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Jurisdiction

administratios, and guardians, and for the distribution of estates and payment of
legacies.

The Supreme Court shall have the following powers:


1.

Exercise original jurisdiction over cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus.

Original Jurisdiction
Those courts in which, under the law, actions or proceedings may originally be
commenced
It is the power of the court to take judicial cognizance of a case instituted for
judicial action for the first time under conditions provided by law

2.

Review, revise, reverse, modify, or affirm on appeal or certiorari as the law of the Rules
of Court may provide, final judgment and the orders of lower courts in:

Appelate Jurisdiction

a.

All cases in which the constitutionality or validity of any treaty, international or


executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto
All cases in which the jurisdiction of any lower courts is in issue
All criminal cases in which the penalty impose is reclusion perpetua or higher
All cases in which only an error or question of law is involved

Assign temporarily judges of lower courts to other stations as public interest may
require.
Order the change of venue or place of trial to avoid miscarriage of justice.
Promulgate rules concerning the:
a.
Protection and enforcement of constitutional rights
b.
Pleading, practice and procedure in all courts
c.
The admission to practice of law, the Integrated Bar; and
d.
Legal assistance to the underprivileged
Appoint all officials and employees of the Judiciary in accordance with the Civil Service
Law

Jurisdiction vs. Judicial Power

Special Jurisdiction

b.
c.
d.
e.
3.
4.
5.

6.

The exercise of a judicial power is dependent upon the creation of a court. If there is no
court created then there is no judicial power. The court is created by law or legislation.
Judicial power is a passive power. The creation of a court necessarily follows that the
court must be clothed and armed with a power. This power is the judicial power
dependent upon the creation of the court.
Jurisdiction vs. Venue
Jurisdiction is the authority to hear and determine a case whereas venue is the ploace
where the case is to be heard or tried.
Jurisdiction is a matter of substantive law whereas venue is a matter of procedural law.
Jurisdiction establishes a relation between the court and the subject matter whereas
venue is a relation between a plaintiff and defendant, or petitioner and respondent.
Jurisdiction is fixed by law and cannot be conferred by the parties whereas venue may
be conferred by the act or agreement of the parties.
Manila Railroad vs. Atty. General
The failure of a defendant to object to the venue of the action at the time of entering his
appearance in the action shall be deemed a waiver on his part of all objections to the
place or tribunal in which the action is brought, except in the actions referred to in the
first sixteen lines of this section relation to real estate, and actions against executors,

Courts which have the power to review on appeal the decisions or orders of a
lower court
It is the authority of a court higher in rank to reexamine the final order of
judgment of a lower court which tried the case now elevated for judicial power.

Exclusive Jurisdiction
It is the power to adjudicate a case or proceeding to the exclusion of all other
courts at that stage.

Concurrent Jurisdiction
-

It is referred to as confluent or coordinate jurisdiction, which is the power


conferred upon different ranks, whether of the same or different ranks, to take
cognizance at the same stage of the same case in the same or different judicial
territories.

It is the power of inferior courts to hear and decide petitions in the absence of the
proper court in the province or city
It is referred to as the interlocutory jurisdiction of inferior courts under the
Judiciary Act.
Jurisdiction over the subject matter
-this is conferred by law and unlike jurisdiction over the parties, cannot be
conferred on the court by the voluntary act or agreement of the parties.
Jurisdiction vs. Exercise of Jurisdiction
The authority to decide a case and not the decision rendered therein is what
makes up jurisdiction. Where there is jurisdiction, the decision of all questions
arising in the case is but an exercise of jurisdiction.
Jurisdiction is the power of the court itself but when such power is exercised then
it is an exercise of jurisdiction.
The errors which a court may commit in the exercise of jurisdiction differ from
errors of judgment. The former is reviewable in an orifinal action for certiorari,
while the latter is correctible by appeal.

Errors in jurisdiction render a judgment void or, at least voidable, while errors of
judgment are grounds for reversal only if it shown that prejudice has been
caused thereby.

reasonable length of time, warranting a presumption that the party entitled to


assert it either has abandoned it or declined to assert it.
Estoppels by laches may be invoked to bar the issue of lack of jurisdiction onlu in
cases in which the factual milieu is analogous to that in the cited case. In such
controversies, laches should have been clearly present; that is, lack of
jurisdiction must have been raised so belatedly as to warrant the presumption
that the party entitled to assert it had abandoned or declined to assert it.

Jurisdiction is conferred by law and cannot be conferred or waived by the parties


and can be assailed at anytime. But not where estoppel by laches sets in.
What determines jurisdiction over the subject matter?
The facts alleged in the complaint and the law in force at the time of the
commencement of the action determines the jurisdiction of a court.

the general rule remains that a courts lack of jurisdiction may be raised at any stage of the
proceedings, even on appeal. The reason is that, jurisdiction is conferred by law, and lack of it
affects the very authority of the court to take cognizance of and to render judgment on the action.
Moreover, jurisdiction is determined by the averments of the complaint, not by the defenses
contained in the answer.
GR: Jurisdiction of a court is not affected by a new legislation laying jurisdiction
over such proceedings to another tribunal.
XPN: Where the law expressly provides that it shall operate retroactively.
GR: Jurisdiction of the court over the subject matter of the action is determined
by the allegations of the complaint, irrespective of whether or not the plaintiff is
entitled to recover upon all or some of the claims asserted therein.
Jurisdiction of the court cannot be made to depend upon the defenses set up in
the answer or in the motion to dismiss; otherwise, the question of jurisdiction
would almost entirely depend upon the defendant
XPN:
There is one instance when the court, in determining its jurisdiction, may
consider the defense set up by the defendant in his answer------ that is an
ejectment case filed with the Municipal Trial Court where the defendant sets up
the defense of agricultural tenancy by claiming that he is a tenant. In such
situation, the court should not dismiss the case outright but must conduct a
preliminary hearing on the said defense. If the court finds that there is indeed an
agricultural tenancy relationship between the plaintiff and the defendant, then it
must dismiss the case as the same falls within the exclusive jurisdiction of the
Department of Agrarian Reform Adjudication Board.
P vs. D
P files a complaint for collection of sum of money worth 500k. During the trial, P
was able to prove 100k only
Q: Can the RTC still render judgment?
A: Yes, the RTC can still render judgment. I maintain the positive view because
the facts alleged in the complaint and the law in force at the time of the
commencement of the action determines the jurisdiction of the court.
Laches is defined as the failure or neglect for an unreasonable and unexplained
length of time, to do that which, by exercising due diligence, could or should have
been done earlier, it is negligence or omission to assert a right within a

Doctrine of laches = Stale Demands; based on the grounds of public policy


It has been held that after voluntarily submitting a cause and encountering and adverse decision
on the merits, it is too late for the loser to question the jurisdiction or power of the court.
DOCTRINE OF PRIMARY JURISDICTION
The Doctrine of Primary Jurisdiction vests in an administrative tribunal the jurisdiction to determine
a controversy involving a question requiring the exercise of sound administrative discretion. The
resolution of the issues in a given case requires the expertise, specialized skills, and knowledge of
the proper administrative bodies because of technical matters or intricate questions involved, then
relief must first be obtained in an administrative proceeding before a remedy will be supplied by
the courts even though the matter is within the proper jurisdiction of a court.
Where the jurisdiction is vested upon an administrative body, no resort to the courts may be made
before such administrative body shall have acted upon the matter.
DOCTRINE OF ADHERENCE OF JURISDICTION
Jurisdiction once acquired continues until the case is finally terminated
Once the court acquires jurisdiction by virtue of a valid complaint, the jurisdiction shall continue up
to the end of the case. Intervening facts will not deprive the courts of jurisdiction
Doctrine of Judicial Stability
A judge of a branch of one should not annul the order of a judge of another branch of the same
court. Any branch even if it be in the same judicial district that attempts to annul a judgment of a
branch of the CFI either exceeds its jurisdiction or acts with grave abuse of discretion amounting to
lack of jurisdiction. The various branches of the Court of First Instance being co-equal cannot
interfere with the respective cases of each branch, much less a branchs order or judgment.
-

Family Courts issuances of writs are enforceable only within its territorial
jurisdiction or within the judicial region to which the Family Court belongs.

A petition for habeas corpus may be filed in the Supreme Court, Court of
Appeals, or with any of its members and if so granted, the writ shall be
enforceable anywhere in the Philippines.

What is the test to be followed in determining whether the subject matter of the litigation is
incapable of pecuniary estimation?
In determination whether the subject of litigation is incapable of pecuniary estimation, the nature of
the principal action or remedy sought must first be determined. If it is primarily for recovery of sum
of money, the claim is considered capable of pecuniary estimation, and the jurisdiction would
depend on the amount of the claim.
But where the basic issue is something other than the right to recover a sum of money, or where
the money claim is incidental to, or a consequence of, the principal relief being sought, the subject
of litigation is deemed incapable of pecuniary estimation in terms of money, and is cognizable
exclusively by the RTC.
An action for specific performance is incapable of pecuniary estimation, although it also prays for
damages (because the claim for damages is merely incidental to the principal relief being sought).
But where there is an alternative prayer for the payment of a sum of money in lieu of specific
performance, jurisdiction should be based on the sum of money alternatively prayed for.
Declaration of nullity of the document denominated as Declaration of Heirs and Deed of
Confirmation of Previous Oral Partition is incapable of pecuniary estimation, although the
complaint also prayed for the partition of the land subject of the action, as said partition was merely
incidental to the main action for declaration of nullity.

In real action, the courts jurisdiction is determined by the assessed value of the real property as
alleged in the original complaint, BP 129 provides that if the assessed value of the real property
subject of the suit does not exceed P20,000 (or P50,000 in M. Manila), the action falls within the
jurisdiction of the Municipal Trial Court; and if it exceeds P20,000 (or P50,000 in M.Manila) the
action is cognizable by the Regional Trial Court.
It is necessary to state in the original complaint the assessed value of t the property in order to
determine whether the court in chich the action is filed has jurisdiction over the subject matter of
the suit.
If the action involves ownership and possession of real property, the jurisdiction over the subject
matter of the claim is determined by the assessed value, not the market value, thereof pursuant to
BP 129.
To determine which court has jurisdiction over the action, the complaint must allege the assessed
value of the real property subject of the complaint or the interest thereon.
If the respondents complaint is a real action, the Rule requires that the assessed value of the
property, or if there is none, the estimated value thereof shall be alleged by the claimant and shall
be the basis of computing fees.

An action for appointment of an administrator (or administratrix) for an estate is incapable of


pecuniary estimation and is therefore cognizable by the RTC. But probate proceedings for the
settlement of estate are within the jurisdiction of either the RTC or MTC depending on the gross
value of the estate.

HOW JURISDICTION OVER THE PARTIES IS ACQUIRED?

An expropriation suit is incapable of pecuniary estimation regardless of the value of the property
involved because its primary consideration is whether the government or any of its
instrumentalities has complied with the requisites for the taking of private property. In the main, the
subject of an expropriation suit is the governments exercise of eminent domain, a matter that is
incapable of pecuniary estimation. The value of the property to be expropriated is estimated in
monetary terms, for the court is duty bound to determine the just compensation for it. This,
however, is merely incidental to the expropriation suit.

The jurisdiction over the defendant or respondent is acquired by the voluntary appearance or
submission by the defendant or respondent to the court or by coercive process issued by the court
to him, generally by service of summons.

An action for interpleader under Rule 62 is incapable of pecuniary estimation.


Other examples of actions incapable of pecuniary estimation are: action for support, action for
annulment of judgment, actions questioning the validity of mortgage, action for rescission which is
the counterpart of specific performance.
Where the complaint, although denominated in the title thereof as one for specific performance,
shows that the plaintiff is asking that a deed of sale of a parcel of land be executed in his favor and
that a Transfer Certificate of Title covering such land be issued to him, then the action is to be
considered one for the recovery of real property and not for specific performance since the primary
objective is to regain the ownership and possession of the parcel of land. Hence, the docket fees
should be computed on the basis of the value of the property and the amount of related damages
claimed, exclusive of interest.

The jurisdiction over the plaintiff or petitioner is acquired by the filing of the complaint, petition or
initiatory pleading before the court y the plaintiff or petitioner

HOW JURISDICTION OVER THE RES IS ACQUIRED?


This is acquired by the actual or constructive seizure by the court of the thing in question, thus
placing it in custodial egis, as in attachment or garnishment; or by the provision of law which
recognizes in the court the power to deal with the property or subject matter within its territorial
jurisdiction, as in land registration proceedings or suit involving civil status or real property in the
Philippines of a non-resident alien.
JURISDICTION OVER THE ISSUES
This is determined and conferred by the pleadings filed in the case by the parties, or by their
agreement in the pre-trial order or by stipulation, or, at times, by their implied consent as by the
failure of a party to object to evidence on an issue not covered by the pleadings, as provided in
Sec. 5, Rule 10.
Rules on Jurisdiction

The jurisdiction of the court is determined by the statute in force at the time of the commencement
of the action, unless such statute provides for its retroactive application, as where it is curative
legislation.
The settled rule is that jurisdiction of the court over the subject matter is determined by the
allegations of the complaint, but this rule is not without exception.
The jurisdiction of the court, whether in criminal or civil cases, once it attaches cannot be ousted
by subsequent happenings or events although of a character which would have prevented
jurisdiction form attaching in the first instance.
The question of constitutionality of a statute must be questioned at the earliest opportunity except
in criminal cases where the question may be raised at any stage and, in civil cases, if the
determinations of the question is necessary for the decision of the case, even if raised for the first
time on appeal.

Although the purpose of an action is to recover an amount plus interest which comes within the
original jurisdiction of the MTC, yet when the said action involves the foreclosure of a chattel
mortgage covering personal properties valued at more than P10,000.00, the action should be
instituted before the Regional Trial Court.
______________________________________________________________________________
______

What determines the jurisdiction of the court is the amount of the plaintiffs claim, not the value of
the personal property sought to be seized by replevin.
A claim of P20,000 as attorneys fee is merely incidental to the main action, and therefore this
amount is not determinative of the jurisdiction of the court.

The jurisdiction of a court over the subject matter is conferred only by the Constitution or the law
and that the Rules of Court yield to substantive law.

HOW TO DETERMINE IF THE SUBJECT MATTER IS INCAPABLE OF PECUNIARY


ESTIMATION

Jurisdiction cannot be fixed by the agreement of the parties; it cannot be acquired through, or
waived, enlarged or diminished by, any act or omission of the parties; neither can it be conferred
by the acquiescence of the court.

The nature of the principal action or remedy sought must be first be determined. If it is primarily for
recovery of a sum of money, the claim is considered capable of pecuniary estimation, and
jurisdiction would depend on the amount of the claim. But where the basic issue is something other
than the right to recover a sum of money, or where the money claim is incidental to, or a
consequence of, the principal relief being sought, the subject of litigation is deemed incapable of
pecuniary estimation in terms of money, and is cognizable exclusively by the RTC. (Singson vs.
Isabela Sawmill 88 SCRA 623)

Questions of jurisdiction may be raised for the first time on appeal even if such issue was not
raised in the lower court.
A court motu proprio dismiss a case which is outside its jurisdiction.
The principle of estoppels by laches cane be availed of to bar attacks on jurisdiction.
In case for the recovery of the sum of money, as the collection of a debt, the claim is considered
capable of pecuniary estimation because the obligation to pay the debt is not conditioned upon any
specific fact or matter. But when a party to a contract has agreed to refund to the other party sum
of money upon compliance by the latter of certain conditions and only upon compliance therewith
may what is legally due to him under the written contract be demanded, the action is one not
capable of pecuniary estimation and is within the jurisdiction of the RTC. The payment of a sum of
money is only incidental.
Specific performance has alternative prayer for money makes it capable of pecuniary estimation
The jurisdiction of the respective courts is determined by the value of the demand and not the
value of the transaction out of which the demand arose; that is what the law says in unmistakable
terms. The alternative prayer for specific performance is also of the same value, for, as said above,
the alternative prayers would not have been made in the complaint if one was more valuable that
the other; hence, the alternative performance prayed for, is capable of pecuniary estimation.
Sum of money and/or foreclosure of chattel more than judicial value capable of pecuniary
estimation

An action for specific performance is incapable of pecuniary estimation, although it also prays for
damages (because the claim for damages is merely incidental to the principal relief being sought).
But, where there is an alternative prayer for the payment of a sum of money in lieu of specific
performance, jurisdiction should be based on the sum of money alternatively prayed for.
The interpretation of the renewal contract in lease agreements; but there is non-payment of rental
although the interpretation of renewal clause was also involved the jurisdiction is with the lower
court (Teodoro vs. Mirasol)
Remedial Law vs. Substantive Law
Substantive law is that part of the law which creates rights concerning life, liberty, or property or
the power of instrumentalities for the administration of public affairs.
Procedural law refers to the adjective laws which prescribe rules and forms of procedure in order
that courts may be able to administer justice.
Substantive law creates, defines and regulates rights.
Adjective or remedial law prescribes the method of enforcing the rights or obtaining redress for
invasion.

Substantive law is the law which gives or defines the right, and which, by means of proceeding, the
court is to administer. Procedure is the mode of proceeding by which a legal right is enforced.
(Bustos vs. Lucero 81 Phil 649)

The finality of a judgment does not mean that the Court has lost all its powers nor the case. By the
finality of judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Ever
after the judgment has become final, the court retains its jurisdiction to execute and enforce it.
There is a difference between the jurisdiction of the court to execute its judgment and its
jurisdiction to amend. Modify or alter the same. The former continues even after the judgment has
become final. For after the judgment has become final, facts and circumstances may transpire
which can render the execution unjust or impossible.
The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction for our Constitution vests the entirety of judicial power in one
Supreme Court and in such lower courts as may be established by law.
The rule making power of this Court was expanded. This Court for the first time was given the
power to promulgate rules concerning the protection and enforcement of constitutional rights. The
Court was also granted for the first time the power to disapprove rules of procedure of special
courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power
of congress to repeal, alter, or supplement rules concerning pleading, practice and procedure.
An action for rescission of contract is one which is incapable of pecuniary estimation. Therefore,
the docket fee for its filing should be the flat rate of 400.
Q: May a RTC annul the judgment of another RTC?
A: No. Only the Court of Appeals has jurisdiction to annul the judgment of a Regional Trial Court.
But if what is sought to be annulled is a judgment of the Municipal Trial Court, then the action for
annulment should be filed with the Regional Trial Court because an action for annulment of
judgment of a Municipal Trial Court is incapable of pecuniary estimation.
In an action for the recovery of property, the docket fee should be based on the value of the
property sought to be recovered.
Note, however, that although the payment of the proper docket fee is a jurisdictional requirement,
the trial court may allow the plaintiff to pay the same within a reasonable time but before the
expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to comply with
this requirement, the defendant should timely raise the issue of jurisdiction; otherwise, he should
be considered in estoppels.
Q: Suppose the plaintiff failed to pay the correct amount of docket fee, may the trial court dismiss
the complaint?

A: No, the trial court may not dismiss the complaint. Instead, the trial court should allow the plaintiff
to pay the correct amount of docket fee within a reasonable time but before the expiration of the
applicable prescriptive of reglementary period. If the plaintiff fails to pay within the period granted
to him by the trial court, then the defendant must move to dismiss the complaint on the ground of
lack of jurisdiction. The defendant who fails to timely raise the issue of jurisdiction would be
considered in estoppel.
If the demand does not exceed P300,000 (or P400,000 in M,Manila) the complaint should be filed
in the Municipal trial court. The action is a personal action. In determining what court will have
jurisdiction in personal actions, damages of whatever kind (as well as interest, attorneys fees,
litigation expenses, and costs) shall be excluded if they are merely incidental to, or a consequence
of, the main cause of action.
Jurisdiction of the RTC Where in a personal action the claim for damages is the main cause of
action (or one of the causes of action), the amount of such claim shall be considered in
determinind the jurisdiction of the courts.
The Supreme Courts original jurisdiction to issue extraordinary writs should be exercised only
where absolutely necessary, or where serious and important reasons therefor exist. The Supreme
Courts original jurisdiction to issue writs should be allowed only when there are special and
important reasons therefor clearly and specifically set out in the petition.
Q: What are the cases that the Supreme Court should resolve en banc?
A: Cases in which the constitutionality or validity of any treaty, international or executive
agreement, law or executive order, or presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
2. criminal cases in which the appealed decision imposes the penalty of death
3. cases raising novel questions of law
4. cases involving decisions, resolutions, or orders of the Commision on Elections and
Commission on Audit
5. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the
judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than
one (1) year or a fine of exceeding P10,000 or both
6. Cases where a doctrine or a principle laid down by the Court en banc or in division may be
modified or reversed.
7. cases assigned to a division which in the opinion of at least three members thereof merit the
attention of the Court en banc and are acceptable to a majority of the actual membership of the
Court en banc.

8. all other cases as the Court en banc by a majority of its actual membership may deem of
sufficient importance to merit its attention.

Where some but not all the defendants have answered, the plaintiff may still amend his
complaint once, as a matter of right, in respect to claims asserted against the defendants who
have already filed their answer.

Rule 1
The Rules of Court have the force and effect of law. They are not penal statures and cannot be
applied retroactively, although Procedural rules may be applied on cases pending at the time of
their passage and retroactive in that sense.
RULE 10 AMENDMENT AND SUPPLEMENTAL PLEADINGS
Q: How is amendment of a pleading made?
A: Amendment is made by
a.
b.

By adding or striking out an allegation or the name of any party


By correcting a mistake in the name of a party or a mistaken or inadequate allegation
or description in any other respect.

Q: When is amendment (of a pleading) a matter of right?


A:
A party may amend his pleading once as a matter of right at any time before a
responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is
served. After a responsive pleading has been served, substantial amendments may be made only
upon leave of court.
Unlike under the old rule, amendment may now substantially alter the cause of action
or defense.
Q:
P file a complaint against D. Within the reglementary period of filing an answer, D filed
a motion to dismiss, serving P with a copy thereof. May P still amend his complaint as a matter of
right?
A:

But, as against Z, X may still amend his original complaint as a matter of right. The fact
that Y filed his answer does not bar X from amending his original complaint once as a matter of
right against Z.

Yes, because a motion to dismiss is not a responsive pleading.

Q:
Suppose in the problem presented, the court dismissed the complaint on motion of D.
On July 16, 2001, P was served with a copy of the order of dismissal. May P still amend his
complaint as a matter of right on July 30, 2001?
A:
Yes. As of July 30, 2001, no responsive pleading has yet been served, and the order of
dismissal has not yet become final.
Q:
X filed a complaint against Y and Z, asserting claims against each of them. Y filed his
answer, while Z filed a motion to dismiss. May X still amend his complaint as a matter of right?
A:
X may amend his original complaint as against Y, but only with leave of court not as a
matter of right anymore because Y has already file his answer.

Q:
If amendment is a matter of right, but the trial court denies the amendment, what is the
remedy against the courts denial?
A:

The remedy is mandamus.

Q:
If amendment requires leave of court, but the trial court refused to grant leave for the
amendment of the pleading, what is the remedy against the courts refusal?
A:
The remedy is certiorari if it can be shown that the trial courts refusal to grant leave is
tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.
What are the limitations to the right of a party to amend his pleading?
The trial court may refuse to amendment in the following instances:
a.
b.
c.

If a responsive pleading has already been served, and the motion for leave to amend is
made with intent to delay;
If the purpose of the amendment is to confer jurisdiction upon the court; or
If the purpose of the amendment is to cure the defect of a non-existent cause of action.

When it is evident that the court has no jurisdiction over the person and the subject matter, then
the court may refuse amendment of the defective pleading and order the dismissal of the case.
If the court has no jurisdiction over the subject matter of the action, the only power that it has is to
dismiss the case. A decision rendered by a court without jurisdiction is a total nullity.
The amendment will not cure the defect of want of jurisdiction because the right to amend is
subject to the limitation that amendment cannot be made if the purpose is confer jurisdiction upon
a court.
Where the court has no jurisdiction, the only power it has is to dismiss the complaint.
An amendment is not allowed where the court has no jurisdiction over the original complaint and
the purpose of the amendments is to confer jurisdiction upon the court, or where the action
originally pleaded in the complaint is outside the jurisdiction of the courts.
What is amendment to conform to the evidence?
When issues not raised by the pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings, and there

can be an amendment to conform to evidence. The amendment may be made, upon motion of any
party, even after judgment. But failure to amend does not affect the result of the trial of the issues.
What is amendment to authorize presentation of evidence?

c.

Answer to the amended complaint 15 days after service of a copy thereof if amended
complaint is filed as a matter of right; 10 days from the notice of the order admitting the
amended complaint if the filing thereof requires leave of court

d.

If evidence is objected to at the trial on the ground that it is not within the issues made by the
pleadings, the court may allow the pleadings to be amended, and shall do so with liberality, to
authorize the presentation of evidence.

Answer of a defendant foreign juridical entity 15 days if summons is served on its


resident agent; 30 days from receipt by the home office of the summons if summons is
served on the government official designated by law to receive the same.

e.

Answer to third-(fourth, etc.) party complaint 15 days from service of summons.

A complaint that states no cause of action may be cured in one of two ways:

f.

Answer to complaint-in-intervention 15 days form notice of the order admitting the


complaint-in-intervention;

g.

Answer to the counterclaim/cross claim 10 days from service thereof (but if the
counterclaim is compulsory, it need not be answered);

h.

Answer to the supplemental complaint 10 days from notice of the order admitting the
supplemental complaint;

i.

Answer where summons is served through any of the modes of extraterritorial service
on a non-resident defendant who is not in the Philippines within reasonable time
which shall not be less than 60 days after notice as the court may specify in its order
granting leave to effect extraterritorial service of summons;

j.

Reply 10 days from service of the pleading responded.

a.
b.

By presentation of evidence to prove the cause of action, in which case the complaint
may be amended to conform to evidence; or
If the evidence is objected to and the trial court sustains the objection, by amendment
of the complaint with leave of court to authorize presentation of evidence.

Failure of a party to raise a defense in his pleading may be cured in one of two ways;
a.
b.

By presentation of evidence to prove the defense that is not raised, in which case the
answer may be amended to conform to the evidence; or
If the evidence is objected to and the trial court sustains the objection, by amendment
of the answer with leave of court to authorize presentation of evidence:

What are the effects of an amended pleading?


a.
b.
c.

An amended pleading supersedes the pleading that it amends;


Admission in the superseded pleading may be received in evidence against the
pleader;
Claims and defenses alleged in the superseded pleading but not incorporated in the
amended pleading shall be deemed waived.

Amended pleading vs. Supplemental pleading


a.
b.
c.

The filing of an amended pleading may either be a matter of right or with leave of court;
the filing of a supplemental pleading is always with leave of court;
Amended pleading alleges facts that occurred before the filing of the original pleading;
supplemental pleading alleges facts occurring after the filing of the original complaint.
Amended pleading supersedes the original pleading; supplemental pleading does not
supersede the original pleading but assumes that the original pleading is to stand.

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS


What are the periods for filing of responsive pleadings?
a.

Answer to the complaint 10 days after the service of summons if the case is
governed by the Rule on Summary Procedure

b.

Answer to the complaint 15 days after service of summons;

A complaint is not a responsive pleading; it is a pleading the filing of which commences the
civil action.
When should a complaint be filed?
It should be filed upon the accrual of the cause of action, or at any time thereafter but before
such cause of action is barred by prescription.

COMPLETENESS of SERVICE

The registry notice must indicate the nature of contents of the mail matter in order to
have constructive notice.

The filing of affidavit of service is not substantial compliance of Sec. 11, Rule 13,
requiring Explanation in case the mode of service is other than Personal service.
Absence of Written explanation may be excused if the impracticability of personal
service is apparent from the pleadings (distance between the offices of the lawyers).

RULE 12 BILL OF PARTICULARS


What is the purpose of a bill of particulars
Its purpose is to make more definite any matter averred with sufficient definiteness in a
pleading to enable the adverse party to properly prepare his responsive pleading.

The office of a bill of particulars is limited to making more particular or definite the ultimate
facts in a pleading, not to supply evidentiary matters.

If the plaintiff does not obey the order of the court or in case of insufficient compliance, the
court may order the striking out of the pleading or the portions thereof to which the order was
directed.

Q: the complaint was shabbily crafted, the allegations therein are ambiguous, vague, indefinite,
and uncertain. What is the remedy of the defendant?
A: the remedy of the defendant is to file a motion for a bill of particulars, pointing out the defects
complained of, the paragraphs wherein they are contained, and the details desired.
But, if because of such ambiguity, vagueness, indefiniteness, or uncertainty, the complaint fails to
state a cause of action, then the remedy of the defendant is to file a motion to dismiss on the
ground that the complaint states no cause of action under Rule 16.

The court may even dismiss the complaint under Sec. 3, Rule 17 for failure of the plaintiff to
obey an order of the court.
Q:

If a defendant files a motion for a bill of particulars, when he must file his answer?

A:
the defendant must file his answer within the period to which he was entitled to at the
time of the filing of his motion, which shall not be less than five days in any event.
RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER PAPERS

When may a party file a motion for a bill of particulars?


What is filing? Service?
A party may file a motion for a bill of particulars before he responds to a pleading. Thus, a
defending party may, before filing his answer, move for a bill of particulars. But if the pleading
is a reply, he must file his motion within ten days from service thereof.

Filing is the act of presenting the pleading or other paper to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned.

A defender who has already filed an answer cannot anymore file a motion for a bill of
particulars.
What does the rule require the clerk of court to do upon the filing of a motion for a bill of
particulars?
-Upon filing of the motion for a bill of particulars, the clerk of court must immediately bring it
to the attention of the court which may either deny or grant it outright, or allow the parties the
opportunity to be heard.
A motion for a bill of particulars is litigable motion and should therefore contain a notice of
hearing. But , it is one motion which the court may deny or grant outright even without a
hearing.
Q:
On motion of the defendant, the court ordered the plaintiff to file a bill of particulars.
When and how may the plaintiff comply with the order of the court?

What are the modes of filing of pleadings, motions, judgments, resolutions, orders, or other
papers?
a.

Personal filing by delivering the copy personally to the Clerk of Court;

b.

Filing by registered mail Note that filing by ordinary mail is not allowed

What are the modes of service of pleadings or motions?


a.

Personal service
By delivering personally a copy to the party or his counsel, or by leaving it in his office
with his clerk or with a person having charge thereof. If no person is found in his office,
or his office is not known, or he has no office, then by leaving the copy between the
hours of eight in the morning and six in the evening, at the partys or counsels
residence, if known, with a person of sufficient age and discretion then residing therein.

b.

Service by mail which may either be by registered mail or by ordinary mail.


Note, however, that service may be done by ordinary mail if no registry service is
available in the locality of either the sender or the addressee.

c.

Substituted service.
By delivering the copy to the Clerk of Court, with proof of failure of both personal
service and service by mail.

A:
the plaintiff must comply with the order of the court within ten (10) days from notice of
the order, unless the court has fixed a different period.
The plaintiff may file the bill of particulars either in a separate pleading or in an
amended pleading, serving the adverse party with a copy thereof.
Q:

Is a bill of particulars a pleading?

A:

No, it is not a pleading, but it becomes part of the pleading for which it is intended.

If a party has appeared by counsel, service upon him shall be made upon his counsel
or one of them, unless service upon the party himself is ordered by the court.

What are the modes of service of judgments, final orders, or resolutions?


Non compliance by the plaintiff

a.
b.
c.

Personal service
Service by registered mail
Service by publication, but this mode of service can only be utilized if the party is
summoned by publication and he did not appear in the action.

Q:
A judgment was sent to the defendant by ordinary mail. When does the judgment
become final and executor?

If by substituted service, it is complete at the time of the delivery of the a copy to the
clerk of court.
Q:

What is lis pendens? Notice of lis pendens?

A:

A lis pendens is a Latin term which literally means a pending suit or pending litigation.
A notice of lis pendens is an announcement to the whole world that a particular real
property is in litigation, serving as a warning that one who acquires an interest over the
said property does so at his own risk, or that he gambles on the result of the litigation
over the said property.

A:
The judgment will never become final and executor because the service thereof is
fatally defective. Service of judgment and final orders by ordinary mail is not authorized.

Q:

One requisite of a valid judgment is that it must be in writing. If a judgment is not in


writing, as when it is merely dictated in open court, there can be no way it could be
served on the parties through any of the modes authorized by the rules for service of
judgments.

What is the rule on priorities of service and filing of pleadings and other papers?

A:
The rule is that whenever practicable, the service and filing of pleadings and other
papers shall be done personally. Except with respect to papers emanating from the court, a resort
to other modes must be accompanied by a written explanation why the service or filing was not
done personally. A violation of this rule may be cause to consider the paper as not filed.
The rule on priorities of service is mandatory.
Q:

What is the reason for the priority of service and filing of pleadings and other papers?

A:

The reasons are:

Q:
May a notice of lis pendens be sought as a principal action for relief? (Is there an
action for annotation of lis pendens?)
There is no such action as one for annotation of lis pendens. A notice of lis pendens
is not and cannot be sought as a principal action for relief. The notice is but an incident to an
action. As a settled rule, notice of lis pendens may be annotated only where there is an action or
proceeding in court which affects title or possession of real property.
Q:
Suppose the ROD denies the annotation of the notice of lis pendens, what is the
remedy against such denial?
A:
The remedy against such denial is to appeal the same en consulta to the
Commissioner of Land Registration. The resolution of the Commissioner may then be appealed to
the Court of Appeals, which has exclusive jurisdiction to decide the same within the period and in
the manner provided in RA 5434.
In what action may a party record a notice of lis pendes?

a.
b.

To expedite action or resolution on a pleading, motion, or other paper;


To do away with the practice of some lawyers who, wanting to appear clever, resort to
less than ethical practices, such as serving or filing pleadings by mail to catch opposing
counsel off-guard, thereby leaving him with little or no time to prepare his responsive
pleading or opposition.

Q:

When is service? (What is the rule regarding completeness of service?)

A:

If by personal service, it is complete upon actual delivery.

In an action affecting the title or the right of possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his answer, may record in the Office of the Registry
of Deeds of the province in which the property is situated a notice of pendency of the action.
A notice of lis pendens may be recorded in the following cases:
a.
b.
c.
d.
e.

If by ordinary mail, it is complete upon the expiration of ten (10) days after mailing,
unless the court otherwise provides.
If by registered mail, it is complete upon actual receipt by the addressee, or after five
(5) days from the date he received the first notice of the postmaster, whichever date is
earlier.

In an action to recover possession of real estate;


In an action to quite title thereto;
In an action to remove clouds therefrom;
In an action for partition; and
In any other proceedings of any kind in court directly affecting the title to the land or the
use or occupation thereof or the buildings thereon.

What are the grounds upon which notice of lis pendens may be cancelled?
a.
b.

the notice of lis pendens is for the purpose of molesting the adverse party;
the notice of lis pendens is not necessary to protect the rights of the party who caused
it to be recorded.

A notice of lis pendens is extrajudicial in the sense that it may be recorded in the office
of the register of deeds without the approval of the court in which the action is pending.
But once recorded, the notice of lis pendens may be cancelled only upon order of the
court on any of the grounds mentioned above. Thus, the court cannot order the
cancellation of the notice of lis pendens upon an ex parte motion (or without notice to
the party who caused the notice to be recorded)
A notice of lis pendens is proper in the following cases, viz.:
a) An action to recover possession of real estate;
b) An action to quiet title thereto;
c) An action to remove clouds thereon;
d) An action for partition; and
e) Any other proceedings of any kind in Court directly affecting the title to
the land or the use or occupation thereof or the buildings thereon.

Although the service of summons upon the defendant is defective, the court still acquires
jurisdiction over his person if he voluntarily appears in the action as when he files his answer or a
motion for extension of time to file answer.
Modes of service of summons?
a.
b.

c.

Service in person to the defendant. By handing a copy of the summons to the


defendant in person or, if he refuses to receive and sign for it, by tendering it to him.
Substituted service. By leaving a copy of the summons at the defendants residence
with some person of suitable age and discretion then residing therein, or by leaving a
copy of the summons at the defendants office or regular place of business with some
competent person in charge thereof. But substituted service may be resorted to only if
summons cannot be served in person to the defendant within a reasonable time.
Service by publication.

How substituted service of summons be effected


RULE 14 SUMMONS
Substituted service of summons may be effected by:
Q:

What is summons?

A:

It is a writ addressed to the defendant, directing him to answer within the time fixed by
the rules the complaint filed against him by the plaintiff, with a notice that unless he so
answer, plaintiff will take judgment by default and may be granted the relief applied for.

b.

Q:

Is summons required for counterclaims?

But the substituted service is proper only if for justifiable causes, summons cannot be served
on the defendant in person within a reasonable time.

a.

No, summons is not required for counterclaims, whether compulsory or permissive.


Since the summons is not required for permissive counterclaim, the plaintiff as
defending party may be declared in default if he fails to answer the permissive counter
claim within 10 days from service upon him of such permissive counterclaim.
Also, summons is not required for complaint in intervention.
An alias summons may be issued by the Clerk of Court upon demand by the plaintiff
a.
b.
Q:

If the summons has been lost; or


If the summons is returned without being served on any or all of the defendants.

The impossibility of service to the defendant in person must be indicated in the sheriffs
return or proof of service, otherwise the substituted service is void.
In what instance may service of summons by publication be made?
Service of summons by publication may be made but only with leave of court:
a.

Where the identity of the defendant is unknown;

b.

Where the whereabouts of the defendant are unknown;

c.

Where the defendant does not reside or is not found in the Philippines but the suit can
properly be maintained against him in the Philippines, it being in rem or quasi in rem;
and

d.

Where the defendant is a resident of the Philippines but is temporarily out of the
country.

How may the trial court acquire jurisdiction over the defendant?

A:
The trial court may acquire jurisdiction over the person of the defendant in one of the
following ways;
a.
b.

By valid service of summons upon him;


By defendants voluntary appearance in the action.

By leaving a copy of the summons at the defendants residence with some person of
suitable age and discretion then residing therein;
By leaving a copy of the summons at defendants office or place of business with some
competent person in charge thereof

The return of summons must show that there was earnest effort that was actually exerted and
there was also positive step taken by the process server to locate and serve the summons
personally on the defendants

Only where the service of summons cannot be made in person on the defendant that substituted
service may be resorted to. The proof of service of summons or process servers return must:
a.
b.
c.

Indicate the impossibility of service of summons in person on the defendant within a


reasonable time;
Specify the efforts exerted to locate the defendant;
State that the summons was served upon a person of sufficient age and discretion who
is residing in the address, or who is in charge of the office or regular place of business
of the defendant.

d.

When the defendants property has been attached within the Philippines

How may summons be served on a resident defendant who is temporarily out of the
country?
He may be served with summons as follows:
a.

By substituted service;

Failure to comply faithfully, strictly and fully with all the foregoing requirements renders the
substituted service of summons ineffective.

b.

By personal service outside of the country, with leave of court;

c.

By publication, with leave of court; or

Service of summons by publication

d.

Any other manner the court may deem sufficient;

Extraterritorial service of summons or summons by publication applies only when the action is in
rem or quasi in rem. An action in rem is an action against the thing itself, instead of against the
defendants person.
In action quasi in rem, an individual is named as defendant, but the purpose of the action is to
subject that individuals interest in a piece of property to the obligation or loan burdening it.
Where the action is in personam and the defendant is in the Philippines, summons may be served
in person to the defendant or by substituted service.

Summons by registered mail is valid only if served extraterritorially upon a non-resident defendant
who is not found in the Philippines, or upon a resident defendant who is temporarily out of the
country, provided the court deems such service of summons sufficient.
Who may serve summons?
Summons may be served:
a.

Service of summons on a non-resident defendant who is not found in the Philippines

b.

By the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any
suitable person authorized by the court issuing summons;
By the officer having the management of the jail or institution, if the defendant is a
prisoner confined therein, in which case such officer is deputized as a special sheriff for
said purpose.

a.

By personal service

b.

By publication in a newspaper of general circulation is such places and for such time
as the court may order, in which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address of the defendant;

Upon whom shall service of summons be made?

In any other manner the court may deem sufficient.

GR:

Service of summons shall be made on the defendant

XPN:

if the defendant is

c.

The foregoing are the modes of extraterritorial service of summons, and they may be
effected only with prior leave of court.
In what instances may a non-resident defendant who is not found in the Philippines be sued
in the Philippines, and therefore, the summons may be effected upon him by extraterritorial
service
The following are the instances;

a.

b.
c.
d.

a.

When the action affects personal status of the plaintiff

b.

When the action relates to, or the subject matter of which is, property within the
Philippines, in which the defendant has or claims lien or interest, actual or contingent;

c.

When the relief demanded in such action consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines;

An entity without juridical personality it may be effected upon all the defendants
by serving service of summons upon any one of them, or upon the person in
charge of the office or place of business maintained in such name.
A minor or incompetent service shall be made upon him personally and on his
legal guardian if he has one, or if none, upon his guardian ad litem.
The Republic of the Philippines service may be effected on the Solicitor
General
A province, city or municipality or similar corporations service may be effected
on its executive head or on such other officers as the law or the court may direct.

If the defendant is a foreign private corporation which transacted business in the


Philippines, upon whom may summons be served?
Service of summons may be made:

a.

On its resident agent designated in accordance with law for that purpose; or

b.

If there be no agent, on the government official designated by law to that effect;

c.

On any of its officers or agents within the Philippines

Government officials designated by law upon whom summons may be served


a.
b.
c.

SERVICE OF SUMMONS IN SPECIFIC INSTANCES:

Insurance Commissioner, in the case of foreign insurance company;


The Superintendent of Banks, in the case of a foreign banking corporation;
The Securities and Exchange Commission, in the case of other foreign corporation
duly licensed to do business in the Philippines

Whenever service of summons is so made, the government office or official served shall
transmit by mail a copy of the summons or other legal process to the foreign corporation at
its home or principal office. The sending of such copy is a necessary part of the service.

As amended under SC AM No. 11-3-6, it provides for service of summons to foreign


corporations not registered (licensed) or has no resident agent, similar to that of extraterritorial service to non-resident individuals not found in the Philippines under Sec. 15.
o
By personal service coursed through appropriate court in the foreign
country with assistance of DFA.
o
By publication once in a newspaper of general circulation in the country
where the defendant may be found and by serving copy of the summons
and the court order by registered mail at the last known address of the
defendant
o
By facsimile or any recognized electronic means that could generate proof
of service, or
o
By such other means as the court may in its discretion direct.

Unknown defendant or whereabouts unknown-(Sec. 14)with leave, by publication

Available even in action inpersonam; Affidavit of Service- not to be executed by the


clerk of court.

Extra-territorial service (Sec. 15) in rem/quasi-in-rem cases where the defendant is


non-resident and not found in the Philippines-

Service of summons may be made on its president, managing partner, general manager, corporate
secretary, treasurer, or in house counsel.
MODES OF SERVICE

SUBSTITUTED SERVICE (Sec. 7) if, for justifiable causes, summons could not be
served in person within reasonable time.

Sheriff can only employ substituted service after he makes an attempt at personal
service. His failure to serve by personal service must be reflected in his RETURN,
otherwise, the service is ineffective.

Service of summons through the secretarial staff, NOT VALID


Must be made on the officer named in the statute;
DEFECT CURED: But Improper service to legal secretary
cured not only by admission of actual receipt, but for asking
affirmative reliefs in several motions

If the defendant is a domestic private juridical entity, on whom may service of summons be
made?

IN PERSON(Sec. 6)priority- resort to other modes not allowed unless summons could
not be served in person within reasonable time.

To what cases applicable: Applicable only in in rem and quasi


in rem
it was ruled to be applicable in action in personam where the
defendants whereabouts are unknown.
Requirements and Proof of service (including requisite
affidavits), by publication must be strictly complied with.

a).personal service effected out of the Philippines


b).publication and sending a copy to the last known address
c).in any other manner the court may deem sufficient.
Example- Registered mail.
Does not apply in action in personam like collection
of money even if attachment is prayed for if no property is
actually attached.

presumption of regularity in the performance of official functions by the sheriff is not


applicable in this case where it is patent that the sheriff's return is defective.

Not valid service without the return explaining why prior resort to service in person was
not made.

Not valid if hastily and capriciously resorted to without actually exerting any genuine
effort to locate respondents.

Resident temporarily out of the Philippines(Sec. 16) with leave


of court, MAY BE SERVED through extra-territorial service.
(Sec. 15) or Substituted Service (Sec. 7)

VALID even if made through security guard if sheriff was prevented from entering
subdivision through instruction of defendant and defendant failed to controvert such a
report by the sheriff.

Substituted service is the normal method; Extraterritorial service only when substituted service is not feasible;
Voluntary Appearance (Sec. 20)

BY PUBLICATION

Appearance in whatever form,


without expressly objecting to the
jurisdiction of the court over the

person, is a submission to the


jurisdiction of the court over the
person.

b.

Filing of a motion for extension


considered voluntary appearance

It is a motion that attacks a pleading, order, judgment, or proceeding.

The filing of a compulsory


counterclaim in an ANSWER ad
cautelamis
not
voluntary
appearance COMMENT:
By
seeking
relief
under
the
counterclaim,
is
the
counterclaimant (defendant) not
deemed to have submitted to the
jurisdiction of the court?

In case of amendment to the complaint, it does not require new summons; In case of amendment
while defendant is declared in default, new summons should be issued on amended complaint as
the new matters subject amendment cannot bind the defendant unless new summons was served.
RULE 15 MOTIONS
A motion is an application for relief other than by a pleading.
Requisites of a valid motion?
a.

It must be in writing, except if made in open court or in the court of a hearing or trial;

b.

It must state the relief sought to be obtained and the grounds upon which it it based,
and if required by the rules or necessary to prove facts alleged therein, shall be
accompanied by supporting affidavits and other papers;

c.

It shall be set for hearing by the applicant, except for a motion which the court may act
upon without prejudicing the rights of the adverse party;

motions made in open court or in the course of a hearing or trial.

What is an omnibus motion?

A motion to dismiss attacks a pleading. A motion for reconsideration (or a motion for new trial)
attacks an order, judgment, or proceeding.
What is the omnibus motion rule?
It is the rule that requires a motion that attacks a pleading, order, judgment, or proceeding to
include all objections and defenses then available, and those not included shall be deemed
waived.
Requirements:
a. in writing;
b. contents& form
c. notice of hearing, exception (Sec.4)
* Notice of Hearing not required in ex parte motions (e.g. extension)-Defect of lack of notice and/or
proof of service may be cured if court allowed the party to comment on the motion (for execution)
* should be served to ensure receipt 3 days before hearing (otherwise the MR did not toll the
reglementary period of appeal

EXCEPTION:

d.

It must contain a notice of hearing addressed to all the parties concerned, specifying
the time and date of the hearing which must not be later than ten (10) days after the
filing thereof;

e.

It must be served, together with the notice of hearing thereof, on the adverse parties at
least three (3) days before the date of the hearing;

f.

GR:

(2) where the interest of substantial justice will be served;

There must be proof of service of the motion.

(3) where the resolution of the motion is addressed solely to the sound and judicious discretion of
the court; and (4) where the injustice to the adverse party is not commensurate with the degree of
his thoughtlessness in not complying with the procedure prescribed.

Motions must be in writing

- Ex parte motions for extension do not require notice as it is directed to the sole discretion of the
court.

XPN:
a.

(1) where a rigid application will result in a manifest failure or miscarriage of justice especially if a
party successfully shows that the alleged defect in the questioned final and executory judgment is
not apparent on its face or from the recitals contained therein;

motions for continuance made in the presence of the adverse party

GR:
The affidavit of service by registered mail must be made by the person who actually
mailed; the registry return receipt must indicate what was mailed

Exception: when the adverse party actually received a copy of the motion and had opportunity to
oppose the same.

Requisites of lis pendens (litis pendencia or auter action pendant)


The following:

The lack of notice and/or proof of service is cured when the other party is given opportunity to
comment on the motion for execution.

a.
b.
c.

RULE 16 MOTION TO DISMISS


When may a motion to dismiss be filed? and upon what grounds?

As to the first requisite, the rule requires only substantial, not absolute, identity of
parties. There is substantial identity of parties when there is community of interest
between a party in the first case and a party in the second case, even if the latter was
not impleaded in the first case.

Within the time for but before filing the answer to the complaints, a motion to dismiss may be made
on any of the following grounds:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.

The court has no jurisdiction over the person of the defending party;
The court has no jurisdiction over the subject matter of the claim;
Venue is improperly laid;
The plaintiff has no legal capacity to sue;
There is another action pending between the same parties for the same cause (litis
pendens, litis pendentia, or auter action pendant);
The cause of action is barred by a prior judgment (res judicata) or by the statute of
limitations (prescription)
The pleading asserting the claim states no cause of action;
The claim or demand set forth in the plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished;
The claim on which the action is founded is unenforceable under the provisions of the
statute of frauds;
A condition precedent fro filing the claim has not been complied

Priority-in-time rule
Two identical civil actions are pending between the same parties, and one case is filed
earlier than the other, the latter case should be dismissed on the ground of litis
pendencia.
Priority in time rule must yield to the criterion of more appropriate action. Thus, it is
the first case that should be dismissed if the second case is more appropriate. The rule
in litis pendentia does not require that the later case should yield to the earlier case.
What is required merely us that there be another pending action, not a prior pending
action.
Considerations which determines which should be dismissed on ground of litis
pendentia

Any of the foregoing grounds for dismissal may be pleaded as affirmative defenses in the answer.
If no motion to dismiss has been filed, the defendant may move for a preliminary hearing on his
affirmative defenses as if a motion to dismiss has been filed. And, if the court orders dismissal and
the defendant, in his answer, has asserted a counterclaim against the plaintiff, the dismissal is
limited to the complaint, and the defendant may prosecute his counterclaim in the same or
separate complaint.
If the defendant first files a motion to dismiss, but the same is denied by the court, he may still
plead the grounds he has invoked in his motion to dismiss as affirmative defense in his answer.
But, he cannot ask anymore for preliminary hearing on those affirmative defenses as he had
already filed a motion to dismissed which was denied by the court.

a.

If the defendant files a motion to dismiss, is he required to present evidence at the hearing
of his motion?
Yes, if questions of fact are involved, he should present his evidence thereon. Should
the case go to trial, the evidence presented during the hearing shall automatically be part of the
evidence of the party presenting the same
On questions of law, he will simply submit his argument thereon.

Identity of parties, or at least such as representing the same interests in both


actions;
Identity of rights asserted and relief prayed for, the reliefs being founded on the
same facts;
Identity in both cases is such that the judgment that may be rendered in the
pending case would, regardless of which party is successful, amount to res
judicata in the other.

Date of filing, with preference generally given to the first action filed to
be retained
b.
Whether the action sought to be dismissed was merely to preempt
the later action or to anticipate its filing and lay the basis for its
dismissal; and
c.
Whether the action is the appropriate vehicle for litigating the issues
between the parties
Where the litigant engage in forum shopping, the other party may ask for the summary
dismissal of the two cases. The well entrenched rule is that a party cannot, by varying
the form of action or adopting a different method of presenting his case, escape the
operation of the principle that one and the same cause of action shall not be twice
litigated.

What are the requisites of res judicata?


a.
b.

Former judgment must be final;


It must have been rendered by a court having jurisdiction over the subject matter and
the parties;

c.
d.

It must be a judgment or order on the merits;


There must be between the first and second actions identity of the parties, identity of
subject matter, and identity of causes of actions.

If the complaint is dismissed on any of said grounds, the only remedy of the
plaintiff is to appeal from the order of dismissal
What must the court do if a motion to dismiss is filed before the court?

In order that a judgment rendered in a case may operate as a res judicata in a subsequent
case, it is essential that the cause of action in the two cases should be the same.
The doctrine of res judicata is founded upon two grounds:
a.
b.

Public policy and necessity which makeit the interest of the State that there should be
an end to litigation (republicae ut sit finis litium)
The hardship on the individual that he should be vexed twice for the same cause
(nemo debet bis vexare et eadem causa)

The court, after hearing, may either:


a.
b.
c.

Dismiss the action or claim;


Deny the motion;
Order the amendment of the pleading.

The court cannot defer resolution on the motion to dismiss.


If the defendants motion to dismiss is denied, within what time must he file his answer?

No cause of action
in determining whether the complaint states no cause of action, the court need not go
beyond the four corners of the complaint. In order to sustain a dismissal on the ground that
the complaint states no cause of action, the insufficiency of the cause of action must appear
on the face of the complaint, and the test of sufficiency of the facts alleged in the complaint,
to constitute a cause of action, is whether or not, admitting the facts alleged, the court could
render a valid judgment upon the same in accordance with the prayer complaint.

No jurisdiction over the person of defending party - May be waived by voluntary


appearance. No waiver of this defense even if invoked with the other grounds.
Forfeiture proceedings- being in rem proceedings- summons by publication may be allowed.
No jurisdiction over the subject matter - determined from the allegations of the complaint
and the law prescribing jurisdictions.

Lack of legal capacity to sue vs. lack of legal personality to sue?


Lack of legal capacity to sue as a ground for a motion to dismiss, means that the plaintiff is
not in the exercise of his civil rights, or does not have the necessary qualification to appear in
the case, or does not have the character or representation he claims.
If a plaintiff lacks legal personality to sue because he is not the real party-in-interest, the
ground for dismissal is that the complaint states no cause of action.
REMEDY if plaintiff if motion to dismiss is granted
a.
b.

Refile his complaint, subject to certain exceptions


Appeal from the order of dismissal

But the plaintiff cannot anymore refile his complaint if the dismissal thereof is
based on the any of the following grounds:
a.

That the cause of action is barred by prior judgment;

b.

That the cause of action is barred by the statute of limitations;

c.

That the claim or demand set forth in the plaintiffs pleading has been paid,
waived, abandoned, or otherwise extinguished;

d.

That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds.

Improper venue

The court cannot motuproprio dismiss the case on improper venue


If erroneously denied, the remedy is PROHIBITION
Objection impliedly waived if movant goes to trial.

No legal capacity to sue The plaintiff is not in the full possession of his civil rights, or he
does not have the character or representation he claims.

Townsite sales applicants cannot ask for reversion.


If a plaintiff loses his capacity to sue during the pendency of a case, the defendant
should be allowed to file a motion to dismiss, even after the lapse of the reglementary
period for filing a responsive pleading

Litis pendentia- (or lis pendens or auter action pendant)


Litispendentia applied even if same cause was pending in another proceeding,
not an action(before the LMB)
No litis pendentia - if a proper after-acquired counterclaim is made the subject of a separate
action.
Priority in time rule

More appropriate action test or anticipatory test

considerations predominate in the ascending order of importance in determining which action


should prevail:

o
o

(1) the date of filing, with preference generally given to the first action filed to be retained;
(2) whether the action sought to be dismissed was filed merely to preempt the later action or
to anticipate its filing and lay the basis for its dismissal; and
(3) whether the action is the appropriate vehicle for litigating the issues between the parties.
Independent action to collect civil liability on a BP 22 case is dismissible on litis
pendentia

EFFECT OF dismissal (Sec. 5)- remedies available (RPEU)

subject to the right of appeal, the dismissal on ground of res judicata, statute of
limitations, extinction of the claim or unenforceability (statute of frauds), BARS the
refiling.

By moving for the dismissal of the complaint, instead of Answer and the complaint is
dismissed, the defending party is deemed to have waived any compulsory
counterclaim.

res judicata

Bar by prior judgment [Rule 39, Sec. 47 (b)]


o
Final judgment, jurisdiction over the subject matter and parties, identity of
parties, subject matter and causes of action between the first and second
action.

The inclusion of an alternative relief for payment of the loan in


replevin case, bars a subsequent action for deficiency.

Where there are several plaintiffs or defendants, and one of them is the
government or its subdivisions or instrumentality, a confrontation should still
be undertaken among the parties.
does not apply to labor disputes
Where the complaint states that the address of the plaintiff as Baguio post
office, it does not necessarily imply that plaintiff is a resident of Baguio just
like the defendant, and barangay conciliation is not necessary.

RULE 17 DISMISSAL OF ACTIONS


May the plaintiff dismiss his own complaint? How?
Yes, the plaintiff may dismiss his own complaint

Failure to state a cause of action

a.

There is failure to state a cause of action if filed not against a real party in interest
including one not brought by a real party in interest.

The plaintiff may file a notice of dismissal at any time before service upon him of the
answer or of a motion for summary judgment. The dismissal is without prejudice,
unless otherwise stated in the notice itself or if barred by the two dismissal rule. The
rules require that, upon such notice being filed, the court shall issue an order
confirming the dismissal.

Condition precedent for filing the claim has not been complied with. (lack of cause of
action) such as:

No allegation as to earnest efforts exerted towards settlement among members of the


same family (Art. 150 Family code). Failure to allege may be cured by amendment if
there is actual efforts exerted towards settlement

Does not apply where compromise is not allowed such as civil status, validity of
marriage or legal separation, ground for legal separation, future support, jrusideiction
and future legitime. (Art. 2035, Civil Code.

Non exhaustion of administrative remedies

Non referral to the barangay lupon where the action requires barangay conciliation.

By filing a Notice of Dismissal

b.

By filing a Motion to Dismiss


But the complaint shall not be dismissed at the instance of the plaintiff without the
approval of the court. If a counterclaim has been pleaded by the defendant prior to the
service upon him of plaintiffs motion to dismiss, the dismissal shall be limited to the
complaint. Such dismissal is without prejudice, unless otherwise specified by the court.

What is the two-dismissal rule?


It is the rule that provides that a notice of dismissal operates as an adjudication of the
case upon the merits when filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim.

DOES NOT APPLY to:


o

where one of the parties is an estate;

In what instance may the court dismiss the complaint on its own motion or on motion of the
defendant?

a.
b.
c.

If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint;
If, for no justifiable cause, the plaintiff fails to prosecute his action for an
unreasonable length of time;or
If, for no justifiable cause, the plaintiff fails to comply with the Rules of Court or
any order of the court.

In any of these instances, the dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court in the order of dismissal.

Pre-trial is the procedural device intended to clarify and limit the basis issues between
the parties. Its main objective is to simplify, abbreviate, and expedite the trial or totally dispense
with it.
What is the nature of a pre-trial?
Pre-trial is mandatory.
What are the purposes of pre-trial?

REMEDY of the plaintiff if the TC dismisses the complaint on any of the grounds mentioned

At the pre-trial, the court shall consider the following:

The remedy of the plaintiff is to appeal within the reglementary period from the order of
dismissal because the order of dismissal is a final order in the sense that it completely disposes of
the complaint.
But, if the order of dismissal states that the dismissal is without prejudice, the remedy
of the plaintiff is to refile his complaint. He cannot appeal because an order dismissing an action
without prejudice is not appealable.

a.

The possibility of an amicable settlement or of a submission to alternative modes of


settling dispute resolution;

b.

Simplification of issues;

c.

Necessity or desirability of amendments to the pleadings;

d.

The possibility of obtaining stipulations or admissions of facts and of documents to


avoid unnecessary proof;

e.

The limitation of the number of witnesses;

f.

The advisability of a preliminary reference of issues to a commissioner;

g.

The propriety of rendering judgment on the pleadings, or summary judgment, or of


dismissing the action should a valid ground therefor be found to exist;

h.

The advisability or necessity of suspending the proceedings;

i.

Such matters as may aid in the prompt disposition of the action

DISMISSAL OF ACTIONS (Rule 17)


By the PLAINTIFF
a.by NOTICE-anytime before service of Answer or Motion for Summary
Judgment (Sec.1)
-without prejudice
-with prejudice (because of two dismissal rule or so expressed in the notice
or dismissal is premised on the fact of payment).

When is the case considered ripe for pre-trial?


* Notice of dismissal prevail over defendants motion to dismiss
The case is considered ripe for pre-trial after the last pleading has been served and
DISMISSAL DUE TO THE PLAINTIFFS FAULT
a). Plaintiffs failure to appear during presentation of evidence in chief

filed.
After the last pleading has been served and filed, what is the duty of the plaintiff regarding
the pre-trial of the case?

b). Failure to prosecute action for unreasonable length of time


c). Failure to comply with the rules
d). Failure to comply with any order of the court

RULE 18 PRE-TRIAL
What is pre-trial?

Within five (5) days after the last pleading joining the issues has been filed and served,
the plaintiff must move ex parte that the case be set for pre-trial conference and if the plaintiff fails
to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial.
P vs. D. D files an answer with a permissive counterclaim. May the case be set for pre-trial
already.
No, because the last pleading has not yet been served and filed.

The last pleading in this case is the answer of P to the permissive counterclaim. If P
does not file an answer to the permissive counterclaim within the reglementary period, he may be
declare in default as to the permissive counterclaim. If, in the problem given, the counterclaim is
compulsory, the case may already be set for pre-trial because the compulsory counterclaim
requires no answer and is, therefore, the last pleading.
On whom shall notice of pre-trial be served?
The notice of pre-trial shall be served on counsel, or on the party I he has no counsel.
The counsel served with such notice is charged with the duty of notifying the party represented by
him.
Is personal presence of the parties required at the pre-trial?
Yes. Rule 18, Sec. 4 provides that it shall be the duty of the parties and their counsel to
appear at the pre-trial.

The failure of the party to file his pre-trial brief shall have the same effect as failure to
appear at the pre-trial.
Failure of the defendant to file his pre-trial brief shall have the same effect as failure to
appear at the pre-trial i.e., the plaintiff may present his evidence ex parte and the court shall render
judgment on the basis thereof. The remedy of the defendant is to file a motion for reconsideration
showing that his failure to file a pre-trial brief was due to fraud, accident, mistake, or excusable
negligence. The motion need not stress the fact that the defendant has a valid and meritorious
defense because his answer which contains his defense is already on record.
What is a pre-trial order, and what is its use?
A pre-trial order is issued by the court after the termination of the pre-trial, reciting in
detail the matters taken up at the pre-trial conference, the action taken thereon, the amendments
allowed to the pleadings, the agreements or admissions made by the parties as to any of the
matters considered, and explicitly defining and limiting the issues to be tried.
The contents of the pre-trial order shall control the subsequent course of the action.

The non-appearance of a party at the pre-trial may be excused only in the following
instances:

The trial shall be limited to the issues stated in the pre-trial order.
a.
b.

If a valid cause is shown therefor; or


If a representative shall appear in his behalf fully authorized in writing to do the
following:
1.
To enter into an amicable settlement;
2.
To submit to alternative modes of dispute resolution; and
3.
To enter into stipulations or admissions of acts and of documents

What is the effect or consequence of a partys failure to appear at the pre-trial despite
notice?
a.

b.

If it is the plaintiff who fails to appear:


If, despite due notice, plaintiff fails to appear at the pre-trial, his complaint shall be
dismissed. The dismissal shall be with prejudice unless otherwise ordered by the court.
His remedy is to appeal from the order of dismissal because the dismissal is the final
resolution of the case. But if the dismissal is ordered by the court to be without
prejudice, his remedy is to refile his complaint, not appeal.

Who should initiate and when


While under the present Rules, it is now the duty of the clerk of court to set the case for pre-trial if
the plaintiff fails to do so within the prescribed period, this does not relieve the plaintiff of his own
duty to prosecute the case diligently. This case had been at the pre-trial stage for more than two
years and petitioners have not shown special circumstances or compelling reasons to convince us
that the dismissal of their complaint for failure to prosecute was unjustified.
RULE 19 INTERVENTION
Who may intervene in an action?
A person who, with leave of court, may intervene in an action

If it is the defendant who fails to appear:


The failure of the defendant to appear despite due notice shall be a cause to allow the
plaintiff to present his evidence ex parte and the court to render judgment on the basis
thereof.

a.
b.
c.
d.

Has a legal interest in the matter of litigation;


Has a legal interest in the success of either parties;
Has an interest against both; or
Is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof

What must the parties file with the court at least three days before the date of the pre-trial?
What are the requisites of intervention?
The parties must file their respective pre-trial brief with the court, serving the adverse
party with a copy thereof at least three days before the pre-trial.
What is the effect of a partys failure to file his pre-trial brief as required by the rules?

a.

The intervenor has a legal interest in the matter of litigation; has a legal interest in the
success of either parties; has an interest against both; or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the
court or of an officer thereof

b.

The intervention will not unduly delay or prejudice the adjudication of the rights of the
original parties; and

c.

Intervenors rights may not be fully protected in a separate proceeding.

it is called a subpoena ad testificandum (or simply subpoena) if it requires the person to


whom it is directed to attend and testify. If it requires him to bring with him any books,
documents, or other things under his control, it is called subpoena duces tecum.
Ground for quashing a subpoena

How may a person intervene in an action?

If what is to be quashed is a subpoena duces tecum, the following are the grounds:

By filing a motion for leave to intervene. A copy of the pleading-in-intervention must be already be
attached to the motion and served on the original parties.

a.
b.
c.

Intervention is always with leave of court. When may the court refuse to grant leave to
intervene?
a.
b.

d.

The intervention will not unduly delay or prejudice the adjudication of the rights of the
original parties; and

If what is to be quashed is a subpoena ad testificandum, the following are the grounds:

Intervenors rights may not be fully protected in a separate proceeding.

a.
b.

What are the pleadings in intervention?


a.
b.

Complaint-in-intervention if the intervenor asserts a claim against either or all of the


original parties;
Answer-in-intervention if the intervenor unites with the defending party in resisting the
claim of the plaintiff

No more, because the time to intervene is at any time before not after rendition of
judgment by the trial court.
Is intervention allowed in a land registration case?
No, intervention is not allowed in a land registration case. A party wishing to be heard
may simply file his opposition to the application for registration.

the witness is not bound by the subpoena


the witness fees and kilometrage allowed by the rules were not tendered when
the subpoena was served.

What are the instances when a witness is not bound by a subpoena?


a.
b.

Judgment is already rendered and the case is now on appeal, may intervention be still
allowed?

the subpoena is unreasonable and oppressive;


the relevancy of the books, documents, or things does not appear;
the person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof;
the witness fees and kilometrage allowed by the rules were not tendered when
the subpoena was served;

c.

The witness resides more than 100 kilometers from his residence to the place where
he is to testify by the ordinary course of travel;
The witness is a detention prisoner if no permission of the court in which his case is
pending is obtained;
The witness is a prisoner sentenced to death, reclusion perpetua; or life imprisonment
and is confined in a penal institution if the authority of the Supreme Court to bring out
the prisoner has not been obtained.

May a person present in court be required to testify although he is not served with a
subpoena?
Yes. A person present in court may be required to testify although not served with a
subpoena, in which event it is as if he were in attendance upon a subpoena issued by the
court.
What are the consequences of disobedience to a subpoena?

RULE 21 SUBPOENA
The following are the consequences:
What is a subpoena? What are the kinds of subpoena?
a.
A subpoena is a process directed to a person
a.
b.
c.

requiring him to attend and testify at the hearing or the trial of an action, or
requiring him to attend and testify at any investigation conducted by competent
authority, or
the taking of his deposition;

b.

The person who disobeys a subpoena duly served may be arrested and brought
before the court where his attendance is required
He may also be cited in contempt

What is the viatory right of a witness?

The viatory right is the right of a witness not to be compelled by a subpoena to attend
the court hearing in a civil case if he resides more than 100 kilometers from his residence to the
place where he is to testify by the ordinary course of the law.
This viatory right is not available to a witness in criminal cases.

RULE 23, 24, 25, 26, 27, 28 and 29

MODES OF DISCOVERY

What are the modes of discovery?


a.
b.
c.
d.
e.
f.

Deposition pending action (Rule 23);


Deposition before action or pending appeal (Rule 24);
Interrogatories to parties (Rule 25)
Request for admission by adverse party (Rule 26);
Production or inspection of documents or things (Rule 27)
Physical or mental examination of persons (Rule 28)

Purposes of the various modes of discovery


a.
b.

As a device, to narrow and clarify the basic issues between the parties; and
As a device for ascertaining the facts relative to those issues

The evident purpose is to enable the parties, consistent with the recognized privileges, to
obtain the fullest possible knowledge of the issues and facts before civil trials and thus
prevent that said trials are carried on in the dark.
Depositions upon written interrogatories vs. Written interrogatories

It may be taken on oral examination or upon written interrogatories


Deposition pending action may be conducted by oral examination or written
interrogatories, and may be taken at the instance of any party, with or without leave of court. Leave
of court is not necessary to take a deposition after an answer to the complaint has been served. It
is only when an answer has not yet been filed (but jurisdiction has been obtained over any
defendant or over property subject of the action) that prior leave of court is required.
Deposition de bene esse vs. deposition in perpetuam rei memoriam
Deposition de bene esse is taken for purposes of a pending action, while deposition in
perpetuam rei in memoriam is taken to perpetuate testimony for purposes of an anticipated action
or further proceedings in case of appeal.
May a deposition be use as evidence?
If the deposition is that of a party, the opposing party can use it as evidence like proving his claim
(if he is the plaintiff) or his defense (if he is the defendant). It may also be used for impeaching or
contradicting the party-deponent if he testifies. The deposition of a party can be used by the
opposing party for any purpose.
If the deponent is only a witness but not a party, his deposition cannot be used as evidence. The
deposition of a witness who is not a party can be used only for impeaching or contradicting his
testimony.
The deposition of a deponent who is not a party but who is available to testify may be opposed and
excluded on the ground that it is hearsay.
Depositions may be used without the deponent being called to the witness stand by the
proponent. The exceptions are:

In Deposition upon written interrogatories, any person, whether party to the case or
not, may be compelled to give deposition upon written interrogatories; in Written interrogatories,
only the adverse party may be required to answer the written interrogatories served upon him by
the other party;

a.
b.

In the former, the deposition upon written interrogatories shall be taken before an
officer; in the latter, the adverse party, without appearing before an officer, shall simply answer in
writing and under oath the written interrogatories served upon him by the other parties.

d.

Is leave of court necessary so that a party may avail himself of the various modes of
discovery?
A deposition pending action may be taken with leave of court after jurisdiction has been
obtained over any defendant or over property which is the subject of the action; or without such
leave, after an answer has been served.
How may deposition be taken?

c.

e.

That the witness is dead;


That the witness resides at a distance more than 100 kilometers from the place of trial
or hearing, or is out of the Philippines, unless it appears that his absence was procured
by the party offering the deposition
That the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or
That the party offering the deposition has been unable to procure the attendance of the
witness by subpoena
Upon application and notice, that such exceptional circumstances exist to allow the
deposition to be used for any purpose

Against whom may a deposition be used?


Any part or all of a deposition may be used against any party
a.
b.

Who was present at the taking of the deposition; or


Who was represented at the taking of the deposition; or who had due notice of taking
the deposition

In a case between X and Y, X takes the deposition of W. Is W already the witness of X?

a.

The pleading of the disobedient party may be ordered stricken out;

No. A party shall not be deemed to make a person his own witness by taking his
deposition. But if X introduces in evidence the deposition of W for any purpose, other than that of
contradiction him or impeaching him, then W becomes his witness. If W takes the witness stand as
witness for Y, and X uses Ws deposition for the purpose of contradicting W, then W does not
become the witness of X.

b.

The action may be dismissed, if the disobedient party is the plaintiff

c.

A judgment by default may be rendered, if the disobedient party is the defendant

d.

His refusal to be sworn or to answer at or during the taking of his deposition may be
considered a contempt of court

Before whom may deposition be taken?

e.

The arrest of disobedient party may be ordered. But if the order disobeyed is an order
to submit to a physical or mental examination, the disobedient party cannot be ordered
arrested.

Deposition of witnesses may be taken even if such witnesses will be presented during
the trial
Deposition outside the country may be refused if the evidence sought would only
corroborative or cumulative.

a.

b.

If within the Philippines, deposition may be taken before any judge; any notary public;
or upon written stipulation of the parties, before any person authorized to administer
oaths;
if in a foreign country, deposition may be taken before a secretary of embassy or
legation, consul general, consul, vice consul, or consular agent of the Republic of the
Philippines, or before such person or officer as may be appointed by commission or
under letters rogatory; or upon written stipulation of the parties, before any person
authorized to administer oath.

DEPOSITIONS PENDING ACTION


WHEN taken with leave after jurisdiction acquired over the defendant or property or without
leave after service of the answer

What is a commission? letters rogatory?

A commission may be defined as an instrument issued by a court of justice, or other


competent tribunal, to authorize a person to take depositions, or do any other act by authority of
such court or tribunal.
A commission is addressed to officers designated either by name or descriptive title;
while letters rogatory are addressed to a judicial authority in a foreign country.

USE of deposition

To contradict or impeach a witness


For any purpose
o
if the deponent is a party or officer of a juridical party
o
if the witness is dead, or resides more than 100 kms away or is out of the
Philippines (unless procured), or unable to attend due to age, sickness,
infirmity, or imprisonment; or the party offering the deposition is unable to
procure a subpoena; or under exceptional circumstances

EFFECT:
a) Effect of taking deposition of a witness does not make him a witness
b) Effect of using depositions (other than for impeachment) except for a party, the
deponent becomes a witness of the proponent

Letters rogatory may be defined as an instrument sent in the name and by the authority
of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories
filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or
court to whom such letters are addressed.
What is the effect of failure to serve: (a) written interrogatories
A party not served with written interrogatories may not be compelled by the adverse
party by the adverse party to give testimony in open court or to give deposition pending appeal,
unless allowed by the court for good cause shown and to prevent a failure of justice.
What is the effect of failure to serve: (a) written admissions
A party who fails to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought to be, within the personal knowledge of the
latter, shall not be permitted to present evidence on such facts, unless otherwise allowed by the
court for good cause shown and to prevent failure of justice.
What are the consequences of a partys refusal to comply with modes of discovery?

Deposition before service of answer (but after jurisdiction is acquired over the
defendant or res) requires showing of unusual circumstances to justify leave of court.

RULE 30 TRIAL
What is the order of trial?
First, the plaintiff shall adduce evidence in support of his complaint
Second, the defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaint.

Third, the third party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross-claim, and fourth-party complaint;

May the parties to an action agree upon the facts involved in the litigation and submit the
case for judgment on the facts agreed upon without the introduction of evidence?

Fourth, the fourth-party, and so forth, if any, shall adduce evidence of the material facts
pleaded by them;

Yes, but such agreement must be in writing. And if the parties agree only on some of
the facts in issue, the trial shall be held as to the disputed facts.

Fifth, the parties against whom any counterclaim or cross claim has been pleaded shall
adduce evidence in support of their defense, in order to be prescribed by the court;
Sixth, the parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon
their original case;
Seventh, upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective memoranda or
any further pleadings.
What are the requisites of motion to postpone trial on the ground of absence of evidence?
There must be an affidavit showing:
a.
b.

The materiality or relevancy of such evidence; and


That due diligence has been used to procure it

But if the adverse party admits the facts to be given in evidence, even if he
objects or reserves the right to object to their admissibility, the trial shall not be
postponed.
What are the requisites of motion to postpone trial on the ground of illness of party or
counsel?
It must appear upon affidavit that
a.
b.

The presence of such party or counsel at the trial is indispensable; and


The character of his illness is such as to render his non-attendance excusable

But, the judgment based on stipulation of facts is not allowed in the following case:
a.
b.
c.

Legal separation
Annulment of marriage; and
Declaration of nullity of marriage

To summarize, in legal separation, annulment of marriage, and declaration of nullity of


marriage, there can be no judgment by default, judgment on the pleadings, summary judgment,
judgment upon confession, judgment upon compromise, and judgment based on stipulation of
facts.
What are the instances in which civil actions may be suspended as provided for in the Civil
Code?
a.
b.

If willingness to discuss a possible compromise is expressed by one or both parties;


If it appears that one of the parties, before the commencement of the action or
proceeding, offered to discuss a possible compromise but other party refused to offer.

RULE 31 CONSOLIDATION OR SEVERANCE


What does the rule authorize the court to do if two or more actions pending before it
involves a common question of law or fact?
When actions involving a common questions of law or fact are pending before the
court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may
order all the actions consolidated; and it may make such orders concerning proceedings therein as
may tend to avoid unnecessary costs or delay.

The rule is that the judge of the court in which the action is pending must personally
receive the evidence to be adduced by the parties. When may the court delegate the
reception of evidence to its clerk of court?

If the actions involve a common questions of law or fact because they arise from a
single cause of action between the same parties, the remedy is not consolidation but dismissal of
one of the actions on the ground of litis pendencia.

The court may delegate the reception of evidence to its clerk of court (who is a member
of the bar) in:

What is the purpose or object of consolidation of cases?

a.
b.

Default or ex parte hearings; and


In any case in which the parties agree in writing
If the clerk of court is not a member of the bar, reception of evidence cannot be
delegated to him

The purpose or object of consolidation of cases is to avoid multiplicity of suits, guard


against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial
court, and save unnecessary costs or expense; in short, the attainment of justice with the least
expense and vexation to the parties litigants.
RULE 33 DEMURRER TO EVIDENCE

Who may move for dismissal of the action on demurrer to evidence? when? and on
what ground?

After the prosecution has rested its case in a criminal action, the accused files a demurrer
to evidence. In resolving the demurrer to evidence, should the trial court likewise decide
the civil aspect of the case and determine the civil liability of the accused?

Who? the defendant may move for dismissal of the action on demurrer to evidence.
a.
When? after the plaintiff has completed the presentation of his evidence.

When the demurrer to evidence is field without leave of court, the whole case is
submitted for judgment on the basis of the evidence for the prosecution as the
accused is deemed to have waived his right to present evidence. In this situation,
the court is called upon to decide the case including the civil aspect, unless the
offended party has waived the civil action, or has reserved his right to institute it
separately, or has instituted the civil action prior to the criminal action

Ground? on the ground that upon the facts and the law plaintiff has shown no right to
relief
Must leave of court be first obtained before defendant may move to dismiss on demurrer to
the evidence?

In case of conviction, the trial court should state its judgment the civil liability or
damages to be recovered by the offended party from the accused.

In civil cases, there is no need to obtain prior leave of court.

In case of acquittal, the accused may still be adjudged civilly liable where:
a.
The acquittal is bases on reasonable doubt;
b.
The court declares that the liability of the accused is only civil; or
c.
The civil liability of the accused does not arise from or is not based upon
the crime of which the accused is acquitted

If the defendant demurs to plaintiffs evidence, does the defendant waive his right to
present evidence.
No. By filing his motion to dismiss on demurrer to evidence, the defendant does not
waive his right to present his evidence in the event of denial thereof. But if the motion is granted,
but on appeal the order of dismissal is reversed he shall be deemed to waived the right to present
evidence.

But if the accused is acquitted and there is a finding in the final judgment in
the criminal action that the act or omission from which the civil liability may arise
does not exists, then the civil action based on the delict is deemed extinguished.

Distinguish demurrer to evidence in civil cases and demurrer to evidence in criminal cases
The distinctions are:
a.

In both, the ground is insufficiency of evidence

b.

In civil cases, the court may dismiss the action for insufficiency of evidence only
upon motion of the defendant; in criminal cases, the court may dismiss the case
for insufficiency of evidence on the courts own initiative after giving the
prosecution the opportunity to be heard or upon motion filed by the accused.

c.

d.

In civil cases, leave of court is not required for the filing of the motion to dismiss
on demurrer to evidence. In criminal cases, the accused may file the motion to
dismiss on demurrer to evidence with or without leave of court. If he files it with
prior leave of court and his motion is denied, he may be adduce evidence for his
defense. But if he files it without prior leave of court, he waives the right to
present evidence in the event his motion to dismiss is denied. An accused who
files a motion to dismiss on demurrer to evidence without prior leave of court
submits the case for judgment on the basis of the evidence presented for the
prosecution.
In civil case, if defendants motion on demurrer to evidence is granted by the
court, the remedy of the plaintiff is to appeal from the order of dismissal. In
criminal cases, if the court dismisses the case on demurrer to evidence, the
prosecution cannot appeal from the order of dismissal because such appeal will
place the accused in double jeopardy.

The demurrer to evidence is filed without leave of court:

b.

The demurrer to evidence is filed with leave of court:


When the demurrer to evidence is filed with leave of court, and the court denies it
because the evidence presented by the prosecution is sufficient, the accused
may present evidence regarding both the criminal and civil aspect of the case.
If the court grants the demurrer to evidence because the evidence so far
presented by the prosecution is insufficient as proof beyond reasonable doubt, it
does not follow that the same evidence is insufficient to establish a
preponderance of evidence. Thus, if the court grants the demurrer, proceedings
on the civil aspect of the case shall proceed, except if the trial court finds that the
act or omission from which the civil liability may arise did not exist.

RULE 34 JUDGMENT ON THE PLEADINGS


What is the remedy of the plaintiff if the defendants answer contains general denials of the
material averments in his complaint?
Since a general denial amounts to an admission, plaintiff may move for judgment on
the pleadings. Judgment on the pleadings is proper where the answer fails to tender an issue, or it
otherwise admits the material allegations of the adverse partys pleading.
Who may move for judgment on the pleadings?

Only the plaintiff (plaintiff of the original complaint, or of the counterclaim, or of the
cross-claim, or of the third-party complaint) may move for the judgment on the pleadings.
The defending party cannot move for judgment on the pleadings.
When may the plaintiff move for the judgment on the pleadings?
After the defendant has filed his answer, the plaintiff may move for judgment on the
pleadings if defendants answer fails to tender an issue, or otherwise admits the material
allegations of plaintiffs complaint.

What is the meaning of genuine issue?


The term genuine issue means an issue of fact which calls for the presentation of
evidence as distinguished from an issue which is a sham fictitious, contrived or a false claim. The
trial court can determine a genuine issue on the basis of the pleadings, admissions, documents,
affidavits, or counter affidavits submitted by the parties. Where the facts pleaded appear
uncontested or undisputed, then there is no real or genuine issue or questions as to any fact and
summary judgment called for.
Where the facts pleaded by the parties are disputed or contested, proceedings for a summary
judgment cannot take the place of trial.

May the trial court motu proprio render judgment on the pleadings?
No, the trial court may not motu proprio render judgment on the pleadings. The Rules
of Court requires that it should be on motion of the plaintiff.
When does an answer fail to tender an issue?
The answer fails to tender and issue if it does not comply with the requirements of
specific denial set out in Sec. 8, 10 and 11 of Rule 8.
And it admits the material allegations of the adverse partys pleadings where it
expressly confesses the truthfulness thereof or where it omits to deal with them at all.
RULE 35 SUMMARY JUDGMENTS
What is summary judgment? What is its object?

If the trial court renders a summary judgment, what is the remedy of the aggrieved part
against a summary judgment?
The remedy of the aggrieved party is to appeal from the summary judgment. Appeal is the remedy
because a summary judgment is not an interlocutory order. It is a final judgment. The trial court
finally disposes of the pending action, leaving nothing more to be done by it with respect to the
merits, thus putting an end to the litigation.
May the TC motu proprio render summary judgment in a civil action?
No. the trial court cannot motu proprio decide that summary judgment in an action is in order. The
claimant or the defending party, as the case may be, must invoke the rule on summary judgment
by filing a motion upon a showing that there is no genuine issue as to any material fact, and the
moving party is entitled to a judgment as a matter of law.
Is an order denying a motion for summary judgment appealable?

Summary judgment (aka accelerated judgment) is a device for weeding out sham claims or
defenses at an early stage of the litigation, thereby avoiding the expense and loss of time involved
in trial.

No. it is not appealable because an order denying a motion for summary judgment is interlocutory.

Its object is to separate what is formal or pretended in denial or averment from what is genuine
and substantial, so that only a suitor to the burden of trial.

What are the requisites of a valid judgment (or final order)?

to the burden of trial.

Summary judgment may be allowed where there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law.
Even if the pleading appear, on their face, to raise issues, summary judgment may still
ensue as a matter of law if the affidavits, depositions and admissions show that such
issues are not genuine.

RULE 36 JUDGMENT, FINAL ORDERS, AND ENTRY THEREOF - *chillax

a.
b.
c.
d.
e.

It must be in writing;
It must be personally and directly prepared by the judge;
It must state clearly and distinctly the facts and the law on which it is base;
it must be signed by the judge
it must be filed with the clerk of court

The filing of the judgment or final order with the clerk of court is what constitutes rendition of
judgment.

Two requisites for Summary Proceeding to be proper


When is several judgments proper?
a.
b.

There must be no genuine issue as to any material fact


The party presenting the motion for summary judgment must be entitled to a judgment
as a matter of law.

A several judgment is proper only when the liability of each party (defendant) is clearly
separable and distinct from that of his co parties (co-defendants) such that the claims against each

of them could have been the subject of separate suits, and judgment for or against one of them will
not necessarily affect each other.

a.
b.
c.

The original judgment or final order shall be vacated


The action shall stand for trial de novo
The recorded evidence taken during the former trial, insofar as the same is material
and competent to establish the issues, shall be used at the new trial without retaking
the same.

A motion for reconsideration is not required as a condition precedent for an appellate


review BUT is required in cases involving custody of minors, declaration of nullity or
annulment of marriages.
No second MR by a party against a judgment or final order.
No second Motion for New Trial UNLESS the ground was not existing and available
during the pendency of the first motion.
Pro-forma motions: when it does not comply with the specific requirements of motion in
general and in particular.

What is required of the Clerk of Court to do upon the finality of the judgment or final order?
The clerk of court shall forthwith enter the judgment or final order in the book of entries
of judgment. The date of the finality of the judgment or final order shall be deemed to be the date
of its entry.
Nunc pro tunc amendment
Amendment of a final and executory judgment on harmless and typographical error
RULE 37

A party aggrieved by a judgment or final order may file a motion for new trial or a
motion for reconsideration within the period for taking an appeal.
What are the grounds for motion for new trial (civil cases)?
a.

b.

Fraud, accident, mistake, or excusable negligence which ordinary prudence


could not have guarded against and by reason of which the aggrieved party
probably been impaired in his rights;
Newly discovered evidence, which the aggrieved party could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented
would probably alter the result.

Gross negligence of counsel amounts to denial of due process

Grounds/requisites for newly discovered evidence


a.
b.
c.

The evidence was discovered after the trial;


Such evidence could not have been discovered and produced at the trial with
reasonable diligence;
Such evidence is material, not merely cumulative, corroborative, or impeaching, and is
such weight that, if admitted, would probably change the judgment.

Grounds for Motion for Reconsideration


a.
b.
c.

NEW TRIAL OR RECONSIDERATION

When may a party file a motion for new trial or a motion for reconsideration of a judgment
or final order?

Award of excessive damages


Insufficiency of evidence to justify the decision or final order;
Decision or final order is contrary to law/facts

What are the effects of granting a motion for new trial?


The effects are:

Is an order denying a motion for new trial appealable?


No, an order denying a motion for new trial or reconsideration is not appealable. The
remedy of the aggrieved party is to appeal from the judgment or final order itself.
RULE 38 RELIEF FROM JUDGMENTS
Upon what grounds may the petitioner file a petition for relief from judgment, final order, or
proceeding?
Petitioner may file a petition for relief on the ground that the judgment or final order is
entered, or the proceeding is thereafter taken, against him through fraud, accident, mistake, or
excusable negligence, praying such judgment, final order or proceeding be set aside.
When may the petitioner file a petition for relief from judgment, final order, or proceeding?
The petitioner may file a petition for relief within sixty days after he learns of the
judgment, final order or proceedings, but not more than six months after such judgment or final
order was entered or such proceeding was taken. The petition must be verified.
Where should petition for relief be filed?
It should be filed in the same case and in the same court where the judgment or final
order complained of is entered or where the proceeding is taken.

A petition for relief form judgment is an equitable remedy that is allowed only in
exceptional cases when there is no other available or adequate remedy.

When a party has another remedy available to him, which may be either a motion for
new trial or appeal from an adverse decision of the trial court, and he was not
prevented by fraud, accident, mistake or excusable negligence from filing such motion
or taking such appeal, he cannot avail himself of this remedy.

A petition for relief from judgment is a remedy available to a party who, through fraud,
accident, mistake or excusable negligence, was prevented from taking an appeal from
a judgment or final order therein.

The personality to file a petition for relief from judgment, therefore, resides in the
person who is a party to the principal case. This legal standing is not lost by the mere
transfer of the disputed property pendente lite. The original party does not lose his
personality as a real-party in interest merely because of the transfer of interest to
another pendent lite.

The petition for relief form judgment is not an available remedy in the Court of Appeals
and the Supreme Court. Petition for relief applies only to MTC and RTC.

A petition for relief is only available against final and executor judgment. A verified
petition for relief must be filed within sixty (60) days after the petitioner learns of the
judgment, final order, other proceeding to be set aside and not more than six (6)
months after such judgment or final order has been entered or such proceeding has
been taken. It must be accompanied with affidavits showing fraud, accident, mistake or
excusable negligence relied upon, the facts constituting petitioners good and
substantial cause of action or defense.

An appeal may be taken from a judgment or final order that completely disposes of the case or of a
particular matter therein.
What are the orders or judgment that cannot be appealed from?
No appeal may be taken from the following:
a.

b.
c.
d.

e.
f.

g.

A petition for relief from judgment must be filed within:


a.
b.

60 days from knowledge of judgment, order or other proceedings to be set aside;


and
Six (6) months from entry of such judgment, order or proceeding.

These two periods must concur. Both periods are also not extendible and never
interrupted.

The 60 day period is reckoned from the time the party acquired knowledge of the order,
judgment or proceedings and not from the date he actually read the same.

Where fraud is the ground, the fraud must be extrinsic or collateral. There is extrinsic
fraud when a party is prevented from fully presenting his case to the court as when the
lawyer connives to defeat or corruptly sells out his clients interest. extrinsic fraud can
be committed by a counsel against a client when the latter is prevented from
presenting his case to the court.

Excusable negligence; Negligence of the counsel of counsel to pay the docket fee 9
days after the expiration of the period of appeal is not excusable.

The denial of the motion for reconsideration of an order of dismissal of a complaint


is not an interlocutory order, however, but a final order as it puts an end to the
particular matter resolved, or settles definitely the matter therein disposed of, and
nothing left for the trial court to do other than to execute the order.

RULE 40 TO RULE 56 APPEAL


What is the proper subject of an appeal?

An order denying petition for relief or any similar motion seeking relief from judgment
(because the remedy against such order is a petition for certiorari or prohibition under
Rule 65)
An interlocutory order (remedy: petition for certiorari under Rule 65)
An order disallowing or dismissing an appeal (remedy is certiorari or petition for relief)
An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other ground vitiating
consent (remedy: either petition for relief from judgment, action for annulment, or
petition for certiorari under Rule 65)
An order of execution (remedy: petition for certiorari under Rule 65)
A judgment or final order for or against one or more several parties or in separate
claims, counterclaims, cross-claims, and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom.
An order dismissing an action without prejudice (remedy: refile his complaint or petition
for certiorari under Rule 65)

What are the modes of appeal?


The following:
a.

Ordinary appeal
1.
By filing a notice of appeal (appeal period 15 days), or
2.
By filing a notice of appeal and record on appeal in those instances where record
on appeal is required; (appeal period 30 days)

b.

Petition for review under Rule 42 and Rule 43

c.

Petition for review on Certiorari under Rule 45

What should the notice of appeal indicate?


If the appeal is from the judgment or final order rendered by the MTC, the notice of appeal
should indicate:
a.
b.
c.

The parties to the appeal


The judgment or final order or part thereof appealed from
The material dates showing timeliness of the appeal

If the appeal is from the judgment or final order rendered by the RTC, the notice of appeal
should indicate:
a.
b.
c.

Indicate the parties to the appeal


Specify the judgment or final order or part thereof
Specify the court to which the appeal is being taken

d.

State the material dates showing the timeliness of the appeal


b.

The adverse party shall be served with the copy of the notice of appeal
In ordinary appeal is the filing for motion for reconsideration or new trial a precondition to
the perfection of the appeal?
No. but there are cases where the filing of a motion for reconsideration or new trial is
required so that the appeal may be allowed, thus:
a.

b.

No appeal from the decision in cases involving custody of minors and writ of habeas
corpus in relation to custody of minors shall be allowed, unless the appellant has filed a
motion for reconsideration or new trial within fifteen days from notice of judgment.
In annulment of voidable marriages, declaration of absolute nullity of void marriages,
and legal separation no appeal from the decision shall be allowed unless appellant has
filed a motion for reconsideration or new trial within fifteen days from notice of
judgment.

What is the period of perfecting an ordinary appeal?


a.
b.

c.

If the appeal is by notice of appeal, the appellant must file a notice of appeal within
fifteen (15) days from notice of the judgment or final order appealed from;
If the appeal is by notice of appeal and record on appeal, the appellant must file the
notice of appeal and record on appeal within thirty (30) days fromt notice of the
judgment or final order appealed from.
An appeal in habeas corpus cases shall be taken within 48 hours from the notice of the
judgment or final order appealed from

A motion for extention of time to file the notice of appeal is not allowed.

In appeal by record on appeal, the court loses jurisdiction only over the subject matter
thereof upon the approval of the record on appeal filed in due time and the expiration of
the time to appeal of the other parties.

Within the period of taking an appeal, the appellant shall pay to the Clerk of Court which rendered
the judgment or final or appealed from, the full amount of the appellate court docket and other
lawful fees.
Failure to pay the full amount of the appellate court docket fee and other lawful fees is a ground for
dismissal of the appeal.
Appellate court may extend the time for the payment of the appellate court docket fees if the
appellant can show that there is a justifiable reason for his failure to pay the correct amount of
docket fees within the prescribed period, like fraud, accident, mistake, excusable negligence or
similar supervening casualty without fault on his part. The dismissal is discretionary.
Summarize the rules on appeal from the judgments of the RTC?
a.

Original jurisdiction in all cases decided by the RTC in the exercise of their original
jurisdiction, appeal may be made to:
1.

The CA where the appellant raises question of fact or mixed questions of fact
and law, by filing a mere notice of appeal.

2.

The SC where the appellant solely raises questions of law, by filing a petition
for review on certiorari under Rule 45.

b.

Appellate jurisdiction all appeals from judgments rendered by the RTC in the exercise
of their appellate jurisdiction, whether the appellant raises questions of fact, of law, or
mixed questions of fact and law, shall be by filing a petition for review with the Court of
Appeals under Rule 42.

A party litigant may either file his notice of appeal within 15 days from receipt of the RTCs decision
or file it within 15 days from the receipt of the order denying his motion for new trial or motion for
reconsideration. The new 15-day period may be availed of only if the motion is filed; otherwise, the
decision becomes final and executor after the lapse of the original appeal period.

When is ordinary appeal deemed perfected?

After notice of appeal was filed, the court no longer has jurisdiction to entertain a
motion for new trial.
Once a judgment becomes final, executor and unappealable, the prevailing party
should not be denied the fruits of his victory by some subterfuge devised by the losing
party.
Equity jurisdiction
In order to serve substantial justice, the court must consider:
a.
Matters of life, liberty, honor or property
b.
Existence of special or compelling circumstances
c.
The merits of the case;
d.
A cause not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules;
e.
A lack of any showing that the review sought is merely frivolous and
dilatory; and
f.
The other party will not be unjustly prejudiced thereby

Neypes et. al. vs CA et. al. Fresh period Rule

a.
b.

A partys appeal by notice of appeal is deemed perfected as to him upon the filing of
the notice of appeal in due time
A partys appeal by record on appeal is deemed perfected as to him with respect to the
subject matter thereof upon approval of the record of appeal filed in due time.

When does a TC lose jurisdiction over the case?


a.

In an appeal by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeal filed in due time and the expiration of the time to appeal of the
other parties;

In case of reversal, the case shall be remanded to the municipal trial court for further
proceedings. The RTC in reversing an appealed case dismissing the action cannot
decree the eviction of the defendants and award damages.
Appeal from agencies, boards, tribunals to CA
o
As a rule, the tribunal whose decision is subject of review should not be
impleaded; neither should it intervene. However, in case of exoneration, it
may appeal form such exoneration.
o
A judge should detach himself from cases where his decision is appealed
to a higher court for review. The reason is that a judge is not an active
combatant in such proceeding and must leave the opposing parties to
contend their individual positions and the appellate court to decide the
issues without his active participation.

his case to the court, or where it operates upon matters pertaining no to the judgment itself but to
the manner in which it was procured so that there is not a fair submission of the controversy. Fraud
is extrinsic if committed outside of the trial.

Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which
is committed outside of the trial of the case, whereby the defendant party has
prevented from exhibiting fully his side of the case by fraud or deception practice on
him by his opponent.
A petition for annulment of judgment on the ground of extrinsic fraud mau be filed
within four years from the discovery of the same.
Jurisprudence recognizes lack of due process as additional ground to annul a
judgment (in this case gross negligence of the counsel)
Petition for annulment of judgment could be resorted to if other remedies under the law
(petition for new trial, appeal, or petition for relief) are available or were not availed
without sufficient justification.

RULE 45 APPEAL FROM CA TO SC


What is the period for filing of an action for annulment of judgment?

An appeal on the dismissal on the ground that the complaint failed to state a cause of
action can only raise questions of law. Hence, the appeal to the CA is improper. The
proper mode of appeal was not by way of ordinary appeal under Rule 41 but rather by
way of a petition for review or certiorari under Rule 45.
Exception to the questions of law requirements:
a.
When there is misapprehension of facts or failure to notice certain relevant facts;
b.
When there is conflicting findings of facts of the trial court and the appellate
court;
Under Rule 45, the petitioner who files a petition for review on certiorari with the SC
may raise questions of law only.

a.
b.

Extrinsic fraud
The action must be filed within four (4) years from its discovery
Lack of jurisdiction
Before it is barred by laches or estoppels

But an action for annulment of judgment can be resorted to only if the remedies of new
trial, appeal, petition for relief or other appropriate remedies are no longer available through no
fault of the petitioner.
What are the remedies against final and executory judgment?

An appeal may be withdrawn as of right at any time before the filing of the appellees
brief. Thereafter, the withdrawal may be allowed in the discretion of the court.

a.

Petition for relief of the judgment under Rule 38 when the judgment has been taken
against the party through fraud, accident, mistake, or excusable negligence.

b.

Action for annulment of the judgment


This is a direct action for annulment on the ground of:
1.
extrinsic fraud; or
2.
lack of jurisdiction over the subject matter or over the person of the defendant

c.

a direct action for certiorari under Rule 65; or a collateral attack against the judgment if
the judgment is void on its face or void by its own recitals.

RULE 47 ANNULMENT OF JUDGMENT


What are the grounds for the annulment of judgment?
a.

b.

Extrinsic fraud
But extrinsic fraud shall not be a valid ground for annulment of judgment if it was
availed of, or could have been availed of, in a motion for new trial or petition for relief.
Lack of jurisdiction
A petition for annulment of judgment must be verified, and a certified true copy of the
judgment sought to be annulled shall be attached to the original copy of the petition.

When is fraud regarded as extrinsic?


Fraud is regarded as extrinsic or collateral where a litigant commits acts outside of the trial of the
case, the effects of which prevents a party from having a trial, a real contest, from presenting all of

PROVISIONAL REMEDIES AND SPECIAL CIVIC ACTIONS


RULE 57 PRELIMINARY ATTACHMENT
In what cases may the plaintiff apply for the issuance of a writ preliminary attachment?
a.

In an action for the recovery of a specified amount of money or damages other than
moral and exemplary, on a cause of action arising from law, contract, quasi-contract,
delict, or quasi-delict against a party who is about to depart from the Philippines with
intent to defraud his creditors;

b.

c.

d.
e.
f.

In an action for money or property embezzled or fraudulently misapplied or converted


to his own use by a public officer, or an officer of a corporation, or an attorney, factor,
broker, agent, or clerk in the course of his employment as such, or by any other person
in a fiduciary capacity, or for a willful violation of such duty.
In an action to recover the possession of property unjustly or fraudulently taken,
detained, or converted when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;
In an action against a party who has been guilty of fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof;
In an action against a party who has removed or disposed of his property, or is about to
do so, with the intent to defraud his creditors; or
In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication.

SECTION 1
Purpose- security for satisfaction of the judgment

Kinds of Attachment

1.

2.

Action for specified amount of money/damages (other than moral or exemplary) , on a cause
of action arising from contract , quasi-contract, delict or quasi-delict against a defendant
ABOUT TO DEPART from the Phil with INTENT TO DEFRAUD HIS CREDITORS.
Action for money or property embezzled or fraudulently misapplied or converted into his own
use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent , or
clerk, in the course of his employment as such, or by any other person in a fiduciary capacity
or willful violation of duty;

3.

Action to recover possession of property unjustly taken or fraudulently taken, detained, or


converted, when the property, or any part thereof, has been CONCEALED, REMOVED, or
DISPOSED of to prevent its being found or taken by the applicant or an authorized person;

4.

In an action against a party who has been guilty of fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in the PERFORMANCE thereof;

5.

In an action against a party who has REMOVED or DISPOSED of his property, or is ABOUT
TO DO SO, with INTENT TO DEFRAUD his creditors; or

6.

In action against a party who does not reside and is not found in the Philippines, or on whom
summons may be served by publication.

b.

Garnishment
It is an attachment by means of which the plaintiff seeks to subject to his claim property
of the defendant in the hands of a third persons or money owed by such third person to
the defendant. Such person is called garnishee.

c.

Final attachment (also known as Levy on Execution)


It is issued by the court to enforce a judgment that has become final and executor

1.

AFFIDAVIT showing that sufficient cause of action exists; case is one of those mentioned
under Sec. 1 of Rule 57; no other sufficient security for the claim sought; amount due the
applicant (or value of property sought) is as much as the sum for which the order is granted
above all legal counterclaims.

2.

BOND (1st bond)-equal to amount of claim or the value of the property conditioned that will
pay all damages/costs that the adverse party maysustain by reason of the attachment if the
court shall finally adjudge that the applicant was not entitled thereto.

At commencement

Grounds:

Preliminary attachment
It is a provisional remedy issued upon order of the court where the action is pending, to
be levied upon the property or properties of the defendant therein, the same to be held
thereafter by the sheriff as security for the satisfaction of whatever judgment might be
rendered in said action in favor of the attaching creditor against the defendant.

Requirements:

When to apply-

Or before final entry

a.

Enforcement:
REQUIREMENTS- to be served on the defendant (scaabow)
a.

Prior or contemporaneous service of summons

does not apply where summons could not be served personally or by substituted
service despite diligent efforts
resident defendant but temporarily out of the Phil.
Non resident defendant
Action in rem or quasi-in-rem

b.
c.

Copy of the complaint, application for attachment, affidavit and bond


Order and writ of attachment

MANNER-

Real property
person

- any interest standing in the name of the party or in the name of other

2.

-file with the Register of Deeds copy of the Order , description of the
property and Notice that the property (or interest held or standing in the name of other
person) is attached.
AND leaving a copy of the Order, Description, and Notice to the occupant, if
any or with such person or agent if found in the province.
Personal-

Before or after levy or even after release of the attached property, the party whose
property has been ordered attached, may file a motion to set aside the Order of
attachment on the following grounds:
a.
Improperly or irregularly issued or enforced
b.
Bond is insufficient
c.
Attachment is excessive

The Order of attachment may be lifted if grounds are found not to be true AND the defect is not
cured forthwith. NOTE: However, if the grounds of the motion is the same basis of the complaint,
the hearing on such motion would be tantamount to trial on the merits of the action
THIRD PARTY CLAIMANT-

capable of manual delivery- take custody

not capable of manual delivery- leaving a copy of the Writ & Notice

-President/managing agent, in case of stocks/shares


-person owing such debts or who has control or possession of such credits
or other personal property in case of debts and credits, including bank deposits, etc.
-Executor /Administrator or other representative AND to the office of the
Clerk of Court where the estate is being settled, in case of interest in estate properties
-In case the property is in custodia legis, a copy of the Writ shall be filed
with the proper court or quasi-judicial agency and Notice of the attachment shall be
served upon the custodian of such property.
EFFECT OF ATTACHMENT (Sec. 8, 9)
-On debts/credits-shall be liable to the applicant until the attachment is discharged or judgement
satisfied UNLESS such property or debts is delivered to the clerk or sheriff or proper officer of the
court issuing the attachment.
-On attachment of interest in property belonging to the estate, it shall not impair the powers of
executor/administrator/personal representative of the decedent for purposes of administration.
The personal representative however shall report to the court when there is order of distribution,
and the property attached shall be delivered to the sheriff making the levy.

File an Affidavit of his claim with the Sheriff while the latter has possession and copy thereof
furnished to the applicant
Sheriff not bound to keep the attached property unless applicant files a BOND
(2nd applicants bond) in sum not less than the value of the property.

Claim damages against the bond (2nd bond) within 120 days.

Vindicate claim in the SAME or SEPARATE ACTION.


NOTE: applicant may also vindicate in the same or separate action claim for
damages against any frivolous and plainly spurious third party claim.

RETURN of the SHERIFF


Judgment

any balance unsatisfied may be collected by ordinary execution

after judgment has become final and executory, the surety on the
counter bond may proceeded against after notice and summary
hearing.

What is garnishment?

Attached property may be sold after levy (but before entry of judgment) if perishable or
serve interest of all the parties.

Garnishment is a specie of preliminary attachment for reaching credits belonging to a judgment


obligor and owing to him from a stranger to the litigation. Since the property involve in garnishment
are personal properties, garnishment is thus a levy on personal property.

DISCHARGE OF ATTACHMENT

May a writ of preliminary attachment be issued ex parte?

1.

cash deposit or -counter-bond executed in favor of the applicant equal to the amount
fixed in the Order or the value of the property as determined by the Court which shall
stand in place of the property released.

Yes. Ex parte issuance of writ of preliminary attachment is justified on the ground that
the defendant might abscond or dispose of his property before the writ is issued. The
trial court may grant a writ of preliminary attachment even before the defendant is
summoned or is heard from. however, ex parte issuance of the writ may be made only
upon the filing with the court of:

a.
b.

An affidavit; and
A bond

remedy at law, and the public officers charged with the duty are willing or unable
to furnish adequate protection to applicant

But while preliminary attachment may be granted ex parte, it cannot be discharged


without hearing.

If great or irreparable injury would result to the applicant before the matter can be heard on
notice, the court, after summary hearing, may issue a temporary restraining order effective
for only twenty (20) days from service on the party enjoined.

Remedy of the party whose property was attached. Moved for the discharge of the attachment.
If the matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury, the court may issue ex parte a 72 hour temporary restraining order.

In attachment, what is the prior or contemporaneous rule?


Prior or contemporaneous rule is the rule that provides that no levy on attachment shall
be enforced unless it is preceded, or contemporaneously accompanied, by service of summons,
together with a copy of the complaint, the application for attachment, the applicants affidavit and
bond, and the order and writ of attachment, on the defendant.

The application for injunction or restraining order may be denied, upon showing of its insufficiency.
The application may be denied outright if the ground of insufficiency is apparent from the
application itself.
What is the lifetime of a temporary restraining order?

May a property in custodial egis be attached? How?


a.
Yes. A property in custodial egis may be attached by doing all these things:
a.
b.

File a copy of the writ of attachment with the proper court or quasi-judicial agency; and
Serve a notice of the attachment upon the custodian of such property

b.
c.

Grounds for the discharge of attachment


a.
b.
c.

That the attachment was improperly issued or enforced;


The bond was insufficient; and
That the attachment is excessive

If issued by the MTC or RTC is twenty days from service thereof on the party sought to
be enjoined
If a 72 hour restraining order is issued, the total period of effectivity of the TRO shall
not exceed twenty days, including the original seventy two hours.
If the TRO is issued by the CA, the TRO shall be effective for sixty (60) days from
service on the party sought to be enjoined
If issued by the SC, the TRO shall be effective until further orders.

In computing the effectivity of a TRO, Saturdays, Sundays, and Holidays are not excluded, except
when the last day of the period falls on such days.
An order discharging a writ of injunction is immediately effective

If the attachment is excessive, the discharge shall be limited to the excess.


A party may also move to discharge the attachment by making a cash deposit or filing a
counter-bond.

GR: injunctions are not available to take a property out of the possession and control of one party
and place it into the possession of another
XPN:

RULE 58 PRELIMINARY INJUNCTION


What are the requisites necessary for the issuance of a writ of preliminary injunction?
a.
b.

The existence of a right to be protected and


The acts against which the injunction is to be directed are violative of said right.

Compliance with the writ of preliminary injunction


a.
b.
c.

There must be a hearing on the application for injunction


There must be a reception of evidence with opportunity for cross examination
There must be a finding that the prohibited acts are threatened to be committed,
irreparable injury to the applicants property will follow, greater injury would be
inflicted upon the applicant than upon the defendant, applicant has no adequate

a.
b.
c.

The applicant has clearly established his right to the property in question
The defendant is clearly a mere intruder
Where the action seeks to prevent a purchaser at an auction sale from molesting the
debtors co owner whose rights have not been affected by the sale.

WHAT order granted at any stage of an action or proceeding PRIOR TO JUDGMENT or FINAL
ORDER, requiring a court, agency or person to REFRAIN from a particular act/s. It may also
require PERFORMANCE of a particular act/s.
Preliminary injunction- It does not apply to consummated acts.
Preliminary MANDATORY injunction-performance of a particular act/s.
Requisites:
1).

Clear legal right

2).

There is violation and invasion is material and substantial

3).

Urgent and permanent necessity to prevent serious damage.

The purpose of which is to re-establish and maintain a PRE-EXISTING


continuing relation between the parties, recently and arbitrarily interrupted
by the defendant, than to establish a new relation. This is an EXCEPTION
to the rule that injunction does not apply to consummated acts.

- Should not issue if it would in effect dispose the main case without trial.
WHEN may it be granted:

It cannot be used to take possession out of another.

upon commencement or anytime before judgment. Thereafter,


it may be included in the judgment where the injunction is not
stayed by appeal under Sec. 4, Rule 39

PD 1818- prohibits courts from issuing injunctions in cases


involving infasfracture projects, against administrative acts in
controversies involving facts or the exercise of discretion in
technical cases.

Preliminary preventive prohibitory injunction; Distinguished from prohibition


Preliminary mandatory injunction; Distinguished from mandamus
GROUNDS:
1.

Applicant is ENTITLED TO THE RELIEF demanded, and the whole or part


of such relief consists in restraining the commission or continuance of the
act/s complained of, or in requiring the performance of act/s, either for a
limited period or perpetually.

REQUIREMENTS BEFORE GRANT

2.

Acts complained of during the litigation would probably WORKINJUSTICE


to the applicant.

a.
b.

3.

Party/court/person is DOING, THREATENING, or is ATTEMPTING to do, or


is procuring or suffering to be done, some act/s probably in violation of the
rights of the applicant concerning the subject of the action, and TENDING
TO RENDER JUDGMENT INEFFECTUAL.

Exceptions: questions of law

TRO - MTC or RTC, (both effective for 20 days from service);


CA or any member (effective for 60 days from service) or SC
or any member (effective until further orders)

LIMITATIONS:
-

Cannot be issued to enjoin acts done outside its


territorial district

The decisions of a corporation are made


by its Board which has its office at the
principal office at Quezon City. The
Quezon City court has jurisdiction to
order the restoration of the connection
of electrical power.Dagupan Electric
Corp. v. Pao, 95 SCRA 693 (1980)

Verified application
with Bond- fixed by the court
Hearing and prior notice to adverse party

1.

WHO grants

The implementation of the questioned


act may be enjoined by the court where
the implementation is to be madeDecano v. Edu, 99 SCRA 410 (1980)

Case raffled only after notice and in the presence of adverse party or person to be
enjoined. The notice shall be preceded by, or contemporaneously accompanied by
service of summons, copy of the complaint or initiatory pleading, affidavit and bond.
(SCAB)

2.

Except if summons could not be served personally or by substituted service


despite diligent efforts, or the adverse party is a resident of the Philippines
temporarily absent therefrom, or a non-resident. (Prior service of summons or
raffling may be dispensed with if could not be served despite diligent efforts.
Gonzales v. State properties Corp. GR 140765, 1/25/01)

Application to be HEARD upon NOTICE-

Unextendible 20-day TRO after summary hearing with notice to the adverse party
or person to be enjoined.

72 hour TRO effective upon issuance by the Exec. Judge of a multi-sala


court in case of extreme necessity due to grave and irreparable injury,
BUT within 24 hrs from filing, the case should be raffled with notice and
presence of adverse party. A summary hearing should be conducted
within the 72 hours whether to extend the TRO to 20 days.

Within the 20-day period, a full hearing should be conducted as to the


propriety of granting the application for writ of preliminary injunction.

Objections to, or for motion of dissolution of, injunction or restraining order:


a.
b.

Insufficiency
applicant entitled, but he can be compensated while party/person
enjoined would suffer irreparable damage, AND the latter posts a
counterbond.

RULE 59 RECEIVERSHIP
A receiver may be appointed by the court where the action is pending, or by the Court of Appeals,
or by the Supreme Court, or a member thereof in the instances mentioned in the said action.
In the appointment of a receiver, a hearing is necessary and a bond is required from the applicant.
A receiver is a representative of the court appointing him for the purpose of preserving and
conserving the property under receivership and preventing its possible destruction or dissipation, if
it goes to the possession of another person.
A receiver acts in fiduciary capacity and with impartiality towards all interested persons.
May be an action itself, just like injunction.
Appointment of receiver.

During appeal, the appellate court may allow an application for the appointment of a receiver
to be filed in, decided, and subject to control by the court of origin.
GROUNDS for denial of application or discharge of receiver:

COUNTERBOND.
a.

Appointment was obtained without sufficient cause.

receivers bond is found to be insufficient in amount, or if the surety or


sureties thereon fail to justify, and a bond sufficient in amount with
sufficient sureties approved after justification is not filed forthwith, the
application shall be denied or the receiver discharged, as the case
may be.

General powers of receiver.


a.

power to bring and defend, in his own name;

b.

to take and keep possession of the property in controversy;

c.

to receive rents;

d.

to collect debts due to himself as receiver or to the fund,


property, estate, person, or corporation of which he is the
receiver; to compound for and compromise the same;

e.

to make transfers;

f.

to pay outstanding debts;

g.

to divide the money and other property that shall remain


among the persons legally entitled to receive the same;

h.

and generally to do such acts respecting the property as the


court may authorize. However, funds in the hands of a
receiver may be invested only by order of the court upon the
written consent of all the parties to the action.

i.

No action may be filed by or against a receiver without leave


of the court which appointed him. (n)

in the following cases:


(a)

(b)

(c)

(d)

party applying for the appointment of a receiver has an interest in the property or fund
which is the subject of the action or proceeding, and that such property or fund is in
danger of being lost, removed, or materially injured unless a receiver be appointed to
administer and preserve it;
In an action by the mortgagee for the foreclosure of a mortgage, that the mortgaged
property is in danger of being wasted or dissipated or materially injured , and that its
value is probably insufficient to discharge the mortgage debt, or that the parties have
so stipulated in the contract of mortgage;
After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the execution has
been returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment, or otherwise to carry the judgment into effect;
Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the
property in litigation.

If bond of adverse party is found to be insufficient, or the


surety fails to justify, the receiver shall be appointed or reappointed, as the case may be. (6a)

Sec. 7. Liability for refusal or neglect to deliver property to receiver.

a.
b.

punishable by contempt and


liable to the receiver for the value of the property
plus damages

(d) actual market value of the property.


The applicant must give a bond, executed to the adverse party in DOUBLE the value of
the property

RULE 60 REPLEVIN
Replevin is a provisional remedy available in a suit involving recovery of possession of personal
property

Sec. 3. Order.

But replevin will not lie to seize personal property in custodial legis, such as those seized under a
valid search warrant.

Upon filing of affidavit and approval of the bond, the court shall issue an ORDER and the WRIT
of replevin, describing the personal property and requiring the sheriff to take it into custody

Who may apply?

Sec. 5 & 6- Return & Disposition of property by sheriff.

A party praying for the recovery of possession of personal property may apply for the issuance of a
writ of replevin, and he may do so at the commencement of the action or at any time before
defendant files his answer.
Remedy
The remedy of the defendant is either to object to the sufficiency of plaintiffs bond or to require the
return of the property to the defendant by filing a counter bond. The question involving title to the
property should be litigated during the trial of the main case.

If he OBJECTS to the sufficiency of the bond, he cannot immediately require the return
of the property (NOTE: objections should be presented to the court)

but if he does not so object, he may, at any time before the delivery of the property to
the applicant, require the return thereof, by filing a (REDELIVERY BOND)

If within (5) days after the property is taken, the adverse party does not object to the
sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so
objects and the court affirms its approval of the applicants bond or approves a new
bond, or if the adverse party requires the return of the property but his bond is objected
to and found insufficient and he does not forthwith file an approved bond, the property
shall be delivered to the applicant.

If for any reason the property is not delivered to the applicant, the sheriff must return it
to the adverse party.

In replevin, the applicant must give a bond, executed to the adverse party, in double the value of
the property. Value means actual value of the property involved.
A writ of replevin, whether issued by the RTC or MTC, may be served anywhere in the Philippines.
Sec.1- Application.
a party praying for the recovery of possession of personal property - commencement or before
answer.

NOTE: the seizure of a motor vehicle in violation of Forestry laws places it under custodia
legis.
Sec. 7. property claimed by third person.

Sec. 2. Affidavit and bond.


affidavit showing:

AFFIDAVIT of third party claim - serves such affidavit upon the sheriff while the latter
has possession of the property and a copy thereof upon the applicant.

(a) applicant is the owner of the property claimed, particularly describing it, or is
entitled to the possession thereof;

(b) property is wrongfully detained, alleging the cause of detention;


(c) property has not beendistrained or taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or preliminary attachment, or otherwise placed under
custodialegis, or if so seized, that it is exempt from such seizure or custody; and

the sheriff shall not be bound to keep the property under replevin or deliver
it to the applicant unless the applicant or his agent, on demand of said
sheriff, shall file a bond (counterbond) approved by the court to indemnify
the third-party claimant in a sum not less than the value.

CLAIM DAMAGES against the bond within 120 days.


VINDICATE CLAIM (in the same or separate case)

APPLICANT-

claim damages against third-party claimant who filed a frivolous or plainly


spurious claim, in the same or a separate action.

Judgment.- delivery, or for its value if delivery cannot be made and damages. Recovery against
sureties same procedure as prescribed in section 20 of Rule 57.

possession of the adverse party, or his agent, and retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be
not delivered, he must cause the building or enclosure to be broken open and take the property
into his possession. After the sheriff has taken possession of the property as herein provided, he
must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto
upon receiving his fees and necessary expenses for taking and keeping the same.
Sec. 4. Order.

RULE 61 SUPPORT PENDENTE LITE


The application for support pendente lite may be filed by any party at the commencement of the
proper action or proceeding, or at any time prior to the judgment or final order.
Adverse party fails or refuses to comply with an order granting support pendente lite, what is the
remedy of the prevailing party?
a.
b.

File a motion for execution of the order granting support pendente lite; or
File a motion to cite the adverse party in contempt

In fact the court may issue motu proprio the order of execution against the adverse party.
Although an order granting support pendente lite is interlocutory, it may be enforced by
execution. This is the only interlocutory order that may be enforce by execution.
RULE 62 INTERPLEADER
A person against whom conflicting claims are asserted by several claimants over the same subject
matter, but who claims no interest whatever therein, may bring an action for interpleader against
the several claimants to compel them to interplead and litigate their several claims among
themselves.

The court shall determine provisionally the pertinent facts, and shall render such orders as
justice and equity may require, having due regard to the probable outcome of the case and such
other circumstances as may aid in the proper resolution of the question involved. If the application
is granted, the court shall fix the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of the applicant and the
resources or means of the adverse party, and the terms of payment or mode for providing the
support.
Sec. 5. Enforcement of order.
motuproprio or upon motion, issue an order of execution, without prejudice to his
liability for contempt.
Any third person who furnished that support to the applicant may, after due notice and
hearing in the same case, obtain a writ of execution.
Support in criminal- Civil liability includes support for the offspring as a consequence of the crime
and the civil aspect thereof has not been waived, reserved or instituted prior to its filing.
o

Section 1. Application.
At the commencement, or at any time prior to the judgment, a verified application for support
pendente lite may be filed by any party stating the claim and the financial conditions of both
parties, and accompanied by affidavits, depositions or other authentic documents.
Sec. 2. Comment.
5 days (or such period fixed by the court) by verified comment, affidavits and documents.
Sec. 3. Hearing.
not more than 3 days after comment or after the expiration of the period for its filing.
Sec. 4. Duty of the sheriff.(aabow)
Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together
with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the

The application therefor may be filed successively by the offended party,


her parents, grandparents or guardian and the State in the corresponding
criminal case during its pendency, in accordance with the procedure
established under this Rule. (n)

Restitution.- in case of adverse decision against the recipient.


RULE 62 - INTERPLEADER
Section 1. When interpleader proper.
conflicting claims upon the same subject matter are or may be made against a
person who claims no interest whatever in the subject matter, or an interest which in
whole or in part is not disputed by the claimants, he may bring an action against the
conflicting claimants to compel them to interplead and litigate their several claims
among themselves.
Sec. 2. Order.
Upon filing, the court shall issue an order requiring conflicting claimants to
interplead with one another. If the interests of justice so require, the court may direct
in such order that the subject matter be paid or delivered to the court.
Sec. 3. Summons.

Summons with copy of complaint/order shall be served upon the conflicting


claimants

The purpose of the remedy is to interpret or to determine the validity of the written instrument and
to seek a judicial declaration of the parties rights and obligations thereunder.

Sec. 4. Motion to dismiss.


Within the time for filing an answer, each claimant may file a motion to dismiss on
the ground of impropriety of the interpleader action or on other appropriate grounds
specified in Rule 16. The period to file the answer shall be tolled and if the motion is
denied, the movant may file his answer within the remaining period, but which shall
not be less than five (5) days in any event, reckoned from notice of denial.

Essential requisites:

Sec. 5. Answer and other pleadings.


Each claimant shall file his answer setting forth his claim within fifteen (15) days
from service of the summons upon him, serving a copy thereof upon each of the other
conflicting claimants who may file their reply thereto as provided by these Rules. If
any claimant fails to plead within the time herein fixed, the court may, on motion,
declare him in default and thereafter render judgment barring him from any claim in
respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims, third-party
complaints and responsive pleadings thereto, as provided by these Rules.
Sec. 6. Determination.
After the pleadings of the conflicting claimants have been filed, and pre-trial has
been conducted in accordance with the Rules, the court shall proceed to determine
their respective rights and adjudicate their several claims. (5a, R63)
Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens.
The docket and other lawful fees paid by the party who filed a complaint under this
Rule, as well as the costs and litigation expenses, shall constitute a lien or charge
upon the subject matter of the action, unless the court shall order otherwise. (6a, R63)

a.
b.
c.
d.

There is justiciable controversy


The controversy is between persons whose interests are adverse
The party seeking the relief has a legal interest in the controversy; and
The issue is ripe for judicial determination

An action for declaratory relief presupposes that there has been no actual breach of the
instruments involved or of the rights arising thereunder. But a breach or violation should be
impending, imminent, or at least threatened.
A person who is not a party to a contract cannot file a petition for declaratory relief and seek
judicial interpretation of such contract.
An issue is ripe for judicial determination when litigation is inevitable, or when administrative
remedies have been exhausted.
If during the pendency of the case and before termination thereof, a breach or violation of the
statute or instrument takes place, the special civil action for declaratory relief is converted
into a ordinary civil action, and the parties shall be allowed to file such pleadings as may be
necessary or proper. A third party complaint may now be filed by the defendant.

RULE 63 - DECLARATORY RELIEF AND SIMILAR REMEDIES

RULE 62 DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES


Section 1. Who may file petition.
Declaratory relief is a special civil action brought in the RTC by a person who is interested under a
deed, will, contract, or other written instrument, or whose rights are affected by a statute, executive
order or regulation, ordinance, or any other government regulation, before breach or violation
thereof, asking the court to determine any question of construction or validity arising, and for a
declaration of his rights or duties thereunder.

Any person interested under a deed, will, contract or other written instrument, whose
rights are affected by a statute, executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any question of construction or validity
arising, and for a declaration of his rights or duties, thereunder.

What actions may be instituted as special civil actions for declaratory relief?
a.
b.
c.

An action for reformation of an instrument;


An action to quiet title to real property or to remove clouds therefrom
An action to consolidate ownership over a real property under Art. 1607 of the Civil
Code.

A petition for declaratory relief may be filed by a person who is interested under a deed, a will, a
contract or other written instrument, and whose rights are affected by a statute, an executive order,
a regulation or an ordinance.

An action for the reformation of an instrument, to quiet title to real property or remove clouds
therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought
under this Rule.
Sec. 2. Parties.
All persons who have or claim any interest which would be affected by the declaration
shall be made parties; and no declaration shall, except as otherwise provided in these Rules,
prejudice the rights of persons not parties to the action.

Sec. 3. Notice on Solicitor General.

-state facts with certainty, present clearly the issues involved

In any action which involves the validity of a statute, executive order or regulation, or any
other governmental regulation, the Solicitor General shall be notified by the party assailing
the same and shall be entitled to be heard

-grounds and brief arguments relied upon


-pray
order/resolution.

for

judgment

annulling

or

modifying

the

questioned

judgment/final

Sec. 4. Local government ordinances.


corresponding prosecutor or attorney of the local governmental shall be similarly notified
and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor
General shall also be notified and entitled to be heard.
Sec. 5. Court action discretionary. (as declaration of rights/validity)
Except in actions falling under the second paragraph of section 1 of this Rule, the court,
motu proprio or upon motion, may refuse to exercise the power to declare rights and to
construe instruments in any case where a decision would not terminate the uncertainty or
controversy which gave rise to the action, or in any case where the declaration or
construction is not necessary and proper under the circumstances.

Findings of fact of the Commission supported by substantial evidence shall be final and nonreviewable.
-The petition accompanied by a clearly legible duplicate original or certified true copy of the
judgment, final order or resolution subject thereof, together with certified true copies of such
material portions of the record as are referred to therein and other documents relevant and
pertinent thereto. The requisite number of copies of the petition shall contain plain copies of all
documents attached to the original copy of said petition.
-

specific material dates

sworn certification against forum shopping (third paragraph of section 3,


Rule 46).

proof of service on the Commission and adverse party

timely payment of docket and other lawful fees.

Sec. 6. Conversion into ordinary action.


If before the final termination of the case, a breach or violation of an instrument or a
statute, executive order or regulation, ordinance, or any other governmental regulation
should take place, the action may be converted into an ordinary action, and the parties
allowed to file necessary and proper pleadings

failure to comply with any - sufficient ground for dismissal. (n)

RULE 64 - REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE


COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT

Sec. 6. Order to comment.within ten (10) days from notice thereof if sufficient in form and
substance; otherwise, the Court may dismiss the petition outright. The Court may also dismiss it if
filed manifestly for delay, or the questions raised are too unsubstantial to warrant further
proceedings.

Section 1. Scope. review of judgments/final orders/resolutions of COMELEC and COA

Sec. 7. Comments of respondents.comments of respondents in (18) legible copies. The original


shall be accompanied by certified true copies of such material portions of the record as are
referred to therein together with other supporting papers. The other copies of the comments shall
contain plain copies of all documents attached to the original and a copy thereof shall be served on
the petitioner.

Sec. 2. Mode of review. To SC under under Rule 65, except as hereinafter provided. (n)
Sec. 3. Time to file petition.
within thirty (30) days from notice of the judgment or final order or resolution. MR, if allowed,
shall interrupt the period- but which shall not be less than five (5) days. (NOTE: Fresh period rule
does not apply to Rule 64)

No other pleading may be filed by any party unless required or allowed by the Court. (n)
Sec. 8. Effect of filing. does not stay the execution of the judgment or final order or resolution,
unless SC direct otherwise
Sec. 9. Submission for decision.

Sec. 5. Form and contents of petition. The petition shall be verified and (18) legible copies.
(note: 15 copies as per AM 11-9-4 SC on Efficient-Use-of-Paper Rule)
-commission and private parties as respondents

Unless the Court sets the case for oral argument, or requires the parties to submit memoranda,
the case shall be deemed submitted for decision upon the filing of the comments on the petition, or
of such other pleadings or papers as may be required or allowed, or the expiration of the period to
do so.

RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS

a.
b.

What is certiorari?
Certiorari is a special civil action against a tribunal, board, officer exercising judicial or quasijudicial function which is alleged in a verified petition filed by an aggrieved party to have acted
without jurisdiction or in excess of jurisdiction, and there is no appeal, or any plain, speedy and
adequate remedy in the ordinary course of law.

c.

d.
e.
f.

Who may file:


Aggrieved party by the acts or proceedings issued or taken by the tribunal, board, or officer
exercising judicial or quasi-judicial functions may file a petition for certiorari.
What documents should accompany a petition for certiorari (as well as prohibition) under Rule 65?
The petition shall be accompanied by:
a.
b.
c.

certified true copy of the judgment, order or resolution subject thereof


copies of all pleadings and documents relevant and pertinent thereto;
and a sworn certification of non-forum shopping

g.
h.
i.

Where the order is patent nullity, as where the court a quo has no jurisdiction;
Where the questions raised in the certiorari proceeding have been raised and passed
upon by the lower court, or are the same as those raised and passed upon in the lower
court;
Where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the government or the petitioner or the subject of
the action is perishable;
Where under the circumstances, a motion for reconsideration would be useless;
Where petitioner was deprived of due process, and there is extreme urgency for relief;
Where; in a criminal case, a relief form an order of arrest is urgent and the granting of
such relief by the trial court is improbable;
Where the proceedings in the lower court are a nullity for the lack of due process;
Where the proceedings were ex parte or in which the petitioner had no opportunity to
object; and
Where the issue raised is one purely of law or where public interest is involved.

What is the remedy of the complainant whose complaint is dismissed by the assistant prosecutor
conduction preliminary investigation?
His remedy is to appeal to the Sec. of Justice. If the Sec. of Justice dismisses his
appeal, he must file a motion for reconsideration. if his motion for reconsideration is denied by the
SOJ, he may not file a petition for certiorari under Rule 65 with the Court of Appeals.

Appeal by certiorari vs. certiorari

What is prohibition?

In appeal by certiorari, the petition is based on questions of law which the appellant desires the
appellate court to resolve. In certiorari, as an original action, the petition raises issues as to
whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion.

Prohibition is a special civil action against a tribunal, corporation, board, officer, or person
exercising judicial, quasi-judicial, or ministerial function which is alleged in a verified petition filed
by an aggrieved party to be acting or about to act without jurisdiction or in excess of its jurisdiction,
or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

Appeal by certiorari stays the judgment, award, or order appealed from. an original action for
certiorari does not stay the challenged proceedings, unless a writ of preliminary injuction or a
temporary restraining order shall have been issued.
Appeal by certiorari is filed only with the SC. Original action for certiorari may be filed with the
RTC, CA, or SC.

Certiorari is not a remedy for errors of judgment. Errors of judgment are correctible by
appeal; errors of jurisdiction are reviewable by certiorari.
The remedies for certiorari and prohibition are available only when there is no appeal
or any plain, speedy and adequate remedy in the ordinary court of law.
Mandamus may only be resorted to when there is no other plain, speedy and
adequate remedy in the ordinary course of law
The rule requires the filing of a motion for reconsideration of the assailed judgment or
order before a petition for certiorari under Rule 65 may be filed.
A special civil action of certiorari may be resorted to if there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary courts of law. A motion for
reconsideration has been held to be a plain, speedy, and adequate remedy in the
ordinary course of law.

Instances when certiorari may be resorted to even without first filing a motion for reconsideration:

Prohibition lies against judicial, quasi-judicial, or ministerial functions, but it does not
lie against legislative or quasi-legislative function.

Certiorari vs. Prohibition

The purpose of certiorari is to correct respondents acts by annulling the proceedings;


the purpose of prohibition is to prevent the commission of the act by stopping the
proceedings;
In certiorari, the acts being assailed in the petition have already been done; in
prohibition the acts being assailed by the petitioner are about to be done or are being
done;
In certiorari, the respondent is performing judicial or quasi-judicial functions; in
prohibition, the respondent is performing judicial, quasi-judicial or ministerial
functions.

Grave abuse of discretion means capricious and whimsical exercise of judgment as is


equivalent to lack of jurisdiction
What is mandamus

Mandamus is a special civil action against a tribunal, corporation, board, officer or person which is
alleged in a verified petition filed by an aggrieved party to have:
a.
b.

Unlawfully neglected the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station; or
Unlawfully excluded another from the use and enjoyment of a right or office to which
such other is entitled

quasi-judicial functions

exercising judicial, quasi-judicial


or ministerial functions

GROUNDS

has acted without or in excess of its or his jurisdiction, or


with grave abuse of discretion amounting to lack or excess
of jurisdiction

Common condition

there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of

WHERE

Supreme Court, Regional Trial Court, Court of Appeals or in the Sandiganbayan. Cou
only if it involves the acts or omissions of a quasi-judicial agency, and unless otherwise
law or these Rules

and there is no other plain, speedy, and adequate remedy in the ordinary course of law.

officer or person

unlawfully
negle
performance of an ac
law specifically enjoin
resulting from an offi
station, or unlawfull
another from the
enjoyment of a right or o

Two aspects of mandamus


a.
b.

The respondent unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station; or
The respondent unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled

Mandamus vs. certiorari vs. prohibition


In mandamus, the respondent is performing ministerial functions. In certiorari, the respondent is
performing judicial or quasi-judicial functions. In prohibition, the respondent is performing judicial,
quasi-judicial, or ministerial functions.
The purpose of mandamus is to compel the respondent to do the act required to be done to protect
the rights of the petitioner and to pay damages sustained by the petitioner by reason of the
wrongful acts of the respondent. The purpose of certiorari is to correct respondents acts by
annulling the proceedings. The purpose of prohibition is to prevent the commission of the act by
stopping the proceedings.
Mandamus is not available to control discretion. Mandamus can require action only but not specific
action where the act sought to be performed involves exercise of discretion.
A ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in
prescribed manner, in obedience to the mandate of a legal authority, without regard to the exercise
of his own judgment upon propriety or impropriety of the act done.

(note: in election cases, involving act of MTC or RTC, the petition shall b
COMELEC in aid of its appellate jurisdiction.
WHEN

60 days from notice of judgment or order or denial of the MR timely filed.

ATTACHMENT

Certified true copy of the judgment, order or resolution, copies of all relevant and pertine
and documents, (EXCEPT FOR MANDAMUS) and a sworn certification of non-forum sh

TO THE PETITION
RESPONDENTS

PRIVATE RESPONDENTS duty of such private respondents to appear and defend, b


their own behalf and in behalf of the public respondent/s.

PUBLIC RESPONDENTS- are nominal parties only and shall not appear unless otherwi

If the law imposes a duty upon a public officer and gives him the right to decide how or when the
duty shall be performed, such duty is discretionary.
The petition for certiorari, prohibition, or mandamus may be filed not later than 60 days from notice
of the assailed judgment, order or resolution. But if a motion for reconsideration is timely filed,
whether such motion is required or not, the 60 day period shall be counted from notice of the
denial of said motion. (fresh period rule)
Certiorari

DIRECTED AGAINST

tribunal, board or officer


exercising judicial or

Prohibition.

tribunal, corporation, board,


officer or person, whether

Sec. 6. Order to comment- within 10 DAYS.


if sufficient in form and substance, the court shall issue an order requiring the respondent/s to
comment within ten (10) days.
Mandamus
Sec. 7. Expediting proceedings; injunctive relief.
The court may issue orders expediting the proceedings, and it may also grant TRO or a writ of
preliminary injunction for the preservation of the rights of the parties pending such proceedings.
Any tribunal, corporation, board,

The petition shall not interrupt the course of the principal case unless a temporary restraining order
or a writ of preliminary injunction has been issued against the public respondent.
Public respondent shall proceed with the principal case within 10 days if no TRO or
preliminary injunction is issued, or upon its expiration. Failure to proceed-ground for administrative
charge.(see AM No. 077-12-SC)

Quo warranto elective office vs. quo warranto appointing office

Sec. 8. Proceedings after comment is filed.


may hear the case or require the parties to submit memoranda.

The court, however, may dismiss the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to
require consideration. (AM #07-7-12-SC-court may award in favor of respondent treble costs
solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative
sanctions under Rule 139 & 139-B of the Rules of Court.)

Service upon the court, quasi-judicial agency, tribunal, corporation, board,


officer or person concerned
disobedience shall be punished as contempt.
An execution may issue for any damages or costs awarded

In quo warranto involving elective office, what is to be determined is the eligibility of


the candidate-elect; in quo warranto involving an appointive office, what is to be
determined is the legality of the appointment;
In quo warranto involving an elective office, when the candidate-elect is found to be
ineligible, the court cannot declare that the candidate who obtained the second
highest number of votes has been elected even if he were eligible; in quo warranto
involving appointive office, the court determines who has been legally appointed and
shall declare who is entitled to occupy the office.

Quo warranto is never directed to an officer as such, but always against the person to determine
whether he is constitutionally and legally authorized to perform any act in, or exercise any function
of, the office to which he lays claim.

Sec. 9. Service and enforcement of order or judgment.


-

In quo warranto, if the respondent is found ineligible he would simply be ouster, but
the petitioner will not assume the office; while in election protest, the protestant who
prevails will assume the contested office provided he had obtained plurality of votes.

G
R
O
U
N
D
S

Section 1. Action by Government against individuals.

An action for usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

RULE 66 - QUO WARRANTO


An individual may bring an action for quo warranto in his own name. A person claiming to be
entitled to a public office or position usurped or unlawfully held or exercise by another may bring
an action therefor in his own name.
An action for quo warranto may be brought in the Supreme Court, CA, or in the RTC exercising
jurisdiction over the territorial area where the respondent or any of the respondents resides, but
when the Solgen commences the action, it may be brought in a RTC in the City of Manila, in the
CA, or in the SC.
An action for quo warranto must be filed within one (1) year after the cause of such ouster, or the
right of the petitioner to hold such office or position, arose.

W
H
O

Sec. 2. When Solicitor General or public prosecutor must commence action.

The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to

M
A
Y

believe that any case specified in the preceding section can be established by proof.

C
O
M
M
E
N
C
E

Sec. 3. When Solicitor General or public prosecutor may commence action with permission of court.

The pendency of the administrative remedies does not suspend the running of the one-year period

The Solicitor General or a public prosecutor may, with the permission of the court, bring such an action at the request and upon the relation of another person;

but the officer bringing it may first require an indemnity for the expenses and costs in an amount approved by and to be deposited in the court.

Sec. 4. When hearing had on application for permission to commence action.

Upon application to commence such action, the court shall direct notice be given to the respondent so that he may be heard; and if granted, the court shall issue an order to that effect,

Quo warranto vs. Election protest

copies of which shall be served on all interested parties, and the petition shall be filed within the period ordered by the court.

The ground in quo warranto is the disqualification or ineligibility of the proclaimed


candidate; while the proper ground of an election protest is irregularities in the
conduct of an election

Sec. 5. Individual in his own name A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another.

V
E

where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila,

The right of eminent domain may be exercised by

N
U
E
in the Court of Appeals, or in the Supreme Court.

S
T
A
T
U
T
E

a.
b.

WITHIN ONE YEAR (1);

filing of a verified complaint which shall state with certainty the right and purpose of
expropriation, describe the real or personal property sought to be expropriated and
join as defendants all persons owning or claiming to own, or occupying, any part
thereof or interest therein.

ACTION FOR DAMAGES within one (1) year after the entry of the judgment establishing the petitioners right to the office in question.

Court finds that the plaintiff has no right of expropriation, what judgment will it render?
The appellate court shall render a judgment ordering the RTC to forthwith enforce the restoration
to the defendant of the possession of the property, and to determine the damages which the
defendant sustained and may recover by reason of the possession taken by the plaintiff.

O
F

L
I
M
I
T
A
T
I
O
N
S

verified complaint, stating the right and purpose of expropriation,

describe the real or personal property sought to be expropriated, and join as


defendants all persons owning or claiming to own, or occupying, any part thereof or
interest therein, showing, so far as practicable, the separate interest of each defendant.
If the title to any property sought to be expropriated appears to be in the Republic of
the Philippines, although occupied by private individuals, or if the title is otherwise
obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who
are the real owners, averment to that effect shall be made.

Sec. 2. Entry of plaintiff

Sec. 6. Parties and contents of petition against usurpation.


Sec. 8. Period for pleadings and proceedings may be REDUCED; action given precedence.
Sec. 9. Judgment where usurpation found.
respondent ousted and excluded, and that the petitioner or relator, recover his costs.
Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers;
damages.

Upon the filing of the complaint or at any time thereafter


and after due notice to the defendant, deposits an amount
equivalent to the assessed value. After such deposit is
made the court, writ of possession shall issue.

judgment rendered in favor of the person averred in the complaint to be entitled to the
public office he may, after taking the oath of office and executing any official bond
required by law, take upon himself the execution of the office, and may immediately
thereafter demand of the respondent all the books and papers in the respondents
custody or control appertaining to the office to which the judgment relates. If
respondent refuses or neglects to deliver any book or paper pursuant to such demand,
he may be punished for contempt.

Sec. 3. Defenses and objections.

The person entitled to the office may also bring action against the respondent to
recover the damages by reason of the usurpation.

If a defendant has any objection, he shall serve his answer within the time stated in the summons.

RULE 67 EXPROPRIATION
All properties, whether real or personal (except money), may be expropriated.
The RTC has jurisdiction over an expropriation case because, regardless of the value of the
property involved, it is incapable of pecuniary estimation.

no objection or defense- he may file a notice of appearance and a manifestation to that effect,
specifically designating or identifying the property in which he claims to be interested, within the
time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting
the same.

No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or


any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the interest of
justice, may permit amendments to the answer to be made not later than ten (10) days from the
filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant

has previously appeared or answered, he may present evidence as to the amount of the
compensation to be paid for his property

Report to the court and shall not be effectual until the court shall have accepted their
report and rendered judgment in accordance with their recommendations, within sixty
(60) days from date the commissioners were notified of their appointment, (or upon
such period at the discretion of the court).

This order appealable, but will not prevent the court from proceeding to determine just
compensation

Sec. 4. Order of expropriation.


declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the
public use or purpose described in the complaint, upon the payment of just compensation to be
determined as of the date of the taking of the property or the filing of the complaint, whichever
came first.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue
the proceeding except on such terms as the court deems just and equitable.

Interested parties are given ten (10) days within which to file objections to the findings
of the report.

Sec. 9. Uncertain ownership; conflicting claims.

Sec. 5. Ascertainment of compensation.


o

Upon the rendition of the order of expropriation, the court shall appoint not
more than three (3) competent and disinterested persons as
commissioners to ascertain and report to the court the just compensation
for the property sought to be taken. The order of appointment shall
designate the time and place of the first session of the hearing to be held
by the commissioners and specify the time within which their report shall be
submitted to the court. (mandatory)

Copies of the order shall be served on the parties. Objections to the


appointment of any of the commissioners shall be filed with the court within
ten (10) days from service, and shall be resolved within thirty (30) days
after all the commissioners shall have received copies of the objections.

Sec. 6. Proceedings by commissioners.

commissioners shall take oath.


Evidence may be introduced by either party before the commissioners who are
authorized to administer oaths on hearings before them,
and the commissioners shall, unless the parties consent to the contrary, after due
notice to the parties to attend, view and examine the property sought to be
expropriated and its surroundings, and may measure the same, after which either party
may, by himself or counsel, argue the case.
The commissioners shall assess the consequential damages to the property not taken
and deduct from such consequential damages the consequential benefits to be derived
by the owner from the public use or purpose of the property taken, the operation of its
franchise by the corporation or the carrying on of the business of the corporation or
person taking the property. But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be deprived of the actual
value of his property so taken.

Sec. 7. Report by commissioners and judgment thereupon.

If the ownership of the property taken is uncertain, or there are conflicting claims to any
part thereof, the court may order any sum or sums awarded as compensation for the
property to be paid to the court for the benefit of the person adjudged in the same
proceeding to be entitled thereto.

Sec. 10. Rights of plaintiff after judgment and payment.


Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with
legal interest thereon from the taking of the possession of the property, or after tender to him of the
amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the
property

Sec. 11. Entry not delayed by appeal; effect of reversal.


The right of entry shall not be delayed by an appeal from the judgment. But if the appellate court
determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the
Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the
property, and to determine the damages which the defendant sustained and may recover by
reason of the possession taken by the plaintiff. (even if not claimed in the answer)
JUDGMENT FIXING THE JUST COMPENSATIONSec. 8. Action upon commissioners report.
the court may, after hearing,

accept the report and render judgment in accordance therewith;

or, for cause shown, it may recommit the same to the commissioners for further report
of facts;

or it may set aside the report and appoint new commissioners;

or it may accept the report in part and reject it in part; and it may make such order or
render judgment in favor of the plaintiff and fixing just compensation.

Jurisprudence

(if imposition in right of way acquisition amounts to deprivation of proprietary rights, it is


equivalent to exercise of eminent domain-NPC vs. SANTA LORO VDA. DE CAPIN,
GR 175176, 10/17/08, citing NPC vs. Gutierrez, G.R. No. 60077, 18 January 1991, 193
SCRA 1, 6-8
A condemnor should commit to use the property pursuant to the purpose stated in the
petition for expropriation, failing which it should file another petition for the new
purpose. If not, then it behooves the condemnor to return the said property to its
private owner, if the latter so desires. [Vda. de Ouano vs. Republic, 642 SCRA
384(2011)]

If there is taking without expropriation and payment of just compensation, the owner
cannot take back the property? No. FORFOM DEV. CORP. vs. PNR, GR 124795,
12/10/08.

Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is
peremptorily abandoned, then the former owners, if they so desire, may seek the
reversion of the property, subject to the return of the amount of just compensation
received. [Mactan-Cebu International Airport Authority vs. Lozada, Sr., 613 SCRA
618(2010)]. (NOTE: This abandons Fery v. Mun. of Cabanatuan, 42 Phil. 28 (1921)

[i]n cases where the government failed to pay just compensation within five (5) years
from the finality of the judgment in the expropriation proceedings, the owners
concerned shall have the right to recover possession of their property. [Republic vs.
Lim, 462 SCRA 265(2005)]

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE


Debt is secured by mortgage, debtor defaults in the payment of his debt. What are the remedies of
the mortgagee?
The mortgagee has the choice of one of two remedies. He may either
a.
b.

Foreclose the mortgage either judicially or extrajudicially


File an action to collect the debt

Remedies of the mortgagee if the debtor-mortgagor dies and the debt is still unpaid
a.
b.
c.

He may waive the mortgage and claim the entire debt from the estate of the debtormortgagor as an ordinary claim;
He may foreclose the mortgage judicially and prove any deficiency as an ordinary
claim;
He may rely on the mortgage exclusively, foreclosing the same at any time before it is
barred by prescription without right to file a claim for any deficiency;

All persons having or claiming an interest in the property subordinate in right to that of the holder of
the mortgage (second mortgagee, subsequent purchaser) are merely necessary parties. The
action for foreclosure may still proceed even if they are not impleaded. The only effect if they are
not joined is that their equity of redemption remains unforeclose.
Notice and hearing of the motion for confirmation of sale are essential to the validity of the order of
confirmation. An order of confirmation issued without notice and hearing is void and may be set
aside any time.
Equity of redemption vs. Right of redemption
In relation to mortgage, the right of redemption exist in extra-judicial foreclosure; while
equity of redemption exist only in judicial foreclosure
In extrajudicial foreclosure, the mortgagor may exercise his right of redemption within
one year form the registration of the sale in the Office of the Registry of Deeds; while in judicial
foreclosure, the mortgagor may exercise his equity of redemption during the period of not less than
90 days nor more than 120 days from the entry of the judgment of foreclosure or even after
foreclosure sale but before the judicial confirmation of the sale.
******************************************************************************************
Stating the date and due execution of the mortgage; its assignments, if any; the names and
residences of the mortgagor and the mortgagee; a description of the mortgaged property; a
statement of the date of the note or other documentary evidence of the obligation secured by the
mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons
having or claiming an interest in the property subordinate in right to that of the holder of the
mortgage.
(NOTE: Parties holding subordinate lien are necessary parties, if not joined, their equity of
redemption would remain un-foreclosed. mortgagor and the debtor, who is not the
mortgagor, are indispensable parties. While parties holding recorded prior liens are neither
necessary nor indispensable- they are not affected by the proceedings for they can always
enforce their prior lien)
Sec. 2. Judgment on foreclosure for payment or sale.
order payment to the court or to the judgment obligee within a period of not less than ninety (90)
days nor more than one hundred twenty (120) days from the entry of judgment, and that in default
of such payment the property shall be sold at public auction to satisfy the judgment. NOTE: This
judgment is appealable.
FORECLOSURE SALE - -upon motion in case of failure to pay.
NOTE: lack of notice will not vitiate the sale
Sec. 4. Disposition of proceeds of sale. to the person foreclosing the mortgage, and any
balance, shall be paid to junior encumbrancers in the order of their priority, to be ascertained by
the court, or there be a balance, to the mortgagor.

ORDER OF CONFIRMATION
Shall operate to divest the rights in the property of all the parties to the action and to vest their
rights in the purchaser, subject to such rights of redemption as may be allowed by law. NOTE:
Notice & Hearing is essential.

What may be subject of partition?


-both real and personal property
-parties-person having the right to compel partition & all other persons interested in the property.

NOTE:
1.

An action for partition, as long as the co-ownership still exist, will lie at any time and does not
prescribe.

Before finality of the order of confirmation, equity of redemption may be exercised by


the mortgagor, or any party claiming subordinate lien. There is no right of redemption
in judicial foreclosure of mortgage, except as provided under Sec. 47 of the General
Banking Law of 2000 (RA 8791) which grants right of redemption as follows:
a.

individuals - one year

b.

juridical before registration of the sale or three (3) months from


foreclosure, whichever is earlier.

2.

The Order of Confirmation is a final order subject to appeal.

3.

Upon the finality of the order of confirmation or upon the expiration of the period of
redemption when allowed by law, the purchaser or last redemptioner shall be entitled
to possession unless a third party is actually holding the same adversely to the
judgment obligor.

COMPLAINT
ORDER of Partition
Sec. 2. Order for partition, and partition by agreement thereunder.

A final order decreeing partition may be appealed


Commissioners to make partition when parties fail to agree.
appoint not more than three (3) competent and disinterested commissioners to make the
partition.
1.

Sec. 6. DEFICIENCY JUDGMENT.


upon motion, shall render judgment against the defendant for any such balance he may be
personally liable to the plaintiff, upon which execution may issue immediately
No deficiency judgment against:

a mortgagor who mortgaged his property merely to secure a debt of another. Or

In an action for foreclosure against a non-resident defendant who did not appear in the case

RULE 69 PARTITION
What is the purpose of partition?
The purpose of partition is to separate, divide, and assign a thing held in common
among those to whom it may belong
The person filing the complaint for partition must join all other co-owners as defendants because
all of them are indispensable parties.

If plaintiff has the right thereto, it shall order the partition. Thereupon parties may make
the partition among themselves by proper instruments of conveyance, and the court
shall confirm the partition

Commissioners to view and examine, hear the parties as to their preference and
the comparative value, and shall set apart the same to the parties in lots or
parcels as will be most advantageous and equitable to the parties.
2.
Assign the real estate to one of the parties
3.
Sell real estate at public sale, if the parties could not agree.
REPORT and within ten (10) days from service, parties may file objections

JUDGMENT
Action upon the commissioners report. (Any judgment may be the subject of appeal)
accept the report and render judgment;
-or, recommit the same to the commissioners for further report of facts;
-or set aside the report and appoint new commissioners;
-or accept the report in part and reject it in part; and may make such order and render
such judgment as shall effectuate a fair and just partition of the real estate
Sec. 8. Accounting for rent and profits in action for partition.
Party shall recover share of rents and profits
judgment in accounting is appealable.
Costs and expenses may be apportioned among the parties; execution may issue
Neither paramount rights nor amicable partition affected by this Rule.

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER


What are the two kinds of ejectment suit?
a.
b.

action for forcible entry;


actions for unlawful detainer;

An accion interdictal if for the recovery of possession de facto (physical, actual, or material
possession) ejectment suit
An accion publiciana is a plenary action to recover right of possession. possessory action
An accion reinvindicatoria is the action to recover ownership, including possession. reinvindicatory
action
Who may bring an action for forcible entry?
A person who is deprived of the possession of any land or building by force, intimidation, threat,
strategy, or stealth, may at any time within one year after such unlawful deprivation, bring an action
for forcible entry in the proper MTC against the person or persons who unlawfully deprived him of
possession or any person claiming under them, for restitution of possession.

In forcible entry, it does not require previous demand for the defendant to vacate the
premises; but in unlawful detainer, the plaintiff must first make such demand to vacate, except if
the ground is the expiration of the lease.
In forcible entry, the plaintiff must prove prior physical possession of the premises until
he was deprived thereof by the defendant; in unlawful detainer, the plaintiff need not have been in
prior physical possession
In forcible entry, the one year period is generally counted from the date of actual entry
on the land; in unlawful detainer, it is counted from the date of last demand.
If defendants entry and possession of the premises of the plaintiff is at the latters tolerance,
although there is no contract between them, then the plaintiffs action should be for unlawful
detainer to be filed within one year from the date of the demand. Here, the defendants possession
is lawful because of plaintiffs tolerance. The defendant may be deemed to be unlawfully
withholding possession of the premises only if plaintiff makes a demand upon him to vacate.
A person who occupies the land of another at the latters tolerance or permission without any
contract between them is necessarily bound by an implied promise that he will vacate upon
demand.
Previous demand to vacate

Who may bring an action:

In unlawful detainer cases, previous demand to vacate is required to be made by the


lessor upon the lessee if the ground for the action is failure to pay rent or comply with the
conditions of the lease.

A vendor, lessor, vendee, or other person against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to hold possession by virtue or a
contract, such lessor or vendor may at any time within one year after such withholding of
possession, bring an action for unlawful detainer in the proper MTC.

Such demand shall be in writing and served upon the persons found on the premises
or posted on the premises if no person is found thereon.

Main issue: who is entitle to the physical or material or actual possession of the premises, that is
possession de facto and not possession de jure.
Ownership is not an issue in ejectment case. When the defendant raised the defense of ownership
in his answer and the question of possession cannot be resolved without deciding the issue of
ownership, the court shall resolve the issue of ownership only to determine the issue of
possession.
The mere assertion of ownership by the defendant in an ejectment suit will not oust the MTC of its
jurisdiction.
Forcible entry vs. Unlawful detainer
In forcible entry, the possession of the land by the defendant is unlawful from the
beginning as he acquires possession thereof by force, intimidation, strategy, threat, or stealth;
while in unlawful detainer, the possession of the defendant is inceptively lawful but it becomes
illegal by reason of the termination of his right to the possession of the property under his contract
with the plaintiff

If several demands were made, the one year period for bringing the action for unlawful
detainer is reckoned from the date the last demand was made.
But such demand to vacate is not required where the action is to terminate the lease
because of the termination of its lease.
If the complaint was filed after one year from the date of demand, the complaint cannot be
anymore instituted as unlawful detainer. It must already be filed with the RTC as an accion
publiciana to determine the issue of better right of possession of a real property.
In unlawful detainer, the lessor may make several demands to vacate upon the lessee, in which
case the one-year period to file the complaint for unlawful detainer may be reckoned from the last
demand
In forcible entry, the complaint must be filed with the MTC within one year from the date of
defendants actual entry on the land. If filed beyond one year, the action must be filed with the RTC
as accion publiciana.
Prior physical possession is not a condition sine qua non in unlawful detainer

Action for forcible entry:


The plaintiff must allege:
a.
b.

b.

Preliminary mandatory injunction to restore the plaintiff in his possession. Plaintiff


must file a motion within five days from the filing of the complaint

c.

Preliminary mandatory injunction to restore the plaintiff in his possession if the MTC
has already rendered a judgment, and the judgment is appealed to the RTC.

the plain must allege in his complaint prior physical possession of the property
he must also alleged that he was deprived of his possession by any of the following
means: force, intimidation, threats, strategy or stealth.

The RTC will issue the writ of preliminary mandatory injunction if said court is satisfied
that
1.
Defendants appeal is frivolous and dilatory
2.
Plaintiffs appeal is prima facie meritorious

In an action for unlawful detainer, the possession of the defendant is originally lawful but becomes
unlawful by reason of the termination of his right of possession under his contract with the plaintiff.

RULE 71 CONTEMPT
The complaint for unlawful detainer is sufficient if it alleges that the withholding of possession by
the defendant or his refusal to vacate is unlawful.
In an ejectment case, execution shall issue immediately upon motion of the plaintiff.
In an ejectment case, the judgment, if against the defendant, is subject to immediate execution.

What is the remedy of a person adjudged in contempt?


a.

If he is adjudged in direct contempt certiorari or prohibition. The execution of the


judgment shall be suspended provided he files a bond.

b.

If he is adjudged in indirect contempt remedy is appeal from the judgment or final


order. The execution of the judgment may also be suspended provided he files a bond.

In order to stay execution of the judgment, the defendant must do the following:
a.
b.
c.

he must perfect his appeal;


he must file a supersedeas bond; and
he must periodically deposit the monthly rental or the reasonable value for the use and
occupation of the premises falling due during the pendency of the appeal.

In an ejectment suit, where the defendant appealed but did not file a supersedeas bond or did not
make any monthly deposit of the rentals, the plaintiff is entitled as a matter of right to the
immediate execution of the judgment of the MTC. In such case, the duty of the court to order
immediate execution is ministerial and imperative.

Prohibition
Prohibition or a writ of prohibition is that process by which a superior court prevents inferior
courts, tribunals, officers, or persons from usurping or exercising a jurisdiction with which they
have not been vested by law. The mayor, although performing executive functions, also exercises
quasi-judicial function which may be corrected by prohibition. In determining whether or not a
structure is illegal or it should be demolished, property rights are involved thereby needing notice
and opportunity to be heard as provided in the constitutional guaranteed right of due process. In
pursuit of these functions, the city mayor exercises quasi-judicial powers. The mayor acted in
excess of his jurisdiction.

The filing of supersedeas bond or the periodic deposit of monthly rental will not stay the execution
of the judgment of the MTC if the defendant did not appeal.

Injunction

Supersedeas bond is equivalent to the amount of rents, damages and cost stated in the judgment
of the MTC.

In an injunction, prior service of summons or raffling may be dispense with if could not be served
despite diligent efforts.

Judgment of the RTC in an appealed ejectment case is immediately executor even while pending
appeal at the CA and cannot be stayed by the defendant by filing supersedeas bon and making the
periodic deposit

Motion for reconsideration

The RTC shall issue the writ of execution upon motion of the plaintiff. If the RTC
refuses to issue the writ of execution pending appeal, plaintiffs remedy is mandamus because, in
this case, the issuance of the writ of execution pending appeal is a clear duty of the RTC judge
under the law.

Although the 60 day period will be counted from a receipt of denial of the first motion for
reconsideration, and not from the denial of the second or third motion for reconsideration.
Interlocutory orders are orders issued by the court which leave something to be done by the court
before the case is finally decided on the merits.
RULE 63 DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES

Provisional remedies available in forcible entry and unlawful detainer case


a.

preliminary prohibitory injunction, to prevent the defendant from committing further acts
of dispossession against the plaintiff

To determine which court has jurisdiction over the actions identified in Rule 63 of the Rules of
Court, said provision must be read together with those of the Judiciary Reorganization Act of 1980,

as amended. MTC exercises exclusive original jurisdiction over all civil actions which involve title to
or possession of real property where the assessed value does not exceed P20,000.
RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER
In forcible entry and unlawful detainer cases, a simple allegations that the defendant is unlawfully
withholding possession from the plaintiff is sufficient. Although the phrase unlawfully withholding
was not actually used by petitioner in her complaint, the allegations therein nonetheless amount to
an unlawful withholding of the subject property by private respondents because they continuously
refused to vacate the premises ever after petitioners counsel had already sent them notices to the
effect.

by respondent judge due to failure of the party to appear during the preliminary
conference is obviously not a judgment on the merits after trial of the case.

A motion for reconsideration for failure of the plaintiff to appear during the preliminary
conference is not prohibited. What is prohibited is a motion for reconsideration after
trial; or a motion for reconsideration of an order of dismissal for lack of jurisdiction.

The decision dismissing the petitioners ejectment case for lack of jurisdiction was not
an adjudication on the merits. Therefore, a motion for reconsideration of an order of
dismissal for lack of jurisdiction is allowed under the Rules on Summary Procedure.

There could be no preliminary hearing on the affirmative defense contained in an


ANSWER under the Rules on Summary Procedure. Under the Rules on Summary
Procedure the adjudication of cases can be done on the basis of affidavits and position
papers. The court is no longer allowed to hold a hearing to receive testimonial
evidence.

A motion for extension of time to file an answer under the Rules on Summary
procedure is dilatory in nature.

A position paper filed late may not be admitted. The purpose of the RSP is to achieve
an expeditious and inexpensive determination of the cases the cover, among them,
forcible entry and unlawful detainer. It prohibits motions and pleadings that could cause
delay.

As a rule, an ejectment suit is not abated by a quieting of title filed with the RTC.
Exception:
Ownership as a defense, not a case of.
In an ejectment case, the RTC, except in execution pending appeal, has to remand to
the court of origin for execution of the judgment and cannot issue the writ of execution
itself.
An ejectment case may be initiated to recover an encroachment.

RULE ON SUMMARY PROCEDURE

Counter-affidavit may constitute an ANSWER to the unlawful detainer complaint

Prior possession must be alleged in a forcible entry case. In an action for forcible entry,
two allegations are mandatory for the municipal court to acquire jurisdiction
a.
The plaintiff must allege his prior physical possession of the property
b.
The plaintiff was deprived of his possession through fraud, intimidation, threats,
strategy, and stealth. The action must be filed against the intruder within one year
from illegal entry.

In an action for unlawful detainer, which must be filed within one year from the date
of the last demand, one unlawfully withholds possession of any land or building
after the expiration or termination of his right to hold possession under any
contract, express or implied. The possession by the defendant is originally lawful
but becomes illegal by reason of the termination of his right of possession under his
contract with the plaintiff. It is settled that a complaint for unlawful detainer is sufficient
if it alleges that the withholding of possession or the refusal to vacate is unlawful
without necessarily employing the terminology of the law.
In an action for unlawful detainer, it is settled that one whose stay is merely tolerated
becomes deforciant illegally occupying the land the moment he is required to leave. It
is essential in unlawful detainer cases of this kind, that the plaintiffs supposed acts of
tolerance must have been present right from the start of the possession which is later
sought to be recovered. Defendants entry into the land was effected clandestinely,
without the knowledge of the owners. It is categorized as possession by stealth which
is forcible entry. Tolerance must be present right from the start of the possession
sought to be recovered to categorize a cause of action as one of unlawful detainer not
forcible entry
A certiorari proceedings, although not allowed under the Rules on Summary
Procedure, may be resorted if there is a procedural void created by an unlawful order
of the trial court. In situations wherein a summary proceeding is suspended indefinitely,
a petition for certiorari alleging grave abuse of discretion may be allowed.

RULE 39 ENFORCEMENT OF JUDGMENT


EXECUTION, SATISFACTION EFFECTS
Kinds of Execution
1.

Execution upon final judgment/ final order execution as ma matter of right/


compulsory execution
Before trial only final judgment, except interlocutory order of support
Even if appeal is available to the party
a.
b.

A motion for reconsideration is a prohibited pleading under the Revised Rules on


Summary Procedure. However, this rule applies only where the judgment sought to be
reconsidered is one rendered on the merits after the trial. The order of dismissal issued

Judgment against the defendant under Rule 70 forcible entry and


unlawful detainer
Judgment not stayed by appeal:
1.
Injunctions
2.
Receivership
3.
Accounting
4.
Support

2.

Discretionary execution

A.

Pending appeal (trial court or appellate court)


By motion with notice to the adverse party while trial court has still jurisdiction
(appellate court if jurisdiction is lost), while trial court has possession of the records or
record on appeal, upon good reasons to be stated in a special order.

Requisites for the grant of an execution of a judgment pending appeal


a.
There must be a motion by the prevailing party with notice to the adverse party
b.
There must be a good reason for execution pending appeal; and
c.
The good reason must be stated in the special order
Good reasons for execution
1.
Appeal was for delay (appellate court determines the frivolity of the appeal)
2.
Support is urgent;
3.
Insolvency of the judgment debtor

BUT: Since there is no right to redeem personal property, the rights of ownership are
vested to the purchaser at the foreclosure (or execution) sale and are not entangled in
any suspensive condition that is implicit in a redemptive period.
MODES OF ENFORCING EXECUTION OF A JUDGMENT
a.
b.

An action for revival of judgment may be filed either in the same court where said
judgment was rendered or in the place where the plaintiff or defendant resides, or in
any other place designated by the statutes which treat of the venue of the actions in
general.

Suspension of the five or ten year periods


Period is suspended by agreement of the parties
Institutions of proceedings supplementary to execution
The delay was caused by debtors initiative
The levy was validly made within the 5 year period, the sale may be made even after,
but should not be within the ten year period.
Judgment for support does no prescribe or become dormant, and may be executed by
motion, except as to accrued support (installments) which may prescribe.
Does not apply to special proceedings like land registration cases or the right to ask for
writ of possession
Venue personal action, but if real property is involved, the action should be brought at
the situs of the property.
A judgment is not confined to what appears upon the face of the decision, but also
those necessarily included therein or necessary thereto. Thus, in a land registration
case wherein the ownership was adjudged, we allowed the issuance of a writ of
demolition (to remove improvements existing on the land) for being necessarily
included in the judgment. The delivery of possession of the land should be considered
included in the decision.

But;
a.
b.

Posting a bond is not a good reason to justify execution pending appeal


Only on actual and compensatory damages, but not on award of moral and
exemplary damages

Discretionary execution is permissible only when good reasons exist for immediately
executing the judgment before finality or pending appeal or even before expiration of
the period to appeal.

Good reason imports a superior circumstance that will outweigh injury or damage to
the adverse party.

A corporation which obtained a favorable judgment cannot move for the execution
pending appeal on the ground of impending bankruptcy unlike individuals. Corporation
has other alternative remedies like loans, advances, internal cash generation and the
like to address its precarious financial condition.

Court of Appeals cannot order execution pending appeal of its own decision because it
is not provided in the rules. A judgment of the Court of Appeals cannot be executed
pending appeal. Once final and executor, the judgment must be remanded to the lower
court, where a motion for its execution may be filed only after its entry.

B.

Several, separate and partial judgment if appeal is allowed, execution may issue in
proper cases.

Stay of discretionary execution sufficient supersedeas bond; or a resort to certiorari


under Rule 65.

Effect of reversal of executed judgment restitution or reparation

By motion within 5 years from entry


By independent action after 5 years from entry, but before judgment is barred
by prescription

EXECUTION IN CASE OF DEATH OF PARTY


1.
2.

Death of judgment obligee, upon application of executor/administrator or successor in


interest
Death of judgment obligor if the judgment is for recovery of real/personal property or
enforcement of lien thereon, execution may be enforce against his executor or
administrator or successor in interest
a.

Death of judgment obligor AFTER ACTUAL LEVY upon any of his property, the
same may be sold for the satisfaction of the judgment obligation (NOTE: If death
comes BEFORE LEVY, the judgment is submitted as money claim in the estate)

ISSUANCE, FORM AND CONTENTS OF A WRIT OF EXECUTION


1.
2.

Writ is issued by the Clerk of Court in the name of the court


Form and contents of the writ

Judgment is not confined to what appears on the face of the decision, but extends as
well to those necessarily included therein or necessary thereto

HOW ENFORCE:
a.

Conveyance of property, in lieu of deed, may be ordered by the court


divesting title from one and confer it to the party entitled.

CONTEMPT is not the remedy

Judgment for money

b.

Sale of real property

1.

c.

Delivery or restitution of real property

Immediate payment upon demand


o

Cash certified bank check payable to judgment oblige(not sheriff) or


any other form acceptable to him

Deliver directly to the judgment oblige or his representative if present;


if NOT to the Clerk of Court within the same day

a sheriff is not required to give the judgment debtor some time to


raise cash if time be given, the property may be placed in danger of
being lost or absconded.

2.

3.

The sheriff is required to first demand of the judgment obligor the


immediate payment of the full amount stated in the writ of execution
before a levy can be made. The sheriff shall demand such payment
either in cash, certified bank check or any other mode of payment
acceptable to the judgment obligee.

Satisfaction by levy
o

Judgment obligor has option to choose what to be levied upon

In case the option is not exercised, sheriff to levy personal properties


first then real properties.

Garnishment of debts & credits (not capable of manual delivery) in possession


and control of third parties

Judgment for specific acts


a.

Conveyance. Delivery of deeds, or other specific acts; vesting title


o

o
d.

e.

Act may be done by another party directed by the court if the party
disobeys the judgment

Demand to vacate within 3 working days

o
Place the judgment oblige in possession
Removal of improvements on property subject of execution
o
Shall demolish, destroy, or remove only by SPECIAL ORDER issued
upon motion, due hearing and after reasonable period is given to the
party affected.
o

Demolition may be effected beyond the 5 year period as long as the


notice was served with the 5 year period.

Delivery of personal property

Execution of Special judgments


-

If the judgment obligor cannot pay these methods immediately or at


once, he can exercise his option to choose which of his properties
can be levied upon.

Steps:
a.
Notice
b.
Garnishee submits a report within 5 days stating sufficient credits with him.
If not sufficient, state the amount in his possession.
c.
Notice to deliver to the judgment oblige within 10 days from such notice.
If two or more garnishee holding sufficient credits, the choice belongs to the
obligor if present, if not, the obligee.
b.

Writ of execution with the certified copy of the decision


Failure to obey the judgment is punishable by contempt

Garnishment cannot be used to enforce special judgment.


Garnishment is proper only when the judgment to be enforced is one for payment of a
sum of money

PROPERTIES EXEMPT from EXECUTION


-

Family home/ homestead


Ordinary tools in trade, employment, livelihood
Three horses, cows, carabaos or beast of burden judgment obligor may select
necessarily use in ordinary occupation
Necessary clothing, articles, for ordinary personal use
Household furniture (not exceeding 100k)
Family or individual provisions for 4 months

NOTICE OF SALE ON EXECUTION


o

Posting ( 3 conspicuous public places, preferably, Municipal/city hall,


public market, post office
Personal
+ perishable goods reasonable time

+ others at least 5 days


Real property (20 days posting)
+ publication ( if the assessed value of real property
exceeds P50K); once a week for two consecutive
weeks

Conveyance of personal property and real property (sec. 23, 24, 25)

With written notice to the judgment debtor

REDEMPTION (no redemption in judicial sales of personal property)

The requirements of posting and/or publication are essential to the


validity of the sale

Right of redemption may be conveyed/sold, but cannot be attached by the judgment creditor so as
to deprive the debtor further right over the property.
Who may redeem

PROCEEDINGS PROPERTY IS CLAIMED BY THIRD PERSONS


1.

REMEDIES OF A THIRD PARTY (cumulative)


o
Affidavit of a third party claimant, setting forth the basis of his claim.
The sheriff is not bound to keep the property unless the judgment
oblige posts a bond equal the value of the property.
a.
b.

o
o

If the bond is posted, the sheriff shall not be liable


The husband is a proper third party claimant over a
conjugal property levied upon in a case against the wife

Proceed against the bond within 120 days from filing


Separate action (note: appeal or certiorari cannot be resorted since
third party claimant is stranger to the case; intervention is allowed
only before judgment)

2.

The certificate of sale of real property is merely a memorial of the fact of sale and does
not confer ownership. It is the final deed of sale executed after the lapse of the
redemption period which is effective conveyance of the property.
The remedy against an irregular sale is a motion to vacate the sale in the same court
and in the same case.

Prior filing of terceria or third party claim not necessary in


filing a separate action

In case of redemption by the judgment obligor, no further redemption is allowed.

Proof required of the redemptioner (a copy of the judgment or final order under which
he claims the right to redeem; memorandum of the record if he redeems upon
mortgage)

Income of the property pending redemption belongs to the judgment obligor

Upon expiration of redemption (60 days after last redemption of a redemptioner or one
year from registration of the sale in case of the judgment obligor), conveyance and
possession is given to the redemptioner or purchaser. Possession shall be given
unless a third party is holding the property adversely to the judgment obligor. The rights
over the property retroacts to the date of levy.

REMEDIES OF THE JUDGMENT OBLIGEE


o
Post a bond
o
Sue the third party in the same or separate action a frivolous or
plainly spurious third party claim.

SALE

Judgment obligor or successor in interest


Creditor having a lien by virtue of an attachment, judgment or mortgage,
subsequent to the lien under which the property was sold ( redemptioner )
Redemption period is one year from registration of the sale; if the parties agree on
different period, the legal redemption period is converted into conventional redemption.

A purchaser mortgagor cannot be considered holding the property adversely against


the mortgagor.
SUPPLEMENTAL PROCEEDINGS TO EXECUTION

How the property is sold? Public auction. Who directs the manner and order of sale? Judgment
obligor

A.

Examination of judgment obligor


o
Must be within the city or province where the obligor resides

Refusal of the purchaser to pay (sec.20)

B.

Judgment obligee as purchaser (sec.21)

C.

Examination of the obligor of the judgment obligor


o
Must be within the city or province where the obligor resides
Order of application of property and income to satisfaction of judgment. Order payment
in installments and failure may be punished for indirect contempt (Sec. 40)

Adjournment of sale (sec.22)

D.

Appointment of receiver over property of judgment obligor; or


Forbid a transfer or disposition of, or any interference with, the property of the
judgment obligor not exempt from execution (Sec. 41)

E.

Sale of ascertainable interest of judgment obligor in real estate (Sec. 42)

F.

Proceedings when indebtedness is denied or another person claims the property (Sec.
43)
a.
b.

-authorize creditor to institute action and forbid the transfer of the property
120 days from notice
-if the indebtedness is NOT denied or no person claims the property, then
the remedy is EXECUTION.

SATISFACTION OF JUDGMENT
1)

Upon return of execution satisfied

2)

Filing of admission under Sec. 44 Entry of satisfaction

3)

Upon indorsement of such admission on the face of the record of the judgment

4)

Upon order of the court after notice and motion

-final judgment or order shall be conclusive between the parties and their successor in interest by
title subsequent to the commencement of the action with respect to-matters directly adjudged
-or matter that could have been raised in relation thereto
In any other litigation between the same parties or successor in interest, that only is deemed to
have been adjudged in a former judgment which appears upon its face to have been so adjudged,
or which was actually an necessarily included therein or necessary thereto. (conclusiveness of
judgment; in personam, there may be identity of subject matter, but not cause of action)

Petition to reconstitute a title declared to be void by final


judgment- an example of operation of conclusiveness of
judgment

The principle of res judicata applies when the opportunity


to raise an issue in the first complaint exists but the
plaintiff failed to do so.

Requisites of res judicata

When principal bound by judgment against surety


a.
b.
c.

principal bound by judgment from time he had


notice
if both are sued, the surety may file a cross
claim in the same case
if principal sued only, he has no cause of
action against the surety

1.

Final and executory judgment or order

2.

Jurisdiction over the subject matter and/or parties

3.

Former judgment is on the merits

4.

Identity of-

EFFECTS OF JUDGMENT

-parties,

1). Rendered by Phil. Court with jurisdiction


1)

-subject matter

IN REM Conclusive
-vs. specific thing,
-probate, administration of estate
-in respect to the personal, political or legal condition or status, the
judgment is conclusive upon the title to the thing; the will or
administration; or condition, status;

* BUT only prima facie evidence of the death of the testator or intestateOTHER CASES: (res judicata; inpersonam)

-cause of action
Law of the case-This principle is defined as "a term applied to an established rule that when an
appellate court passes on a question and remands the cause to the lower court for further
proceedings, the question there settled becomes the law of the case upon subsequent appeal."
FOREIGN JUDGMENT
o

Cannot be enforced by execution

Merely creates a right of action

Judgment may be repelled by want of jurisdiction, notice, collusion, fraud or


clear mistake of law or fact.

Effect- in case of judgment against a thing, it is conclusive against the


thing; in case of personal judgment, it is only presumptive evidence of a
right between the parties.

Judgments in forcible entry and unlawful detainer, if against the defendant, may also be
immediately executed upon its rendition on motion of the plaintiff.
A final and executory judgment may be enforced:

RULE 39 EXECUTION, SATISFACTION, AND EFFECTS OF JUDGMENT


What are the two kinds of execution?
a.

Compulsory execution (aka execution as a matter of right) when judgment has


attained finality

b.

Discretionary execution (aka execution pending appeal pr exceptional execution)

GR: Execution may issue only upon judgment or final orders. Interlocutory order cannot be
enforced by execution
XPN: An order for support pendente lite. An order for support pendente lite is an interlocutory
order, but it may be enforced by execution.
What is a final order
A final order is one that disposes of the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to enforce by execution what has been
determined.

a.
b.

The revived judgment may also be enforced by motion within five (5) years from the date of
its entry, and thereafter by action before it is barred by the statute of limitations.
A judge may not order execution of judgment in the decision itself even in cases governed by the
Rules on Summary Procedure.
Although in ejectment cases where the judgment, if against the defendant, is subject to immediate
execution, ther must first be a motion to that effect and a hearing called for that purpose because
the adverse party is entitled to notice before execution can be ordered.
The motion for execution may be filed in the trial court that rendered the judgment meaning the
court of origin.
The judgment obligee must file a motion before the court of origin with notice to the judgment
obligor. The judgment oblige must submit, along with his motion, the following

An interlocutory order is one that does not dispose of a case completely, but leaves
something more to be done upon its merits.
An order denying a motion to dismiss is interlocutory because it does not dispose of the case
completely; hence this order is not appealable. The remedy of the defendant whose motion to
dismiss is denied is to file his answer and go to trial.
An order granting a motion to dismiss is a final order because it puts an end to the case. The
remedy of the plaintiff whose complaint is dismissed is to appeal from the order of dismissal.
Appeal if seasonable taken, shall stay the judgment appealed from although the judgment may
be executed pending appeal if there is a good reason therefor.

By a motion within five (5)days from the date of entry of judgment;


By an action after the lapse of five (5) years from the date of entry of judgment but
before it is barred by the statute of limitations ( meaning within the next five years).
This action is known as action to revive judgment.

a.
b.

Certified true copy of the judgment or final order sought to be enforced


Entry of judgment or final order.

After a judgment has become final, it is the ministerial duty of the court to issue the writ of
execution.
If the judgment, however, was appealed to the appellate court, and the appeal has been finally
resolved, but the trial court refuses to issue the writ of execution, then the remedy of the judgment
oblige is to file a motion (not mandamus) with the appellate court and in the same case for an
order directing the trial court to issue the writ of execution.
The five year period to file a motion for execution of judgment may be interrupted by agreement of
the parties to defer or suspend enforcement of the judgment.

But judgments in actions for:


Requisites of execution pending appeal
a.
b.
c.
d.

Injunction
Receivership
Accounting; and
Support

are immediately executor and shall be enforceable upon their rendition, hence not stayed by
appeal.

a.
b.
c.

There must be a motion by the prevailing party with notice to the adverse party;
There must be good reason for execution pending appeal; and
The good reason must be stated in the special order.

A motion for execution pending appeal should be filed in the trial court while it has jurisdiction over
the case and is in possession of the original record or the record on appeal at the time of the filing
of the motion.

After the trial has lost its jurisdiction over the case, the motion for execution pending appeal should
be filed in the appellate court.
But even if the trial court has already lost its jurisdiction over the case, it may still order execution
pending appeal prior to the transmission of the original record or record on appeal to the appellate
court.
Whether it is the trial court or the appellate court that orders execution pending appeal,
discretionary execution may only issue upon good reasons to be stated in a special order.
May execution pending appeal be stayed? How?
Yes, it may be stayed. The party against whom the execution pending appeal is
directed shall file a supersedeas bond. And if the supersedeas bond is approved by the court, then
the execution pending appeal may be stayed.
Certiorari is the remedy against an order granting execution pending appeal where the same is not
founded upon good reasons. Appeal is not a speedy and adequate remedy that can relieve the
losing party from immediate effects of an improvident execution pending appeal.
The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a
party from making use of the extraordinary remedy of certiorari where appeal is not an adequate
remedy or equally beneficial or sufficient.
Where the reasons given for the execution pending appeal is that the appeal is frivolous and
dilatory, execution pending appeal cannot be justified.
Awards for moral and exemplary damages cannot be the subject of execution pending appeal.
It has been held that even the danger of extinction of the corporation will not per se justify a
discretionary execution unless there are showing of other good reasons.
The filing of the bond is not a good reason for ordering execution pending appeal.
How may execution be enforce in case of death of a party?
a.
b.

c.

Where it is the judgment obligee who dies, execution may be enforced upon the
application of his executor or administrator or successor in interest;
Where the judgment obligor who dies, execution may be enforced against his executor
or administrator or successor in interest, if the judgment be for the recovery of real or
personal property, or the enforcement of a lien thereon;
Where the judgment obligor dies after execution is actually levied upon his property,
the same may be sold for the satisfaction of the judgment obligation.

b.
c.
d.

If a bond has been filed by the judgment oblige, the third party claimant may file an
action against the bond within 120 days from the date of the filing of said bond
He may institute a separate action to vindicate his claim to the property;
In preliminary attachment or replevin, he may also intervene in the action. Intervention
in no longer available in execution because intervention may be resorted to only before
rendition of judgment by the trial court.

There is no right of redemption if what is sold on execution is a personal property.


If what is sold is a real property, there is a right of redemption which must be exercised within one
year from the date of registration of the certificate of sale.
Who can redeem a real property sold on an execution sale?
a.
b.

Judgment obligor
Redemptioner

If one who redeems is a redemptioner, there can be further redemption from him which
means that the property so redeemed may again be redeemed. But if the one who redeems
is the judgment obligor himself, there can be no further redemption from him.
The right of redemption must be exercised within one year from the date of the registration of
the certificate of sale. But if a redemptioner redeems from another redemptioner, he must do
so within 60 days after the last redemption.
A redemptioner is a creditor having lien by virtue of an attachment, judgment, or mortgage on the
property sol, or on some part thereof, subsequent to the lien under which the property was sold.
Where there is more property of the judgment obligor than is sufficient to satisfy the judgment and
lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the
judgment and lawful fees.
When the sale is of real property, consisting of several known lots, they must be sold
separately.
All rents, earnings, and income derived from the property during the period of redemption shall
belong to the judgment obligor until the expiration of his period of redemption.
During the period of redemption, the judgment obligor is entitled to the possession of the property
and is not required to pay rent to the purchaser.
Steps in execution of judgment or final order that has already become final and
executor

Remedies of a third party claimant


a.

He may file a third party claim

a.

Judgment oblige files a motion for execution with the trial court

b.

Trial court issues order of execution;

c.

Clerk of Court issues writ of execution

d.

Sheriff or officer enforces writ of execution by levying on judgment obligors property

e.

h.

Certificate of sale (if subject of the sale is real property) is registered with the Registry
of Deeds

Sheriff or officer causes posting and publication of notice of sale and gives copy
thereof to the judgment obligor

i.

Judgment obligor or redemptioner redeems the property within one year from the date
of the registration of the certificate of sale;

f.

Sheriff or officer conducts execution sale on the date, time, and place stated in the
notice

j.

g.

Sheriff or officer issues certificate of sale to the purchaser

If no redemption is made within the one year period aforesaid, sheriff or officer issues
final certificate of sale; purchaser becomes entitled to conveyance and possession of
the property.