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Civil Procedure Memory Aid

Atty. Tranquil Salvador

Filing Fees

Docket Fees to be paid

1. Real Action: depends on fair market value
a. Stated in current tax declaration, or
b. Current zonal valuation of BIR, or
c. If none, stated value of property
2. Involving actions incapable of pecuniary estimation: flat rate

Computation includes:
1. Interest
2. Penalties
3. Surcharges
4. Damages of whatever kind
5. Attorneys fees
6. Court Expenses

Exceptions to rule that docket fees must be paid when you file the
1. Damages arose after filing (will serve as lien on judgment)
2. Complaint is amended and new damages are alleged (pay
additional within prescriptive period or reglementary period)
3. Clerk makes a wrong assessment (pay full amount within

Jurisdiction power of the court to hear, try or decide case as

conferred by law

How it is acquired:
1. Over the case complaint + pay filing fees
2. Over the subject matter conferred by law, power to try and
decide a case
3. Over the person arrest or voluntary surrender

1. Opposite of RTC
2. Ejectment/unlawful detainer (Rule 70)

1. Amount incapable of pecuniary estimation
2. Civil actions involving real property or interest therein where
assessed value of the property involved:
a. If in Metro Manila exceeds P50,000
b. Elsewhere exceeds P20,000
c. Except (jurisdiction conferred to MTC):
i. Actions for forcible entry
ii. Unlawful detainer
d. Assessed value = worth or value of property
established by taxing authorities on basis of which
tax rate is applied
3. Admiralty and maritime jurisdiction where claim:
a. If in Manila exceeds P400,000
b. Elsewhere exceed P300,000
4. Probate, both testate and intestate where gross value of
a. Manila exceeds P400,000
b. Elsewhere exceeds P300,000
5. Involving contract of marriage and marital relations
6. All cases not within exclusive jurisdiction of any court,
tribunal, person or body exercising jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial
functions (general jurisdiction)
7. Other cases which demand:
a. Manila exceeds P400,000
b. Elsewhere exceeds P300,000
c. Exclusive of
i. Interest,
ii. Damages of whatever kind,
iii. Attorneys fees,
iv. Litigation expenses and
v. Cost or value of property in controversy
d. Those under the Securities Regulation Code

Court of Appeal (BP 129, also in Rule 46)

Original and Exclusive annul judgments of RTC
based on:

Extrinsic fraud, or

Lack of jurisdiction
Concurrent with SC issuance of writs of certiorari,
prohibition and madamus against:



Concurrent with RTC and SC (remember rule on
hierarchy of courts)

Habeas Corpus

Habeas Data

Writ of Amparo

Quo warranto



Prohibition versus lower courts


Over RTC, original

If fact or fact and law ordinary

notice of appeal

If law only go straight to SC!

RTC, appellate over MTC

Petition for review, even if pure

questions of law

Quasi-judicial agencies

Petition for review even if pure

questions of law
Supreme Court
Original and exclusive

Petitions for writ of certiorari, prohibition and

mandamus against:






Declaratory Relief only when question of

Concurrent with CA

Petitions for writ of certiorari, prohibition and

mandamus against:



Concurrent with RTC and CA

Habeas Corpus

Habeas Data

Writ of Amparo

Quo warranto



Prohibition versus lower courts

Concurrent with RTC

Cases affecting ambassadors

Concurrent with IBP

Cases against members of Bar

Appellate over:

RTC, original

Pure questions of law Petition for

review on certiorari (Rule 45)



CTA en banc



Small Claims

Small Claims cases involve cases with amounts (money claims)

Exclusive of interests and costs

Filed in the MTC

Court can dismiss outright, otherwise issue summons and notice

of hearing to defendant
10 days to make verified response = cannot be
Fails to respond, court can render judgment based on
statement of claim

Sales D. A2016

Atty. Tranquil Salvador

Civil Procedure Memory Aid

Counterclaims allowed so long as not exceeding P100K

Prohibited from filing Rule 65 Certiorari
Lawyers cant appear in the hearing
If party absent from hearing:
Plaintiff absent dismiss, defendant allowed for
permissive counterclaim
Defendant as if no filed response
Both dismiss both claim and counterclaim
Postponement allowed provided:
a) Only once per party and
b) Proof of physical disability to appear in court
Rendered on the same day.
Final and unappealable
If decision is in favor of plaintiff, execution shall issue
upon motion


Action formal demand of ones legal rights in a court of justice in

manner prescribed by court or by law

Civil Action party sues another for enforcement or protection of a

right, or redress of a wrong
Ordinary, or
Special specific rules prescribed

Criminal Action Information filed in court

Special Proceeding application or proceeding to establish:

a) Status of a party, or
b) Right of a party, or
c) Particular fact

Except by analogy or supplementary, rules wont apply to:

Election cases
Land registration
Natural and
Insolvency proceedings

Action Commence upon filing of complaint in court

Interrupts prescription period
If additional defendant, upon date of filing amended
complaint impleading defendant

In order to vest jurisdiction

a) File complaint
b) Pay the docket fees

Rules to be liberally construed

RULE 2 Cause of Action

Cause of Action act or omission by which a party violates a right

of another

Elements of Cause of Action

1. Legal right of plaintiff
2. Correlative obligation of defendant
3. Act or omission of defendant in violation of plaintiffs said

CoA must exist at time complaint is filed; cant be cured by

amendment or supplemental pleading

One cause of action = one suit

Splitting a single cause of action 2 or more suits instituted on

same CoA
Not allowed
Filing of one, or judgment upon merits in any one is a
ground for dismissal of the others
Purpose prevent repeated litigation
Applies to all claims
Can be set up by means of

Motion to dismiss, or

An affirmative defense in the answer


Res Judicata, or

Litis Pendencia
Cant consolidate one or both will be dismissed for
forum shopping

Joinder of causes of actions in one pleading, assert, in

alternative or otherwise, as many cause of action as he may have
against opposing party. Permissive, not mandatory.

Subject to following conditions:

1. Comply with rules on joinder of parties
a. If between two parties, no need for this
b. If multiple defendants, applies.
i. Arises from same or series of
transactions, and
ii. Involves common question of
2. Shall not include special civil actions or actions
governed by special rules
3. Where CoA is between same parties but pertain to
different venues of jurisdiction
a. Allowed in the RTC, provided one of the
causes falls withint jurisdiction of said
court and venue lies therein
4. Where claims in all are principally for recovery of
money, aggregate amount claimed shall be the
test of jurisdiction
Not a ground for dismissal of principal action
Cause of action may be dropped either:

Motu propio, or

Upon motion by defendant

If no one objects, will be valid

RULE 3 Parties to Civil Actions


Plaintiff claiming party, counter-claimant, cross-claimant, or 3

party plaintiff

Defendant against whom the claim is asserted

Who may be parties

1. Natural persons
2. Juridical persons
3. Duly incorporated and registered SEC
4. Entities authorized by law

States cant be sued: unless:

1. Theres express consent
2. Implied consent

Parties in Interest stands to be benefited or injured by the

judgment in the suit, or is entitled to the avails of the suit (actual
Concept only applies to private suits
For public suits, legal standing/locus standii
Remedy for impleading the wrong party: Motion to
Dismiss, Pleading states no cause of action as a
If PiI changes after action is commenced, original
plaintiff becomes the representative of transferee of the

Representatives as parties
Beneficiary should be included in the title of case and
deemed to be the real party in interest

If not included, defect can be cured by simply

requiring the rep to disclose the names of the
principals and amend the title and averments
Representative may be:
1. Trustee of an express trust
2. Guardian
3. Executor or administrator
4. Party authorized by law or these rules
Agent acting in his own name and for benefit of
undisclosed principal may be sued/sue, except when
contract involves things belonging to principal

Spouses shall sue or be sued jointly, except:

1. Suit of one against the other
2. Based on a crime/delict
3. Judicial separation of property
4. Abandonment
5. Exclusive property of spouses
6. Suits involving the practice of ones profession

Minors require assistance of father, mother guardian, or a

guardian ad litem

Permissive joinder of parties

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador

1. Claim arises from same or series of transactions
2. Common questions of law or fact in action
3. Read with joinder of causes of action
Indispensible party party in interest without whom no final
determination can be had. Without them, there will be no
resolution, void judgment
Necessary party party in interest who is not indispensible but
who ought to be joined:
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
Effect of failure to implead
If necessary party

General rule: failure to implead not prejudicial

No waiver, unless there is an order to

implead from the court and still did not
If indispensible party

Court should order that the indispensible

party be impleaded

If despite order, did not comply = case will be

dismissed on ground of failure to comply with
order of the court (with prejudice)

If court didnt notice non-joinder = void

Neither misjoinder nor non-joinder of parties is a ground for
dismissal of an action
Parties may be added or dropped either on motion
motu propio
Class suit (exception to joinder of indispensible parties)
1. Subject matter is one of common or general
interest to many persons
2. Interested persons are so numerous that its
impracticable to join them all as parties
3. Parties bringing the suit are sufficiently numerous
or representative of the class and can fully protect
the interests of all concerned (adequate
Derivative suit instituted by an individual stockholder on behalf
of the corporation in order to protect or vindicate corporate rights.
If individual, requires a special power of attorney
If entity without juridical personality as defendant
Service of summons to one, service to all
Can be sued but cant sue as an entity, must file as
Answer must reveal names and addresses of the
persons composing it
In case of death of either party
Duty of lawyer: duty of counsel to inform court within
30 days after fact of death, and give name and address
of legal representative

Failure = ground for disciplinary action

Duty only to name, not appoint

Duty of court: order legal rep to appear and substituted
within 30 days from notice.

If no legal rep named or fails to appear, may

order opposing party to procure appointment
of an executor. Charges may be recovered
as costs

Failure to order will not nullify decision

Applies if:

Either party dies, and

Action survives
Who should be the substitute

Legal heir



Rule of substitution is not a manner of jurisdiction but
due process

Party alleging nullity must prove there was an

undeniable violation of due process

Death or separation of party who is a public officer

1. Removal/death of public officer and
appointment of successor within 30 days
unless otherwise provided
2. Successor adopts, continues, or threatens to
continue the action sued against
3. Substantial need to continue the action
Substitution not automatic. Court must:
1. Give notice to new public officer, and
2. Give opportunity to be heard

Incompetency or incapacity
Court, upon motion with notice
Ask court to continue and for client to be assisted
by guardian

Transfer of interest may be continued by or against original

party (becomes trustee for transferee)
Unless, upon motion, court orders transferee be
No substitution, just joined
Can only substitute if court orders it
Transferee pendente lite is a proper party but not

Action on contractual money claims

Applies when:

Money claim, and

Defendant dies
No substitution
Once final judgment entered, enforced as claim
without need to prove

Indigent party
Under Rule 141 Sec 9 (if fits, mandatory!)

Gross income + family income = does

not exceed 2x monthly minimum wage,

Owns real property whose FMV = less

than or equal to P300k
Under Rule 3, Sec 21 Indigency Test

Party who has no money or property

sufficient and available for himself and
for his family for



Basic necessities

As stated in current tax declaration


Stenographic notes: free

Filing fees: no need to pay, but lien on


Court, in its discretion may require appearance of Solicitor

General in actions involving validity of any
Executive order,
Presidential decree
Rules or regulations

RULE 4 Venue of Actions

Determine two things:

1. Is it a real or personal action?
2. Is it covered by a special law or by stipulation?

Venue of real actions

Tried in court which has jurisdiction over the area
wherein real property is situated
Forcible entry and detainer actions in municipal trial
Ejectment cases MTC where located

Exception: stipulation
Real action those affecting title to or possession of
real property, or interest therein

Venue of personal actions

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Atty. Tranquil Salvador

Civil Procedure Memory Aid

Either in the place where, at the election of plaintiff:

Plaintiff or any of the principal plaintiffs

reside, or

Defendant or any of the principal defendants

reside, or

In case of non-resident defendant, where he

may be found
Principal plaintiff beneficiary of a trust
Residence actual residence
Venue of actions against non-residents
Applies when defendant or one of defendants nonresident and is not found in Phil.
If involves personal status of plaintiff where plaintiff
If involves property of defendant located in the
Philippines where property or any portion thereof is
When Rule will not apply
Specific rule or law provides otherwise, or
Parties validly agree in writing, before filing of action, on
the exclusive venue thereof

Must employ categorical and suitably limiting

Remedy for not filing in proper venue:

Motion to Dismiss, ground, improper venue

There must be a motion since can be waived

if not raised in time


RULE 5 Uniform Procedure in Trial Courts

Procedure in MTC, same as RTC, except:

1. When by express or implied provision of law
2. Civil cases governed by Rules on Summary Procedure
a. Ejectment cases, regardless of amount of
i. Attorneys fees to be awarded must not
be more than P20k
b. All other cases where total amount of plaintiffs
claim does not exceed P100k, or P200K if in
Metro Manila
i. Exclusive of interest and costs
ii. Except probate proceedings

Steps in Summary Procedure

1. Filing of complaint
Upon filing, court can dismiss outright, or issue
Defendant files answer within 10 days
i. If no answer, court can render judgment
either motu propio or on motion of
All pleadings must be verified
After filing last pleading, move on to next step
2. Preliminary conference (equivalent of pre-trial)
Court sets this within 30 days after filing of last answer
Parties asked to compromise, identify issues
Absence of parties

If plaintiff absent = dismiss

If sole defendant absent = judgment

Unless have an explanation or send a

Court can already render judgment, but if none, move
on to next
3. Submission of judicial affidavits and position papers
No hearings or trials
Papers must be submitted 10 days from receipt of
order of preliminary conference
Court renders judgment 30 days from filing of:

Last affidavit or position paper, or

Expiration of period to file

Except: court needs more clarificatory stuff,

may order requiring more affidavits within 10
days from receipt of order. Court then
decides 15 days after receipt of last
clarificatory affidavit.

Prohibited Pleadings

Motion to dismiss, except

a. Lack of jurisdiction over subject matter
b. Failure to refer to lupon dismissal without
2. Reply
3. Bill of Particulars
4. MR or MNT
5. Petition for relief of judgment
6. Motion to declare in default
7. Third party complaint
8. Memoranda
9. Dilatory motions for postponement
10. Motion for extension of time
11. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
12. Interventions
Decisions from MTC can be appealed to RTC
On appeal, MR no longer prohibited
Judges who fail to follow = admin liability

RULE 6 Kinds of Pleadings

Pleading written statement of the respective claims and

defenses of the parties, submitted to the court for appropriate

Complaint pleading alleging the plaintiffs cause or causes of

Names and residences of plaintiff and defendant must
be stated
1. Concise statement of ultimate facts constituting
the plaintiffs cause of action. Exception: in
actionable documents, since need to put
substance of document or whole contents
2. Relief prayed for, based on facts alleged
3. If depends upon a condition precedent, must
allege and prove fulfillment, or legal excuse for
4. Can also be alleged: fraud, mistake, malice, intent,
knowledge, illegality

Answer pleading in which a defending party sets for his


Affirmative defense allegation of a new matter, which,
while hypothetically admitting the material averment in
the pleading, would prevent or bar recovery

If estoppel allege facts constituting it

If fraud or mistake aver with particularity

If malice, intent, knowledge aver it generally

Negative defense specific denial of material fact/facts
alleged in the pleading of the claimant essential to his
cause/causes of action. 2 kinds:

Specific denial defendant specifies each

material allegation of fact and sets forth
substance of matters he relies upon for

Disavowal of knowledge defendant states

he doesnt have knowledge or info sufficient
Negative Pregnant form of negative expression,
which carries with it an affirmation or at least an
implication of some kind favorable to the adverse party

Counterclaim claim which a defending party may have against

an opposing party
Period to answer counterclaim: within 10 days from
Compulsory counterclaim
1. Must arise out of, or necessarily connected with,
the transaction or occurrence thats the subject
matter of opposing partys or co-partys claim
2. Doesnt require for its adjudication presence of 3
parties of whom court cant acquire jurisdiction
3. Within jurisdiction of court and cognizable by
regular courts

Test of compulsoriness: duplicity of cases

If not filed in answer, deemed waived

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador

No need for certificate of non-forum shopping

Permissive Counterclaim

Same as compulsory, except #1, need not

arise or necessarily connected with

Needs certificate of NFS

Docket fees required in both
Cross-claim any claim by one party against a co-party arising
out of the transaction or occurrence thats the subject matter
either of the original action or of a counterclaim therein
Period to answer: 10 days from notice
No need for leave of court
Reply pleading, the office or function of which is to deny, or
allege facts in denial or avoidance of new matters alleged by way
of defense in the answer and thereby join or make issue as to
such new matters

Deny, or

Allege facts in denial or avoidance of new


Join or make issue as to such new matters

If no reply, all new matters alleged in the answer are
deemed controverted
Third (fourth, etc) party complaint

Claim that a defending party may file

Against a person not a party to the action

For contribution, indemnity, subrogation or

any other relief

In respect of his opponents claim

With leave of court (only pleading which is

Period to file: 15 days
Dismissal of original complaint = third-party complaint
Bringing new necessary parties
Court may order to be brought in as defendants in
counter or cross-claim
One or more of defendants in counter/cross is already a
party to the action
Requires amendment
Third party defendant has to file an answer, he may also allege
counter/cross, even against the original plaintiff

RULE 7 Parts of a Pleading

Caption: sets for the

1. Name of court
2. Title of action indicates name of parties and their
respective participation
3. Docket number if assigned

1. Designation
2. Allegations divided into paragraphs so numbered
3. Relief prayed for
4. Date of pleading at the bottom, include place of filing
5. Headings

Signature and address

Must be signed by party or counsel representing him,
otherwise pleading produces no effect
Signature of counsel certifies:
1. He has read the pleading
2. That to the best of his knowledge, theres good
ground to support it, and
3. Not interposed for delay
Court may, in its discretion, allow deficiency to be
remedied if appear to be due to mere inadvertence and
not for delay
Grounds for disciplinary action:
1. Deliberately files unsigned pleading
2. Signs pleading in violation of Rule
3. Fails to promptly report to court a change of his


General rule: need not be under oath, verified or

accompanied by affidavit
Exception: when otherwise specifically required by law
or rule
Must state:

Affiant has read the pleading

Allegations are true based on his personal

knowledge or authenticated records

Under oath
Party must sign the pleading, not lawyer

Except under compelling reasons

If multiple parties, all must sign verification

Unless, common interest among

Certification against forum shopping
Forum shopping filing of multiple suits in different
courts, either simultaneously or successively

Involving same parties

To ask court to rule on the same or related

causes, and/or grant the same or
substantially same reliefs
Test: is there identity of:


Rights or causes of action

Reliefs sought
Party himself must sign.
Required in every initiatory pleading, not in a motion
1. Certify that he has not filed a similar complaint
involving same issue in another court, tribunal,
quasi-judicial agency
2. If there is any pending claim, provide status
3. If learns about similar action, report fact within 5
days from knowledge
Absence of certificate

Dismissal without prejudice

Cant cure by amendment

Effect of non-compliance (false)
1. Indirect contempt
2. Admin and crim cases
3. Dismissal of case
Effect of willful and deliberate forum shopping
1. Dismissal with prejudice
2. Direct contempt summary dismissal, cant be
a. Remedy: petition for review on certiorari

RULE 8 Manner of Making Allegations in Pleadings

With respect to capacity, facts concerning the following must be

1. Capacity of person to sue or be sued
2. Authority of party to sue in a representative capacity
3. Legal existence of an organized association og the persons
that is made a party

If pleading an action or defense based on a document:

Set forth substance of document in pleading and attach
document, or
Reproduce contents of document in the pleading en

Genuiness instrument not spurious, counterfeit or of different

import on its face from the one executed

Due execution done with authority

How to contest documents:

Specifically denying under oath and setting forth what
he claims to be the facts
Oath not required when adverse party doesnt appear
to be a party to the instrument, or when compliance
with order for inspection of original instrument is
Must be specifically denied

Material averments in complaint deemed admitted when not

specifically denied, except:
Those as to amount of unliquidated damages
Immaterial averments

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Atty. Tranquil Salvador

Civil Procedure Memory Aid

Court may order any pleading to be stricken out or any sham or

false or immaterial matter be stricken out
Upon motion made by party before responding to a
pleading, or
If no responsive pleading permitted, upon motion by
party within 20 days after service of the pleading upon
him, or
Upon courts initiative at any time

RULE 9 Effect of Failure to Plead

Defenses and objections not raised in a motion to dismiss or in

the answer are deemed waived
1. Lack of jurisdiction over subject matter
2. Litis pendencia
3. Res Judicata
4. Prescription
5. Lack or absence of cause of action
If these grounds appear, dismiss claim

Kinds of default
1. In actions in rem general order of default
2. Failure to attend pre-trial as in default allows plaintiff to
present evidence ex parte
3. Failure to file an answer declaration of default

When one considered in default

Court declares when:

Fails to answer within allowed time

Upon motion of claiming party

With notice to defending party

Proof of such failure

Effect of order entitled to notice of subsequent
proceedings but not take part in the trial

Relief from order:

Before judgment

File a motion under oath to set aside order of


Show failure was due to FAME

After judgment
a. But before became final and executory = motion
for new trial (ground: FAME)
b. Discovered after finality = petition for relief from
c. Appeal from judgment as contrary to evidence or
to law
i. Grounds: plaintiff failed to prove material
allegations, or decision contrary to law
d. Certiorari under Rule 65
RULE 10 Amended and Supplemental Pleadings

Amended Pleading proper to allege facts which occurred prior

to filing of original complaint but for some reason were not alleged
therein (you omitted something)
When amendment a matter of right
1. Anytime before responsive pleading is served, or
2. In case of reply, at any time within 10 days after it
is served
a. Can only amend as matter of right once
b. Only notice to amend is necessary
c. Both in form and in substance
d. After defendants answer, requires leave
of court (discretionary)
When to file response to amended complaint

If done as matter of right, 15 days after being

served with a copy

If not, 10 days from notice of order admitting

the same
Substantial Amendment modifies or alters cause of
action or defenses

Needs leave of court if after answer

If no motion to dismiss, defect may be cured

at trial on merits by presentation of evidence

Substituting an actionable document is akin

to an amendment

Formal amendment correct a defect in designation of

parties and other clearly clerical or typo errors

May be summarily dismissed by court a t any


Either upon motion of the party,

Or by the court motu propio

Kinds of amendments to conform to evidence
1. No objection on part of other party allowed even
after judgment. Valid even if what was alleged >
2. If other party objects discretion of court
a. If admission would not prejudice
objecting party in maintaining hid action
or defense upon merits
When court can order an amendment even without motion:
1. Formal amendment
2. Bill of particulars
3. Motion to dismiss, court can either grant, deny, or order
4. In crim cases, in a motion to quash, can either grant, deny or
order amendment
Supplemental pleading proper in order to allege facts which
occurred after the filing of the original pleadings, filed pursuant to
new transactions, occurrences or event that arose after filing of
Leave of court necessary
Upon motion of party, upon reasonable notice and upon
terms as are just
Response to supplemental pleading to be made within
10 days unless court gives different period
No supplemental pleadings in the Supreme court
In filing, must submit new copy of entire pleasing which
incorporates and indicates amendments with appropriate markes
Must be served on defendant

RULE 11 When to File Responsive Pleadings

Extension of time to plead

Maybe allowed by the court
Upon motion,
On such terms as may be just,
And filed before expiration of time sought to be
RULE 12 Bill of Particulars

Motion for bill of particulars pleading asking for bill

Bill of particulars actual document submitted by plaintiff after

grant of defendants motion

When to move for one:

Before responding to pleading, or
If purpose is to clarify reply, within 10 days from
service thereof

What to point out

1. Defects complained of,
2. Paragraphs where they are contained, and
3. Details desired
a. Identify defects
b. Indicate details required

Action by court:
Deny or grant outright, or
Allow parties opportunity to be heard

Compliance with order

If granted, adverse party must comply within 10 days
from notice of order

Unless court orders otherwise

Effect of noncompliance
Court may order striking out of pleading or portions
Dismiss case based on non-compliance with a court

Stay of period to file responsive pleading

File within period to which he was entitle to at the time
of filing his motion (remaining period), which shall not
be less than 5 days

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador

Under Rule 22 Sec 1, dont include day that caused
interruption. If filed on Feb. 1, last day to file is on Feb.
16. If filed on Feb. 6, still has 11 days to file if denied
Bill becomes part of pleading


RULE 13 Filing and Service of Pleadings, Judgments and Other


Filing act of presenting the pleading or other paper to the clerk

of court

Manner of filing
Two ways of filing
1. Personally handing to the clerk of court
a. Clerk endorses in the pleading the date
and hour of filing
b. Stamped, dated and signed by clerk
c. Proof: if pleading is found in records, if
not, present the received copy with
written or stamped acknowledgment of
its filing by clerk
2. By registered mail
a. Date of mailing, as shown by post office
stamp on envelope or registry receipt,
considered date of filing
b. Proof:
i. Registry receipt
ii. Affidavit of person mailing,
containing full statement of
important details
iii. Return card (file in court)
Papers required to be filed and served
1. Judgment
2. Resolution
3. Order
4. Pleading subsequent to complaint
5. Written motion
6. Notice
7. Appearance
8. Demand
9. Offer of judgment
10. Similar papers

Service act of providing a party with a copy of the pleading

Modes of service
1. Personally
a. Delivering personally a copy to the party or his
b. Leaving in his office with his clerk, with person
having charge
c. If no person found in the office, or if office not
known, leaving a copy between 8am-6pm at the
party/counsels residence, if known, with a person
of sufficient age and discretion residing therein
d. Proof:
i. Written admission of party served,
ii. Or affidavit of person serving (when
other party refused to accept)
iii. Official return of server (when served by
the court) containing full statement of
date, place and manner of service
2. Registered mail
a. Deposit copy in post office
b. In sealed envelope
c. Plainly addressed to the party or his counsel at his
office, or otherwise at his residence
d. With postage fully prepaid, and
e. With instructions to postmaster to return mail to
sender after 10 days if undelivered
i. Registry receipt (even if defendant does
not actually claim), must indicate that
mail is a copy of the pleading
ii. Affidavit of person mailing, containing
full statement of date, place and manner
of service
iii. Return card

If unclaimed, file: return card,

the unclaimed document, and
certification by post office


Ordinary mail
a. If no registry service is available in locality of either
sender or addressee
b. Proof: by affidavit of person mailing of facts
showing compliance with rules
4. Publication or substituted service (depends where papers
came from)
a. If all else fails, substituted service to clerk of court,
with proof of failure of both personal and service
by mail.
b. No substituted service for judgments, final orders
or resolutions
Service of judgments, final orders or resolutions
1. Personally
2. Registered mail
3. Publication (if summoned by publication)
a. No substituted service and by ordinary mail
When service completed:
1. Personal = upon actual delivery
2. Ordinary mail = expiration of 10 days after mailing, unless
court otherwise provides
3. Registered mail =
a. Actual receipt by addressee as seen in return
card, or
b. After 5 days from date he received first notice of
postmaster, whichever is earlier
In both filing and service, priority is Personal Service

Papers emanating from the court

With sufficient explanation by the party if

registered mail
If did not comply, as if pleading wasnt filed
Notice of Lis Pendens
Can be annotated in an action involving right, title, or
interest over real property
Real property must be directly affected
No need for court approval. Merely send a memo or
letter attaching the complaint to the Register of Deeds
When court approval needed:
1. Intent to cancel notice on following grounds:
a. Purpose was to molest other party
b. No need for notice to protect rights of
parties who caused it
2. Trial court has inherent power to cancel notice of
lis pendens
Applies only to judicial cases
Contents of notice:
1. Statement of institution of an action
2. Court where same is pending
3. Date of institution
4. Reference to number of certification of title,
description of land and registered owner

RULE 16 Summons

Summons mode, writ, process, notice or warning issued by the

court upon filing of complaint and payment of required fees, the
service of which confers jurisdiction the court over person of
defendant. Defendant is notified of the action brought against him.

Contents: directed to defendant, signed by clerk under seal

1. Name of court and names of parties
2. Direction that defendant answer within time fixed
3. Notice that unless defendant answers, plaintiff will take
judgment by default and may be granted relief applied for
4. Copy of complaint and order for appointment of guardian ad
litem if any, attached to original and to each copy

When defendant has yet to appear in court, new summons must

be filed with amended complaint

In quasi-judicial agencies, rules on service not strictly construed.

Substantial compliance enough.

Who serves summons:

1. Sheriff

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Civil Procedure Memory Aid


Deputy sheriff
Other proper court officer, or
For justifiable reasons, by any suitable person authorized by
Exclusive enumeration
Court should issue summons within 1 day from receipt of
Return when service has been completed, server shall:
Serve a copy of return to plaintiffs counsel

Either personally or by registered mail

Within 5 days
Return summons to clerk who issued it

Accompanied by proof of service

Alias summons
Summons returned without being served on any or all
Server shall serve a copy to plaintiff
State reasons for failure of service, within 5 days
Or if summons has been lost
Clerk, upon demand of plaintiff, may issue an alias
Court can motu propio order the issuance since it can
be refilled anyway
Service of summons:
Personal (priority!)
a. Handing copy to defendant in person, or
b. If he refuses to receive and sign, tendering it to
c. Can server wherever the defendant is found in the
Substituted service if for justifiable causes, defendant
cant be served within a reasonable time, service may
be effected:
a. Leaving copies at defendants residence with
some person of suitable age and discretion
residing therein, or
b. Leaving copies at defendants office or regular
place of business with some competent person in
charge thereof
Requirement for a valid substituted service
1. Impossibility of prompt personal service
a. Sheriff has to serve 15-30 days
b. There must be repeated, earnest efforts
to serve (at least 3 times, on at least 2
different dates)
2. Specific details in the return
a. Efforts made to find and reasons behind
failure must be clearly narrated
3. If in the residence, to a person of suitable age (at
least 18 yrs old) and discretion
a. Must speak English
b. Presupposes relation of confidence
between person and defendant
4. If in office or regular place of business, to a
competent person in charge
a. One of the one managing office
b. Must have sufficient knowledge to
understand obligation of defendant in
Service in other circumstances
Upon entity without juridical personality = serve either
any one of them, or upon person in charge of office or
place of business
Upon prisoners = to officer having management of such
jail or institution (deemed deputized as special sheriff)
Minors and incompetents =

Him personally, and

His legal guardian if he has, or guardian ad

litem applied for by plaintiff

If minor, can be made on either parent

Service upon Juridical Entity
1. Domestic private
a. May serve upon (exclusive list):
i. President



Managing partner
General Manager
Corporate secretary
In-house counsel
If created by law = see charter
If through Corp Code = same as in
domestic private corporations


Foreign private
a. Transacted business in the Philippines =
i. On resident agent designated in
accordance with law for that purpose, or
ii. If none, on government official
designated by law to that effect, or
iii. Any of its officers or agents within the
b. Not registered or have no resident agents
i. Personally through appropriate court in
foreign country with assistance of DFA
ii. Publication once in newspaper in
country where defendant may be found,
and by serving a copy and the court
order by registered mail at the last
known address
iii. By fax, or by any recognized electronic
iv. Other means ordered by the court
3. Public Corporations
a. If defendant is the Republic = Sol Gen
b. If province, city or municipality or like public
corporations = executive head or such other
officers as the law or the court may direct
Defendants identity or whereabouts unknown and cant be
ascertained by diligent inquiry
May be summoned by publication in newspaper of
general circulation and in such places and for such time
as the court orders,
With leave of court
No need to send summons to last known address since
not known
Extraterritorial Service
When it can be made:
1. Defendant doesnt reside and is not found in the
Philippines, and
2. Action affects:
a. Personal status of plaintiff, or
b. Any property of defendant located in the
3. Applies only to actions in rem and quasi-in-rem
4. With leave of court
How to serve:
1. Personal service outside the country, with leave of
court, or
2. Publication in newspaper of general circulation in
such places and for such time as the court may
order, and a copy of summons and the court order
by registered mail to the last known address, or
3. In any other manner that the court may deem
No substituted service to a non-resident

Except: if theres a resident spouse who was

previously appointed as attorney-in-fact
Not for purpose of jurisdiction but for due process
Resident temporarily out of Philippines
Personal service may be effected out of the Philippines,
with leave of court, or
Publication in newspaper of general circulation in such
places and for such time as the court may order, and a
copy of summons and the court order by registered mail
to the last known address, or
Substituted service if there is impossibility and there are
earnest efforts to serve
Not mandatory before substituted service

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Leave of court
1. By motion in writing
2. Supported by affidavit of plaintiff or some person on his
3. Set forth grounds for application
Proof of service
1. In writing by the server
2. Set forth manner, place and date of service
3. Specify any paper which has been served and
name of person who received
4. Shall be sworn to if made by a person other than
sheriff or his deputy

Importance of sheriff return: Starts counting for

period to file answer, and determines if theres
proper service of summons
By publication: 2 affidavits
1. Affidavit of:
a. Printer
b. Foreman
c. Principal clerk, or
d. Editor of business or advertising
2. Attached is a copy of the publication
Voluntary appearance
Not equivalent to summons, but if theres voluntary
appearance, summons can be dispensed with
Fling of answer without object, filing for motion for
extension of time to file answer

RULE 15 Motions

Motion application for relief other than by a pleading

May be final or interlocutory
Neither raises a claim not raise a defense
Must be in writing, except those made in open court or
in course of a hearing or trial
1. Relief sought
2. Grounds as basis
3. If required by Rules or necessary to prove facts
alleged therein, should be accompanied by
supporting affidavits
a. If facts alleged in motion are not of
record or of judicial notice
b. A motion for setting aside judgment by
default requires an affidavit of merit
4. Notice of hearing

Hearing of Motion
What must be done
1. All litigated hearings set by applicant, and
2. Served together with notice of hearing in such
manner as to insure receipt (or actually receive it)
at least 3 days before date of hearing though 3day notice rule is not absolute, must be liberally
3. You need notice of hearing, and proof of service
a. Serve to party, but also
b. To clerk of court who schedules the
Motions that can be acted upon without hearing
1. Ex Parte motions
2. Court can act upon without prejudicing rights of
adverse party
3. Court concludes if motion is litigious or not
Notice not required in appellate courts
How to attack:

Final order = appeal

Interlocutory = certiorari under Rule 65

Notice of Hearing
1. Addressed to all parties concerned
2. Specify time and date of hearing, which must not
be later than 10 days after filing of motion
Ordinary motion day is on a Friday afternoon

If Friday is a non-working holiday, set on next

working date (Monday)

Omnibus Motion
Motion attacking a pleading, order, judgment or
proceeding shall include all objections then available
All objections not included shall be deemed waived
Motion for Leave accompanied by pleading motion sought to be
Form rules on pleadings apply to written motions
No need for certificate of NFS
When motion is pro forma, theres failure to
1. Serve copy to other party
2. Include notice of hearing
3. Conform with 3-day notice rule
4. Conform with 10-day rule

RULE 16 Motion to Dismiss

Kinds of dismissal in civ pro

1. MTD by defendant (Rule 16) move before filing the answer
2. MTD by plaintiff (Rule 17)
3. Demurrer to evidence

1. No jurisdiction over defendant
2. No jurisdiction over subject matter
3. Improper venue
4. Plaintiff no legal capacity to sue
a. Natural person age of majority
b. Corporation duly organized and existing in the
laws of country where it was organized
c. Attorney-in-fact scope of authority
5. Litis Pendentia: requisites
a. Same parties
b. Same interest
c. Same rights asserted
d. Same relief prayed for
6. Res Judicata
a. Same requisites as (5) but there must be a final
judgment in one case
7. Prescription
8. Pleading asserting claim states no cause of action
a. Ask: hypothetically admitting facts alleged, can
court render a valid judgment in accordance with
relief prayed for?
b. Difference between no cause of action and PACSCOA
i. Former, use in answer as a defense or
demurrer filed after plaintiff has rested
its case
1. Ground for demurrer:
insufficiency of evidence
ii. Latter, for Motion to Dismiss
1. Waived if not raised in MTD or
9. Claim has been paid, waived, abandoned, extinguished
10. Unenforceable under statute of frauds
11. Condition precedent not complied with

General rule: dismissal on these ground without prejudice

1. Prescription
2. Unenforceable under SoF
3. Res Judicata
4. Extinguished claim
Remedy in such exceptions = appeal

Hearing of motion
Parties submit arguments of questions of law and
evidence on questions of fact available
Evidence presented during hearing automatically part of

Action of court in resolving a motion,
1. Grant the motion (dismiss action)
2. Deny the motion
3. Order amendment of the pleading
Remedies if denied

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Certiorari under Rule 65 but will not suspend

main proceedings pending petition
Proceed to trial file answer and interpose objects
raised as defenses. If unfavorable judgment,
reiterate issue on appeal from final judgment
Motion for Reconsideration

Time to plead
If motion denied, file answer within balance period
prescribed to which he was entitled at the time of
serving his motion but not less than 5 days in any
event, computed from receipt of notice of denial
If ordered to amend (new period)

Matter of right 15 days

Not matter of right 10 days from service of

amended pleading
Effect of dismissal on ground of failure to state a cause of action
Complaint not dismissed if can correct defect through
If plaintiff cannot or does not amend complaint when
ordered, dismissal operates as adjudication based on
merits, unless otherwise ordered by the court
If no motion to dismiss filed, can raise grounds as affirmative
defense in the answer
Preliminary hearing may be had as if a MTD was filed,
w/n courts discretion

Defendant should file a motion to set a

preliminary hearing
If already filed and MTD, cant ask for hearing anymore
but can still use in answer

Persuades parties not to file an MTD but an

affirmative defense

RULE 17 Dismissal of Actions

Plaintiff, 2 ways to dismiss action

1. As a matter of right
a. When to file:
i. Before service or answer, or
ii. Before a motion for summary judgment
b. By mere notice, court will then order an issue
confirming dismissal
c. Can dismiss as a right only once
d. Effect: dismissal without prejudice. Except:
i. Stated in notice that dismissal is with
prejudice, or
ii. Plaintiff has once dismissed in a
competent court an action based on or
including the same claim
2. As a matter of courts discretion
a. File at any stage of proceeding other than before
service of answer or motion for summary judgment
b. By motion and order of court
c. Dismissal without prejudice unless court specifies
i. Limited to complaint
ii. Counterclaim survives
iii. Defendant can prosecute in separate
action, unless within 15 days from
notice of motion, he manifests his
preference to have his counterclaim
resolved in same action
iv. Class suit cant be dismissed without
approval or court

When dismissal due to plaintiff be with prejudice

1. Failure of plaintiff to appear without justifiable cause on date
of presentation of his evidence
2. Failure of plaintiff to prosecute action for an unreasonable
length of time
3. Failure of plaintiff to comply with RoC or any order of the
Can be dismissed based on motion, or upon court motu
Same effect as adjudication based on merits

Rule applies to dismissals of counterclaims, cross-claims or thirdparty complaints

If matter of right, additional reckoning point: before

introduction of evidence at trial or hearing

RULE 18 Pre-Trial

Duty of plaintiff to promptly move ex parte that case be set for

pre-trial after the last pleading has been served and filed
Last pleading answer or reply, depending on case
Must set within 5 days after last pleading filed
If plaintiff fails to more, duty of clerk to issue notice

1. Amicable settlement
2. Expedite Proceedings

During mediation, pre-trial suspended for 30-60 days

Theres also PC in the CA and SC

In ejectment cases, preliminary conference instead of pre-trial

Judge shall pre-mark the evidence

If evidence not pre-marked, then can no longer be
Same rule with witnesses

Court allows in interest of justice or

If newly discovered

Notice of pre-trial
Notice is served

On counsel

If no counsel, on the party

Two dates in notice
1. Date of PC, and
2. Date of Pre-trial itself

Appearance of parties
Who has to go to pre-trial?

Parties, and

Their counsel
Representative can go but needs a written SPA
authorizing him to:
1. Enter into an amicable settlement
2. Submit to alternative modes of dispute resolution
3. Enter into stipulations or admissions of facts and

Effect of failure to appear

If plaintiff doesnt appear = case dismissed with
prejudice, unless otherwise ordered by the court
If defendant doesnt appear = plaintiff may be allowed
to present evidence ex parte

Def not in default since already filed an

If client present but lawyer absent = no adverse effect
except lawyer to be reprimanded

Pre-trial brief
Parties file with court and serve on adverse party,
ensure receipt at least 3 days before date of pre-trial,
their respective pre-trial briefs
Shall contain:

Statement of willingness to settle or enter into

alternative modes of dispute resolution

Summary of admitted facts and proposed

stipulation of facts

Issues to be resolves

Documents to be presented, stating purpose

Manifestation of having availed of discovery

procedures or referral to commissioners

Number and names of witnesses and

substance of respective testimonies
Effect of failure to file brief = same as failure to appear
at pre-trial

Record of pre-trial
After pre-trial, court issues order which shall recite all
matters taken up in pre-trial
Pre-trial order is the bible of the trial. It:
1. Binds parties
2. Limits trial to matters not disposed of
3. Controls course of action during trial

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Judge issues pre-trial order within 10 days from end of
pre-trial, or

Judge can dictate pre-trial order in open court

in presence of parties and their counsel. Give
printed copy after
Judicial Dispute Resolution
There is now JDR in Makati and Manila
JDR Judge one who acts as mediator, conciliator and
independent evaluator in the stage between filing of
complaint and before pre-trial
New judge via raffle (trial judge)

Unless parties consent to continue with JDR



---------------------------End of Midterm Coverage------------------------------RULE 19 Intervention


Intervention with leave of court, 3 party takes part in a case

between other parties because of:
1. Legal interest
a. In the matter in litigation
b. In the success of either parties
c. Against both
2. Situated as to be adversely affected by a distribution or other
disposition of property in custody of court

At any time before rendition of judgment by trial court

Complaint-in-intervention asserts claim against either parties

Answer-in intervention unites with defendant in resisting a


Answer filed within 15 days from notice of order

RULE 20 Calendar of Cases

Clerk of court under direct supervision of judge

Preference given to the following:

1. Habeas corpus cases
2. Election cases
3. Special civil actions
4. Those so required by law

Assignment to branches done by raffle, in open session with

adequate notice to parties
RULE 21 Subpoena

Subpoena ad testificandum process directed to a person

requiring him to attend and to testify at hearing

Subpoena Duces Tecum appear and bring with him any

document or things under his control

Issued by:
1. Court where witness must attend
2. Court where deposition taken
3. Officer/body authorized by law in connection with
investigations conducted by said body
4. SC/CA justice in any case or investigation pending within the
5. Clerk of court in certain instances
a. Ad testificandum yes if pending case
b. Decus tecum if within pending case and if
ordered by the court

Form and content

1. Name of court
2. Title of action/investigation
3. Directed to person whose attendance is required
4. If duces tecum:
a. Test of relevancy: things requested must appear
prima facie relevant to issue
b. Test of definiteness: reasonably described by
parties to be readily identified

Grounds for Quashing (Motion to Quash)

Ad testificandum
a. Witness not bound (not qualified or falls under a
known privilege)
b. Witness fees and kilometrage allowed by Rules
not tendered (100km rule)
Duces Tecum

Unreasonable and oppressive

Relevancy of documents does not appear
Failure to tender costs of production
Kilometrage/witness fees no tendered, and cost for
e. Failure to describe with particularity
Cannot compel attendance and deem in contempt if:
a. Witness resides more than 100 kms from place where he is
to testify or
b. To a detention prisoner if no permission of the court in which
his case is pending is obtained

RULE 22 Computation of Time

Date from which designated of time begins to run is excluded and

date of performance included

If last day falls on a Saturday, Sunday or legal holiday in place

where court sits, shall not run until next working day

If an act is done as to effectively interrupt running period,

allowable period shall start on day after notice of cessation of
Day of interruption shall be excluded in computation of
the period

4 Modes of Discovery
1. Depositions pending action (Rule 23)
2. Request for admission by adverse party (Rule 26)
3. Motion for production of documents or inspection of things
(Rule 27)
4. Physical and Mental Examination of Persons
RULE 23 Depositions Pending Actions

When and How taken

1. After jurisdiction over defendant or over property: by leave of
2. After an answer has been served: matter of right, mere
notice is necessary

2 Kinds
1. Oral Examination/Depositions
2. Written Interrogatories

Subject: any matter, as long as

1. Not privileged
2. Relevant to subject of pending action

Uses of Depositions
1. Impeach testimony of a witness
2. Used against adverse party for any purpose
3. In lieu of oral testimony of a witness if the deponent:
a. Is dead (necessary that he was cross-examined)
b. Lives more than 100km from place of trial, or is
out of the Philippines
i. Unless absence was procured by party
offering deposition
c. Unable to testify or attend due to:
i. Age
ii. Sickness
iii. Imprisonment
d. Couldnt be compelled to attend through subpoena
e. Exceptional cases

Who can take depositions

1. In the Philippines
a. Any judge
b. Notary public, or
c. Person authorized to administer oaths stipulated
and agreed upon in writing by parties
2. Abroad
a. Secretary of an embassy/legation, consul general,
consul, vice-consul or consular agent
b. Person appointed by a commission or under
letters rogatory
i. Commission issued by the court as a
directive to an official of the Philippines
authorizing him to take deposition of

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Letters Rogatory requests to foreign

tribunals to give its aid in securing the
desired information
c. Person authorized to administer oaths stipulated
and agreed upon in writing by parties
Who are disqualified to be deposition officers, must raise
objections before taking or as soon as disqualification if known or
could be discovered with reasonable diligence (waivable)
1. Up to 6 degree of consanguinity or affinity from party, or
employee/counsel of party
2. Up to 6 degree of consanguinity or affinity from counsel, or
employee or counsel
3. One financially interested in action
How to oppose taking of deposition
1. By written motion by the party or the person to be examined
2. For good cause shown
Grounds to oppose (same as in motion to terminate or limit
1. Protect party or witness from annoyance, embarrassment, or
2. Or that what is sought is irrelevant in action
Exceptions to rule that deposition must be signed by witness, in
which cases officer will sign instead:
1. Parties stipulated waiver of signing
2. Witness is ill
3. Witness cant be found, or
4. Refuses to sign
Periods for written interrogatories
1. To serve cross-interrogatories: within 10 days from receipt
of notice
2. To serve re-direct: within 5 days from receipt of cross
3. To serve recross-interrogatories: within 3 days from receipt
of re-direct (recross not mandatory)
All objections to errors and irregularities are waivable, except:
objections to competency or relevancy of evidence during taking,
unless ground is one which might have been removed if
presented at that time

RULE 24 Depositions Before Action or Pending Appeal

Perpetuation of Testimony

If before action, file at the place of residence of any expected

adverse party

1. Petitioner expects to be a party to an action in court but is
presently unable to bring it
2. Subject matter and his interest therein
3. Facts he desires to establish by proposed testimony and
reasons for desire to perpetuate
4. Names or description and addresses of expected adverse
5. Names and addresses of persons to be examined

Serve notice at least 20 days before date of hearing

RULE 25 Interrogatories to Parties

To parties only

One set of questions to be answered

Periods to file:
1. Answer: within 15 days after service
2. Objections: within 10 days after service of interrogatories,
with notice

Can file more than one set of interrogatories to be answered only

with leave of court

Effect of failure to answer specific questions:

Proponent must first move to compel other party to
answer, if to no avail,
RULE 26 Admission by Adverse Party

File written request after answer/issues joined for admission of:

1. Genuiness of any material and relevant document described,
2. Truth of any material and relevant matter of fact set forth in

Deemed admitted unless denied within period designated in

request, which shall not be less than 15 days after service of
Relevant periods:
1. To answer (must be under oath): within 15 days, unless
upon motion, extended by court
2. To oppose: within 15 days

RULE 27 Production of Inspection of Documents or Things

What to file: motion with notice

What is applied for:

1. Production and permission to inspect tangible things
(describe with particularity)
2. Permit entry into a place under control of other party and
allow inspections

Documents should
1. Not be privileged
2. Contain or constitute evidence material to any matter
involved in the action
3. Documents are in possession, custody or control of the other
RULE 28 Physical and Mental Examination of Persons

When physical or mental condition of a party is in controversy in a

pending action, examination by physician

Court can issue motu propio (only mode where court can do so)
or on motion

For good cause and with notice

Consequence if copy of exam is given to requesting party

Waiver of privilege in that action or any other involving
same controversy, regarding the testimony of every
other person who has examined or may thereafter
examine him
Other party can now also ask for results of previous or
subsequent examinations
RULE 29 Refusal to Comply with Modes of Discovery

Refusal to answer the question or interrogatory

If without cause - may require deponent to pay
proponents expenses
If with cause may require proponent to pay
deponents expenses

Contempt (direct)
Refusal to be sworn, or
Refusal to answer a question after being ordered to do
so by the court

Upon refusal to comply with an order:

1. Contempt
2. Dismissal of case (if refusal by plaintiff)
3. Judgment by default (if refusal by defendant)
4. Pleading stricken out
5. In lieu or in addition to all those mentioned, can order arrest
a. Except if based on refusal to submit to a physical
or mental examination

Refusal to appear or fail to serve answers to interrogatories (order

not necessary since more blatant)
1. Dismissal of case (if refusal by plaintiff)
2. Judgment by default (if refusal by defendant)
3. Pleadings stricken out
4. Pay reasonable expenses

Expenses and attorneys fees not to be imposed upon Republic

under this rule
RULE 30 Trial

Parties must receive notice from clerk of court at least 5 days

before date of trial

May adjourn but in no case shall be for a longer period than one
month for each adjournment nor more than 3 months in all
Exception: authorized in writing by Court Administrator
of the SC

Grounds for postponing (not exclusive)

1. Absence of evidence
a. Evidence material or relevant, and

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b. Could not be produced despite due diligence
Illness of a party/counsel
a. Presence of either is indispensible at trial
b. Character of illness renders non-attendance
excusable (appear in an affidavit or sworn
Order of Trial (can be reversed if there is an affirmative defense)
1. Plaintiff adduces evidence
2. Defendant adduce evidence in support of defense,
counterclaim, cross-claim and 3 party complaint
3. 3 party defendant adduce evidence
4. 4 party, and so forth adduce evidence
5. Parties against whom any counterclaim/cross-claim has
been pleased adduces evidence
6. Parties respectively adduce rebutting evidence only
a. Unless court for good reasons permits to adduce
evidence on original case
7. Admission of evidence, deemed submitted for decision
a. Unless court directs parties to argue or submit
respective memoranda/pleadings
Judge personally receives evidence. Instances when clerk can
1. In default proceedings
2. Ex parte hearing (unless imbued with public interest like
3. Parties agree in writing (no power to rule of objections)

RULE 31 Consolidation or Severance

Consolidation join pending actions involving common

questions of law or fact
Cases will be consolidated in court having the case with
the lowest docket number (filed first)

Separate trials, when allowed

In furtherance of convenience or
To avoid prejudice
RULE 32 Trial by Commissioner

Reference by consent: both parties give written consent to

appoint commissioner to be agreed upon parties or appointed by
the court

Reference on motion or motu propio (no consent)

1. Case requires examination of a long account
2. Taking of account necessary for courts information for it to
render judgment/execution
3. Theres a question of fact, other than upon pleadings, arising
from motion or otherwise

Commissioners mandatory in expropriation cases (just

compensation), and permissible in partition

Powers of commissioner outlined in order of reference

If parties fail to appear before commissioner: may proceed ex

parte or adjourn at his discretion

Relevant periods:
First meeting with commissioner: within 10 days after
date of order of reference
Object to commissioners report: within 10 days after
notice of findings

Courts actions after hearing on report:

1. Adopt, modify or reject report in whole or in part
2. Recommit it with instructions
3. Require parties to present further evidence before
commissioner or court
RULE 33 Demurrer to Evidence

Demurrer to Evidence motion to dismiss on ground of

insufficiency of evidence

When to apply:
Civil cases after plaintiff has completely presented his
evidence/after formal offer of object of evidence
Criminal cases after prosecution rests its case

Ground: upon facts and law, plaintiff has shown no right to relief

Leave of court not necessary

Effect of MTD:
If denied defendant can present evidence

If granted but reversed on appeal defendant deemd to

have waived the right to present evidence
Grant is considered an adjudication of merits
Implications of grant of MTD
Civil losing party has to file an appeal
Criminal losing party cant appeal since deemed as an


RULE 32 Judgment on the Pleadings

Based solely on the pleadings

When it can be availed (no issue at all):

1. Answer fails to tender an issue, (admitted but failed to raise
an affirmative defense) or
2. Answer admits the material allegation of the adverse partys

Must be done on motion of a party

Not available in cases of:

Declaration of nullity of marriage
Annulment of marriage or
Legal separation

When to file:
If plaintiff after answer
If defendant on counterclaim any time
RULE 35 Summary Judgments

Availed of when no genuine issue as to a material fact, except as

to amount of damages (theres an issue but fictitious, ostensible
or a sham)

When to file:
Claimant: after answer has been served
Defendant: any time

Can use in any action except annulment, declaration of nullity of

marriage or legal separation

Material dates:
Time to serve motion: at least 10 days before time
specified for hearing
Time for adverse party to serve opposing affidavits: at
least 3 days before hearing

Partial judgment is allowed

If filed affidavit in bad faith, may require party/counsel to pay

expenses and may adjudge guilty of indirect contempt
RULE 36 Judgments, Final Orders and Entry Thereof

Requisites of judgment
1. In writing
2. Personally and directly prepared by judge
3. Stating clearly and distinctly facts and law as basis
4. Signed by judge
5. Filed with clerk of court

Judgments are immutable and cant be modified once final and

executory. Except:
1. Nunc pro tunc (judgment doesnt speak truth)
2. Clerical/typo errors
3. Void judgments
4. Those that transpire after finality which make enforcement
unjust or inequitable
5. Judgments which dont obtain finality (like support)

Date of finality of judgment is the date of entry in book of entries

of judgments
RULE 37 New Trial or Reconsideration

Period to file: 15 days from receipt of decision

Cannot be extended
Service to counsel service to petitioner
Filing of a valid motion interrupts running period of
A pro forma motion will not toll reglamentary period of
Fresh period rule (Neypes ruling) after denial, given a
fresh period of 15 days to appeal (applies to all Petition
for Review, except if with SC since inherent in its rules)
A second MNT is allowed, only on a ground not existing
or available when first motion was made

Sales D. A2016

Atty. Tranquil Salvador

Civil Procedure Memory Aid

No second MR allowed
Grounds for Motion for New Trial (MNT)
1. Fraud (extrinsic) if ground is FAME, affidavit of merit
(under oath) is necessary
2. Accident
3. Mistake
4. Excusable Negligence
5. Newly discovered evidence
a. Couldnt have been discovered and produced at
trial with reasonable and negligence
b. If presented, would probably alter result
Grounds for Motion for Reconsideration (MR)
1. Damages awarded are excessive
2. Evidence insufficient to justify decision or final order
3. Decision or final order is contrary to law
Requirements of a valid motion
1. Relief
2. Grounds
3. Supporting affidavits
4. Notice of hearing
MNT in appellate courts
CA yes, with different rules.

Only ground is newly discovered evidence

Period to file: as long as case is active

SC generally no. Matter of discretion
Period to decide: within 30 days from time submitted for
Remedy if denied: not appealable. Can only appeal from the

RULE 38 Relief from Judgments, Orders, or Other Proceedings

2 Kinds of petition for relief

1. From judgment, order or other proceedings
2. From denial of appeal
a. If FAME is not the ground, file an MR and if
denied, file under Rule 65

Grounds for both: FAME

File petition before the court that rendered judgment

Only parties/with legal interest to the proceedings can file

When to file: within 60 days from knowledge of decision but no

more than 6 months from entry of judgment
Can file only after entry of judgment
Can only file when there are no available relief.

Period to answer petition for relief: 15 days from receipt

Court can grant a preliminary injunction during petition but

petitioner must file a bond

Effect of resolution
If petition for relief from judgment

Granted deemed as if judgment was never

rendered. Proceed as if timely MNT or MR
had been granted

If denied judgment stands

If petition for denial of an appeal

Granted lower court required to give due

course to appeal and elevate record of
appeal case as if timely appeal was made
RULE 39 Execution, Satisfaction and Effect of Judgments

2 kinds of execution
1. As a matter of right when judgment is final and executor
2. Discretionary judgment final but not yet executor
a. Pending appeal, or
b. A several/partial judgment

Where to apply for writ: court that originally rendered judgment.

Can apply in the appellate court only when interest of justice so
requires. In such a case, appellate will not issue writ but merely
direct court of origin to issue it

Exceptions to rule that execution order can not issue in

interlocutory orders:
1. Party claims he is an indigent and discovered not to be one
2. Support pendente lite

Issue only upon motion of the winning party

Exception: labor cases (final and immediately

Requisites for execution pending appeal/several/separate/partial
1. Trial court must still have jurisdiction
2. Within appeal period
3. Records/record on appeal still with trial court
4. For good reasons
5. Reasons stated in a special order after due hearing
How to stay and execution
Matter of right you cant, unless get an injunction or
TRO claiming GADALEJ
Discretionary filing a supersedeas bond

Available only in ordinary civil actions

Judgment and orders must be capable of

pecuniary estimation
Judgments not stayed by appeal
1. Injunction
2. Receivership
3. Accounting and support
4. Others declared as immediately executor
5. Labor cases
Discretionary Execution
Available in election cases but provision on staying it is
not available
Not available in final judgments against government
Mere hearing needed
Remedy for grant/denial: Rule 65
When to file motion for exection:
Within 5 years from entry of judgment, and
Before barred by statute of limitations (10 years)
If after 5 years, must file an independent action to
execute (revival of judgment)
Modes to enforce judgment:
Within 5 years: mere motion
After 5 year: need to file an independent action

Cant alter original

Execution in case of death
Obligee dies: executor/admin/successor in interest
Obligor dies: execution against
executor/admin/successor in interest if judgment is
recovery of property or enforcement of lien
Obligor dies after levy effected: sell the same for
satisfaction of judgment obligation
Enforcement of judgments:
1. Immediate payment on demand
2. Satisfaction by levy
a. Levy act of officer of setting apart property of
judgment property for purpose of selling later
b. Obligor can choose which property, if doesnt
make a choice, sheriff chooses with personal
property as priority
3. Garnishment of debts and credits
a. Garnishee shall make a report within 5 days if
obligor has enough credits with garnishee
Duty of sheriff prior to enforcement of execution
1. Prepare an estimate of expenses to be incurred in executing
writ (must be approved by court)
2. Render an accounting
3. Issue an OR for total amount received from obligor
Execution for specific act
1. Conveyance, delivery of deeds; vesting title
2. Sale of real or personal property
3. Delivery or restitution of real property
a. All persons claiming rights under obligor must
peaceably vacate property within 3 working days
4. Removal or improvements on property subject of execution
5. Delivery of personal property
Contempt applies only for refusal to comply with a special
Property exempt from execution
If mortgaged any, no longer exempt

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador

Libraries or professionals not more than 300k
Family furniture not more than 100k
Provisions only up to 4 months
Jewelry not exempt
Tombstones exempt but not mausoleums

Life of writ: 5 years from entry of judgment

Sheriff required to make reports every 30 days

Notice of sale to public

Perishable Goods
3 public places
Reasonable time
Personal Property
3 public places
Not less than 5
Real Property (P50k
3 public places
20 days
Real Property
No posting but
Once a week for 2
consecutive weeks
Notice to obligor: at least 3 days before sale

Except if perishable goods, notice any time

before sale
Time of sale: 9am-2pm
Where: Office of clerk of court

If personal property capable of manual

deliver, where property is located
If property claimed by 3 person, oblige must file a bond in
amount not less than value of property to continue
3 party must file an affidavit
Period to enforce damage claims against bond: within
120 days from date of filing bond
Sheriff not liable if bond was posted
Penalty for selling without notice or removing or defacing notice
1. Pay punitive damages in amount of P5,000 to person injured
2. Pay actual damages
If purchaser at auction (winning bidder) refuses to pay, may be
cited for contempt
Sheriff cant adjourn sale without consent of both parties
Execution and delivery of certificate of sale mandatory only in
conveyance to purchaser of personal property not capable of
manual delivery
Who may redeem real property sold:
1. Judgment obligor, or his successor in interest
a. Redeem within 1 year from date of registration of
certificate of sale
b. Pay full amount plus 1% per month interest
c. Once he redeems, no further redemption allowed
2. Redemptioner - creditor having a lien by virtue of an
attachment subsequent to lien under which property was
a. Property so redeemed may again be redeemed
within 60 days after last redemption
b. Pay sum paid on last redemption with 2% interest
in addition
c. Must present proof of right to redeem
Judgment obligor has right to possession and entitled to fruits and
profits during redemption period
Upon expiration of period to redeem without redemption,
possession will be given to purchaser/last redemptioner unless a
3 party is actually holding property adversely
Option of purchaser in case sale is not effective
1. Recover in separate action from oblige the price paid to him
with interest
2. File a motion in the same case to revive judgment in his
name against judgment obligor for said amount
Obligees remedies in case proceeds of property sold at auction is
not enough to satisfy judgment
1. Have judgment obligor examined by an order
2. Have obligor of judgment obligor examined by order
3. Have anyone else appear to be examined by order or
subpoena under pain of contempt
4. Court can also appoint a receiver
When entry of satisfaction of judgment by clerk is made:
1. Writ is returned fully satisfied, or
2. Written acknowledgement of obligee or his counsel


Indorsement of such admission on the face of the record of

the judgment, or
4. Order of court after notice and motion, whenever a judgment
is satisfied in fact other than upon execution
Effect of domestic judgments or final orders
1. Conclusive
a. If specific thing or
b. In respect to probate of a will or
c. In respect of personal, political, or legal status of a
d. Relationship of a person
2. Conclusive between parties and successors by title
subsequent to commencement of action with respect to
matter directly adjudged or any other matter that couldve
been raised in relation
3. In any other litigation between same parties (in personam),
conclusiveness of judgment only to that which was adjudged
or those actually or necessarily included therein
Effect of foreign judgments
1. Upon specific thing: conclusive
2. Upon a person, or rights between parties: presumptive only
How to enforce foreign judgment:
File verified petition in RTC
Prove law of the foreign court
How to impugn foreign judgment
1. Want of jurisdiction/notice to party
2. Collusion
3. Fraud
4. Clear mistake of law or fact

Overview of Remedies

During Reglamentary Period (15 days)

1. MR (no 2 MR)
2. MNT
3. Appeal
a. Ordinary Appeal (Rules 40 &41)
i. Notice of Appeal within 15 days (no
extension of period)
ii. Record on Appeal within 30 days (no
extension except when theres an
authorized alteration or modification of
the record)
b. Petition for Review (Rules 42 & 43) within 15
days (can extend once, additional 15 days; no
second extension except for most compelling
reasons and in which case shall not exceed 15
i. RTC (appellate jurisdiction) appealed to
ii. Quasi-judicial agencies
c. Petition for Review on Certiorari (Rule 45)

After entry of judgment (60 days after knowledge but within 6

months from entry of judgment)
Petition for Relief of Judgment (Rule 38)

After period to file PRJ (4 years/equity)

Petition for Annulment of Judgment (Rule 47)
RULE 40 Appeal from MTC to RTC

Where to appeal: file notice and record of appeal with the court
that rendered decision

Period to appeal interrupted by timely filing of MR or MNT

Contents of Notice of Appeal

1. Indicate parties
2. Judgment or final order appealed from
3. Material dates showing timeliness of appeal
4. Pay docket and other lawful fees

15 days for MTC clerk to transmit original record to RTC

Procedure in RTC
1. Upon receipt of complete record or record on appeal, clerk
shall notify parties
2. File appellants memorandum within 15 days from notice
3. File appellees memorandum within 15 days from receipt
4. Case considered submitted for decision

Sales D. A2016

Atty. Tranquil Salvador

Civil Procedure Memory Aid

RULE 41 Appeal from RTC

RTC as court of original jurisdiction

If RTC acting as a Special Agrarian Court petition for
review to CA (CARL)
Acting as a Commercial Court petition for review to
CA (2005 SC Circular)

Subject of appeal:
1. Judgment or final order that completely disposes of the case,
2. Particular matter when declared by Rules to be appealable.

Prohibited appeals: (can file under Rule 65 instead)

1. Order denying petition for relief of judgment
2. Interlocutory order
3. Order disallowing or dismissing appeal
4. Denying motion to set aside judgment based on any ground
vitiating consent
5. Order of execution
6. Judgment against one or more several parties or in separate
claims while main case is pending unless court allows
7. Dismissing an action without prejudice

Must not involve issues purely of law

Record on Appeal sequential compilation of pleadings, orders

etc. of judge. Requires approval. Usually required in case of
multiple appeals or a special proceeding since records are in a
different court
Period to file objection: within 5 days
If court orders amendment of record, amend within 10
Extension only allowed if court orders amendment

Perfection of appeal effect: court loses jurisdiction

Notice upon filing in due time
Record upon approval of record which was filed on

Duty of clerk of lower court upon perfection of appeal:

1. Verify correctness and make certification
2. Verify completeness of records to be transmitted
3. If incomplete, take measures to complete
4. Transmit records. If incomplete, give reasons and steps
taken to complete (within 30 days from perfection of the

Grounds for dismissal (motu propio or on motion)

1. Appeal taken out of time, or
2. Non-payment of fees within period
RULE 40 Ordinary Appealed Cases (Procedure in CA)

Material dates
Original record or record on appeal within 30 days
after perfection of appeal
Appellant files approved record within 10 days from
receipt of notice of docketing of case
Appellants brief file within 45 days from receipt of
notice that all evidence are attached to record

7 copies

Proof of service of 2 copies to appellee

Appellees brief filed within 45 days from receipt of
appellants brief, same number of copies required
Appellants reply brief (not required) 20 days
Extension for filing of briefs not allowed except:

For good and sufficient, and

Motion for extension filed before expiration of

time sought to extend
In certiorari, prohibition, mandamus, quo warranto and
habeas corpus cases, file memoranda within 30
days (non-extendible)

Contents of appellants brief

1. Subject index
2. Assignment of errors
3. Statement of case
4. Statement of facts
5. Issues
6. Arguments
7. Relief prayed for
8. Appendix (copy of judgment)

Contents of Appellees brief

1. Subject index
2. Statement of Facts/Counter-statement of facts
3. Arguments

RULE 42 Petition for Review from RTC to CA

2 Kinds of petition for review (verified)

1. Rule 42 (MTC to RTC to CA)
2. Rule 43 (quasi-judicial agencies)

Applies to cases when RTC acted in appellate jurisdiction

File verified petition with the CA, pay docket fees and P500 for
costs within 15 days from notice of decision
Can be extended for an additional 15 days
No 2 extension except of the most compelling reasons
and shouldnt exceed 15 days

Content of Petition
1. Full names of parties (dont implead original court)
2. Specific material dates
3. Statement of matters involved and arguments
4. Clearly legible duplicate originals or true copies of judgment
of lower court (certified)
5. Certificate of non-forum shopping
6. Proof of payment of docket fees
7. Serve copy of petition to adverse party and original court
8. File in 7 copies
9. If filing/service is not personal, include explanation

Contents of comment of respondent

1. Whether he accepts statement of matters involved
2. Point out insufficiencies or inaccuracies
3. State reasons why petition shouldnt be given due course

Material dates:
1. Respondent file a comment (not a MTD) within 10 days
2. Clerk elevates original record if deemed necessary within
15 days from notice
3. Submit memoranda when required 15 days

Perfection of appeal
1. Upon timely filing of petition
2. Payment of corresponding fees

Petition shall stay the judgment appealed unless CA, the law or
rules provide otherwise and in cases decided under Rule on
Summary Procedure (immediately executory)
RULE 43 Appeals from CTA and Quasi-Judicial Agencies to the

No longer applies to CTA since now same rank as CA. File with
the SC

Material dates:
Period of appeal: within 15 days from notice of
judgment or date of its publication if required by law for
its effectivity

May grant additional period of 15 days

No further extension except for most

compelling reason and in no case to exceed
15 days
File comment if required within 10 days in 7 legible
Transmittal of record by lower court/agency within 15
Submit memoranda if required within 15 days from

Contents of petition
1. Full names of parties without impleading court of origin
2. Statement of facts, issues involved and grounds
3. Clearly legible duplicate original or certified true copy of the
4. Sworn certificate of non-forum shopping

Contents of Comment
1. Point out insufficiencies or inaccuracies in statement of facts
and issues
2. State reasons why petition should be denies or dismissed
3. Clearly legible certified true copies of material portions of
record with supporting papers

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador

Findings of QJA when supported by substantial evidence is

binding on the CA
Effect: shall not stay judgment unless CA orders so

RULE 45 Appeal by Certiorari to the SC

Material dates
File petition within 15 days from notice or denial of

May grant extension of 30 days

Only one extension allowed

Elevate records within 15 days from notice

Rule 65 not a substitute, except when:

1. Filed within reglamentary period for petition for review on
2. Alleged errors of judgment
3. Sufficient reason to justify relaxation of rules

Contents of Petition (file in 18 copies)

1. Full name of parties without impleading original court
2. Material dates
3. Statement of matters involved and reasons or arguments
4. Clearly legible duplicate original or certified true copy of
judgment certified by clerk
5. Certificate of non-forum shopping

Grounds for dismissal (motu propio or on motion)

1. Appeal is without merit
2. Prosecuted manifestly for delay, or
3. Questions raised are too unsubstantial to require

Only way to go up to the SC, except in criminal cases where

penalty imposed is death, RP or life imprisonment
RULE 47 Original Cases

Original jurisdiction of CA, over:

1. Rule 65 cases against RTC (concurrent with SC)
2. Habeas corpus, habeas data, writ of amparo, quo warranto,
Rule 65 against lower courts (concurrent with SC & RTC)
3. Annulment of judgments of RTC (exclusive)

Contents of petition (in 7 clearly legible copies)

1. Full names and actual addresses of parties
2. Statement of matters involved
3. Factual background of case
4. Grounds relied on for relief prayed for
5. Clearly legible duplicate of original or certified true copy of
6. Other relevant documents
7. Sworn certification of non-forum shopping
8. Pay docket and lawful fees

Acquisition of jurisdiction over respondent

1. Proper service of order/resolution
2. Voluntary submission

Court may require respondent to file comment within 10 days

from notice

All other pleading may be filed only with leave of court

May delegate reception of evidence to any member or to

appropriate court/agency
RULE 48 Preliminary Conference in the CA

Any time during pendency of case, court may call for PC to:
1. Consider possibility of amicable settlement except when
prohibited by law to compromise
2. Define, simplify and clarify issues
3. Formulate stipulations of facts
4. Other matters to aid court in prompt disposition

Product of PC = Record of conference

Objection to use of resolution - within 5 days

RULE 29 Oral Argument

When allowed:
1. At own instance or
2. Upon motion of a party

Period to file objections to motion: 5 days from service


Upon expiration of period, motion deemed submitted for

No need for hearings on motions unless directed

RULE 50 Dismissal of Appeal

Grounds for dismissal (motu propio or on motion, merely directory

not mandatory)
1. Failure of record to show appeal was taken within period
2. Failure to file notice of appeal or record on appeal within
period fixed
3. Failure to pay fees required
4. Unauthorized alterations, omissions or additions in approved
5. Failure to serve and file required number of copies
6. Absence of assignment of errors or page references
7. Failure to take necessary steps for correction of completion
of record within time limited
8. Failure to appear at PC or comply with other orders of the
court without justifiable cause
9. Order/judgment appealed from is not appealable
10. Improper mode of appeal appeal erroneously taken shall
not be transferred to appropriate court but will be dismissed

Withdrawal of appeal
As a matter of right before filing of appellees brief
Discretionary after filing of appellees brief
RULE 51 Judgment

When case deemed submitted for judgment

Ordinary appeals
a. No hearing on merits of main case is held filing
of last pleading/brief/memorandum required or
expiration of period to file
b. Where hearing held upon termination or upon
filing of last pleading/memorandum as required or
expiration of period to file
Original actions and Petitions for Review
a. No comment filed upon expiration of period
b. No hearing held upon filing of last required
pleading or expiration of period to file
c. Where hearing on merits is held upon
termination or upon filing of last
pleading/memorandum required or expiration of
period to file

Rendered by: members of court who participated in deliberation

on merits

Division: 3 justices

Decision: unanimous vote

If not, presiding judge designates 2 more

Justices to sit. Majority vote necessary.

Execution of judgment
Original action: writ accompanied by certified true copy
of decision and addressed to officer for enforcement
Appealed case: where motion for execution pending
appeal is filed in CA, resolution granting it shall be
transmitted to lower court with directive for such court to
issue writ for enforcement
RULE 52 Motion for Reconsideration

Material dates
For filing within 15 days

No second MR allowed
For resolution within 90 days from date when court
declares it submitted for resolution

1. Damages awarded are excessive
2. Evidence insufficient to justify decision
3. Decision contrary to law

Pendency of MR will stay execution of judgment (no similar

provision in Rule 37)

Sales D. A2016

Atty. Tranquil Salvador

Civil Procedure Memory Aid

RULE 53 New Trial

Period for filing: any time after appeal from lower court has been
perfected and before CA loses jurisdiction over the case

Ground: newly discovered evidence only

Motion shall be resolved within 90 days from declaration of

submission for resolution
RULE 54 Internal Business

Quorum of en banc majority of actual members

Decision/resolution affirmative votes of majority of members


RULE 55 Publication of Judgments and Final Resolution

Publish in:
1. Official Gazette and
2. Court of Appeals Reports
a. Each volume shall not be less than 700 pages
RULE 56-A Original Cases in the SC

Original cases that can be filed in the SC

1. Rule 65 (certiorari, prohibition and mandamus)
2. Quo warranto
3. Habeas corpus
4. Habeas data
5. Writ of amparo
6. Disciplinary proceedings against members of judiciary and
7. Cases affecting ambassadors, and other public ministers
and consul
8. Constitutionality of a law, treaty, ordinance, or EO

Procedure: (Same as CA)

1. Preliminary conference
2. Oral arguments
3. Judgment
4. MR

No MNT unless based on its equity jurisdiction
Cant annul judgment of CA
RULE 56-B Appealed Cases in the SC

Mode of appeal: petition for review on certiorari except in criminal

cases where penalty imposed is death, RP or life

Grounds for dismissal (motu propio or on motion)

1. Failure to file within reglamentary period
2. Lack of merit
3. Failure to pay required fees/deposit
4. Failure to comply with proof of service and contents
5. Failure to comply with circulars, directives or order of SC
without justifiable cause
6. Error in choice of mode of appeal
7. Case not appealable to SC

No oral arguments in appealed cases

Procedure if opinion equally divided

If still no decision,

Original action commence dismissed

Appealed case, judgment appealed from

stands affirmed

Incidental matters/petition, denied

RULE 47 Annulment of Judgments or Final Orders and

Annulment by:
CA over RTC, or
RTC over MTC
No similar provision for SC

Not an appeal but an original action since already lost opportunity

to appeal = last remedy

File with the higher court

Grounds for annulment

1. Extrinsic fraud
a. Wont be available if availed of or couldve been
availed of in a MNT or petition for relief

b. Period: 4 years from discovery

Lack of jurisdiction
a. Period: before barred by laches/estoppel
Contents (7 clearly legible copies)
1. Verified
2. Affidavit of merit
3. Certificate of NFS
4. Certified true copy of judgment
Limitations of higher court
1. Cant resolve merits of case
2. Cant substitute its own findings
Annulment is without prejudice and be filed


Ancillary to principal action

No principal action of preliminary attachment, except

Receivership in Corporation or Banking Law
Arbitration Law

Provisional Remedies available:

1. Preliminary attachment secure
2. Preliminary injunction enjoin or stop
3. Receivership preserve
4. Replevin
5. Support Pendente Lite
RULE 57 Preliminary Attachment

3 stages of attachment
1. Court issues order of grant
2. Writ of attachment issues
3. Implementation of writ (only stage where jurisdiction over
defendant is acquired)

Grounds for attachment

1. Any claim for money or damages (except moral and
exemplary) with claim arising from obligation and defendant
is about to depart from Philippines with intent to defraud
2. Embezzlement/abuse of trust by one with a fiduciary
relationship (estafa)
3. Action to recover property and there is a willful fraudulent
concealment of property (attach any property)
4. Fraud
a. In contracting the obligation
b. In performance of obligation
5. Action against a person who remove/conceals property or is
about to do so with intent to defraud
6. Defendant is a non-resident, or on whom summons by
publication is made

Contents of affidavit
1. Cause of action
2. Grounds mentioned
3. No other sufficient security for claim sought to be enforced
by action
4. Amount due to applicant
5. Post bond

How to discharge attachment (no ex parte discharge allowed)

1. Post a counter-bond (attachment must already be enforced)
in amount equal to value of subject matter of action
2. Motion to set aside based on improper, irregular or
excessive attachment; or bond insufficient
a. Improper: grounds not present
b. Irregular: wrong process

Vindicating claim by 3 party can be done in same or separate

action (in execution, only in separate)

If properties attached are not sufficient, court can proceed with

ordinary execution

Recovery upon counter-bond shall be resolved after notice and

summary hearing

Damages that can be recovered from improper, irregular or

excessive attachment (applies to all except support pendente lite):
1. Wrongful attachment: actual damages
2. Malicious: actual, moral & exemplary
3. Attorneys fees only when theres moral or exemplary, except
when party incurs expenses to lift wrongfully issued writ

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador

RULE 58 Preliminary Injunction

Preliminary injunction require party or court to refrain from a

particular act

Preliminary mandatory injunction require performance or a

particular act

When to file: at any stage prior to judgment

Who may grant: court where action is pending

1. Preliminary injunction to prohibit: maintain status quo
2. Preliminary mandatory injunction: requires something to be
done to maintain status quo
3. Restraining Order issued to preserve status quo until
hearing on application for PI

Requisites for PI
1. Clear and unmistakable right
2. Right violated and invasion is material and substantial
3. Urgent and permanent necessity for writ to prevent great or
irreparable injury

Enforced only within jurisdiction of court

1. Applicant entitled to relief
2. Commission, continuance or non-performance will work
injustice to applicant
3. Someone is violating the rights of applicant and it tends to
render judgment of main case ineffectual

Only sampling evidence necessary

1. Verified application
2. File a bond

2 Kinds of TRO
1. 72-hour TRO
a. Ground: matter of extreme urgency and applicant
will suffer grave injustice and irreparable injury
b. Issued by executive judge (multi-sala court) or
presiding judge (single sale)
c. Without hearing
d. Automatically expires but can be extended after
2. 20-day TRO
a. Ground: great or irreparable injury
b. Issued by regular court judge after raffle
c. Following service of complaint and summons
d. Also without notice and hearing
e. Cannot be extended, automatically expires

Period of TROs if granted

Lower court: 20 days
CA: 60 days
SC: until further orders

Ground to Object: insufficiency of application

Ground to Object or Dissolve:

1. File affidavits showing theres no reason for PI
2. File counterbond and affidavit (and undergo hearing) that
party will suffer more damage than applicant

Final injunction granted: perpetual restraint on party to continue

acts, or confirm preliminary mandatory injunction
RULE 59 Receivership

Can apply post-judgment, even if final and executor

Requires 2 bonds
1. Applicants bonds
2. Receivers bond can agree to dispense with

1. Proper in danger of being lost
2. Property mortgaged in danger of being wasted and security
in mortgage no enough to cover value
3. Stipulation in mortgage contract
4. Preserve property during appeal or to aid execution
5. Other reasons for most convenient and feasible means
RULE 60 Replevin

Covers only specific personal property

When: at commencement of action or any time before answer

Main action is recovery of possession of property

Requirements for replevin

1. Applicant is the owner or entitled to possession of thing
2. Property wrongfully detained
3. Property not lawfully taken
4. FMV of property contained in motion
5. File bond: double value of property
To release property: file counter-bond 2x value of property

RULE 61 Support Pendente Lite

File at any time prior to judgment

File verified application stating grounds and financial conditions of

both parties
Bond not required
No claim for damages against petitioner
If wrongfully claimed, ask for reimbursement

Material dates:
File comment by Adverse party within 5 days
Set hearing not more than 3 days after

In case of failure of adverse party to comply, can issue a writ of

execution, even in the absence of a final judgment

May be ordered in criminal rape cases for offspring as a

consequence of rape
RULE 62 Interpleader

Reasons to file: protection from double vexation for one liability

1. Conflicting claims upon same subject matter
2. Against person who either:
a. Claims no interest
b. Or his interest is not disputed
3. Conflicting claimants called to interplead and litigate among

Material dates
Motion to dismiss, shall toll period to file answer,
remaining period shall not be less than 5 days
Claimant file answer: within 15 days from service of

Failure to file compulsory counterclaim is waiver

Pre-trial shall be conducted

Writ of possession does not necessarily follow an adjudication

Fees to be paid by applicant but entitled to lien on judgment

award to reimburse him for fees since not a real party
RULE 63 Declaratory Relief and Similar Remedies

2 scenarios:
1. Declaratory Relief file with RTC
2. Other Similar remedies file depending on which court has
a. Reformation
b. Quieting of title
c. Removal of cloud
d. Consolidate ownership

Requisites for Declaratory Relief

1. Subject matter of controversy must be:
a. Deed, will, contract or other written instrument
b. Statute, EO, regulation or ordinance
2. Terms and validity are doubtful and require judicial
3. No breach yet
4. Actual justiciable controversy or ripening of one between
adverse parties
5. Ripe for judicial determination
6. Adequate relief not available elsewhere (admin remedies)

1. Declare rights/duties
2. Interpretation/construction
3. Determination of validity

Can file a counterclaim, or execution

If Statute, EO or regulation notify OSG
If local ordinance:

Validity: notify respective prosecutor

Constitutionality: notify OSG

Sales D. A2016

Atty. Tranquil Salvador

Civil Procedure Memory Aid

For DR, court can motu propio or on motion refuse to exercise

power if:
1. Would not terminate uncertainty, or
2. Declaration not necessary or proper
If breach before final termination, converted into an ordinary civil

RULE 64 Review of Judgments and Final Orders or Resolutions of

the COMELEC and the COA

File within 30 days from notice of judgment

Non-extendible period
Filing of MNT or MR, if allowed under rules of
commission, shall interrupt period
May file within remaining period in which case shall not
be less then 5 days

Pays fees and deposit P500 for costs

Petition: 18 legible copies

All attachments certified true copies
RULE 65 Certiorari, Prohibition and Mandamus

Not an appeal, special action

Concurrent jurisdiction
If decision of MTC RTC, CA and SC
If decision of RTC CA and SC
Ordinarily filed with lower courts first, and then SC

Petition for Certiorai

Against who: tribunal, board, officer
Questioning judicial or quasi-judicial function
Relief sought: nullify, set-aside or modify proceeding

Generally, no damages
2. No plain, speedy, ordinary remedy available

Petition for Prohibition

Against who: tribunal, board, officer, corporation,
Questioning: judicial, quasi-judicial or ministerial
Relief sought: desist from further proceedings

Generally no damages
2. No plain, speedy, ordinary remedy available

Petition for Mandamus

Against who: tribunal, board, officer, corporation,
Questioning: ministerial function or exclusion of another
from use and enjoyment of a right or office to which the
other is entitled (possible that party excluding is
different from person holding office)
Relief sought: command to do the act required

With damages
Requisite: no plain, speedy, ordinary remedy available
Against who
tribunal, board,
tribunal, board,
board, officer,
judicial or
judicial, quasiministerial
judicial or
function or
exclusion of
another from use
and enjoyment of
a right or office to
which the other is
Relief sought
desist from
desist from
command to do
the act required
No plain, speedy,
2. No plain,
ordinary remedy
2. No plain,


Petition does not interrupt the proceedings in the principal case
unless a TRO or PI has been issued
Dismissal of petition (motu propio or on motion)
If patently without merit, or made for delay, or too
Treble costs can be awarded against petitioner and
May impose disciplinary sanction based on re ipsa

RULE 66 Quo Warranto

Quo Warranto prerogative writ by which government can call

upon any person to show by what warrant he holds a public office
or exercises a public franchise

Who commences action (verified petition brought in name of the

Republic of the Philippines):
1. President, directing OSG
2. OSG in the name of the government when he has good
3. OSG upon relation and request of another person
4. Individual if and only when he claims to be entitled to
position usurped by another

Why file:
1. Usurpation of public office, position or franchise
2. Public officer does an act which constitutes ground for
forfeiture of office
3. Association not duly or legally incorporated, or without lawful
authority to act

Where to file:
1. RTC where respondent resides
2. CA
3. SC
4. If OSG commences action, may be filed in the RTC of Manila

Prescriptive period: 1 year from cause of ouster or right of

petitioner arose
RULE 67 Expropriation

Who can expropriate:

1. National government
2. LGU (through an ordinance)
3. Government instrumentality

Where to file: RTC has original jurisdiction

What to allege:
1. Right and purpose of expropriation
2. Description of property
3. Names of persons:
a. Owning or claiming to own
b. Possessing it, or
c. Having interest over it
4. Petition verified

Withdrawal allowed so long as no order of expropriation yet

2 stages:
1. Validity of expropriation
2. Determination of just compensation (judicial function)

Exceptions to rule that entry can only be made upon judgment

and payment of just compensation:
1. Under Rule 67
a. File complaint and due notice
b. Deposit with authorized government depositary
100% of assessed value
2. Under LGC
a. File complaint sufficient in form and substance
b. Deposit amount equivalent to 15% of FMV of
property based on latest tax declaration
3. Under R.A. 8974 (applies to national government
infrastructure projects)
a. File complaint
b. Immediate payment of 100% of zonal or market
value of property and improvements

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador


If no zonal value and expropriation is of utmost

importance, pay proferred value
Defendant may object or not, in either case may still present
evidence at determination of just compensation stage
Order of expropriation can be appealed (record on appeal)
But will not prevent court from determining just
Determination of just compensation
Court appoints not more than 3 competent and
disinterested persons as commissioners

Objections to appointment file within 10

days from service

Resolve objection within 30 days

Assess consequential damages and deduct from
assessed consequential benefits

In no case shall benefits > damages

Commissioners file report within 60 days from
notification of appointment

File objections to report within 10 days

Must be the value of property, whichever came first:
1. Date of taking
2. Date of filing of complaint
Filing of appeal will not delay entry upon property, but if reversed,
entitled to damages

RULE 68 Foreclosure of Real Estate Mortgage

Where to file: court that has jurisdiction based on assessed value

of property and place where located

2 Kinds of foreclosure
1. Judicial
No Right of redemption, only equity of redemption
Pay after court order to pay: period of not less than 90
days nor more than 120 days from entry of judgment
Mortgagor continues to be in possession of property
2. Extrajudicial (Act 3135)
Right of Redemption: 1 year from registration of
confirmation of sale
Obligor continues to be in possession

Redemption periods if lender/mortgagee is a Bank

1. Mortgagor is a individual
a. Whether judicial or extrajudicial: 1 year
b. Bank entitled to possession prior to redemption
unless mortgagor posts a bond
2. Mortgagor is a corporation
a. Period if judicial: 1 yr
b. Period if extrajudicial: 3 months/90 days, or until
registration of certificate of sale, whichever comes

Disposition of proceed of sale:

1. Deduct costs of sale
2. Pay person foreclosing
3. Balance or residue goes to junior encumbrances in order of
a. No right to residue if extrajudicial, may only
4. If no junior mortgagors, return balance to mortgagor
RULE 69 Partition

2 Kinds of partition
1. Judicial
a. All persons interested must be impleaded as
indispensible parties
b. Covers both real and personal property
c. Any co-owner can institute
d. Bond not necessary
2. Extrajudicial
a. Usually co-owners created by death of an
b. Requisites:
i. No will
ii. No debt
iii. If there are minors, appointment of
iv. Contested within 2 years

c. Bond necessary if personal property

Parties can agree to partition
If they agree, treated as extrajudicial, must be
If not, they will be referred to commissioners

Not more than 3 competent and

disinterested persons

10 days to file objections to report of


RULE 70 Forcible Entry and Unlawful Detainer

Venue for ejectment cases: MTC where property situated unless

theres a stipulation

Summary procedure

Forcible Entry:
Possession by reason of Force, Intimidation, strategy,
threats or stealth (FISTS)
Prior physical possession when it was deprived
Period to file: within 1 year from discovery of entry

Unlawful Detainer
Previous lawful possession but by violation of contract
or expiration of period, became unlawful
Demand letter necessary:

To pay unpaid rentals or comply with

conditions of lease, and

Vacate property within 15 days if land, or 5

days if building

Can dispense with when ground is expiration

of contract

Pleadings allowed (all must be verified)

1. Complaint
2. Compulsory counterclaim and cross-claim pleaded in the
*No 3 party complaints

Prohibited pleadings:
1. MTD, except:
a. Ground of lack of jurisdiction over subject matter,
b. Failure to comply with requirement of referral for
2. Bill of particulars
3. MNT, MR, or reopening of trial
4. Relief from judgment
5. Extension of time to file pleadings
6. Memoranda
7. Certiorari, mandamus or prohibition against interlocutory
orders issued
8. Declare defendant in default
9. Dilatory motions for postponement
10. Reply
11. Third-party complaints
12. Interventions

Material dates
File answer within 10 days from service of summons

Defenses not pleaded are waived except for

lack of jd over subject matter
File answer to counterclaims or cross-claims within 10
Hold preliminary conference no later than 30 days
after last answer filed

Cases when court can grant preliminary injunction:

1. Within 5 days from filing complaint: to recover possession in
the pendency of the case
2. Within 10 days from perfection of appeal: if court
determines that defendants appeal is merely dilatory or that
plaintiff is entitled to possession

Can touch on issue of ownership but only provisionally, not

binding on subsequent questions of ownership

Decision is immediately executor (but not final)

Can be stayed by:
1. Filing notice of appeal and paying filing fees
2. Posting supersedeas bond cover rentals in

Sales D. A2016

Civil Procedure Memory Aid

Atty. Tranquil Salvador


Paying rent due from time of breach to time of

Upon appeal to RTC, RTCs decision cannot be stayed
even on appeal

RULE 71 Contempt
1. Direct punished summarily
a. An act of disrespect in the presence or so near the
b. As to obstruct or interrupt proceedings before the same
c. Penalty:
i. RTC & up:
1. Fine: not exceeding P2,000 and/or
2. Imprisonment: not exceeding 10
ii. MTC
1. Fine: Not exceeding P200 and/or
2. Imprisonment: not exceeding 1
d. Remedy:
i. No appeal.
ii. File certiorari/prohibition (Rule 65)
iii. Stay execution by filing bond
2. Indirect requires notice and hearing
a. Violation of an order or lawful process of court
b. How charged:
i. Motu propio formal charge of judge against
whom contempt was committed
ii. Verified complaint filed and docketed
separately; if incident to case, with option to
consolidate with main
c. Where to file:
i. If against RTC: file in RTC
ii. Against MTC: file in RTC, or MTC(subject to
appeal to RTC)
d. Maybe released from custody upon filing a bond in
amount fixed by court
i. Maybe released if it appears that public
interest will not be prejudiced
e. Penalty:
i. RTC & up:
1. Fine: not exceeding P30,000
2. Imprisonment: not exceeding 6
ii. MTC
1. Fine: Not exceeding P5,000
2. Imprisonment: not exceeding 1
iii. If contempt consists in refusal to do an act
which he is capable of performing, may be
imprisoned until performance
i. Appeal
ii. But judgment stayed only with a bond is

Contempt in quasi-judicial agencies

First, check the rules of such QJA because that will
In absence thereof, such rule will apply suppletorily
Special rule on venue: RTC where contempt was

Sales D. A2016