto?
o Liban: Generally commenced by the government.
o 1. President, directing the Sol-Gen
o 2. Sol-Gen, in the name of the government, when he has good
reason to belief
o 3. Upon the relation of another person, telling the Sol-Gen to
institute the action
What is the special requirement if it is upon the
relation of another person?
There must be approval by the court. If not
approved by the court, the Sol-Gen will not
o 4. The person instituting quo warranto in his own behalf must
show that he is entitled to the ofce in dispute.
This is where the person aggrieved himself fles (Sec
What should he show?
1. His claim
2. And that he is entitled to the ofce
When can you fle it?
o 1. Usurpation
o 2. Public ofcer who does or sufers an act constituting ground
to forfeit ofce
o 3. Association not duly incorporated
Quo warranto is also available if a government
corporation has ofended against its chapter.
It is a prerogative writ, where the government can exercise its right to
demand proof of what right a person has over ofce
What is the venue?
o 1. RTC where respondent resides
o 2. CA
o 3. SC
o This is another example of concurrent jurisdiction
o What is the special rule?
If it is the Sol-Gen who institutes the action, it can be
fled in the courts of the City of Manila
What is the period to institute an action for quo warranto?
o One year from happening of the event
Can you recover damages from a quo warranto judgment?
o One year from entry of judgment
A person who is declared by the court to be entitled to an ofce should
require delivery of books, papers, documents in the possession of the
usurper if he refuses, he can be liable for contempt.
If there is a dispute between and among the Board of Directors of a
private corporation, one group claiming that they have been
usurped, is the proper remedy quo warranto?
o No. This is an intra-corporate dispute to be fled in the regular
courts (RTC) having original jurisdiction.
Rule 67 Expropriation
If it involves a government facility which is subject of
expropriation, how much deposit do you need to give?
o Rule 67, Sec 2 provides that for real property, it must be
assessed value, in general. If it is personal property, assessed
[double check]
o Gingoyon: The government must pay at least the profered
value, not the assessed value. (RA 8974 the deposit for
immediate possession is profered value.)
Who can expropriate?
o National government
o Instrumentality of government
Veluso v. Panay:
o LGUs by themselves have no inherent power of eminent
domain. Thus, strictly speaking, the power delegated to the
LGUs is inferior domain.
o But an LGU can expropriate.
o What are the requisites before an LGU can exercise
eminent domain?
1. Public use, public purpose, public welfare
2. [xxx]
3. Just compensation
4. Valid and defnite ofer previously made to owner
but not accepted
Can a complaint for expropriation be withdrawn?
o It can be withdrawn for as long as there is no judgment yet
o Once there is an order for expropriation, it can no longer be
Government entered property (took it) and caused demolition of
improvements. But before there was order for expropriation, the
government said huwag na lang. Can the government withdraw?
o Yes. But it is liable for damages.
If there a subsisting contract between government and the private
person, there can be no expropriation contrary to that contract.
Determination of just compensation is a judicial function.
NPC v. Manubay: Is traversing a lot with transmission lines, is there
expropriation or easement fees?
o There is expropriation
Mactan Cebu Airport: When you say public purpose, it must be the
purpose stated, and not another purpose, even if public too
o The acquisition of government of property is limited to the
public purpose stated, because it is not a simple purchase in
fee simple, unlike normal purchase of property.