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San Beda College of Law

10

MEMORY AID

IN

REMEDIAL LAW

CIVIL PROCEDURE

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


11

MEMORY AID

RULE 1

IN

REMEDIAL LAW

CLASSIFICATION OF ACTIONS.

GENERAL PROVISIONS

Statutes regulating the procedure of


courts will be construed as applicable to
actions pending and undetermined at the
time of their passage so long as vested
rights will not be impaired.

(A)

ORDINARY CIVIL
ACTION

SPECIAL CIVIL
ACTION

Governed by ordinary
rules

Also governed by
ordinary rules but
SUBJECT to specific
rules prescribed (Rules
62 to 71).

Under the 1987 Constitution, the rulemaking power of the Supreme Court has
the following limitations:
1. shall provide a simplified and
inexpensive procedure for the
speedy disposition of cases;
2. Uniform for all courts of the
same grade, and
3. Shall not diminish, increase or
modify substantive rights (Art.
VIII Sec. 5[5]).

Formal demand of
Special features not
ones legal rights in a found in ordinary civil
court of justice in the
actions
manner prescribed by
the court or by the
law

Section 3. Cases governed.

ACTION

CLAIM

(B)
An ordinary suit in a
court of justice

A right possessed by
one against another

One party prosecutes


The moment said
another for the
claim is filed before a
enforcement or
court, the claim is
protection of a right
converted into an
or the prevention or
action or suit.
redress of a wrong.

REMEDIAL LAW COMMITTEE

ACTION IN
REM

ACTION IN
PERSONAM

ACTION
QUASI IN
REM

Directed
against the
thing itself

Directed
against
particular
persons

Directed
against
particular
persons

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


12

MEMORY AID

Judgment is Judgment is
Judgment
binding on the binding only binding upon
whole world upon parties
particular
impleaded or persons, but
their
the real motive
successors in is to deal with
interest
real property
or to subject
said property
to certain
claims.

Ex. Land
Ex. action to Ex. Unlawful
registration
recover
detainer or
case; probate
damages;
forcible entry;
proceedings
action for
judicial
for allowance
breach of
foreclosure of
of a will.
contract
mortgage.

The
distinction
determining the
judgment.

is
important
in
EFFECT of the

IN

The distinction is significant in the


determination of venue. With respect to
mixed actions, the rules on venue of real
actions shall govern, i.e., where the real
property is located.

(D)

LOCAL ACTION

TRANSITORY
ACTION

Must be brought in a
particular place, in
the absence of an
agreement to the
contrary

Generally, must be
brought where the
party resides
regardless of where
the cause of action
arose

Ex. Action to recover


real property

Ex. Action to recover


sum of money

(C)

REAL
ACTION

PERSONAL
ACTION

MIXED
ACTION

Ownership or personal property is Both real and


possession of
sought to be
personal
real property is recovered or where properties are
involved
damages for breach
involved
of contract are
sought

Founded on
privity of
estate

Founded on privity
of contract

ex. Accion
Ex. Action for a sum
reinvidicatoria
of money

Founded on
both

ex. Accion
publiciana
with a claim
for damages

REMEDIAL LAW

Section 5. Commencement of action.

An action is commenced by:


1. filing of the complaint (the date of
the filing determines whether or not
the action has already prescribed);
and
2. payment of the requisite docket fees
(determined on the basis of the
amount of the claim including the
damages indicated in body or the
prayer of the pleading)
It is not simply the filing of the

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


13

MEMORY AID
complaint or the appropriate initiatory
pleading but also the payment of the
prescribed docket fee that vests a trial
court with jurisdiction over the subject
matter or nature of the action.
The court may allow the payment of the
deficient docket fee within a reasonable
period but not beyond the applicable
prescriptive or reglementary period.

An action can be commenced by filing


the complaint by registered mail. In
which case, it is the date of mailing that
is considered as the date of filing, and
not the date of the receipt thereof by
the clerk of court.

The date of the filing of an amended


complaint joining additional defendant is
the date of the commencement of the
action with regard to such additional
defendant.

IN

REMEDIAL LAW

RULE 2
CAUSE OF ACTION
Section 2. Cause of Action, defined.
Essential elements of cause of action
1. Existence of a legal right of the
plaintiff;
2. Correlative legal duty of the
defendant to respect ones right;
3. Act or omission of the defendant
in violation of the plaintiffs
legal right; and
4. Compliance with a condition
precedent.

CAUSE OF ACTION

RIGHT OF ACTION

delict or wrongful act remedial right or right


or omission committed to relief granted by
by the defendant in
law to a party to
violation of the
institute an action
primary rights of the against a person who
plaintiff
has committed a
delict or wrong
against him

The reason for the


action

the remedy or means


afforded or the
consequent relief

the formal statement


of alleged facts

right that is given


the right to litigate
because of the

Section 6. Construction.

occurrence of the
alleged facts

General Rule: Liberal construction .


Exceptions:
a. reglementary periods

Determined by facts
as alleged in the
complaint and not the
prayer therein

determined by
substantive law

b. rule on forum shopping

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


14

MEMORY AID
RELIEF

REMEDY

SUBJECT
MATTER

the redress,
the
the thing,
protection,
procedure or wrongful act,
award or
type of
contract or
coercive
action which
property
measure which
may be
which is

IN

REMEDIAL LAW

Applies NOT only to complaints but also


to counterclaims and crossclaims.

Remedy against splitting a single cause


of action:
A. Motion to dismiss on the ground of:
Litis pendentia, if the first
complaint is still pending (Rule
16, Sec. 1[e]); or
Res judicata, if any of the
complaints is terminated by final
judgment (Rule 16, Sec. 1[f])
B. An answer alleging either of the
above-cited grounds as affirmative
defense (Rule 16, Sec. 6)
General Rule on Divisible Contract

the plaintiff
prays the court
to render in his
favor as a
consequence of
the delict
committed by
the defendant

availed of by
directly
the plaintiff involved in the
as the means
action,
to obtain the concerning
desired
which the
relief
wrong has
been done and
with respect
to which the
controversy
has arisen.

Section 4. Splitting a single cause of


action, effect of.

SPLITTING OF CAUSE OF ACTION is the


practice of dividing one cause of action
into different parts and making each
part subject of a separate complaint.

REMEDIAL LAW COMMITTEE

A contract to do several things at several


times is divisible, and judgment for a
single breach of a continuing contract is
not a bar to a suit for a subsequent
breach.

Doctrine of Anticipatory Breach


Even if the contract is divisible in its
performance and the future periodic
deliveries are not yet due, if the obligor
has already manifested his refusal to
comply with his future periodic
obligations, the contract is entire and
the breach total, hence there can only
be one action for damages (Blossom &
Co. vs. Manila Gas Corp., 55 Phil. 226)

Section 5. Joinder of causes of action.


Rule in this section is PERMISSIVE and the
plaintiff can always file a separate
action for each cause of action.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


15

MEMORY AID
Par. (a): The joinder of causes of action
may involve the same or different
parties. If the joinder involved different
parties, it must comply with Sec. 6 Rule
3, thus, there must be a question of fact
or law common to both parties joined
arising out of the same or series of
transactions.

IN

PROHIBITED. Causes
multiplicity of suits
and double vexation
on the part of the
defendant

REMEDIAL LAW
ENCOURAGED.
Minimizes multiplicity
of suits and
inconvenience on the
parties

Par. (b) requires that: only causes of


action in ordinary civil actions may be
joined, obviously because they are
subject to the same rules.

Section 6. Misjoinder of causes of


action.

Par. (c) As long as one cause of action


falls within the jurisdiction of the RTC,
the case can be filed there even if the
MTC has jurisdiction over the others.

There is no sanction against non-joinder


of separate causes of action since a
plaintiff needs only a single cause of
action to maintain an action.

Pars. (d) embodies the TOTALITY RULE

RULE 3

Section 33 BP129, as amended by RA


7691 - Where there are several claims or
causes of actions between the same or
different parties, embodied in the same
complaint, the amount of the demand
shall be the totality of the claims in all
the causes of actions, irrespective of
whether the causes of action arose out
of the same or different transactions.

Not a ground for dismissal of an action. A


misjoined cause of action may be
severed and proceeded with separately.

PARTIES TO CIVIL ACTIONS

Section 1. Who may


plaintiff and defendant.

be

parties;

REQUIREMENTS FOR A PERSON TO BE A


PARTY TO A CIVIL ACTION:
SPLITTING OF
JOINDER OF
CAUSE OF ACTION CAUSES OF ACTION

There is a single cause Contemplates several


of action
causes of action

REMEDIAL LAW COMMITTEE

1. he must be a natural or juridical


person or an entity authorized by
law;
2. he must have a legal capacity to sue;
and
3. he must be the real party in interest.

PLAINTIFFS- Those having an interest in


the subject matter of the action or in
obtaining the relief demanded.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


16

MEMORY AID
DEFENDANTS:

IN

REMEDIAL LAW

allowed to be prosecuted or defended by


a representative.

1. persons who claim an interest in the


controversy or the subject thereof
adverse to the plaintiff; or
CLASSIFICATION
INTEREST

OF

PARTIES

IN

2. who are necessary to a complete


determination or settlement of the
questions involved therein; or

1. Indispensable parties those without


whom no final determination can be had
of an action. (must be joined)

3. all those who ordinarily should be


joined as plaintiffs but who do not
consent
thereto,
the
reason
therefore being stated in the
complaint.

2. Necessary (or proper) parties those


who are not indispensable but ought to
be parties if complete relief is to be
accorded as to those already parties, or
for a complete determination or
settlement of the claim subject of the
action. (may or may not be joined)

Neither a dead person nor his estate may


be a party plaintiff in a court action
Considering that capacity to be sued is
correlative of the capacity to sue, to the
same extent, a decedent does not have
the capacity to be sued and may not be
named a party defendant in a court
action (Ventura vs. Militante 316 SCRA
226).

3. Representative parties someone


acting in fiduciary capacity. Maybe a
trustee,
guardian,
executor
or
administrator, or a party authorized by
law or these Rules.

Section 3. Representatives as parties.

An agent acting in his own name and for


the benefit of an undisclosed principal
may sue or be sued without joining the
principal except when the contract
involves things belonging to the principal

REAL PARTY IN INTEREST the party


who stands to be benefited in the suit or
the party entitled to the avails of the
suit.

Impleading the beneficiary as a party in


the suit is now mandatory, in cases

REMEDIAL LAW COMMITTEE

4. Pro forma parties those who are


required to be joined as co-parties in
suits by or against another party as may
be
provided
by
the
applicable
substantive law or procedural rule such
as in the case of spouses under Sec. 4.

5. Quasi parties those in whose behalf


a class or representative suit is brought.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


17

MEMORY AID
Section 5.
persons.

Minor

or

The suit can be brought by or against the


minor or incompetent person personally
BUT with the assistance of his parents or
guardian.

6.

Permissive

REMEDIAL LAW

incompetent

Under the present rule, a person need


not be judicially declared to be
incompetent in order that the court may
appoint a guardian ad litem. It is enough
that he be alleged to be incompetent.

Section
parties.

IN

joinder

of

PERMISSIVE JOINDER the aggregate


sum of all the claims, determines the
jurisdiction of the court.

Requisites of permissive joinder of


parties.
1. Right to relief arises out of the same
transaction or series of transactions;

INDISPENSABLE
PARTIES

NECESSARY
PARTIES

The action cannot


proceed unless they
are joined

The action can


proceed even in the
absence of some
necessary parties

No valid judgment if
indispensable party is
not joined

The case may be


determined in court
but the judgment
therein will not
resolve the entire
controversy if a
necessary party is not
joined

They are those with They are those whose


such an interest in the presence is necessary
controversy that a
to adjudicate the
final decree would whole controversy but
necessarily affect their whose interests are so
rights so that the court far separable that a
cannot proceed
final decree can be
without their presence made in their absence
without affecting
them

2. There is a question of law or fact


common to all the plaintiffs or
defendants; and
3. Such joinder is not otherwise
proscribed by the provisions of the
Rules on jurisdiction and venue.

JOINT DEBTORS indispensable party


with respect to own share and a
necessary party with respect to the
share of the others.

SERIES OF TRANSACTIONS transactions


connected with the same subject of the
action.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


18

MEMORY AID
SOLIDARY
DEBTORS either is
indispensable and the other is not even a
necessary party because complete relief
may be obtained from either.

Section 9. Non-joinder of necessary


parties to be pleaded.

The non-inclusion of a necessary party


may be excused only on meritorious
grounds.

IN

REMEDIAL LAW

moment such defect becomes apparent


by a MOTION TO STRIKE THE NAMES OF
THE PARTIES impleaded.

If there is misjoinder, a separate action


should be brought against the party
misjoined.

The absence of an indispensable party


renders all subsequent actions of the
court null and void for want of authority
to act, not only as to the absent parties
but even as to those present.

The court may order the inclusion of the


omitted necessary party if jurisdiction
over his person may be obtained by
ordering plaintiff to file an amended
complaint impleading the necessary
party therein as co-defendant.

The only sanction for failure to implead


a necessary party when ordered by the
court and jurisdiction can be obtained
over said party is a waiver of the claim
against him. This is considered as an
exception to the provision on penalties
imposed on a disobedient party under
Sec. 3 of Rule 17 which would have
entailed the dismissal of the complaint
itself.

Section 11. Misjoinder and non-joinder


of parties.

Neither misjoinder nor non-joinder of


parties is a ground for dismissal of the
action.

Objections to defects in parties should


be made at the earliest opportunity the
REMEDIAL LAW COMMITTEE

Section 12. Class suit.

REQUISITES
OF
/REPRESENTATIVE SUIT.

CLASS

1. subject
matter
of
the
controversy is one of common or
general
interest
to
many
persons;
2. parties affected are so numerous
that it is impracticable to bring
them all before the court;
3. parties bringing the class suit are
sufficiently
numerous
or
representative of the class and
can fully protect the interests of
all concerned.

Class Suit

Permissive Joinder

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


19

MEMORY AID

IN

REMEDIAL LAW

of Parties

There is one single


cause of action
pertaining to
numerous persons

There are multiple


causes of action
separately belonging
to several persons.

Section 14. Unknown identity or name


of defendant.

Section 15. Entity without juridical


personality as defendant.

They may be sued under the name by


which they are generally known, but
they cannot sue under such name for
lack of juridical personality.

Requisites:
1. there is a defendant
2. his identity or name is unknown
3. fictitious name may be used
because
of
ignorance
of
defendants true name and said
ignorance is alleged in the
complaint
4. identifying description may be
used: sued as unknown owner,
heir,
devisee,
or
other
designation
5. amendment to the pleading
when identity or true name is
discovered
6. defendant is the
being sued, not
additional defendant

defendant
a mere

Service of summons upon a defendant


whose identity is unknown may be made
by publication in a newspaper of general
circulation in accordance with Section 14
of Rule 14.

The service of summons may be effected


upon all the defendants by serving upon
any of them, or upon the person in
charge of the office or place of business
maintained under such name. (Sec. 8,
Rule 14)

INSTANCES WHERE SUBSTITUTION OF


PARTIES IS PROPER:

A. Death of party; duty of counsel (Sec.


16)
This provision applies where the claim is
not thereby extinguished as in cases
involving property and property rights
such as:
1. recovery of real and personal
property against the estate.
2. enforcement of liens on such
properties
3. recovery for an injury to person
or property by reason of tort or
delict
committed
by
the
deceased.

In this case, the heirs will be substituted


for the deceased OR if no legal
representative is named then the court
will order the opposing party to procure
the appointment of an executor or

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


20

MEMORY AID

IN

REMEDIAL LAW

administrator for the estate of the


deceased.

C. Supervening Incompetence
incapacity of a party (Sec. 18)

In case of minor heirs, the court may


appoint a guardian ad litem for them.

The action shall continue to be


prosecuted by or against him, personally
or assisted by the corresponding
guardian.

The substitute defendant need not be


summoned.
The
ORDER
OF
SUBSTITUTION shall be served upon the
parties substituted for the court to
acquire jurisdiction over the substitute
party

If there is failure to notify the fact of


death: the case may continue and
proceedings will be held valid, and
judgment will bind the successors in
interest.

B. Death or separation of a party who


is a public officer (Sec. 17)

D.

or

Transfer of interest (Sec. 19)

Substitution of parties in this section is


NOT mandatory, it being permissible to
continue the action by or against the
original party in case of transfer of
interest pendente lite. Unless the
substitution by or the joinder of the
transferee is required by the court,
failure to do so does not warrant the
dismissal of the case. A transferee
pendente lite is a proper, and not an
indispensable party.

The case will be dismissed if the interest


of plaintiff is transferred to defendant
UNLESS there are several plaintiffs, in
which case, the remaining plaintiffs can
proceed with their own cause of action.

Section 20. Action


money claims.

on

contractual

Requisites:
The action may be maintained by and
against his successor.

1. The action must primarily be for


recovery of money, debt, or
interest thereon, and not where
the money sought therein is
merely incidental thereto.

The action contemplated here is one


brought against the public officer in his
official capacity.
2. The claim, subject of the action,
arose from a contract, express or
implied, entered into by the
decedent in his lifetime or the

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


21

MEMORY AID
liability for which had been
assumed by or is imputable to
him.

If defendant dies before entry of final


judgment in the court where it was
pending at that time, the action shall
not be dismissed but shall be allowed to
continue until entry of final judgment
thereon.

However, execution shall not issue in


favor of the winning party. It should be
filed as a claim against the estate of the
decedent.

While the authority to litigate as


an indigent party may be granted upon
an ex parte application and hearing, it
may be contested by the adverse party
at any time before judgment is
rendered.

REMEDIAL LAW

VENUE the place where an action must


be instituted and tried.

VENUE

JURISDICTION

Place where the action Power of the court to


is instituted
hear and decide a case

May be waived

Jurisdiction over the


subject matter and
over the nature of the
action is conferred by
law and cannot be
waived

Procedural

Substantive

Section 21. Indigent party.

Indigent one who has no property or


income sufficient for his support aside
from his labor, even if he is selfsupporting when able to work and in
employment. He need not be a pauper
to entitle him to litigate in forma
pauperis.

IN

May be changed by the Cannot be the subject


written agreement of
of the agreement of
the parties
the parties

The rule on VENUE IS NOT APPLICABLE


in cases
1) Where a specific rule or law
provides otherwise; or

RULE 4
VENUE OF ACTIONS

REMEDIAL LAW COMMITTEE

2) The parties have validly agreed


in writing before the filing of the
action on the exclusive venue
thereof (Sec. 4).

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


22

MEMORY AID

IN

REMEDIAL LAW

Requisites for venue to be exclusive


1. A valid written agreement
2. Executed by the parties before
the filing of the action; and
3. Exclusive nature of the venue.

In the absence of qualifying or restrictive


words, venue stipulation is merely
permissive meaning that the stipulated
venue is in addition to the venue
provided for in the rule (Polytrade Corp.
vs. Blanco 30 SCRA 187)

Section 1. Venue of real actions.

If property is located at the boundaries


of two places: file one case in either
place at the option of the plaintiff.

If case involves two properties located


in two different places:
1. If the properties are the object
of the same transaction, file it in
any of the two places.
2. If they are the subjects of two
distinct transactions, separate
actions should be filed in each
place unless properly joined.

Section 2. Venue of personal actions.


RESIDENCE the place where the party
actually resides with continuity and
consistency, whether permanent or
temporary, at the time the action is
instituted.

REMEDIAL LAW COMMITTEE

Means of waiving venue:


1. failure to object via motion to
dismiss
2. affirmative relief sought in the
court where the case is filed
3. voluntary submission to the
court where the case is filed
4. laches

Section 3. Venue of actions against


non-residents.

RULES
1. NON-RESIDENT FOUND IN THE
PHIL.
a. for personal actions
where
the
plaintiff
resides; and

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


23

MEMORY AID

IN

REMEDIAL LAW

b. for real actions where


the property is located.
2. NON RESIDENT NOT FOUND IN
THE PHIL.
An action may be filed only
when the case involves:
a. Personal
status
of
plaintiff venue: where
plaintiff resides;
b. Any property of said
defendant located in the
Phil. venue: where the
property or any portion
thereof is situated or
found.

The Supreme Court has the power to


order a change of venue to prevent a
miscarriage of justice.

Dismissal of Action for Improper Venue


The court may not motu propio dismiss a
complaint on the ground of improper
venue. An exception is provided in
Section 4 of the Revised Rule on
Summary Procedure.

RULES ON SUMMARY PROCEDURE


SUMMARY PROCEDURE IN CIVIL CASES

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


24

MEMORY AID

REMEDIAL LAW COMMITTEE

IN

REMEDIAL LAW

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


25

MEMORY AID

IN

REMEDIAL LAW

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

Filing of verified

court may summon the defendant

court may dismiss the case

San Beda College of Law


26

MEMORY AID IN REMEDIAL LAW


W/in 10 days from receipt of summons, defendant answers, incoporating compulsory
If Defendant
counterclaim
fails tooranswer
crosscla
in
The court, motu propio or on plaintiffs motion, may render judgment ba
6. Memoranda
R9, S3 (c)
7. Petition
for
certiorari,
mandamus,
or
prohibition
against any interlocutory order
issued by the court
8. Motion to declare defendant in
default
9. Dilatory
motions
postponement

for

If plaintiff fails
to appear
in prelim conference,
complaint
be dismissed. Defenda
Answer
to counterclaim
and crossclaim
w/in 10may
days

10. Reply
11. Third party complaints
Preliminary conference w/in 30 days after last answer is filed

12. Interventions
The Court should not dismiss the
complaint or counterclaim if they are
not verified. The requirement is merely
a formal one, and not jurisdictional. It
should therefore simply direct the party
concerned to have it verified.

PROHIBITED PLEADINGS / MOTIONS


UNDER THE RULE ON SUMMARY
PROCEDURE.

If sole defendant fails to appear, plaintiff entitled to judgment

The filing of a prohibited pleading will


W/in 5 the
days after
conference,
courtan
issues
record of preliminary
not suspend
period
to file
answer
conference
or to appeal.

Although a motion to dismiss is a

W/in prohibited
10 days from receipt
of order, submission
the parties
pleading,
its filingbyafter
theof affidavits and position papers

answer had already been submitted does


not constitute a pleading prohibited by
the summary rules. What the rules
proscribe is a motion to dismiss that
would stop the running of the period to
file an answer and cause undue delay.

1. Motion to dismiss the complaint


or to quash the complaint or
information except on the
ground of lack of jurisdiction
Rendition of judgment w/in 30 days from receipt of last affidavit, or w/in 15 days after last clarifica
over the subject matter or
failure to comply with prior
barangay conciliation (referral to
While a motion to declare the defendant
the Lupon)
in default is prohibited by the rules on
summary procedure, the plaintiff may
2. Motion for a bill of particulars
nevertheless file a motion to render
judgment as may be warranted when the
3. Motion for a new trial or for
defendant fails to file an answer.
reconsideration of a judgment or
for reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to
file pleadings, affidavits, or any
other paper

REMEDIAL LAW COMMITTEE

The issuance of the pre-trial order is an


important part of the summary
procedure because it is its receipt by the
parties that begins the ten-day period to
submit the affidavits and other
evidence.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


27

MEMORY AID

IN

repudiated
thereto.

REMEDIAL LAW
by

the

parties

TRIAL PROCEDURE IN CIVIL CASES

No trial date is set. No testimonial


evidence
is required
nor crossexamination of witnesses allowed. All
that is required is that within (10) days
from receipt by the parties of the courts
pre-trial order, they shall submit (1) the
affidavits of their witnesses (2) and
other evidence on the factual issues set
forth in the pre-trial order, Together
with their position papers setting forth
the law and the facts relied upon by
them.

Judgments of inferior courts in cases


governed by summary procedure are
appealable to the RTC.

The decision of the RTC in civil cases


under this rule, including ejectment
cases, are IMMEDIATELY executory.

KATARUNGANG PAMBARANGAY LAW


(Title One, Book III, RA 7160)

No complaint, petition, action, or


proceeding involving any matter within
the authority of the lupon shall be filed
or instituted directly in court or any
other government office for adjudication
UNLESS
1.

there has been a confrontation


between the parties before the
lupon chairman or pangkat, AND

2.

that
no
conciliation
or
settlement has been reached OR
unless the settlement has been

REMEDIAL LAW COMMITTEE

CASES
NOT
COVERED
BY
THE
KATARUNGANG PAMBARANGAY LAW:

1. Where one party is the


government or any subdivision or
instrumentality thereof;
2. Where one party is a public
officer or employee, and the
dispute
relates
to
the
performance of his official
functions;
3. Offenses
punishable
by
imprisonment exceeding 1 year
or a fine exceeding P5,000.00;
4. Offenses where there
private offended party;

is

no

5. Where the dispute involves real


properties located in different
cities or municipalities UNLESS
the parties thereto agree to
submit their differences to
amicable settlement by an
appropriate lupon;
6. Disputes involving parties who
actually reside in barangays of
different cities or municipalities,
EXCEPT where such barangay
units adjoin each other and the
parties thereto agree to submit
their differences to amicable
settlement by an appropriate
lupon;

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


28

MEMORY AID
7. Such other classes of disputes
which
the
President
may
determine in the interest of
justice.

However, the court may, at any time


before trial, motu proprio refer the case
to the lupon concerned for amicable
settlement, non criminal cases not
falling within the authority of the latter.

While the dispute is under mediation,


conciliation,
or
arbitration,
the
prescriptive periods for offenses and
cause of action under existing laws shall
be interrupted upon filing of the
complaint with the punong barangay.

4.

IN

REMEDIAL LAW

Where the action may otherwise


be barred by the statute of
limitations.

The parties may, at any stage of the


proceedings, agree in writing to have the
matter in dispute decided by arbitration
by either the Punong Barangay or
Pangkat. In such case, arbitrational
hearings
shall
follow
order
of
adjudicative trials.

The
settlement
and
arbitration
agreement may be repudiated on the
ground that consent is vitiated by fraud,
violence,
or
intimidation.
Such
repudiation shall be sufficient basis for
the issuance of the certification for filing
a complaint in court or any government
office for adjudication.

RULES
ON
VENUE
UNDER
THE
KATARUNGANG PAMBARANGAY LAW

THE PARTIES MAY GO DIRECTLY TO


COURT IN THE FOLLOWING INSTANCES:
1.

Where the accused is under


detention;

2.

Where the person has otherwise


been deprived of personal
liberty calling for habeas corpus
proceeding;

3.

Where the actions are coupled


with provisional remedies such
as
preliminary
injunction,
attachment,
delivery
of
personal property, and support
pendente lite; and

REMEDIAL LAW COMMITTEE

1. Disputes between residents of


the same barangay shall be
brought for settlement before
lupon of said barangay
2. Residents of different barangays
within the same city or
municipality in the barangay
where the respondent or any of
the respondents reside at the
election of the complainant
3. Disputes involving real property
or any interest therein- where
real property or larger portion
thereof is situated

4. Disputes
arising
at
the
WORKPLACE
where
the
contending parties are employed
or at the INSTITUTION where
such parties are enrolled for

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


29

MEMORY AID

IN

study in the barangay where


such workplace or institution
located.

REMEDIAL LAW
in a case already filed
in court

CHART ON KATARUNGANG PAMBARANGAY, SEE PAGE


22.

Always filed before


judgment

PROCEDURE IN REGIONAL TRIAL


COURTS

RULE 6
KINDS OF PLEADINGS

May be filed even


after judgment

Section 3. Complaint.
COMPLAINT is a concise statement of
the ultimate facts constituting the
plaintiffs cause or causes of action, with

Section 1. Pleadings defined.


PLEADINGS the written allegations of
the parties of their respective claims and
defenses submitted to the court for
appropriate judgment.

A motion to dismiss is NOT a pleading.


It is the allegations or averments in the
pleading that determines the jurisdiction
of the court and the nature of the
action.

PLEADING

MOTION

a specification of the relief sought, but


it may add a general prayer for such
further relief as may be deemed just or
equitable.

ULTIMATE FACTS - essential facts


constituting the plaintiffs cause of
action.

What are NOT ultimate facts:


It relates to the cause An application for an
of action; interested order not included in
in the matters to be
the judgment
included in the
judgment.

May be initiatory

Cannot be initiatory as
they are always made

REMEDIAL LAW COMMITTEE

1. Evidentiary or immaterial facts.

2. Legal conclusions, conclusions or


inferences of facts from facts
not
stated,
or
incorrect
inferences or conclusions from
facts stated.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


30

MEMORY AID

IN

REMEDIAL LAW

3. The details of probative matter


or particulars of evidence,
statements of law, inferences
and arguments.

4. An allegation that a contract is


valid or void is a mere conclusion
of law.

TEST OF SUFFICIENCY: if upon


admission or proof of the facts being
alleged, a judgment may be properly
given. A fact is essential if it cannot be
stricken out without leaving the
statement of the cause of action
insufficient.

Section 4. Answer

ANSWER the pleading where the


defendant sets forth his affirmative or
negative defenses.

2 kinds of defenses that may be set


forth in the answer:
a. AFFIRMATIVE DEFENSES allegation
of a new matter which while
hypothetically
admitting
the
material allegations in the pleading,
would nevertheless prevent or bar
recovery by him. It is in the nature
of Confession and Avoidance
b. NEGATIVE DEFENSES specific
denial of the material facts or facts
alleged in the pleading
Insufficient denial or denial amounting
to admissions:
1. General denial
2. Denial in the form of a
negative pregnant
Section 6. Counterclaim
COUNTERCLAIM any claim which a
defending party may have against an
opposing party.
Nature of counterclaim: A counterclaim
is in the nature of a cross-complaint.
Although it may be alleged in the
answer, it is not part of the answer. Upon
its filing, the same proceedings are had
as in the original complaint. For this
reason, it must be answered within ten
(10) days from service.
Section 7. Compulsory Counterclaim
RULES ON COUNTERCLAIM
A counterclaim before the MTC must be
within the jurisdiction of said court,
both as to the amount and nature
thereof (De Chua vs. IAC).

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


31

MEMORY AID

IN

REMEDIAL LAW

Filing of complaint w/ the Punong Barangay (PB)

KATARUNGANG PAMBARANGAY PROCEDURE


W/in the next working day

At any time during the


Proceedings

Issuance of summons to the parties and the witnesses

Parties agree to submit the dispute for arbitration

Arbitration Hearings
Mediation (hearing)

Settlement

Failure of mediation efforts

Execution w/in 6Repudiation


months from
ofdate
arbitration
thereof
agreement
within
5 days
fromof
date
agreement
Award
to be made
after
the lapse
theofperiod
to repudiate an
Constitution of the Pangkat

Pangkat convenes not later than 3 days from its constitution and summons the parties

Execution w/in 6 months from the date of

Pangkat must arrive at a settlement w/in 15 days from the day it convenes

Conciliation (hearing)

Repudiation of settlement w/in 10 days from date thereof


Settlement
Note: Repudiation shall only be allowed on ground of vitiation of consent by fraud, violence or int
Failure of Conciliation hearings at the Pangkat Level and of Arbitration hearings shall also lead to
Execution w/in 6 months from the date of settlement
REMEDIAL LAW COMMITTEE

ISSUANCE OF CERTIFICATION FOR FILING OF A COMPLAINT IN COURT

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


32

MEMORY AID

IN

REMEDIAL LAW

MTC is to set off the claims and file a


separate action to collect the balance.

COMPULSORY
COUNTERCLAIM

PERMISSIVE
COUNTERCLAIM

One which arises out It does not arise out of


of or is necessarily
nor is it necessarily
connected with the
connected with the
transaction or
subject matter of the
occurrence that is the
opposing partys
subject matter of the
claim.
opposing partys
claim.

It does not require for It may require for its


its adjudication the
adjudication the
presence of third
presence of third
parties of whom the parties over whom the
court cannot acquire court cannot acquire
jurisdiction.
jurisdiction.

DOCTRINE OF ANCILLARY JURISDICTION


In an original action before the RTC, the
counterclaim
may
be
considered
compulsory regardless of the amount
(Sec. 7, Rule 6 ).
If a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
excess is considered waived (Agustin vs.
Bacalan). In Calo vs. Ajax Intl, the
remedy where a counterclaim is beyond
the jurisdiction of the

REMEDIAL LAW COMMITTEE

It is barred if not set


up in the action.

It is NOT barred even


if not set up in the
action.

Need not be
answered; no default.

Must be answered,
otherwise, the
defendant can be
declared in default.

GENERAL
RULE:
A
compulsory
counterclaim not set up in the answer is
deemed barred.

EXCEPTION: If it is an after-acquired
counterclaim, that is, such claim

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


33

MEMORY AID
matured after filing of the answer. In
this case, it may be pleaded by filing an
amended answer or a supplemental
answer or pleading.

Section 8. Cross-claim
CROSS-CLAIM any claim by one party
against a co-party arising out of the
transaction or occurrence that is the
subject matter either of the original
action or counterclaim.

If it is not set up in the action, it is


barred, except:
1.

when it is outside the jurisdiction of


the court or;

2.

if the court cannot acquire


jurisdiction over third parties whose
presence is necessary for the
adjudication of said cross-claim.

In which case, the


considered permissive.

cross-claim

REMEDIAL LAW COMMITTEE

REMEDIAL LAW

Against a co- Against


an Against
a
party
opposing party person not a
party to the
action

Must arise out May arise out of Must be in


of the
or be necessarily respect of
transaction connected with
the
that is the
the transaction opponents
subject matter or that is the
claim
of the orig.
subject matter (Plaintiff)
action or of a of the opposing
counterclaim partys claim, in
therein.
which case, it is
called a
compulsory
counterclaim, or
it may not, in
which case it is
called a
permissive
counterclaim.

Section 10. Reply.

REPLY - the response of the plaintiff to


the defendants answer.

is

The dismissal of the complaint carries


with it the dismissal of a cross-claim
which is purely defensive, but not a
cross-claim seeking affirmative relief.

Cross Claim Counterclaim

IN

3rd-party
Complaint

EFFECT OF FAILURE TO REPLY: new


facts that were alleged in the answer are
deemed controverted. Hence, the filing
of the reply is optional except for the
denial of the genuineness and due
execution of an actionable document
used as defense in the answer.

Section 11. Third (fourth, etc.) party


complaint.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


34

MEMORY AID
THIRD
(FOURTH,ETC.)

PARTY
COMPLAINT a claim that a defending
party may, with leave of court, file
against a person not a party to the
action for contribution, indemnity,
subrogation or any other relief, in
respect of his opponents claim.

THIRD-PARTY
COMPLAINT

COMPLAINT IN
INTERVENTION

Brings into the action


a third person who
was not originally a
party.

Same

Initiative is with the


Initiative is with a
person already a party non-party who seeks
to the action.
to join the action.

TESTS to determine whether the thirdparty complaint is in respect of


plaintiffs claim:
1. Where it arises out of the same
transaction
on
which
the
plaintiffs claim is based, or,
although arising out of another
or different transaction, is
connected with the plaintiffs
claim;
2. Whether
the
third-party
defendant would be liable to the
plaintiff or to the defendant for
all or part of the plaintiffs claim
against the original defendant;
and

IN

REMEDIAL LAW

plaintiff has or may have to the


plaintiffs claim.

Leave of court to file a third-party


complaint may be obtained by motion
under Rule 15.

Summons to new party (third, fourth,


etc.) is needed for the court to obtain
jurisdiction over his person, since he is
not an original party.

Where the trial court has jurisdiction


over the main case, it also has
jurisdiction over the third party
complaint, regardless of the amount
involved as a third party complaint is
merely auxiliary to and is a continuation
of the main action (Republic v. Central
Surety & Insurance Co. L-27802, Oct. 26,
1968).

Section 12. Bringing new parties.

Distinguished from 3rd-party complaint:


A 3rd-party complaint is proper when not
one of the third-party defendants
therein is a party to the main action. But
if one or more of the defendants in a
counterclaim or cross-claim is already a
party to the action, then the other
necessary parties may be brought in
under this section.

RULE 7
PARTS OF A PLEADING

3. Whether
the
third-party
defendant may assert any
defenses which the third-party

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


35

MEMORY AID

IN

REMEDIAL LAW

Section 3. Signature and address.


The signature of the counsel is a
certification that:
1. That he has read the pleading;
2. There is good ground to support
it; and
3. It is not interposed for delay
Only the original copies must be signed.
UNSIGNED PLEADING may be stricken
out as sham and false, and the action
may proceed as though the pleading has
not been served. It has no legal effect.

Test to determine the presence of


forum-shopping: whether in the two (or
more) cases pending, there is identity of
(a) parties, (b) rights or causes of action,
and (c) reliefs sought.

The certificate is to be executed by


petitioner, and not by counsel.

Required ONLY for


initiatory pleadings.

complaints

or

Section 4. Verification.
Certificate of non-forum shopping is not
required in a compulsory counterclaim
(UST Hosp. vs. Surla).
Pleadings need NOT be verified EXCEPT
when otherwise provided by the law or
rules.
EFFECT OF FAILURE TO COMPLY:

A verification must now be based on


personal knowledge or based on
authentic records.

1. Not curable by amendment of


said pleading
2. shall be cause for the dismissal
of the case, without prejudice,
unless otherwise provided, upon
motion and after hearing
EFFECT OF SUBMISSION OF FALSE
CERTIFICATION OR NON-COMPLIANCE
WITH THE UNDERTAKINGS THEREIN:
1. indirect contempt
2. administrative
and
criminal
actions

Section 5. Certification against forum


shopping.

FORUM SHOPPING the filing of a two or


more cases based on the same cause of
action in different courts for the purpose
of obtaining a favorable decision in
either.

REMEDIAL LAW COMMITTEE

EFFECT OF WILFULL AND DELIBERATE


FORUM SHOPPING:
1. shall be ground for summary
dismissal of the case with
prejudice;
2. direct contempt.
RULE 8
MANNER OF MAKING ALLEGATIONS IN A
PLEADING

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


36

MEMORY AID

IN

REMEDIAL LAW

2. Malice, intent, knowledge, or


other condition of the mind
Pleadings should state ultimate facts
essential to the right of action.

ULTIMATE FACTS: those which directly


form the bases of the right sought to be
enforced or the defense relied upon.
If the ultimate facts are NOT alleged,
the cause of action would be
insufficient.

3. Judgments of domestic or
foreign courts, tribunals, boards,
or officers (no need to show
jurisdiction)
4. Official document or act

FACTS THAT MUST


PARTICULARLY:

AVERRED

1.

Circumstances showing fraud or


mistake in all averments of
fraud or mistake

2.

Capacity

Section 4. Capacity.

Capacity to sue and be sued


either personally or in representative
capacity must be specifically averred by
the party suing or being sued, and
specifically denied by the party
questioning such capacity.

BE

ACTIONABLE DOCUMENT written


instrument upon which the action or
defense is based.

Capacity
is
challenged
by
specific denial, motion to dismiss or bill
of particulars.

Section 5. Fraud, mistake, condition of


the condition

FACTS
THAT
GENERALLY:

MAY

BE

AVERRED

1. Conditions precedent (BUT there


must still be an allegation that
the specific condition precedent
has
been
complied
with,
otherwise, it will be dismissed
for failure to state a cause of
action)

REMEDIAL LAW COMMITTEE

Two permissible ways of pleading an


actionable document:
1. By setting forth the substance of
such document in the pleading
and attaching said document
thereto as an annex (contents of
the document annexed are
controlling, in case of variance
in the substance of the
document set forth in the
pleading and in the document
attached); or

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


37

MEMORY AID
2. By setting forth said document
verbatim in the pleading.

IN

REMEDIAL LAW

1. Mistake;
2. fraud;
3. compromise;

Where the actionable document is


properly alleged, the failure to
specifically deny under oath the same
results in:
1. The
admission
of
the
genuineness and due execution
of said document, EXCEPT that
an oath is not required:
a.

b.

2.

When the adverse party was


not
a
party
to
the
instrument; and
When an order for the
inspection of the original
document was not complied
with.

The document need not be


formally offered in evidence.

4. payment;
5. prescription;
6. want
or
illegality
consideration; or

of

7. estoppel

BUT the
waived:

following

defenses

are

a. forgery in the signature;


b. want of authority of an agent or
corporation;
c. want of delivery; or

GENUINENESS
That the document is not spurious,
counterfeit, or of different import on its
face from the one executed by the party,
or that the party whose signature it
bears has signed it and that at the time
it was signed it was in words and figures
exactly as set out in the pleadings.

d. the party charged signed the


instrument
in
some
other
capacity

Section 10. Specific Denial

THREE WAYS OF MAKING A SPECIFIC


DENIAL:
DUE EXECUTION
That
the
document
was
signed
voluntarily and knowingly by the party
whose signature appears thereon.

1.

By specifically denying each


material allegation of the other
party and, whenever possible,
setting forth the substance of
the matters relied upon for such
denial;

2. Part admission or part denial;


Defenses that the opposing party may
set up even after failure to deny under
oath:

REMEDIAL LAW COMMITTEE

3. By an allegation of lack of
knowledge
or
information
sufficient to form a belief as to

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


38

MEMORY AID
the truth of the averment in the
opposing partys pleading (must
be made in good faith).

A denial must not be general. A general


denial is regarded as an admission of the
facts stated in the complaint and
entitles plaintiff to a judgment on the
pleadings.

NEGATIVE PREGNANT a form of denial


which at the same time involves an
affirmative implication favorable to the
opposing party; It is in effect, an
admission of the averment to which it is
directed; It is said to be a denial
pregnant with an admission of the
substantial facts in the pleading
responded to.

Section 11. Allegation not specifically


denied deemed admitted.

GENERAL
RULE:
Allegations
NOT
specifically denied deemed admitted
(such as allegations of usury in the
complaint, and the authenticity and due
execution of actionable documents).
EXCEPTIONS:
1. Allegations as to the amount of
unliquidated damages
2. Immaterial allegations;

IN

REMEDIAL LAW

Section 1. Defenses and objections not


pleaded.
GENERAL RULE: Defenses and objections
that are not pleaded in a MOTION TO
DISMISS or in the answer are deemed
waived.
EXCEPTIONS (not waived even if not
raised):
1. Lack of jurisdiction over the
subject matter
2. Litis pendentia
3. Res judicata
4. Prescription of the action

These defenses may be raised at any


stage of the proceedings even for the
first time on appeal EXCEPT that lack of
jurisdiction over the subject matter may
be barred by laches. (Tijam vs.
Sibonghanoy).

The
presence
of
these
grounds
authorizes the court to motu proprio
dismiss the claims. These grounds must,
however, appear from the pleadings or
the evidence on record.

Section 3.

3. Incorrect conclusions of fact.

RULE 9
EFFECT OF FAILURE

DEFAULT the failure of the defendant


to answer within the proper period. It is
not his failure to appear nor failure to
present evidence.

TO PLEAD

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


39

MEMORY AID

ORDER OF DEFAULT

JUDGMENT BY
DEFAULT

issued by the court, Rendered by the court


on plaintiffs motion
following a default
for failure of the
order or after it
defendant to file his
received, ex parte,
responsive pleading
plaintiffs evidence.
seasonably.

Interlocutory - not
appealable

Final appealable

NO default may be declared in the


following actions:
1. Annulment of marriage
2. Declaration
of
nullity
of
marriage
3. Legal Separation
4. Special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is
required to be filed

IN

REMEDIAL LAW

1. Failure to answer within the


proper period
2. Non-compliance with the order
of the court to file a bill of
particulars or in case of
insufficient
compliance
therewith (Rule 12, Section 4)
3. Refusal to comply with the
modes of discovery (Rule 29,
Section 3, par. c)
4. Failure to furnish plaintiff with a
copy of the answer
If the defendant was declared in default
upon an original complaint, the filing of
the amended complaint resulted in the
withdrawal of the original complaint,
hence, the defendant was entitled to
file answer to the amended complaint as
to which he was not in default.
EFFECT OF ORDER OF DEFAULT:
1. While the party in default cannot
take part in the trial, he is
nonetheless entitled to notice of
subsequent proceedings.

2. He may still be called on as a


witness, in behalf of the nondefaulting defendants.

The court cannot motu proprio declare a


defendant in default. For defendant to
be declared in default, the plaintiff
must:
1. File a MOTION to
defendant in default

declare

2. Prove that summons have been


properly
served
on
the
defendant
3. Prove that the defendant really
failed to answer within the
proper period.

CAUSES OF DEFAULT

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


40

MEMORY AID

IN

REMEDIAL LAW

DEFAULT
After the lapse of time to file an answer, the plaintiff may move to declare the defendant in default
Motion denied:
Defendant allowed to file an answer

Defendant
answers
Motion granted: Court issues order of default and renders judgment, or require plaintiff to submit evidence ex parte.

Court maintains order of default


Before judgment by default is rendered, defendant may:
move to set aside order of default upon showing:
FAME
He has a meritorious defense
Avail of Rule 65 in proper cases

PARTIAL

Presentation of plaintiffs evidence ex-parte


Court sets aside order of default and defendant is allowed to file an answer

If plaintiff proves his If


allegations,
plaintiff fails
judgment
to prove
by his
default.
allega-tions, case is dismissed.

Case set for pre-trial

DEFAULT:
1. The pleading asserting a claim
states a common cause of action
against several defending parties

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


41

MEMORY AID

IN

REMEDIAL LAW

2. some of the defending parties


answer and the others fail to do
so
3. the answer interposes a common
defense
EFFECT OF PARTIAL DEFAULT: The court
will try the case against ALL defendants
upon the answer of some EXCEPT where
the defense is personal to the one who
answered, in which case, it will not
benefit those who did not answer.
REMEDY FROM JUDGMENT BY DEFAULT
(FLOW CHART)
Judgment by default

Motion for new trial or reconsideration at any time after service of judgment by default and within 15 (30) days therefrom

EXTENT OF RELIEF TO
BE AWARDED IN A
JUDGMENT
BY
DEFAULT:
Shall not exceed the
amount
OR
be
different in kind from
that prayed for NOR
award
unliquidated
damages.

Failure to file motion for new trial/


Denial of said motion

Perfect appeal from said judgment by default within the balance of said
15 (30) - day period

RULE

10
Failure to appeal without defendants faulk

AMENDED AND
SUPPLEMENTAL
PLEADINGS

Petition for relief from judgment within 60 days from notice of the judgment but within 6 months from entry thereof

AMENDMENTS
Annulment of Judgment under Rule 47

Section
Amendments
general.

1.
in

When the complaint is amended, 2


situations may arise:

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


42

MEMORY AID
1. If the complaint merely corrects
or
modifies
the
original
complaint, then the action is
deemed commenced upon the
filing of the original complaint;
2. If the amended
alleges a new cause
then that cause of
deemed commenced
filing
of
the
complaint.

complaint
of action,
action is
upon the
amended

Section 2. Amendments as a matter of


right.

Amendment for the first time is a matter


of right before a responsive pleading is
filed, or in case of a Reply, within 10
days after it was served.

Since a motion to dismiss is NOT a


responsive pleading, an amendment may
be had even if an order of dismissal has
been issued as long as the amendment is
made before order of dismissal becomes
final.

Section 3. Amendments by leave of


court.

Instances when amendment by leave of


court may not be allowed:
1. When cause of action, defense
or theory of the case is changed;
2. Amendment is intended to
confer jurisdiction to the court;
3. Amendment to cure a premature
or non-existing cause of action;

REMEDIAL LAW COMMITTEE

IN

4. Amendment
delay.

REMEDIAL LAW
for

purposes

of

Section 5. Amendment to conform to


or authorize presentation of evidence.

1ST PART: refers to amendment to


conform to evidence when issues NOT
raised by the pleadings are tried with
the express or implied consent of the
parties
- but failure to amend does NOT affect
the result of the trial of these issues

2ND PART: refers to amendment to


authorize presentation of evidence if
evidence is objected to at the trial on
the ground that it is not within the issues
made by the pleadings.

SUPPLEMENTAL PLEADINGS
A cause of action which accrued after
the filing of the original complaint may,
in the discretion of the court, be
pleaded in a supplemental complaint if
there was a valid subsisting cause of
action at the time the original complaint
was filed.

AMENDED
PLEADING

SUPPLEMENTAL
PLEADING

Refers to facts
existing at the time
of the
commencement of
the action.

Refers to facts arising


after the filing of the
original pleading.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


43

MEMORY AID

IN

REMEDIAL LAW

RULE 11
Take the place of the Taken together with
original pleading.
the original pleading.

WHEN TO FILE RESPONSIVE PLEADINGS

Answer to the complaint


Can be made as a
Always with leave of
matter of right as
court
when no responsive
pleading has yet been
filed

Section 7. Filing of amended pleadings.

The amended pleading supersedes the


original pleading.

An
amendment
which
merely
supplements
and
amplifies
facts
originally alleged in the complaint
relates back to the date of the
commencement of the action and is not
barred by the statute of limitations
which expired after service of the
original complaint.
EFFECT OF AMENDED PLEADING:
1. Admissions in the superseded
pleading can still be received in
evidence against the pleader;
2. Claims or defenses alleged
therein but not incorporated or
reiterated in the amended
pleading are deemed waived.

The amended or superseded, original


pleading is not expunged but remains on
the record although the admission of the
amended
pleading
amounts
to
withdrawal of the original pleading.

REMEDIAL LAW COMMITTEE

1. Within 15 days after service of


summons, UNLESS a different period
is fixed by the Court (Sec. 1)
2. In case the defendant is a foreign
private juridical entity:
a. if it has a resident agent
within 15 days after service
of summons to him
b. if it has no resident agent,
but it has an agent or officer
in the Philippines within 15
days
after
service
of
summons to said agent or
officer
c. if it has no resident agent
nor agent nor officer in
which
case
service
of
summons is to be made on
the
proper
government
office which will then send a
copy by registered mail to
the home office of the
foreign private corporation
within 30 days after receipt
of summons by the home
office of the foreign private
entity.
3. In case of service of summons by
publication within the time
specified in the order granting leave
to serve summons by publication,
which shall NOT be less than 60 days
after notice (Rule 14, Sec.15).
4. In case of a non-resident defendant
on whom extraterritorial service of
summons is made, the period to
answer should be at least 60 days.
The court may extend the time to file
the pleadings BUT may NOT shorten
them.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


44

MEMORY AID

The 15-day period begins to run from


receipt of summons.

Section 3.
complaint.

Answer

to

IN

REMEDIAL LAW

The pleader may set up a counterclaim


or cross-claim by amendment before
judgment when he fails to set it up by
reason of oversight, inadvertence, or
excusable neglect ort when justice
requires. Leave of court is necessary.

amended

1. If the filing of an amended


complaint is a matter of right within 15 days from service of
the amended complaint.
2. If the filing of the amended
complaint is NOT a matter of
right within 10 days counted
from notice of the court order
admitting the same.
If no new answer is filed by the
defendant in case an amendment has
been made after he had filed his answer,
the original answer of the defendant
may serve as the answer to the amended
complaint, and hence, cannot be
declared in default.

Section 5. Answer to third (fourth,


etc.)-party complaint.
The third-party defendant is served with
summons
just
like
the
original
defendant, hence, he also has 15, 30, 60
days from service of summons, as the
case may be, to file his answer.

RULE 12
BILL OF PARTICULARS

BILL OF PARTICULARS- a more definite


statement of any matter which appears
vague or obscure in a pleading.

PURPOSE: to aid in the preparation of a


responsive pleading.

Motion for bill of particulars must be


filed within the reglementary period for
the filing of a responsive pleading. The
filing of a motion if sufficient in form
and substance, will interrupt the time to
plead.

The motion for bill of particulars may be


granted in whole or in part as not all the
allegations questioned by the movant
are necessarily ambiguous as to require
clarification.

Section 7. Answer to supplemental


complaint.
Leave of court is required in filing, the
court may fix a different period for
answering the supplemental complaint in
lieu of the reglementary 10-day period.

Section 10. Omitted counterclaim or


cross-claim.

REMEDIAL LAW COMMITTEE

A bill of particulars may be filed either


in a separate or an amended pleading.
A bill of particulars becomes part of the
pleading which it supplements.

EFFECTS OF MOTION

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


45

MEMORY AID
1. If the motion is granted, the
movant can wait until the bill of
particulars is served on him by
the opposing party and then he
will have the balance of the
reglementary
period
within
which to file his responsive
pleading.
2. If his motion is denied, he will
still have such balance of the
reglementary period to do so,
counted from service of the
order denying his motion. In
either case, he will have at least
5 days to file his responsive
pleading.

Effect of non-compliance:
1. If the Order is not obeyed or in
case of insufficient compliance
therewith, the court:
a. may order the striking
out of the pleading or
the portion thereof to
which the order is
directed; or
b. make such order as it
may deem just.
2. If plaintiff, his compliant will be
stricken off and dismissed (Rule
12, sec. 4; Rule 17, sec. 3)
3. If defendant, his answer will be
stricken off and his counterclaim
dismissed, and he will be
declared in default upon motion
of the plaintiff (Rule 12, sec. 4;
Rule 17, sec. 4; Rule 9, sec. 3).

RULE 13

IN

REMEDIAL LAW

Notice given to a party who is duly


represented by counsel is a nullity,
unless service thereof on the party
himself was ordered by the court or the
technical defect was waived.

Section 3. Manner of filing.


1. Personally
2. by registered mail

Filing by mail should be through the


registry service which is made by deposit
of the pleading in the post office, and
not
through
other
means
of
transmission.

If registry service is not available in the


locality of either sender or addressee,
service may be done by ordinary mail.

If a private carrier is availed of by the


party, the date of actual receipt by the
court of such pleading and not the date
of delivery to the carrier, is deemed to
be the date of the filing of that
pleading.

NOTE: PERSONAL and SUBSTITUTED


service as applied to pleadings have a
different meaning compared to summons
under Rule 14.

FILING AND SERVICE OF PLEADINGS,


JUDGMENTS AND OTHER PAPERS

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


46

MEMORY AID

IN

REMEDIAL LAW

3. By publication, if party is
summoned by publication and
has failed to appear in the
action.
MODES OF SERVICE
PLEADINGS

They can be served only under the three


modes.

1. PERSONAL SERVICE
a. Delivering personally a copy to
the party or his counsel or;
b. Leaving a copy in counsels
office with his clerk or with a
person having charge thereof or;
c. Leaving the copy between 8 a.m.
and 6 p.m. at the partys or
counsels residence, if known,
with a person of sufficient age
and discretion residing therein--if no person found in his office,
or if his office is unknown, or if
he has no office.

They CANNOT be served by substituted


service.

NOTE: A resort to modes other than by


personal service must be accompanied
by a written explanation why the
service or filing was not done personally
(Sec. 11).

Section 10. Completeness of service.

2. SERVICE BY MAIL
If no registry service is available in the
locality, of either sender or addressee,
service may be done by ordinary mail.

3. SUBSTITUTED SERVICE
Delivering the copy to the clerk of court
with proof of failure of both personal
and service by mail.

JUDGMENTS,
FINAL
RESOLUTIONS (Sec.9)

ORDERS,

1. Personal service
a.

by handling a copy to defendant;


or

b.

tendering him copy if he refuses;

c.

complete upon actual delivery

2. Service by ordinary mail:


Complete upon expiration of 10
days after mailing, unless the
court provides otherwise.

1. By personal service; or
2. By registered mail;

3. Service by registered mail:


a. Complete upon actual receipt by
the addressee; or

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


47

MEMORY AID
b. After 5 days from the date he
received the 1st notice of the
postmaster, whichever date is
earlier.

Section 12. Proof of filing.

IN

REMEDIAL LAW

a. Affidavit, and
b. Registry receipt issued by the
mailing office.

Section 14. Notice of lis pendens.

Filing is proved by its existence in the


record of the case.

If it is not in the record, and:


If filed personally: proved by the
written or stamped acknowledgment of
its filing by the clerk of court on a copy
of the same; or

If filed by registered mail: proved by


-the registry receipt and the affidavit of
the person who did the mailing.

Section 13. Proof of service

LIS PENDENS - a notice of a pendency of


the action between the parties involving
title to or right of possession over real
property.

It serves as a warning to all persons,


prospective
purchasers
or
encumbrancers of the property in
litigation to keep their hands off the
property in litigation unless they are
prepared to gamble on the result of the
proceedings.

The defendant may also record a notice


of lis pendens when he claims an
affirmative relief in his answer.

1. Proof of personal service:


a. Written admission of the party
served; or
b. Official return of the server; or
c. Affidavit of the party serving.

2. Proof of service by ordinary mail:


Affidavit of the person mailing;

Notice of lis pendens CANNOT be


cancelled on an ex parte motion or upon
the mere filing of a bond by the party on
whose title the notice is annotated, as
section
14
provides
that
such
cancellation may be authorized ONLY
upon order of court, after proper
showing that:
1. The notice is for the purpose of
molesting the adverse party; or
2. It is not necessary to protect the
rights of the party who caused it
to be recorded.

3. Proof of service by registered mail:

REMEDIAL LAW COMMITTEE

RULE 14

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


48

MEMORY AID
SUMMONS

IN

REMEDIAL LAW

1. Sheriff
2. Sheriffs deputy, or

PURPOSE OF SUMMONS:
1. to acquire jurisdiction over the
person of the defendant, and;

3. Other proper court officers, or


4. For justifiable reasons, by any
suitable person authorized by
the court issuing the summons.

2. to give notice to the defendant


that an action has been
commenced against him.
Enumeration is EXCLUSIVE.

EFFECT OF NON-SERVICE: Unless there


is waiver, non-service or irregular service
renders null and void all subsequent
proceedings and issuances in the action
from the order of default up to and
including the judgment by default and
the order of execution.

Where the defendant has already been


served with summons on the original
complaint, no further summons is
required on the amended complaint if it
does not introduce new causes of action.

ALIAS SUMMONS issued when original


has not produced its effect because it is
defective in form or manner of service,
and when issued, supersedes the first
(Section 5).

KINDS OF SERVICE OF SUMMONS:


1. personal service
2. substituted service
3. by publication

But where the defendant was declared in


default on the original complaint and the
plaintiff subsequently filed an amended
complaint, new summons must be served
on the defendant on the amended
complaint, as the original complaint was
deemed
withdrawn
upon
such
amendment.

Section 3. By whom served.


Summons may be served by:

REMEDIAL LAW COMMITTEE

In actions in personam where the


defendant cannot be served with
summons personally or by substituted
service, the case must first be converted
into an in rem or quasi in rem action by
attaching the property of the defendant
found in the Philippines before summons
can be served by publication. If no
property can be found, the action shall
be archived but shall not be dismissed.
(Citizens Surety vs. Court Appeals)

SERVICE OF SUMMONS ON DIFFERENT


ENTITIES

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


49

MEMORY AID

In case of minors: by
serving upon the minor,
regardless of age, AND
upon his legal guardian,
or also upon either of his
parents.
In case of incompetents:
by serving on him
personally AND upon his
legal guardian, but not
upon his parents, unless
when they are his legal
guardians

Service upon
foreign private
juridical entity

Service upon
public
corporations

plaintiff must obtain the


appointment of a guardian
ad litem for him.

Extraterritorial
service

Service upon
domestic private
juridical entity
ENTITY

To the president,
managing partner, general
manager, corporate
secretary, treasurer, or inhouse counsel.
NOTE: Service upon a
person other than those
mentioned is invalid and

REMEDIAL LAW COMMITTEE

in case defendant is the


Republic of the Philippines
- by serving upon the
Solicitor General
in case of a province, city
or municipality, or like
public corporations by
serving on its executive
head, or on such other
officer or officers as the
law or the court may
direct.

minor or incompetent has


no legal guardian, the

Serve on officer having


management of the jail or
prison

Serve on resident agent ;


or if none; on govt
official designated by law;
or
on any officer or agent of
the corporation within the
Philippines.

IN ANY EVENT, if the

Service upon
prisoner

REMEDIAL LAW

does not bind the


corporation. The
enumeration is
EXCLUSIVE.

Service on entity Upon


any
or
all
w/o juridical
defendants being sued
personality
under common name; or
person in charge of office

Service upon
minors and
incompetents

IN

Requisites
a.

defendant does
not reside or is
not found within
the Phil.

b.

he action either:

affects the personal


status of plaintiff;
relates to or the
subject of which is
property within
the Philippines in
which defendant
has a lien or

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


50

MEMORY AID

IN

REMEDIAL LAW

interest;

demands a relief
which consists
wholly or in part in
excluding the
defendant from
any interest in any
property within
the Phil; or
property of
defendant has
been attached in
the Phil.

Mode of service
a.

with leave of court


served outside the
Phil. By personal
service; or

b.

with leave of court


serve by publication
in a newspaper of
general circulation,
in which case copy of
the summons and
order of court must
also be sent by
registered mail to
the last known
address of
defendant; or

c.

any other manner


the court deem
sufficient.

Service upon a
resident
temporarily out of
the Phil.

Substituted service or
with leave of court,
personal service out of
the Phil. as under
extraterritorial service

Service upon an
unknown
defendant or
whose
whereabouts are
unknown

With leave of court, by


publication in a
newspaper of general
circulatiuon

Section 20. Voluntary appearance.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


51

MEMORY AID
Any form of appearance in court, by the
defendant, by his agent authorized to do
so, or by attorney, is equivalent to
service of summons EXCEPT where such
appearance is precisely to object to the
jurisdiction of the court over the person
of the defendant.

IN

REMEDIAL LAW

b. motion OF COURSE where the


movant is entitled to the relief or
remedy sought as a matter of
discretion on the part of the court.

c. LITIGATED motion one made with


notice to the adverse party to give
an opportunity to oppose.
Inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction
over the person of the defendant shall
NOT
be
deemed
a
voluntary
appearance.

RULE 15
MOTIONS

d. SPECIAL motion- motion addressed


to the discretion of the court.

GENERAL RULE: A motion cannot pray


for judgment.
EXCEPTIONS:
1. Motion for judgment on the
pleadings

MOTION is an application for relief


other than by a pleading.

2. Motion for summary judgment


3. Motion
for
judgment
demurrer to evidence.

on

GENERAL RULE: Motions must be in


writing.
EXCEPTION: Those made in open court
or in the course of hearing or trial.

KINDS OF MOTIONS

a. motion EX PARTE- made without the


presence or a notification to the
other party because the question
generally
presented
is
not
debatable.

Section 4. Hearing on motion.


3-DAY NOTICE RULE
GENERAL RULE: Service of the copy of
motions should be made in such a
manner as shall ensure its receipt at
least 3 days before the hearing.
EXCEPTIONS:
1. Ex parte motions
2. Urgent motions
3. Motions agreed upon by the
parties to be heard on shorter
notice or jointly submitted by
the parties, and

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


52

MEMORY AID
4. Motions for summary judgment
which must be served at least 10
days before its hearing
5. Non-litigated motions.

IN

REMEDIAL LAW

MOTION TO DISMISS

A Motion to Dismiss is NOT a responsive


pleading.

Section 5. Notice of hearing.


Section 1. Grounds.
NOTICE OF HEARING shall:
1. Be addressed
concerned

to

all

parties

2. Specify the time and date of the


hearing which must not be later
than 10 days after the filing of
the motion

1. No jurisdiction over the person


of the defending party
2. No jurisdiction over the subject
matter of the claim
3. Improper venue
4. No legal capacity to sue

NOTE: Any motion that does not comply


with Sections 4, 5 and 6 of this Rule is a
mere scrap of paper, should not be
accepted for filing and, if filed, is not
entitled to judicial cognizance and does
not affect any reglementary period
involved for the filing of the requisite
pleading.

Omnibus Motion Rule - All available


grounds for objection in attacking a
pleading, order, judgment, or proceeding
should be invoked at one time,
otherwise, they shall be deemed
waived.

5. Litis pendentia
6. Res judicata
7. Prescription
8. States no cause of action

9. Claim or demand has been paid,


waived, abandoned, or otherwise
extinguished
10. Claim is unenforceable under the
Statute of Frauds
11. Non-compliance with a condition
precedent for filing claim

Motion for leave to file a pleading or


motion shall be accompanied by the
pleading or motion sought to be
admitted, otherwise, the latter will be
denied.

MOTION TO DISMISS MOTION TO DISMISS


UNDER RULE 16
UNDER RULE 33
(demurrer to
evidence)

RULE 16

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


53

MEMORY AID
Grounded on
preliminary
objections.

based on insufficiency
of evidence.

IN

REMEDIAL LAW

An action cannot be dismissed on a


ground not alleged in the motion even if
said ground is provided for in Rule 16.

EXCEPT:
may be filed by any
May be filed only by
defending party
the defendant against
against whom a claim the complaint of the
is asserted in the
plaintiff.
action.

should be filed within May be filed only after


the time for but prior
the plaintiff has
to the filing of the
completed the
answer of the
presentation of his
defending party to the
evidence.
pleading asserting the
claim against him.

1. Those cases where the court may


dismiss a case motu proprio
(Sec. 1, Rule 9)
2. Such ground appears in the
allegations of the complaint or in
plaintiffs evidence

REQUISITES OF LITIS PENDENTIA


1. Parties to the action are the
same
2. There is substantial identity in
the cause of action and relief
sought

If denied, defendant If denied, defendant


answers, or else he may present evidence
may be declared in
if granted, plaintiff
default
appeals and the Order
of the dismissal is
reversed, the
If granted, plaintiff
defendant
loses his
may appeal or if
right to present
subsequent case is not
evidence.
barred, he may re-file
the case

Effect of motion to dismiss: A motion to


dismiss hypothetically admits the truth
of the facts alleged in the complaint.

3. The result of the first action is


determinative of the second in
any event and regardless of
which party is successful

Motion to dismiss may be filed in either


suit, not necessarily in the one instituted
first.

REQUISITES OF RES JUDICATA


1. Previous final judgment

However, such admission is limited only


to all material and relevant facts which
are well pleaded in the complaint.

2. Jurisdiction over the subject


matter and the parties by the
court rendering it
3. Judgment upon the merits
4. In a case prosecuted between
same parties

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


54

MEMORY AID
5. Involving
matter

the

same

subject

6. Same cause of action

There could be res judicata without a


trial, such as in a judgment on the
pleadings (Rule 34); a summary
judgment (Rule 35); or an order of
dismissal under Section 3 of Rule 17.

When the ground for dismissal is that the


complaint states no cause of action, such
fact can be determined only from the
facts alleged in the complaint.

Where the plaintiff has not exhausted


all
administrative
remedies,
the
complaint not having alleged the fact of
such exhaustion, the same may be
dismissed for failure to state a cause of
action.

Non-compliance
with
P.D.
1508
(Katarungang Pambarangay Law) may
result to dismissal of the case on the
ground of non-compliance with a
condition precedent.

An action cannot be dismissed on the


ground that the complaint is vague or
indefinite. The remedy of the defendant
is to move for a bill of particulars or
avail of the proper mode of discovery.

GENERAL TYPES OF A MOTION TO


DISMISS
1. motion to dismiss before answer
under Rule 16

REMEDIAL LAW COMMITTEE

IN

REMEDIAL LAW

2. motion to dismiss under Rule 17


a. upon notice by plaintiff
b. upon motion of plaintiff
c. due to fault of plaintiff
3. motion to dismiss on demurrer to
evidence after plaintiff has rested
his case under Rule 33
4. motion to dismiss the appeal filed
either in the lower court (Rule
41,Sec. 13) or in the appellate
court (Rule 50, Sec.1 ).

EFFECTS OF
ACTION ON MTD

REMEDY

Order granting motion Appeal from the order


to dismiss is final
of dismissal
order

Order denying the


motion to dismiss is
interlocutory

Certiorari and
prohibition if there is
grave abuse of
discretion amounting
to lack or excess of
jurisdiction under
Rule 65

Section 4. Time to plead.

Defendant is granted only the balance of


the reglementary period to which he was
entitled at the time he filed his motion
to dismiss, counted from his receipt of
the denial order, but not less than 5 days
in any event.

The same rule of granting only the


balance of the period is followed where
the court, instead of denying the motion
to dismiss, orders the amendment of the

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


55

MEMORY AID
pleading challenged by the motion, in
which case, the balance of the period to
answer runs from his receipt of the
amended pleading.

IN

REMEDIAL LAW

RULE 17
DISMISSAL OF ACTIONS

Section 1. Dismissal upon notice by


plaintiff.

Section 5. Effect of dismissal


GENERAL RULE: The action or claim may
be refiled.

Dismissal is effected not by motion but


by mere NOTICE of dismissal which is a
matter of right BEFORE the defendant
has answered or moved for a summary
judgment.

EXCEPTION: The action cannot be


refiled if it was dismissed on any of
these grounds:
1. Res judicata;

But notice of dismissal requires an order


of the court confirming the dismissal.

2. Prescription;

Such dismissal is WITHOUT PREJUDICE,

3. Extinguishment of the claim

EXCEPT:

or demand;

1. Where the notice of dismissal so


provides;

4. Unenforceability under the


2. Where the plaintiff has previously
dismissed the same case in a
court of competent jurisdiction
(TWO-DISMISSAL RULE);

Statute of Frauds.

Section 6. Pleading
affirmative defenses.

grounds

as

If no motion to dismiss had been filed,


any of the grounds for dismissal provided
for in Rule 16, INCLUDING IMPROPER
VENUE, may be pleaded as affirmative
defenses and preliminarily heard in the
discretion of the court.

Dismissal under this section WITHOUT


prejudice to the prosecution in the same
or separate action of a COUNTERCLAIM
pleaded in the answer

REMEDIAL LAW COMMITTEE

3. Even where the notice of dismissal


does not provide that it is with
prejudice but it is premised on
the fact of payment by the
defendant
of
the
claim
involved.

Section 2. Dismissal upon motion of


plaintiff.

Where the plaintiff moves for the


dismissal of his complaint to which a
counterclaim has been interposed, the

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


56

MEMORY AID
dismissal shall
complaint.

be

limited

to

the

Such dismissal shall be without prejudice


to the right of the defendant to either:
1. Prosecute his counterclaim in a
separate action,

In this case, the court should


render the corresponding order
granting and reserving his right
to prosecute his claim in a
separate complaint.

-OR-

IN

REMEDIAL LAW

2. When stated to be with


prejudice in the order of the
court.

The approval of the court is necessary in


the dismissal or compromise of a class
suit.

Section 3. Dismissal due to fault of


plaintiff.

CAUSES FOR DISMISSAL


1. Plaintiff fails to appear for no
justifiable cause on the date of
the presentation of his evidence
in chief on the complaint

2. To have the same resolved in the


same action.

2. Plaintiff fails to prosecute his


action for an unreasonable
length
of
time
(NOLLE
PROSEQUI)

In such case, defendant must


manifest such preference to the
trial court within 15 days from
notice to him of plaintiffs
motion to dismiss.

3. Plaintiff fails to comply with


these Rules or any order of the
court. Unjustifiable inaction on
the part of plaintiff to have the
case set for trial is a ground for
dismissal
for
failure
to
prosecute.

These alternative remedies of the


defendant are available to him
REGARDLESS
OF
WHETHER
HIS
COUNTERCLAIM IS COMPULSORY OR
PERMISSIVE.

Complaint may be dismissed


1. Upon motion of the defendant,
or
2. Upon courts own motion.

Dismissal under this rule is WITHOUT


PREJUDICE, EXCEPT:
1. When otherwise stated in the
motion to dismiss;

REMEDIAL LAW COMMITTEE

Dismissal shall have the effect of an


ADJUDICATION UPON THE MERITS
(WITH PREJUDICE), unless otherwise
declared by the court.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


57

MEMORY AID

IN

REMEDIAL LAW

between the parties and their respective


counsel.

SECTION 2

SECTION 3

Dismissal is at the
instance of the
plaintiff;

Dismissal is not
procured by plaintiff
though justified by
causes imputable to
him;

Dismissal is a matter Dismissal is a matter


of procedure, without
of evidence, an
prejudice unless
adjudication on the
otherwise stated in
merits;
the order of the court
or on plaintiffs
motion to dismiss his
own complaint;

The plaintiff must promptly move ex


parte that the case be set for pre-trial ,
and this he must do upon the service and
filing of the last pleading.

The pre-trial and trial on the merits of


the case must be held on separate
dates.

When non-appearance of a party may


be excused (Sec.4):
1. If a valid
therefore

RULE 18

is

shown

2. If a representative shall appear


in his behalf fully authorized in
writing to:
a.

Dismissal is without
Dismissal is without
prejudice to the right prejudice to the right
of the defendant to
of the defendant to
prosecute his
prosecute his
counterclaim in a
counterclaim on the
separate action unless
same or separate
w/in 15 days from
action.
notice of the motion
he manifests his
intention to have his
counterclaim resolved
in the same action

cause

Enter into
settlement

an

amicable

b. Submit to alternative modes


of dispute resolution
c. Enter into stipulations or
admissions of facts and of
documents

A special authority for an attorney to


compromise is required under Sec. 23,
Rule 138. Under Art. 1878 (c) of the
Civil Code, a special power of attorney
is required.

PRE-TRIAL

PRE-TRIAL- a mandatory conference and


personal confrontation before the judge
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


58

MEMORY AID

IN

REMEDIAL LAW

Pre-trial brief. It is the mandatory duty


of the parties to seasonably file their
pre-trial briefs under the conditions and
with the sanctions provided therein.

Failure to file pre-trial brief has the


same effect as failure to appear at the
pre-trial.

Record of pre-trial. The contents of the


PRE-TRIAL order shall control the
subsequent course of the action, UNLESS
modified before trial to prevent
manifest injustice.

A party is deemed to have waived the


delimitations in a pre-trial order if he
failed to object to the introduction of
evidence on an issue outside of the pretrial order, as well as in cross-examining
the witness in regard to said evidence.

FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT


PAGE.

EFFECT OF
PLAINTIFF:

NON-APPEARANCE

OF

Cause for dismissal of the action, with


prejudice, unless otherwise ordered by
the court.

EFFECT OF
DEFENDANT:

NON-APPEARANCE

OF

Cause to allow the plaintiff to present


evidence ex parte and the court to
render judgment on the basis thereof.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


59

MEMORY AID

IN

REMEDIAL LAW

PRE-TRIAL

No Settlement

Agreements made by parties;


Amendments to pleading;
Schedule of trial

Amicable Settlement

Failure to Appear

If plaintiff is
If defendant
Absent, when so required toisattend,
absent,the
court
court
may
may
hear
dismiss
evidence
the of
caseplaintiff ex parte

TRIAL

If evidence is insufficient to prove plaintiffs cause of action or defendants counterclaim, court rules in favor of either one or
Court renders decision

4. One who is so situated as to be


adversely
affected
by
a
distribution or other disposition
of property in the custody of the
court or of an officer thereof.
RULE 19
INTERVENTION

FACTORS TO BE CONSIDERED BY THE


COURT
1.

WHO may intervene?

Whether or not the intervention


will unduly delay or prejudice
the adjudication of the rights of
the original parties;

1. One who has legal interest in the


matter in litigation
2. One who has legal interest in the
success of either of the parties,
3. One who has an interest against
both parties

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


60

MEMORY AID

IN

An ancillary action.

REMEDIAL LAW

An original action.

Proper in any of the Presupposes that the


four situations
plaintiff has no
mentioned in this
interest in the subject
Rule.
matter of the action
or has an interest
therein, which in
whole or in part, is
not disputed by the
other parties to the
action.

Defendants are
Defendants are being
already original
sued precisely to
parties to the pending
implead them
suit

Section 2. Time to intervene.


2.

Whether or not the intervenors


rights may be fully protected in
a separate proceeding.

The interest which entitles a person to


intervene in a suit must be on the
matter in litigation and of such direct
and immediate character that the
intervenor will either gain or lose by the
direct legal operation and effect of the
judgment.

INTERVENTION

INTERPLEADER

REMEDIAL LAW COMMITTEE

At any time before rendition


judgment by the trial court.

of

JUSTIFICATION: Before judgment is


rendered, the court, for good cause
shown, may still allow the introduction
of additional evidence and that is still
within the liberal interpretation of the
period for trial.

Since no judgment has yet been


rendered, the matter subject of the
intervention may still be readily resolved
and integrated in the judgment disposing
of all claims in the case.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


61

MEMORY AID

IN

REMEDIAL LAW

bring with him books, documents, or


other things under his control.
REMEDIES FOR
INTERVENTION:

THE

DENIAL

OF

1. APPEAL
2. MANDAMUS if there is grave
abuse of discretion
If there is improper granting of
intervention, the remedy of the party is
certiorari.

Section 2. By whom issued


WHO may issue
1. Court before whom the witness
is required to attend
2. Court of the place where the
deposition is to be taken

RULE 21

3. Officer or body authorized by


law to do so in connection with
investigations conducted by said
officer or body

SUBPOENA

SUBPOENA

SUMMONS

an order to appear and


testify or to produce
books and documents

Order to answer
complaint

may be served to a
non-party

Served on the
defendant

needs tender of
kilometrage,
attendance fee and
reasonable cost of
production fee

does not need tender


of kilometrage and
other fees

4. Any Justice of the SC or of the


CA in any case or investigation
pending within the Philippines.

SUBPOENA TO A PRISONER must be for a


valid purpose; if prisoner required to
appear in court is sentenced to death,
reclusion perpetua or life imprisonment
and is confined in prison must be
authorized by the SC.

Section 4. QUASHING A SUBPOENA.


A. Subpoena DUCES TECUM may be
quashed upon proof that:

SUBPOENA AD TESTIFICANDUM a
process directed to a person requiring
him to attend and to testify at the
hearing or the trial of an action, or at
any
investigation
conducted
by
competent authority, or for the taking of
his deposition.

SUBPOENA DUCES TECUM a process


directed to a person requiring him to

REMEDIAL LAW COMMITTEE

1.

It
is
unreasonable
oppressive;

and

2.

The articles sought to be


produced do not appear prima
facie to be relevant to the
issues;

3.

The person asking for the


subpoena does not advance the
cost for the production of the
articles desired.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


62

MEMORY AID

IN

REMEDIAL LAW

RULES OF DISCOVERY
B. Subpoena AD TESTIFICANDUM may be
quashed if the witness is not bound
thereby.

In EITHER case, the subpoena may be


quashed for failure to tender the witness
fees and kilometrage allowed by the
Rules.

GENERAL RULE
a. The court which issued the
subpoena may issue a warrant
for the arrest of the witness and
make him pay the cost of such
warrant and seizure, if the court
should determine that his
disobedience was willful and
without just cause (Sec. 8);

DISCOVERY - is the procedure by which


one party in an action is enabled to
obtain before trial knowledge of
relevant facts and of material evidence
in the possession of the adverse party or
of a witness.

Rationale of discovery: to enable the


parties to obtain the fullest possible
knowledge of the issues and evidence
long before the trial to prevent such trial
from being carried on in the dark.

Modes of discovery under the Rules of


Court
1. Depositions pending action (Rule
23).
2. Depositions before action
pending appeal (Rule 24).

b. The refusal to obey a subpoena


without adequate cause shall be
deemed a contempt of the court
issuing it (Sec.9).
Exceptions:
Provisions regarding the compelling of
attendance (Sec. 8) and contempt (Sec.
9) does not apply where:

a. Witness resides more than 100


km from his residence to the
place where he is to testify by
the ordinary course of travel,
generally,
by
overland
transportation (VIATORY RIGHT).
b. Permission of the court in which
the detention prisoners case is
pending was not obtained.

REMEDIAL LAW COMMITTEE

or

3. Interrogatories to parties (Rule


25).
4. Admission by adverse party (Rule
26).
5. Production or inspection of
documents, or things (Rule 27).
6. Physical and mental examination
of persons (Rule 28).

Discovery before answer.


It is only in the exceptional or unusual
case that the need for discovery arises,
or that it should be allowed before
service of answer.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


63

MEMORY AID
Modes of Discovery are intended to be
CUMULATIVE, and not alternative nor
mutually exclusive.

IN

REMEDIAL LAW

WHEN TAKEN
WITH LEAVE OF COURT

Discovery is NOT MANDATORY but failure


to avail carries sanctions in Rules 25 and
26.

1. after jurisdiction has been


obtained over any defendant or
over the property which is the
subject of the action and
BEFORE answer.

RULE 23

2. Deposition of a person confined


in prison.

DEPOSITIONS PENDING ACTION

DEPOSITION is a written testimony of a


witness given in the course of a judicial
proceeding in advance of the trial or
hearing upon oral examination or in
response to written interrogatories and
where an opportunity is given for crossexamination.

WITHOUT LEAVE OF COURT


AFTER answer AND deponent is not
confined in prison.

Section 4. Use of depositions.


Depositions are intended as a means to
compel disclosure of facts resting in the
knowledge of a party or other person,
which are relevant in a suit/proceeding.

Where the witness is available to testify


and the situation is not one of those
excepted under Sec. 4, his deposition is
inadmissible in evidence and he should
be made to testify.

CLASSIFICATIONS OF DEPOSITIONS
1.

Depositions
on
ORAL
EXAMINATION and Depositions
upon WRITTEN INTERROGATORIES

2.

Depositions DE BENE ESSE those taken for purposes of a


pending action (Rule 23) ; and

3.

Depositions IN PERPETUAM REI


MEMORIAM - those taken to
perpetuate
evidence
for
purposes of anticipated action,
or in the event of further
proceedings in a case on appeal,
and to preserve it against danger
of loss (Rule 24).

REMEDIAL LAW COMMITTEE

It can be used as evidence by a party for


any purpose under
the specific
conditions in Sec. 4.

DEPONENT
USE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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64

MEMORY AID
Any person

By any party for


contradicting or
impeaching the
testimony of deponent
as witness

A party or any one By an adverse party for


who at the time of
any purpose
the deposition was
an OFFICER,
DIRECTOR, or
MANAGING AGENT of
a public or private
corp., partnership,
or association which
is a party

Witness, whether or
not a party

By any party for any


purpose if the court
finds the 5 instances
occurring

IN

REMEDIAL LAW

A party shall not be deemed to make a


person his own witness for any purpose
by taking his deposition because
depositions are taken for discovery and
not for use as evidence.

Exception: If a party offers the


deposition in evidence, then he is
deemed to have made the deponent his
witness (Sec.8)

Exception to the Exception: Unless the


deposition is that of any adverse party,
and unless, of course, the deposition is
used for impeaching or contradicting the
deponent (Sec.8).

Section 10 and 11. Persons before


whom depositions may be taken.

WITHIN THE PHILIPPINES:


SCOPE OF INQUIRY IN DEPOSITIONS:
1. Matter which is relevant to the
subject of the pending action;
2. Not privileged
3. Not restricted by a protective
order

1. judge
2. notary public
3. any
person
authorized
to
administer oaths, as stipulated
by the parties in writing

OUTSIDE THE PHILIPPINES:


Certiorari will not lie against an order
admitting or rejecting a deposition in
evidence, the remedy being an appeal
from the final judgment.

Section 7. Effect of taking depositions.

REMEDIAL LAW COMMITTEE

1. on notice, before a secretary of


embassy or legation, consul
general, consul, vice-consul, or
consular agent of the Phil.
2. before such person or officer as
may be appointed by commission
or letters rogatory

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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65

MEMORY AID
3. any
person
authorized
to
administer oaths, as stipulated
by the parties in writing

Section 12.
rogatory.

Commission

or

letters

IN

REMEDIAL LAW

a. bad faith
b. in such manner as
unreasonably to annoy,
embarrass, or oppress
the deponent or party

RULE 24
COMMISSION

LETTERS ROGATORY

Issued to a nonIssued to the


judicial foreign officer appropriate judicial
who will directly take officer of the foreign
the testimony
country who will direct
somebody in said
foreign country to take
down testimony

Applicable rules of
procedure are those
of the requesting
court

Applicable rules of
procedure are those of
the foreign court
requested to act

Resorted to if
permission of the
foreign country is
given

Resorted to if the
execution of the
commission is refused
in the foreign country

Leave of court is not


necessary

Leave of court is
necessary

Section 18. Motion to terminate or


limit examination.

MAY BE FILED:
1. any time during the taking of the
deposition
2. on motion or petition of any
party or of the deponent; or
3. upon
showing
that
the
examination is conducted in :

REMEDIAL LAW COMMITTEE

DEPOSITIONS BEFORE ACTION OR


PENDING APPEAL

Depositions under this Rule are also


taken conditionally, to be used at the
trial only in case the deponent is not
available.

Depositions under this Rule do not prove


the existence of any right and the
testimony perpetuated is not in itself
conclusive proof, either of the existence
of any right nor even of the facts to
which they relate, as it can be
controverted at the trial in the same
manner as though no perpetuation of
testimony was ever had. However, in the
absence of any objection to its taking,
and even if the deponent did not testify
at the hearing, the perpetuated
testimony constitutes prima facie proof
of facts referred to in the deposition.
Section 6. Use of deposition.

If deposition is taken under this Rule, it


may be used in any action involving the
SAME SUBJECT MATTER subsequently
brought.

Section 7. Depositions pending appeal.


Sec. 7 is the procedure in perpetuating
testimony AFTER JUDGMENT IN THE RTC

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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MEMORY AID
and DURING THE PENDENCY OF AN
APPEAL.

IN

REMEDIAL LAW

A judgment by default may be rendered


against a party who fails to answer
written interrogatories

Only one set of interrogatories by the


same party is allowed. Leave of court is
necessary for
succeeding
sets
of
interrogatories.

RULE 25
INTERROGATORIES TO PARTIES

Section 6. Effect of failure to serve


written interrogatories.
PURPOSE of Written Interrogatories: to
elicit facts from any adverse party
(answers may also be used as admissions
of the adverse party)

Written interrogatories and the answers


thereto must both be FILED and SERVED.

Interrogatories

Bill of Particulars

A party may properly A party may properly


seek disclosure of seek disclosure only of
matters of proof
matters which define
which may later be the issues and become
made a part of the
a part of the
records as evidence.
pleadings.

A
party
may
interrogatories:

Rule 25 and Rule 26 are directed to the


party who fails and refuses to RESORT to
the discovery procedures, and should not
be confused with the provisions of Rule
29 which provides for sanctions or other
consequences upon a party who refuses
or fails to COMPLY with discovery
procedures duly availed of by opponent.

serve

written

1. WITHOUT LEAVE OF COURT


after answer has been served,
for
the
first
set
of
interrogatories.
2. WITH LEAVE OF COURT before
answer
has
been
served
(REASON: at that time, the
issues are not yet joined and the
disputed facts are not yet clear,
when more than one set of
interrogatories is to be served.)

REMEDIAL LAW COMMITTEE

The justification for this provision is that


the party in need of relevant facts
having foregone the opportunity to
inquire into the same from the other
party through means available to him, he
should not thereafter be permitted to
unduly burden the latter with courtroom
appearances or other cumbersome
processes.

Unless a party had been served written


interrogatories,
he
may
not
be
compelled by the adverse party:
1. to give testimony in open court,
or

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


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MEMORY AID
2. give a
appeal.

deposition

IN

REMEDIAL LAW

pending
Section 1. Request for admission.

The only exception is when the court


allows it for GOOD CAUSE shown and to
prevent a failure of justice.

Depositions Upon Interrogatories to


Written
Parties under Rule
Interrogatories to
25
Parties under Rule
23 Sec. 25

As to Deponent

As to Deponent

Party or ordinary
witness

party only

As to Procedure

As to Procedure

With intervention of
no intervention.
the officer authorized
Written
by the Court to take
interrogatories are
deposition
directed to the party
himself

As to Scope

As to Scope

Direct, cross,
redirect, re-cross

only one set of


interrogatories

PURPOSE OF written request for


admission is to expedite trial and relieve
the parties of the costs of proving facts
which will not be disputed on trial and
the truth of which can be ascertained by
reasonable inquiry.

When request may be made: at any time


after the issues have been joined.

What request may include


1. Admission of the genuineness of
any material and relevant
document described in and
exhibited with the request.
2. Admission of the truth of any
material and relevant matter of
fact set forth in the request.
3. Under this rule, a matter of fact
not related to any documents
may be presented to the other
party for admission or denial.

Section 2. Implied Admission.


Interrogatories

Interrogatories

no fixed time

15 days to answer
unless extended or
reduced by the court

RULE 26
ADMISSION BY ADVERSE PARTY

REMEDIAL LAW COMMITTEE

The effect of a FAILURE to make a reply


to a request for admission is that each of
the matters of which an admission is
requested is deemed admitted.

A sworn statement either denying


specifically each matter or setting forth
in detail the reasons why he cannot
truthfully admit or deny those matters

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


68

MEMORY AID
must be filed and served upon the party
requesting the admission.

IN

Essentially a mode of
discovery

REMEDIAL LAW
means of compelling
production of
evidence

Section 3. Effect of admission.


USE: An admission under this section is
for the purpose of the pending action
only and cannot be used in other
proceedings.

The party who fails or refuses to request


the admission of facts in question is
prevented from thereafter presenting
evidence thereon UNLESS otherwise
allowed
by
the
court
(Sec.5).

The Rules is limited to may be directed to a


the parties to the
person whether a
action
party or not

The order under this may be issued upon an


Rule is issued only
ex parte application.
upon motion with
notice to the adverse
party

RULE 28
PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
RULE 27
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS

Production of documents affords more


opportunity for discovery than a
subpoena duces tecum because in the
latter, the documents are brought to the
court for the first time on the date of
the scheduled trial wherein such
documents are required to be produced.
The TEST to be applied in determining
the relevancy of the document and the
sufficiency of their description is one of
reasonableness and practicality.

The mental condition of a party is in


controversy
in
proceedings
for
GUARDIANSHIP over an imbecile or
insane person, while the physical
condition of the party is generally
involved in PHYSICAL INJURIES cases.

Since the results of the examination are


intended to be made public, the same
are not covered by the physician-patient
privilege.

Section 4. Waiver of privilege.


PRODUCTION OR
INSPECTION OF
DOCUMENTS OR
THINGS

SUBPOENA DUCES
TECUM

REMEDIAL LAW COMMITTEE

Where the party examined requests and


obtains a report on the results of the
examination the consequences are:

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

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69

MEMORY AID
1. he has to furnish the other party
a copy of the report of any
previous
or
subsequent
examination
of
the
same
physical and mental condition,
AND
2. he waives any privilege he may
have in that action or any other
involving the same controversy
regarding the testimony of any
other person who has so
examined him or may thereafter
examine him.

RULE 29
REFUSAL TO COMPLY WITH MODES OF
DISCOVERY

SANCTIONS
1. Contempt;
2. Payment of reasonable fees;
3. The matters regarding which the
questions were asked, character
or description of land et al., be
taken to be in accordance with
the claim of party obtaining the
order;
4. Prohibition on the refusing party
to produce evidence or support
or oppose designated claims or
defenses;
5. Striking out pleadings, order the
dismissal of the action or stay
the action until compliance or to
render judgment by default.
6. Order the arrest of the refusing
party except in cases of physical
or mental examination.

IN

REMEDIAL LAW

TRIAL

TRIAL judicial process of investigating


and determining the legal controversies
starting with the production of evidence
by the plaintiff and ending with his
closing arguments.

GENERAL RULE: when an issue exists,


trial is necessary. Decision should not be
made without trial.
EXCEPTIONS: when there may be
judgment without trial:
1. Judgment on the Pleading
(Rule 34)
2. Summary Judgment (Rule 35)
3. Judgment on Compromise
4. Judgment by Confession
5. Dismissal with Prejudice
(Rule 17)

Section 3. Requisites of motion to


postpone trial for absence of evidence.

There must be an affidavit showing:


1. materiality or relevance of such
evidence; and
2. due diligence in procuring it.

If the adverse party admits the facts for


which evidence is to be presented, the
trial will not be postponed.

Section 4. Requisites of motion to


postpone trial for illness of party or
counsel.

RULE 30

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


70

MEMORY AID

IN

REMEDIAL LAW

There must be an affidavit or sworn


certification showing:
1. presence of party or counsel at
the trial is indispensable; and
2. character of his illness is such as
to render his non-attendance
excusable.

Unless the court for special reasons


otherwise directs, the trial shall be
limited to the issues stated in the pretrial order.

Section 6. Agreed statements of facts.

Section 5. Order of
directed by the court.

trial

unless

This is known as STIPULATION OF FACTS


and is among the purposes of a pre-trial.

The parties may also stipulate verbally in


open court. Such stipulations are
binding unless relief therefrom is
permitted by the court on good
cause shown, such as error or
fraud.
Defendant presents evidence to support his defense/counterclaim/crossclaim/
Defendant files demurrer to evidence
Plaintiff presents evidence

third party complaint

But counsel cannot stipulate on


what their respective EVIDENCE
consists of and ask that judgment
be rendered on the basis of such
stipulation.
Third party defendant presents eidence,
If court grants
if any motion:
If court denies motion:
Renders dismisal Continues with hearing

Stipulations of facts are not


permitted
in
actions
for
ANNULMENT OF MARRIAGE and for
LEGAL SEPARATION.
Rebuttal Evidence by Parties
After Presentation of evidence:
oral arguments
submission of memoranda
DECISION

Section 8. Suspension of actions.


Art. 2030 of the Civil Code. Every
civil action or proceeding shall be
suspended
1. If willingness to discuss a
possible
compromise
is
expressed by one or both
parties; or

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


71

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

Section 9. Judge to receive evidence;


delegation to clerk of court.
GENERAL RULE: the judge must himself
personally receive and resolve the
evidence of the parties.
However, the reception of such
evidence may be delegated under the
following conditions:
1. The delegation may be made
only in defaults or ex parte
hearings, or an agreement in
writing by the parties.
2. The reception of evidence shall
be made only by the clerk of
that court who is a member of
the bar.
3. Said clerk shall have no power to
rule on objections to any
question or to admission of
evidence or exhibits; and
4. He shall submit his report and
transcripts of the proceedings,
together with the objections to
be resolved by the court, within
10 days from the termination of
the hearing.
RULE 31
CONSOLIDATION OR SEVERANCE

GENERAL
RULE:
Consolidation
discretionary upon the court

REMEDIAL LAW

2. if filed with different branches


of a court and one of such cases
has NOT been partially tried.

REQUISITES FOR CONSOLIDATION:


1. When
actions
involving
a
common question of law or fact,
and
2. The actions are pending before
the same court
if filed with DIFFERENT
courts, authorization from
the SC is necessary.

3 WAYS OF CONSOLIDATING CASES:


1. by
RECASTING
THE
CASES
ALREADY
INSTITUTED,
conducting only one hearing and
rendering only one decision;
2. by CONSOLIDATING THE EXISTING
CASES and holding only one
hearing and rendering only one
decision; and
3. by HEARING ONLY THE PRINCIPAL
CASE and suspending the hearing
on the others until judgment has
been rendered in the principal
case. (TEST-CASE METHOD)

Consolidation of cases on appeal and


assigned to different divisions of the SC
and the CA is also authorized. Generally,
the case which was appealed later and
bearing the higher docket no. is
consolidated with the case having the
lower docket no.

is

EXCEPTIONS: Consolidation becomes a


matter of duty when:
1. if the cases are pending before
the same judge OR

REMEDIAL LAW COMMITTEE

IN

RULE 32
TRIAL BY COMMISSIONER

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


72

MEMORY AID
COMMISSIONER- a person to whom a
cause pending in court is referred, for
him to take testimony, hear the parties
and report thereon to the court, and
upon whose report, if confirmed,
judgment is rendered.

IN

2 Scenarios
MOTION DENIED

Reference to a commissioner may be had


by the written consent of both parties.

Situations when reference to a


Commissioner may be made on motion
(Sec.2):
1. Examination of a long account
2. Taking of an account is necessary
3. Question of fact, other than
upon the pleading arises; or
4. Carrying a judgment or order
into effect.
Disobedience to a subpoena issued by
the commissioner is deemed a contempt
of the court which appointed the latter.

RULE 33
DEMURRER TO EVIDENCE

REMEDIAL LAW

MOTION GRANTED
BUT REVERSED ON
APPEAL

Movant shall have the Movant is deemed to


right to present his have waived his right
evidence
to present evidence.
The decision of the
appellate court will
be based only on the
evidence of the
plaintiff as the
defendant loses his
right to have the
case remanded for
reception of his
evidence.

denial is
INTERLOCUTORY. Sec. 1
, Rule 36 (that
judgment should state
clearly and distinctly
the facts and the law
on which it is based),
will not apply.

order of the court is


an ADJUDICATION ON
THE MERITS, hence,
the requirement in
Sec. 1, Rule 36
should be complied
with.

The denial is NOT


appealable.

Section 1. Demurrer to evidence.

DEMURRER TO
EVIDENCE

MOTION TO DISMISS

It is presented after
the plaintiff has
rested his case

presented before a
responsive pleading
(answer) is made by
the defendant

The ground is based


it may be based on
on insufficiency of
any of those
evidence
enumerated in Rule 16

REMEDIAL LAW COMMITTEE

CIVIL CASES

CRIMINAL CASES

Defendant need not ask


leave of court is
for leave of court;
necessary so that the
accused could
present his evidence
if the demurrer is
denied

if the court finds


if the court finds the
plaintiffs evidence
prosecutions
insufficient, it will
evidence
grant the demurrer by insufficient, it will
dismissing the
grant the demurrer
complaint. The
by rendering
judgment of dismissal judgment acquitting
is appealable by the
the accused.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


73

MEMORY AID
plaintiff. If plaintiff
Judgment of
appeals and judgment
acquittal is not
is reversed by the
appeallable; double
appellate court, it will
jeopardy sets-in
decide the case on the
basis of the plaintiffs
evidence with the
consequence that the
defendant already loses
his right to present
evidence no res
judicata in dismissal
due to demurrer

if court denies
demurrer, defendant
will present his
evidence

if court denies the


demurrer:

JUDGMENT ON DEMURRER TO EVIDENCE


is a judgment rendered by the court
dismissing a case upon motion of the
defendant, made after plaintiff has
rested his case, on the GROUND that
upon the facts presented by the plaintiff
and the law on the matter, plaintiff has
not shown any right to relief.

REMEDIAL LAW

A judgment on the pleadings must be on


motion
of
the
claimant.
(NO
SUPPORTING PAPERS ARE REQUIRED
BECAUSE EVERTHING IS BASED ON THE
PLEADINGS.)

HOWEVER, if at the pre-trial the court


finds that a judgment on the pleadings is
proper, it may render such judgment
motu proprio.

GROUNDS:
1. Answer fails to tender an issue
because of:
a. general denial of the
material allegations of
the complaint;
b. insufficient denial of the
material allegations of
the complaint ; or
2. Answer
admits
material
allegations of the adverse partys
pleading

If demurrer was with


leave, accused may
present his evidence
If the demurrer was
without leave,
accused can no
longer present his
evidence and submits
the case for decision
based on the
prosecutions
evidence

IN

By moving for judgment on the


pleading, plaintiff waives his claim
for unliquidated damages. Claim for
such damages must be alleged and
proved.

NO JUDGMENT ON THE PLEADINGS IN


ACTIONS FOR
1. Declaration
of
nullity
marriage
2. Annulment of marriage
3. Legal Separation

Motion to Dismiss
RULE 34

of

Motion for
judgment on the
pleadings

JUDGMENT ON THE PLEADINGS

Filed

REMEDIAL LAW COMMITTEE

by

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


74

MEMORY AID
defendant
to
a Filed
by
the
complaint,
plaintiff
if
the
counterclaim, cross- answer raises no
claim or 3rd-party issue.
complaint

IN

REMEDIAL LAW

a. there is no genuine issue as to


any material fact, except
damages which must always be
proved, and
b. the movant is entitled to a
judgment as a matter of law.

The summary judgment may be a


judgment on the merits, in which case,
an appeal may be taken therefrom.
If the complaint states no cause of
action, a motion to dismiss should be
filed and not a motion for judgment on
the pleading.

RULE 35
SUMMARY JUDGMENTS

SUMMARY JUDGMENT
One granted by the court for the prompt
disposition of civil actions wherein it
clearly appears that there exists NO
genuine issue or controversy as to any
material fact.
Who can File
1. Plaintiff: he must wait for the
answer to be filed and served, and
thus for the issue to be joined,
before he can move for summary
judgment.
2. Defendant: he can move for
summary judgment at anytime, that
is, anytime after filing and service of
the complaint even before he
answers

The motion for summary judgment must


be supported by (1) affidavit, (2)
depositions of the adverse party or a
third party, or (3) admissions of the
adverse party, all intended to show that:

REMEDIAL LAW COMMITTEE

SUMMARY
JUDGMENT

JUDGMENT JUDGMENT
ON THE
BY DEFAULT
PLEADINGS
(Rule 9)

Based on the based solely on


pleadings,
the pleadings.
depositions,
admissions
and affidavits

based on the
complaint and
evidence, if
presentation
is required.

Available to
generally
Available to
both plaintiff available only
plaintiff.
and defendant to the plaintiff,
unless the
defendant
presents a
counterclaim.

There is

The answer no issues as no


fails to tender answer is filed
an issue or
by the
no genuine
there is an
defending
admission of
party.
issue between
material
the parties,
allegations.
i.e. there may
be issues but
these are
irrelevant

10-day notice 3-day


notice 3-day notice
required
required
rule applies.

May
be On the merits
interlocutory
or
on
the

On the merits

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


75

MEMORY AID

IN

REMEDIAL LAW

MEMORANDUM DECISION- a decision of


the appellate court which adopts the
findings and the conclusion of the trial
court.

merits

JUDICIAL COMPROMISE
RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY
THEREOF

JUDGMENT- final consideration and


determination by a court of the rights of
the parties, upon matters submitted to it
in an action or proceeding.

The date of finality of the judgment or


final order shall be deemed to be the
date of its entry.

REQUISITES OF A JUDGMENT:

A judgment based on a
compromise which has the force
of law and is conclusive between
parties.
Not appealable.

A JUDGMENT is considered RENDERED


Upon filing of the signed decision. This
includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the
established procedural rule.

The power to amend a judgment is


inherent to the court before judgment
becomes final and executory.

After judgment has become executory,


the court cannot amend the same

1. It should be in writing, personally


and directly prepared by the judge
2. Must state clearly and distinctly the
facts and the law on which it is
based
3. It should contain a dispositive part
and should be signed by the judge
and filed with the clerk of court.

PROMULGATION- the process by which a


decision
is
published,
officially
announced, made known to the public or
delivered to the clerk of court for filing,
coupled with notice to the parties or
their counsel.

REMEDIAL LAW COMMITTEE

EXCEPT:
1. To make corrections of
clerical
errors,
not
substantial amendments, as
by an amendment nunc pro
tunc.
2. To clarify an ambiguity which
is borne out by and
justifiable in the context of
the decision.
3. In judgments for support,
which
can
always
be
amended from time to time.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


76

MEMORY AID

IN

REMEDIAL LAW

PROMULGATION OF JUDGMENT
MANNER
ATTACKING
JUDGMENTS:

OF

Court Renders Decision

Filing appeal within 15/30 days from notice of judgment

Losing Party

1. Direct attack
Accepts decision without further
contest
Within
15/30 days from notice of judgment:
Motion for reconsideration; or
motion for new trial

a. before finality
1. motion for
new trial or

Court maintains decision

Court grants motion:


1.modifies decision; or
2.grants
new trial
If no appeal is taken or did not avail of remedies, judgment becomes final
and executory

Losing party may appeal within the remaining period


reconsideration;
2. appeal
b. after finality
1.

relief from judgment, rule


38

2. annulment of judgment, Rule


47.

2.Collateral attack

Section 4. Several judgments.


Several judgment is proper where the
liability of each party is clearly
separable and distinct from his coparties such that the claims against each
of them could have been the subject of
separate suits, and the judgment for or
against one of them will not necessarily
affect the other.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


77

MEMORY AID
A several judgment is NOT proper in
actions against solidary debtors.

Section 6. Separate Judgments


Proper when more than one claim for
relief is presented in an action and a
determination as to the issues material
to the claim has been made. The action
shall proceed as to the remaining
claims.

Judgment NUNC PRO TUNC (literally


means now for then)

rendered to enter or record such


judgment as has been formerly
rendered but has not been
entered as thus rendered
its only function is to record
some act of the court which was
done at a former time, but
which was not then recorded, in
order to make the record speak
the truth, without any changes
in substance or any material
respect.

Judgment
upon
Compromise

Agreement

or

A compromise agreement between the


parties to a case on which the decision
of the court was based has upon the
parties the effect and authority of res
judicata. It is immediately executory.

Judgment by Confession

REMEDIAL LAW COMMITTEE

IN

REMEDIAL LAW

Judgment upon confession is one which


is rendered against a party upon his
petition or consent. It usually happens
when the defendant appears in court and
confesses the right of the plaintiff to
judgment or files a pleading expressly
agreeing to the plaintiffs demand.

Two kinds of judgment by confession


1. A judgment by COGNOVIT
ACTIONEM here, the defendant
after service instead of entering
a plea, acknowledged and
confessed that the plaintiffs
cause of action was just and
rightful.
2. A judgment by CONFESSION
RELICTA VERIFICATIONE after
pleading and before trial, the
defendant both confessed the
plaintiffs cause of action and
withdrew or abandoned his plea
or other allegations, whereupon
judgment was entere against him
without proceeding to trial.

Judgment upon
Compromise

Judgment by
Confession

The provisions and


An affirmative and
terms are settled and voluntary act of the
agreed upon by the
defendant himself.
parties to the action, The court exercises a
and which is entered
certain amount of
in the record by the supervision over the
consent of the court. entry of judgment.

Clarificatory Judgment
rendered by the court, upon motion,
when a judgment previously rendered is
ambiguous and difficult to comply with.

AMENDED OR
CLARIFIED

SUPPLEMENTAL

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


78

MEMORY AID
JUDGMENT

DECISION

It is an entirely new
decision and
supersedes the
original judgment

Does not take the


place of or extinguish
the original judgment

Court makes a
thorough study of the
original judgment and
renders the amended
and clarified
judgment only after
considering all the
factual and legal
issues

Serves to bolster or
add to the original
judgment

RULE 37

IN

REMEDIAL LAW

An order denying a motion for new trial


is not appealable.

NEW TRIAL - the rehearing of a case


already decided by the court but before
the judgment rendered thereon becomes
final and executory, whereby errors of
law or irregularities are expunged from
the record, or new evidence is
introduced, or both steps are taken.
Purpose: to set aside the judgment or
final order and grant a new trial.

WHEN to file: within period for taking


appeal.

NEW TRIAL OR RECONSIDERATION


WHERE to file: with the trial court
which
rendered
the
questioned
judgment.
Order denying motion for new trial

Second motion for new trial based on grounds not existing or available when 1st motion was filed

MOTION FOR A NEW


TRIAL

MOTION FOR
RECONSIDERATION

The grounds
are: fraud, The grounds are: the
peal from the judgment or final order and assign as one of the errors the denial of the motion
for new trial
accident, mistake or
damages awarded are
excusable negligence or excessive, that the
newly discovered
evidence is insufficient
evidence which could to justify the decision
not, with reasonable
or final order, or that
diligence, have
the decision or final
discovered and
order is contrary to
produced at the trial,
law.
and which if presented
would probably alter the
result

Second motion may be

REMEDIAL LAW COMMITTEE

Second motion from

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


79

MEMORY AID
allowed

same party is
prohibited

If a new trial is granted if the court finds that


the trial court will set
excessive damages
aside the judgment or have been awarded or
final order
that the judgment or
final order is contrary
to the evidence or law,
it may amend such
judgment or final
order accordingly

IN

REMEDIAL LAW

Section 6. Effect of granting of motion


for new trial
When motion is granted, the original
judgment is thereby vacated and the
action stands for trial de novo, but the
recorded evidence taken upon the
former trial so far as the same is
material and competent to establish the
issues, shall be used at the new trial
taking the same.

The order denying a motion for new trial


is NOT appealable.
REQUISITES
EVIDENCE

for

NEWLY-DISCOVERED

1. Must have been discovered after


trial

MOTION FOR NEW


MOTION FOR
TRIAL
REOPENING OF THE
TRIAL

2. Could not have been discovered


and produced at the trial
3. If presented, would alter the
result of the action
4. Otherwise
it
is
FORGOTTEN EVIDENCE.

Specifically
mentioned in the
Rules

called

NOTE: It is actually
mentioned in the Rules
of Criminal Procedure

A motion suspends or tolls the running of


the reglementary period for appeal
except when the same is pro-forma.

PRO-FORMA MOTION - when it does not


comply with Rule 15 and Rule 37, e.g. it
does not point out specifically the
findings or conclusions of the judgment
as are contrary to law, making express
reference to the testimonial or
documentary evidence or to the
provisions of law alleged to be contrary
to such findings or conclusions, and is
merely
intended
to
delay
the
proceedings OR if there is no affidavit of
merit.
REMEDIAL LAW COMMITTEE

Not mentioned in the


Rules but is
nevertheless a
recognized procedural
recourse or device
deriving validity and
acceptance from long
established usage

Proper only after


promulgation of
judgment

May properly be
presented only after
either or both the
parties have formally
offered and closed
their evidence before
judgment

Based upon specific


grounds set forth
under Rule 37 in civil
cases and Rule 121 in
criminal cases

Controlled by no other
rule than the
paramount interests of
justice, resting entirely
on the sound discretion
of a trial court, the

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


80

MEMORY AID
exercise of which
discretion will not be
reviewed on appeal
UNLESS a clear abuse
thereof is shown

IN

REMEDIAL LAW

action,
a
petition
for
certiorari and action to
annul judgment on the
ground of extrinsic fraud or
lack of jurisdiction
COLLATERAL ATTACK if the
judgment can be resisted in
any other action in which it
is involved.

MOTION FOR RECONSIDERATION


Purpose: To reconsider
judgment or final order

or

amend

WHEN to file: within period for taking an


appeal

WHERE to file: with the trial court


which rendered the judgment or final
order sought to be reconsidered

RULE 37

RULE 38

Available BEFORE
judgment becomes
final and executory

Available AFTER
judgment has become
final and executory

Applies to
Applies to judgments,
JUDGMENTS or FINAL final orders and other
ORDERS only
proceeding:

1.Land Registration
2.Special Proceedings
3. Order of Execution

RULE 38
RELIEF FROM JUDGMENTS, ORDERS, OR
OTHER PROCEEDINGS

REMEDIES
AGAINST
FINAL
AND
EXECUTORY JUDGMENTS OR ORDERS

GROUNDS:

GROUNDS:

i. FAME

FAME

ii. Newly discovered


evidence

1. Petition
for
Relief
from
Judgment (Rule 38)
2. Annulment of judgments or final
orders or resolutions (Rule 47) on
the ground of:
o Extrinsic fraud, to be filed
within 4 years from the
discovery of the fraud;
o Lack of jurisdiction, before
it is barred by laches or
estoppel
3. Direct or collateral attack
against a void or voidable
judgment
o DIRECT ATTACK when the
validity of the judgment
itself is the main issue of the

REMEDIAL LAW COMMITTEE

WHEN AVAILED OF:

WHEN AVAILED OF:

Within the time to


appeal

within 60 days from


knowledge of the
judgment AND
within 6 months from
entry of judgment

If denied, the order


of denial is NOT
appealable, hence
remedy is appeal
from the judgment

If denied, the order


denying a petition for
relief is NOT
appealable; the
remedy is appropriate
civil action under Rule

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


81

MEMORY AID

IN

REMEDIAL LAW

65

Legal remedy

Equitable remedy

Motion need not be


verified

Petition must be
verified

ESSENTIAL REQUISITE OF A WRIT OF


EXECUTION: a writ of execution to be
valid, must conform strictly to the
decision or judgment which gives it life.

It cannot vary the terms of the judgment


it seeks to enforce

TWO HEARINGS UNDER RULE 38


1. Hearing to determine whether
the judgment should be set aside
2. If yes, a hearing on the merits of
the case.

The period fixed by Rule 38 is nonextendible and is never interrupted.

FINAL JUDGMENT OR ORDER- one which


disposes of the whole subject matter or
terminates the particular proceedings or
action, leaving nothing to be done by the
court but to enforce by execution what
has been determined.
EXECUTION OF JUDGMENT

RULE 39
EXECUTION, SATISFACTION AND EFFECT
OF JUDGMENTS

EXECUTION remedy provided by law


for the enforcement of a final judgment.

AGAINST WHOM ISSUED: execution can


only issue against a party and not against
one who has not had his day in court.

WRIT OF EXECUTION: judicial writ


issued to an officer authorizing him to
execute the judgment of the court.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


82

MEMORY AID

IN

REMEDIAL LAW

If the winning partyJudgment


does not move
is executed
for execution
by motion
w/in
within
5 years
5 years
but before
from date
10 years
of itsfrom
entrythe date of entry of judgment, the same can only be revived by means of a n
petition

Execution is a matter of right after expiration of period to appeal and no appeal is perfected

Discretionary execution upon good reasons stated in a special order after due hearing

Sheriff enforces writ of execution

Losing party is made to indemnify thru:


payment with interest;
levy and sale of personal property;
levy and sale of real property;
delivery of personal and real property

SPECIAL JUDGMENT one that requires


the performance of an act OTHER THAN:
1. The payment of money; and
2. The sale of real or personal
property
Section 1. Execution Upon Judgments
and Final Orders.

TEST TO DETERMINE WHETHER A


JUDGMENT OR ORDER IS FINAL OR
INTERLOCUTORY: The test is whether
the judgment or order leaves nothing
more for the court to do with respect to
the merits of the case.

REMEDIAL LAW COMMITTEE

EXECUTION ISSUES AS A MATTER OF


RIGHT:
1. on motion

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


83

MEMORY AID
2. upon a judgment or order that
disposes of the action or
proceeding AND
3. upon expiration of the period to
appeal therefrom and NO appeal
has been duly perfected.

GENERAL RULE: court cannot refuse


execution
UNLESS:
1. Execution
IMPOSSIBLE

is

UNJUST

OR

2. Equitable grounds like a CHANGE


IN SITUATION of the parties
which
makes
execution
inequitable
3. Judgment NOVATED by parties
4. Execution is enjoined
5. Judgment has become DORMANT

IN

REMEDIAL LAW

DISCRETIONARY
EXECUTION

EXECUTION AS A
MATTER OF RIGHT

May issue before

Period to appeal has

the lapse of period

already lapsed and

to appeal

no appeal is
perfected

Discretionary upon

Ministerial duty of

the court; there is

the court PROVIDED

inquiry on whether

there are no

there is GOOD

supervening events

REASON for

QUASHAL OF WRIT PROPER WHEN:

execution

1. Improvidently issued
2. Defective in substance
3. Issued against the wrong party
4. Judgment already satisfied
5. Issued without authority

Section 2. Discretionary Execution

GROUNDS FOR EXECUTION PENDING


APPEAL:
1. Insolvency of the judgment
debtor.
2. Wastage of asset by judgment
debtor.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


84

MEMORY AID
Section 3. Stay of Discretionary
Execution. The party against whom an
execution is directed may file a
supersedeas bond to stay discretionary
execution.

IN

REMEDIAL LAW

2. When the order of execution


varies with the tenor of the
judgment.

Section 4. Judgments NOT Stayed By


Appeal
SUPERSEDEAS BOND- one filed by a
petitioner and approved by the court
before the judgment becomes final and
executory and conditioned upon the
performance of the judgment appealed
from in case it be affirmed wholly or in
part.

1. INJUNCTION
2. RECEIVERSHIP
3. ACCOUNTING
4. SUPPORT

Supersedeas
bond
guarantees
satisfaction of the judgment in case of
affirmance on appeal, not other things
like damage to property pending the
appeal

The court may, in its discretion, order an


execution before the expiration of the
time within which to appeal provided:
1. There is a motion for execution
filed by the winning party
2. There is notice of said motion to
the adverse party; and
3. There are good reasons stated in
a special order after due
hearing.

GENERAL RULE: an order of execution is


NOT appealable otherwise there would
be no end to the litigation between the
parties.

5.
Such
other
judgments
declared to be immediately
executory
unless
otherwise
ordered by the trial court.

Section 6. Execution By Motion Or


Independent Action.

MODE OF ENFORCEMENT
1. By motion within 5 years from
date of its entry
2. By independent action after 5
years from entry AND before it is
barred by statute of limitations

Judgment for support does not become


dormant, thus it can always be executed
by motion.

5-year period may be extended by the


conduct of judgment debtor.

EXCEPTIONS:
1. When the terms of the judgment
are not very clear;

REMEDIAL LAW COMMITTEE

A revived judgment is a new judgment


thus another 5/10-year period to
execute and revive is given the party.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


85

MEMORY AID

Section 7. Execution In Case Of Death


Of Party.
If the obligor dies AFTER entry but
BEFORE LEVY on his property, execution
will be issued for recovery of real or
personal property or enforcement of a
lien thereon. But for a sum of money,
judgment cannot be enforced by writ but
as a claim against his estate/probate
proceedings.

If he dies AFTER a VALID LEVY has been


made, execution sale proceeds.
Section 8. Issuance, Form and Contents
of a Writ of Execution.

Remedies in an order granting or


denying the issuance of a writ of
execution
Appeal is the remedy for an order
denying the issuance of a writ of
execution.

Section 10. Execution Of Judgments


For Specific Act.
If party REFUSES TO VACATE PROPERTY,
remedy is NOT contempt. The Sheriff
must oust the party. But if demolition is
involved, there must be a special order.

If party REFUSES TO DELIVER, sheriff will


take possession and deliver it to winning
party.

IN

REMEDIAL LAW

the act done shall have the same effect


as if the required party performed it,
the disobedient party incurs no liability
for contempt.

Section 11.
Judgments.

Execution

of

Special

When
judgment
requires
the
performance of any act other than for
money and delivery of property.

The writ of execution shall be served


upon the party required to obey the
same and such party may be punished
for contempt if he disobeys.

LEVY - act by which an officer sets apart


or appropriates a part of the whole of
the property of the judgment debtor for
purposes or the execution sale. The levy
on execution shall create a lien in favor
or the judgment creditor over the right,
title and interest of the judgment debtor
in such property at the time of the levy.

The levy on execution creates a lien in


favor of the judgment creditor subject
to prior liens and encumbrances.

GARNISHMENT - act of appropriation by


the court when property of debtor is in
the hands of third persons

The garnishee or the 3rd person who is in


possession of the property of the
judgment debtor is deemed a forced
intervenor.

When the party REFUSES TO COMPLY,


court can appoint some other person at
the expense of the disobedient party and
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


86

MEMORY AID
ATTACHMENT

Refers to corporeal
property in the
possession of the
judgment debtor.

GARNISHMENT

refers to money,
stocks, credits and
other incorporeal
property which belong
to judgment debtor
but is in the
possession or under
the control of a third
person

Section
16. Proceedings Where
Property Claimed By Third Person.

IN

REMEDIAL LAW

SALE ON EXECUTION
Notice of sale is required before levied
property can be sold at public auction
(Sec. 15).

Remedy against an irregular sale is


MOTION TO VACATE OR SET ASIDE THE
SALE to be filed in the court which
issued the writ.

REDEMPTION (Secs. 27 & 28)


Right of Redemption:

REMEDIES of THIRD PARTY CLAIMANT

1. Summary hearing before


court which authorized
execution;

the
the

2. TERCERIA or third party claim


filed with the sheriff;
3. Action for damages on the bond
posted by judgment creditors; or
4. Independent
action.

reinvidicatory

The remedies are cumulative and may be


resorted to by third party claimant
independently of or separately from the
others.

If winning party files a bond, it is only


then that the sheriff can take the
property in his possession. IF NO BOND,
cannot proceed with the sale.

REMEDIAL LAW COMMITTEE

1. Personal Property NONE; sale is


absolute
2. Real Property there is a right of
redemption

WHO may redeem (Sec. 27)


Only the following:
a. Judgment
obligor,
or
his
successor in interest, in whole or
any part of the property; OR
b. Redemptioner who is a creditor
having a:
1) Lien by attachment on
the
property
sold
subsequent to the lien
under
which
the
property was sold,
2) Lien by judgment on the
property sold subsequent
to the lien under which
the property was sold;
3) Lien by mortgage on the
property sold subsequent
to the lien under which
the property was sold.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


87

MEMORY AID

WHEN CAN REDEMPTION BE MADE?

BY THE JUDGMENT OBLIGOR: Within one


(1) year from the date of registration of
the certificate of sale.

IN

REMEDIAL LAW

However, a formal offer to redeem with


a tender is not necessary where the right
to redeem is exercised through the filing
of a complaint to redeem in the courts,
within the period to redeem.

RIGHTS OF THE JUDGMENT DEBTOR:


1. Remain in possession of the
property

BY THE REDEMPTIONER:
1. Within one year from the date of
registration of the certificate of
sale; or
2. Within sixty days from the last
redemption
by
another
redemptioner
If the judgment obligor redeems, no
further redemption is allowed (Sec.
29).

2. Collect rents and profits


3. Cannot be Ejected
4. Use the property in the same
manner it was previously used
5. Make necessary repairs

Section 33. Deed and possession to be


given at expiration of redemption
period; by whom executed or given.

The period of redemption is NOT


suspended by an action to annul the
foreclosure sale.

CAN REDEMPTION BE PAID IN OTHER


FORMS THAN CASH?
YES. The rule is liberality in allowing
redemption (aid rather than defeat the
right) and it has been allowed in the
case of a cashiers check, certified bank
checks and even checks.

The offer to redeem must be


accompanied with a bona fide tender or
delivery of the redemption price.

REMEDIAL LAW COMMITTEE

The PURCHASER is entitled to a


CONVEYANCE AND POSSESSION of the
property if there is no redemption. He is
substituted to and acquires all the
rights, title, interest and claims of the
judgment obligor to the property at the
time of levy.

The deed of conveyance is what


operates to transfer to the purchaser
whatever rights the judgment debtor
had in the property. The certificate of
sale after execution sale merely is a
memorial of the fact of sale and does
not operate as a conveyance.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


88

MEMORY AID
The purchaser acquires no better right
than what the judgment debtor has in
the property levied upon. Thus, if the
judgment debtor had already transferred
the property executed prior to the levy
and no longer has an interest in the
property, the execution purchaser
acquires no right.

WHEN A THIRD PERSON IS IN POSSESSION,


The procedure is for the court to order a
hearing and determine the nature of
such adverse possession.

Section 34. Recovery of price if sale is


not effective; revival of judgment.

If the execution is returned


unsatisfied, he may cause
examination of the judgment
debtor as to his property and
income (Section 36)

2.

He may cause examination of


the debtor of the judgment
debtor as to any debt owed by
him or to any property of the
judgment
debtor
in
his
possession (Section 37)

3.

If after examination, the court


finds that there is property of
the judgment debtor either in
his own hands or that of any
person, the court may order the
property
applied
to
the
satisfaction of the judgment
(Section 37)

4.

If the court finds the earnings


of the judgment debtor are
more than sufficient for his
familys needs, it may order
payment
in
installments
(Section 40)

5.

The court may appoint a


receiver for the property of the
judgment debtor not exempt
from execution or forbid a
transfer or disposition or
interference with such property
(Section 41)

6.

If the court finds that the


judgment
debtor
has
an
ascertainable interest in real
property either as mortgagor,

2. Purchaser after having acquired


possession is evicted due to:
a.

Irregularities
in
the
proceedings concerning the
sale.

b.

Reversal or setting aside of


judgment.

c.

The fact that the property


was exempt from execution.

d.

A third person has vindicated


his claim to the property.

REMEDIES OF THE JUDGMENT CREDITOR


IN AID OF EXECUTION

REMEDIAL LAW COMMITTEE

REMEDIAL LAW

1.

THE PURCHASER MAY RECOVER THE


PURCHASE PRICE WHEN
1. The purchaser or his successorin-interest FAILS TO RECOVER
POSSESSION of the property or;

IN

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


89

MEMORY AID
mortgagee, or otherwise, and
his interest can be ascertained
without controversy, the court
may order the sale of such
interest. (Section 42)

7.

If the person alleged to have


the property of the judgment
debtor or be indebted to him,
claims an adverse interest in
the property, or denies the
debt, the court may authorize
the
judgment-creditor
to
institute an action to recover
the property, forbid its transfer
and may punish disobedience
for contempt (Section 43)

Section 46. When Principal Bound By


Judgment Against Surety.
The principal is bound by the same
judgment from the time he has notice of
the action or proceeding and has been
given an opportunity at the suretys
request, to join the defense.

Section 47. Effect Of Judgment Or


Final Orders.
Refers
to
judgments
which
are
considered as conclusive and may be
rebutted directly by means of relief from
judgment or annulment of judgment or
indirectly by offering them in evidence
under the parole evidence rule.

IN

REMEDIAL LAW

JUDGMENT or
FINAL ORDER

EFFECT: CONCLUSIVE
AS TO

Against a specific
thing

Title to the thing

Probate of a will or
administration of
the estate of a
deceased person

Will or administration

In respect to the
personal, political,
or legal condition or
status of a
particular person

Condition, status or
relationship of the
person

However, ONLY prima


facie evidence of the
death of the testator
or intestate

Par (B) is referred to as bar by former


judgment or RES JUDICATA in
judgments IN PERSONAM

RES JUDICATA - final judgments on the


merits by a court of competent
jurisdiction is conclusive as to the rights
of the parties or their privies in all later
suits on points determined in the former
judgment.

Par (A) refers to rule ON RES JUDICATA


in judgments IN REM
REQUISITES:
1. A FINAL judgment or order

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


90

MEMORY AID

IN

REMEDIAL LAW

Appeal decision of MTC by filing notice of appeal and pay appellate court docket fee in the same MTC within 15 days from receipt of judgment

15 days from perfection of appeal, MTC clerk transmits record to RTC

Notice to parties that an appeal is being taken from the decision of MTC

Within 15 days from notice of appeal:


appellant submits memorandum to the RTC
appellee files his own memorandum 15 days from receipt of appellants memorandum

If uncontested, judgmentAny
is entered
party may
in the
appeal
bookbyoffiling
entries
a petition for review with the RTC

2. JURISDICTION over the subject


matter and the parties by the
court rendering it
3. Judgment UPON THE MERITS

Under the doctrine of res judicata, no


matter how erroneous a judgment may
be, once it becomes final, it cannot be
corrected. The only grounds are lack of
jurisdiction, collusion or fraud.

4. Between the two cases:


IDENTITY OF PARTIES
IDENTITY OF SUBJECT MATTER

Par. (C) is known as conclusiveness of


judgment or rule of AUTER ACTION
PENDENT

IDENTITY OF CAUSE OF ACTION


CONCLUSIVENESS OF JUDGMENT
THERE IS IDENTITY OF CAUSE OF ACTION
when the two actions are based on the
same delict or wrong committed by the
defendant even if the remedies are
different.

REMEDIAL LAW COMMITTEE

has the effect of preclusion only of


issues.
parties in both actions may be the
same but the causes of action are
different.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


91

MEMORY AID
BAR BY FORMER CONCLUSIVENESS OF
JUDGMENT
JUDGMENT

IN

REMEDIAL LAW

In both instances, the judgment may be


repelled by evidence of want of
jurisdiction, notice, collusion, fraud or
clear mistake of law or fact.

RULE 40
There is identity of There is ONLY identity of
parties, subject
PARTIES AND SUBJECT
matter and causes
MATTER
of action

APPEAL FROM MUNICIPAL TRIAL COURTS


TO THE REGIONAL TRIAL COURTS

APPEAL FROM MTC TO RTC


The first judgment
constitutes as an
ABSOLUTE BAR TO
ALL MATTERS
directly adjudged
and those that
might have been
adjudged.

The first judgment is


conclusive only as to
matters directly adjudged
and actually litigated in
the first action. Second
action can be prosecuted.

Section 48. Effect Of Foreign Judgment


Or Final Orders:

ORDINARY APPEAL - an appeal by notice


of appeal from a judgment or final order
of a lower court on questions of fact and
law.

APPEAL TO THE RTC


Mode of Appeal Notice of Appeal
within fifteen (15) days from receipt
of decision.

THE EFFECT OF FOREIGN JUDGMENTS


Provided that the foreign tribunal had
jurisdiction:

1.

IN CASE OF JUDGMENT AGAINST A


SPECIFIC THING, the judgment is
CONCLUSIVE upon the TITLE TO
THE THING;

2.

IN CASE OF A JUDGMENT AGAINST


A PERSON, the judgment is
PRESUMPTIVE EVIDENCE of a
right as between the parties and
their successors-in-interest by a
subsequent title.

After an appeal to the RTC has been


perfected, the MTC loses its
jurisdiction over the case and any
motion for the execution of the
judgment should be filed with the
RTC.
The Summary Rules no longer apply
when the cases is on appeal.

Section 2. When to Appeal.


1. Within 15 days after notice of
judgment or final order;
2. Where a record on appeal is
required, within 30 days from

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


92

MEMORY AID
notice of judgment or final order
by filing a notice of appeal and a
record on appeal;
3. Period to appeal shall be
interrupted by a timely motion
for new trial or reconsideration.
4. No motion for extension of time
to file a motion for new trial or
reconsideration
shall
be
allowed.

IN

REMEDIAL LAW

ORDINARY APPEAL

PETITION FOR
REVIEW

Matter of right

Discretionary

All the records are


elevated from the
court of origin

No records are
elevated unless the
court decrees it

Notice of record on
appeal is filed with
the court of origin

Filed with the CA

Section 3. How to Appeal.


By Notice of Appeal:

By Record on appeal:

1. File a notice of appeal with the


trial court.

1. for special proceedings such as


probate; and

2. The notice
indicate:

2. in such other cases where


multiple appeals are allowed as
in
partition
and
in
expropriation.

of

appeal

must

a. parties
b. judgment or final order
appealed from
c. material date showing
timeliness of appeal
3. A copy served on the adverse
party.
4. Payment in full of docket fees
and other lawful fees

Section 4. Perfection of Appeal; effect


thereof.

Appeal is deemed perfected:


1. by notice of appeal: as to him,
upon the filing of the notice of
appeal in due time;
2. by record on appeal: as to him,
upon the approval of the record
on appeal filed in due time.

Effect of a perfected appeal:


The court loses jurisdiction upon the
perfection or approval of appeal and
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


93

MEMORY AID
when the period of appeal for other
parties expire.

Residual power of the court prior to the


transmittal of the original record or
record on appeal:
1.

to issue orders for the


preservation of the rights of the
parties which do not involve
matters litigated by appeal;

2.

to approve compromise prior to


the transmittal of the record;

3.

permit appeal by an indigent;

4.

order execution pending appeal


under Rule 39, Sec.2 ( motion
for execution was filed before
the expiration of the period to
appeal;

5.

allow withdrawal of the appeal.

IN

REMEDIAL LAW

2. Reverse, in which case, it shall


remand the case for further
proceedings.

If dismissal is due to lack of jurisdiction


over the subject matter:
RTC may:
1. Affirm; if RTC has jurisdiction,
shall try the case on the merits
as if the case was originally filed
with it, or
2. Reverse, in which case, it
remand the case for further
proceedings.

If the case was tried on the merits by


the lower court without jurisdiction
over the subject matter:
RTC shall not dismiss the case if it has
original jurisdiction, but shall decide the
case, and shall admit amended pleadings
or additional evidence.

RULE 41

APPEAL FROM REGIONAL


Section 8. Appeal from orders
dismissing case without trial; lack of
jurisdiction

If lower court dismissed case without


trial on the merits:
RTC may:

TRIAL COURTS

APPEALABLE CASES
1.

Judgments or final orders that


completely disposes of the case.

2.

A particular matter in a
judgment declared by the Rules
to be appealable.

1. Affirm, or

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


94

MEMORY AID

NON APPEALABLE CASES


1.

Order dismissing an action without


prejudice

2.

Order of Execution

3.

Judgments or final orders for or


against one or more of several
parties or in separate claims while
the main case is pending

IN

REMEDIAL LAW

A judgment based on compromise is not


appealable
and
is
immediately
executory.

Section 2. Modes of appeal.

4.

5.
6.

Orders disallowing or dismissing an


Appeal

Ordinary
appeal

Petition for
review

(appeal by writ
of error)

[Rule 42]

Petition for
review on
certiorari
[Rule 45]

Interlocutory orders
Orders denying:
a.

Petition for relief;

b.

Motion for new trial or


reconsideration; and

c.

Motion to Set aside a


judgment,
by
consent,
confession or compromise
on the ground of fraud,
mistake, duress or any
ground vitiating consent.

Remedy in cases where appeal is not


allowed
Special civil action of certiorari or
prohibition if there is lack or excess of
jurisdiction or grave abuse of discretion
or mandamus if there is no performance
of duty.

INTERLOCUTORY ORDER An order


which does not dispose of the case but
leave something else to be done by the
trial court on the merits of the case.

REMEDIAL LAW COMMITTEE

Case is decided
Case is
by the RTC in
decided by
its original
the MTC.
jurisdiction
Appealed to
Appealed to the
the RTC.
CA
Petition for
review with
the CA

The case
raises only a
question of
law

File a notice of File a verified


appeal or a
petition for
record on
review with
appeal with the the CA. Pay
court of origin
the docket
(RTC) and give
and lawful
a copy to the
fees, and P
adverse party. 500 as deposit
for costs with
the CA.
Furnish RTC
and adverse
party copy of
such (R 42).

File a verified
petition for
review on
certiorari
with the SC (R
45) Pay
docket and
lawful fees
and P 500 for
costs.
Submit proof
of service of a
copy to the
lower court
and adverse
party.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


95

MEMORY AID

IN

REMEDIAL LAW

5. submit the record for approval


with notice on the adverse party
Within 15 days
from the notice
of the
judgment for
notice of
appeal and
within 30 days
for records on
appeal. The
period for filing
is interrupted
by a timely
motion for
reconsideration or new
trial.

Within 15 days Within 15


from notice of days from
the decision notice of the
to be
judgment or
reviewed or
order or
from the
denial of the
denial of a MR MR or new
or new trial.
trial.

The period to appeal is MANDATORY and


JURISDICTIONAL. Failure to appeal on
time makes the decision final and
executory and deprives the appellate
court of jurisdiction.

However in few instances the court has


allowed due course to such appeals on
strong and compelling reasons of
justice.

Section 7. Approval of record on


appeal.

Procedure if the appeal is through a


record on appeal
RULE 42
1. file record on appeal
2. appellee may file an objection
within 5 days from his receipt
thereof
3. if there is no objection the court
may:

approve it as presented; OR
direct its amendment on its
own or upon the motion of
the adverse party

4. if an amendment is ordered the


appellant must redraft the
record within the time ordered
or if there is no time, within 10
days from receipt

REMEDIAL LAW COMMITTEE

PETITION FOR REVIEW FROM THE


REGIONAL TRIAL COURTS TO THE
COURT OF APPEALS

Petition for review is not a matter of


right but discretionary on the CA. It may
only give due course to the petition if it
shows on its face that the lower court
has committed an error of fact and/or
law that will warrant a reversal or
modification of the decision or judgment
sought to be reviewed; OR dismiss the
petition if it finds that it is patently
without merit, or prosecuted manifestly
for delay, or the questions raised therein
are too unsubstantial to require
consideration.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


96

MEMORY AID
It is merely discretionary on the CA to
order the elevation of the records. This
is because until the petition is given due
course, the trial court may still issue a
warrant of execution pending appeal and
in some cases such as ejectment and
those of Summary Procedure, the
judgments are immediately executory. It
is only when the CA deems it necessary
that the Clerk of the RTC will be ordered
to elevate the records of the case.

RULE 43
APPEALS FROM THE COURT OF TAX
APPEALS AND THE QUASI-JUDICIAL
AGENCIES TO THE CA

Judgments and final orders or resolutions


of the NLRC are reviewable by the
COURT OF APPEALS in an original action
for certiorari under Rule 65 (St. Martin
Funeral Home vs. NLRC, Sept. 16, 1998).

A party adversely affected by a decision


or ruling of the CTA en banc may file
with the Supreme Court a verified
petition for review on certiorari pursuant
to Rule 45 (Sec. 12, RA 9282).

IN

REMEDIAL LAW

Failure to file appellant's brief on time is


a ground for dismissal of the appeal.
If a motion to dismiss an appeal has been
filed, it suspends the running of the
period for filing the appellant brief, as
the same would be unnecessary should
the motion be granted.

The failure of the appellant to make


specific assignment of errors in his brief
or page references to the record as
required in this section is a ground for
dismissal of his appeal.

Section 15. Questions that may be


raised on appeal.

The appeal can raise only questions of


law or fact that
1. were raised in the court below;
and
2. are within the issues framed by
the parties thereon.

BRIEF vs. MEMORANDUM

BRIEF

MEMORANDUM

Ordinary appeals

Certiorari, Prohibition,
Mandamus, Quo
Warranto and Habeas
Corpus cases

RULE 44

ORDINARY APPEALED CASES

Section 9. Appellants reply brief.


REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


97

MEMORY AID

Filed within 45 days

IN

REMEDIAL LAW

within 30 days

Contents specified Shorter, briefer, only one


by Rules
issue involved - no
subject index or
assignment of errors just
facts and law applicable

Section 1. Filing of petition with


Supreme Court

RULE 45
APPEAL BY CERTIORARI TO THE
SUPREME COURT

Appeals to the SC can be taken from a


judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or
such other courts as maybe authorized
by law and only by verified petition for
review on certiorari on questions of law
except only in appeals from judgments
of the RTC in criminal cases wherein the
penalty imposed is life imprisonment or
reclusion perpetua which shall be
elevated by ordinary appeal, or wherein

RTC, Sandiganbayan or CA renders decision

view on certiorari w/in 15 days from notice of final judgment or order of lower court or notice of denial of motion for reconsideration or new trial

Appellant serves copies of petition on adverse parties and to the lower court, and pay the corresponding docket fees

SC may dismiss the petition or require the appellee to comment

If given due course, parties may submit memoranda

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae

SC may
affirm, reverse, or modify judgment of the lower court
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


98

MEMORY AID
the death penalty is imposed which is
subject to automatic review.

GENERAL RULE: the findings of fact of


the CA are final and conclusive and
cannot be reviewed on appeal to the
SC.

EXCEPTIONS to CONCLUSIVENESS OF
FACTS:

1. When the finding is grounded


entirely on speculations, surmise
or conjecture;

IN

REMEDIAL LAW

specific evidence on which they


are based;
9. When the facts set forth in the
petition as well as in the
petitioners main and reply
briefs are not disputed by the
respondents;
10. The findings of fact of the CA is
premised on the supposed
evidence and is contradicted by
the evidence on record;
11. When certain material facts and
circumstances
have
been
overlooked by the trial court
which, if taken into account,
would alter the result of the
case in that they would entitle
the accused to acquittal.

2. When
inference
made
is
manifestly absurd, mistaken or
impossible;
3. When the judgment is premised
on a misrepresentation of facts;
4. When there is grave abuse of
discretion in the appreciation of
facts;
5. When the findings of fact are
conflicting;
6. When the CA in making its
findings went beyond the issues
of the case and the same is
contrary to both the admissions
of appellants and appellees;
7. When the findings of fact of the
CA are at variance with those of
the trial court, the SC has to
review the evidence in order to
arrive at the correct findings
based on the record;
8. When the findings of fact are
conclusions without citation of

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


99

MEMORY AID

IN

Stays the judgment or

Certiorari under Rule 45 vs. certiorari


under Rule 64/65 ( special civil action)

CERTIORARI UNDER CERTIORARI UNDER


RULE 45
RULE 64/65

petition is based on
questions of law

It is a mode of appeal

petition raises the


issue as to whether
the lower court acted
without jurisdiction or
in excess of
jurisdiction or with
grave abuse of
discretion

Special civil action

Involves the review of Directed against an


the judgment award interlocutory order of
or final order on the
the court or where
merits
there is no appeal or
any other plain,
speedy or adequate
remedy

REMEDIAL LAW COMMITTEE

Unless a writ of

QUESTIONS
OF LAW
QUESTIONSinjunction
OF
order appealed
from preliminary
orFACT
temporary
restraining order is
issued does not stay
the challenged
doubt or controversy doubt or
difference
proceeding
as to what the law is arises as to the truth
on certain facts
or falsehood of facts,
or as to probative
value of the evidence
presented

The petitioner and the The parties are the


respondent are the
aggrieved party
original parties to the
against the lower
if the appellate court
the determination
action, and the lower court or quasi-judicial
can determine the involves evaluation or
court or quasi-judicial
agency and the
issue raised without
review of evidence
agency is not
prevailing parties
reviewing or
impleaded
evaluating the
evidence

Can involve questions


query invites the
Motion forof
Motion
of interpretation
calibration
of for
the
reconsideration
is not reconsideration
the
law with respect
whole evidence or for
new trialmainly
is required
to certainrequired
set of facts considering
the
credibility of
witnesses,
existence
If a motion
for
and
relevancy of or
reconsideration
specific
surrounding
new trial
is filed, the
circumstances
andonly
period shall not
relation
to each other
be interrupted
but
and the60
whole
another
days shall
probabilities
be given of
to the
the
situation
petitioner
( SC Admin.
Matter 002-03 )

The court is in the


exercise of its
appellate jurisdiction
and power of review

Must be made within filed not later than 60


the reglementary
days from notice of
period
judgment, order or
resolution appealed
from

REMEDIAL LAW

Court exercises
original jurisdiction

RULE 46
ORIGINAL CASES

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


100

MEMORY AID
Section 2. To what actions applicable.

Under B.P. Blg. 129, the CA has original


jurisdiction to issue writs of mandamus,
prohibition, certiorari, habeas corpus
and quo warranto, and auxiliary writs or
processes, whether or not they are in aid
of its appellate jurisdiction, and it has
exclusive original jurisdiction over
actions for annulment of judgments of
Regional Trial Courts.

IN

REMEDIAL LAW

dismissal for failure to comply to


requirements also form and
payment of docket and other
legal fees.
3. Require respondents to file
COMMENT within 10 days from
NOTICE
4. Court may require the filing of a
REPLY or such other pleadings as
it may deem necessary
5. Determination
of
FACTUAL
ISSUES, the court may delegate
the reception of evidence on
such issues to any of its
members.

RULE 47
Section 4. Jurisdiction over person,
how acquired.

ANNULMENT OF JUDGMENTS OR FINAL


ORDERS AND RESOLUTIONS

JURISDICTION IS ACQUIRED:

1. Over the PETITIONER - by filing


of the petition.
2. Over the RESPONDENT - by the
service on the latter of the order
or resolution indicating the
courts initial action on the
petition and NOT by the service
on him of the petition or by his
voluntary submission.

Section 5. Action by the court.

PROCEDURAL OUTLINE (original cases


in the Court of Appeals)
1. Filing of the petition

Annulment of judgment is a remedy in


law independent of the case where the
judgment sought to be annulled was
rendered and may be availed of though
the judgment has been executed.

One important condition for the


availment of this remedy - the petitioner
failed to move for new trial in, or appeal
from, or file a petition for relief against,
or take other appropriate remedies
assailing the questioned judgment or
final order or resolution through no fault
attributable to him.

If he failed to avail of those other


remedies without sufficient justification,
he cannot resort to annulment provided
in this Rule, otherwise he would benefit
from his own inaction or negligence.

2. Order to acquire jurisdiction


over respondents OR Outright

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


101

MEMORY AID
Grounds for ANNULMENT OF JUDGMENT
1. extrinsic
fraud;

fraud

or

collateral

2. lack of jurisdiction;

Extrinsic fraud shall not be a valid


ground if it was availed of, or could have
been availed of, in a motion for new
trial or petition for relief.

EXTRINSIC OR COLLATERAL FRAUD is


any fraudulent act of the prevailing
party in the litigation which is
committed outside of the trial of the
case, whereby the defeated party has
been prevented from exhibiting fully and
fairly presenting his side of the case.

IN

REMEDIAL LAW

1. A preliminary evaluation of the


petition for prima facie merit
therein, and
2. The issuance of summons as in
ordinary civil cases and such
appropriate
proceedings
thereafter as contemplated in
Sec. 6.

The rule allows the CA to dismiss the


petition outright as in special civil
actions.

For the court to acquire jurisdiction over


the respondent, the rule requires the
issuance of summons should prima facie
merit be found in the petition and the
same is given due course.
RULE 48
PRELIMINARY CONFERENCE

EXTRINSIC
FRAUD

LACK OF
JURISDICTION
Section 3. Binding effect of the results
of the conference

Period of
Filing
action

4 years from Before it is barred


discovery
by laches or
estoppel

Effect of
judgment

Trial court
will try the
case

Original action
may be refiled

In the CA, this procedural device may be


availed of not only in original actions but
also in cases on appeal wherein a new
trial was granted on the ground of newly
discovered evidence. The CA can act as a
trier of facts, hence the preliminary
conference authorized is a convenient
adjunct to such power and function.

RULE 49
Section. 5. Action by the court.

ORAL ARGUMENT

Two stages:

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


102

MEMORY AID

IN

REMEDIAL LAW

Section 3. No hearing or oral argument


for motions

appropriate appellate jurisdiction, will


be allowed. Also, elevating such appeal
by the wrong mode of appeal shall be a
ground for dismissal.

Motions in the SC and the CA do not


contain notices of hearing as no oral
arguments will be heard in support
thereof; and if the appellate court
desires to hold a hearing thereon, it will
itself set the date with notice to the
parties.

A resolution of the Court of Appeals


dismissing the appeal and remanding the
case to the trial court for further
proceedings is merely interlocutory,
hence a motion for its reconsideration
filed year later may be entertained and
granted

RULE 50

Section 3. Withdrawal of Appeal

DISMISSAL OF APPEAL

Section 1. Grounds for dismissal of


appeal

Court of Appeals may dismiss the appeal


outright even without motion. The
remedy if dismissed for improper appeal
is to refile it in the proper forum but has
to be within the prescribed period.

With the exception of Section 1 (b)


dismissal of an appeal is directory and
not mandatory.
RULE 51
Other grounds for the dismissal of an
appeal are:
1. by agreement of the parties, as
where the case was amicably
settled by them.
2. where the appealed case has
become moot or academic.
3. where the appeal is frivolous or
dilatory.

Section 2. Dismissal of improper appeal


to the Court of Appeals

JUDGMENT

Law of the Case the opinion delivered


on a former appeal. It means that
whatever
is
once
irrevocably
established, as the controlling legal rule
or decision between the same parties in
the same case, continues to be the law
of the case, whether correct on general
principles or not, so long as the facts on
which such decision was predicated
continue to be the facts before the
court.

But this rule does not apply to


resolutions rendered in connection with
the case wherein no rationale has been
expounded on the merits of that action.

No transfer of appeals, erroneously


taken to it or to the Court of Appeals,
whichever of these tribunals has
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


103

MEMORY AID
Section 5. Form of Decision
The requirement for the statement of
facts and the law refers to a decision or
for that matter a final resolution. The
same are not required on minute
resolutions since these usually dispose of
the case not on its merits but on
procedural or technical considerations.

Although the court may, if it feels


necessary, briefly discuss the matter on
the merits in an extended resolution.

appealed
therein.

from

IN

REMEDIAL LAW

or

the

proceedings

Even if the error complained of by a


party is not expressly stated in his
assignment of errors but the same is
closely related to or dependent on an
assigned error and properly argued in his
brief such error may now be considered
by the court.

RULE 52
MOTION FOR RECONSIDERATION

The rules now prohibit a second motion


for reconsideration.

With respect to petitions for review and


motions
for
reconsideration,
the
Constitution merely requires a statement
of the legal basis for the denial thereof
or refusal of due course thereto. The
court may opt, but it is not required to
issue an extended resolution thereon.

Section
6.
HARMLESS
ERROR
The court, at every stage of the
proceeding, must disregard any error or
defect which does not affect the
substantial rights of the parties such as
error in admission or exclusion of
evidence or error or defect in the ruling
or order.

Sec. 3 provides a time limit of 90 days


for the resolution of a motion for
reconsideration filed with the Court of
Appeals from the date the same was
submitted for resolution, which is
normally the filing of the last pleading
required by the rules of court or the
expiration of such period.

Rules now requires the service of the


motion
to
the
adverse
party

RULE 53
Section 8. Questions that may be
decided

NEW TRIAL

Only errors claimed and assigned by a


party will be considered by the court,
except errors affecting its jurisdiction
over the subject matter. To this
exception has now been added errors
affecting the validity of the judgment

Filing of a motion for new trial is at any


time after the perfection of the appeal
from the decision of the lower court and
before the Court of Appeals loses
jurisdiction over the case

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


104

MEMORY AID

The ground is newly discovered evidence


which could not have been discovered
prior to the trial in the court below by
the exercise of due diligence and of such
character as would probably alter the
result.

IN

REMEDIAL LAW

litigant to preserve and protect certain


rights and interests therein pending
rendition, and for purposes of the
ultimate effects, of a final judgment in
the case.

RULE 56
PROCEDURE IN THE SUPREME COURT

A. ORIGINAL CASES
Rule specifically states what cases may
be originally filed with the Supreme
Court
1. petition
for
certiorari,
prohibition, mandamus, quo
warranto, habeas corpus;
2. disciplinary proceedings against
members of the judiciary and
attorneys
3. cases affecting ambassadors,
other public ministers and
consuls

B. APPEALED CASES Mode of Appeal


In criminal cases where the penalty
imposed is death or reclusion perpetua,
an appeal made to the Supreme Court is
through a notice of appeal filed with the
RTC in all other cases, an appeal made
to the supreme court is through a
petition for review on certiorari.

PROVISIONAL REMEDIES
Also known as ancillary or auxiliary
remedies, are writs and processes
available during the pendency of the
action which may be resorted to by a

REMEDIAL LAW COMMITTEE

The following are the provisional


remedies provided for in the Rules of
Court
1. Preliminary
57)

Attachment

(Rule

2. Preliminary Injunction (Rule 58)


3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)

PD 1818 prohibits the issuance of


injunctive writs not only against
government entities but also against any
person or entity involved in the
execution,
implementation,
and
operation of government infrastructure
projects.

RULE 57
PRELIMINARY ATTACHMENT

The proper party may have the property


of the adverse party attached at the
commencement of the action or at any
time before entry of judgment.

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


105

MEMORY AID
WHEN issued

3. In actions to recover property


unjustly taken or concealed,
when the property or any of its
part, has been concealed or
disposed of to prevent its being
found by the applicant or any
authorized person;

4. In actions against a person guilty


of fraud in incurring or
performing an obligation upon
which the action is based;

5. In actions against a party who


has removed or disposed of his
property, or is about to do so,
with intent to defraud his
creditors;

REMEDIAL LAW

6. In actions against non-residents


not found in the Phils., or on
whom summons is served by
publication.

1. In actions for recovery of a


specified sum of money or
damages, except moral and
exemplary, on a cause of action
arising from law, contract, quasicontract, delict or quasi-delict
against a party about to depart
from the Phils. with intent to
defraud his creditors;

2. In actions for recovery of money


or property embezzled or
fraudulently converted to his
own use by a public officer, or an
officer of a corp., or an
attorney, factor, broker, agent or
clerk, in the course of his
employment as such, or by any
person in a fiduciary capacity;

IN

RULE 58
PRELIMINARY INJUNCTION

Preliminary Injunction an order granted


at any stage of an action or proceeding
prior to the judgment requiring a party
or a court, agency or a person to refrain
from a particular act or acts.

PRELIMINARY MANDATORY Injunction


an order requiring the performance of a
particular act or acts.

Grounds
o

applicant is entitled to
the relief demanded; or

commission, continuance
or non-performance of the act
complained of would work
injustice to the applicant if not
enjoined; or

the acts sought to be


enjoined probably violates the
rights of the applicant respecting
the subject of the action and
tending to render the judgment
ineffectual.

Section 5.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


106

MEMORY AID
There must be prior notice to the person
sought to be enjoined and a hearing
before preliminary injunction may be
granted.

IN

REMEDIAL LAW

A TRO issued by the SC or a member


therof is effective until further orders.

GROUNDS FOR OBJECTION


If great or irreparable injury would
result to the applicant, the court may
issue ex parte a temporary restraining
order, effective only for 20 days from
service on the party sought to be
enjoined.

If the matter is of extreme urgency and


the applicant will suffer grave injustice
and irreparable injury, the judge may
issue a TRO effective only for 72 hours
from issuance. Its effectivity may be
extended after conducting a summary
hearing w/in the 72-hrs period until the
application for preliminary injunction
can be heard.

1. insufficiency;
2. if
injunction
would
cause
irreparable damage to the
person enjoined while the
applicant
can
be
fully
compensated for such damages,
PROVIDED the former files a
BOND.

Distinctions
INJUNCTION

PROHIBITION

directed against a
party in the action

Directed against a
court, tribunal or a
person exercising
judicial powers

does not involve


jurisdiction of the
court

Based on the ground


that the court against
whom the writ is
sought had acted
without or in excess of
jurisdiction

it may be the main


action itself or just a
provisional remedy

Always the main


action

The total period of effectivity of the TRO


shall not exceed 20 days, including the
72 hours.

If application is denied or not resolved


within said period, the TRO is deemed
automatically vacated.

Effectivity of TRO is not extendible.


There is no need of a judicial declaration
to that effect.

RULE 59
RECEIVERSHIP
A TRO issued by the CA or any of its
members is effective for 60 days from
service on the party sought to be
enjoined.

REMEDIAL LAW COMMITTEE

WHEN MAY BE GRANTED


1. applicant has an interest in the
property or fund subject of the
proceeding and such property is
in danger of being lost or
materially injured unless a
receiver is appointed;

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


107

MEMORY AID
2. in foreclosure of mortgage, when
the property is in danger of
being wasted or dissipated and
that its value is probably
insufficient to discharge the
mortgage debt or that it has
been agreed upon by the parties;
3. after judgment, to preserve the
property during the pendency of
an appeal or to dispose of it
accdg. to the judgment or to aid
execution;
4. when appointment of receiver is
the most convenient and feasible
means
of
preserving,
administering or disposing of the
property in litigation.
A person who refuses or neglects to
deliver property within his control and
which is the subject of the action to the
receiver may be punished for contempt
and liable to the receiver for the money
or the value of the property PLUS
damages.

IN

REMEDIAL LAW

Distinctions

REPLEVIN

ATTACHMENT

May be sought only


when the principal
action is recovery of
personal property.

Available even if
recovery of property is
only incidental to the
relief sought.

Can be sought only


May be resorted to
when defendant is in
even if the property is
actual possession of the in possession of a third
property.
person.

The receiver shall also file a bond before


entering upon his duties separate from
the bond filed by the applicant.
CANNOT be availed of
when property is in
custodia legis

Can be AVAILED of even


if property is in
CUSTODIA LEGIS.

Available before
defendant answers

Available from
commencement but
before entry of
judgment

Bond is DOUBLE the


value of the property

Bond is FIXED by the


court

RULE 60
REPLEVIN

The sheriff shall retain the property for


5 days. Within such period, the adverse
party may object to the sufficiency of
the applicants bond or surety or he may
file a counter-bond.

After 5 days and the adverse party failed


to object or his counter-bond is
insufficient, the sheriff shall deliver the
property to the applicant.

REMEDIAL LAW COMMITTEE

RULE 61
SUPPORT PENDENTE LITE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)

San Beda College of Law


108

MEMORY AID

IN

REMEDIAL LAW

When may be applied for: at the


commencement of the action or at any
time before judgment or final order.
Failure to comply with an order granting
support pendente lite may warrant the
issuance of an order of execution against
the non-complying party.
He may
likewise be liable for contempt.
See matrix on provisional remedies
more detailed information.

REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)