Personal actions and Real actions

The distinction between real action and personal action is important for the purpose
of determining the venue of the action. A real action is local, which means that its
venue depends upon the location of the property involved in the litigation. A
personal action is transitory, which means that its venue depends upon the
residence of the plaintiff or the defendant at the option of the plaintiff.
An action is real when it is founded upon the privity of real estate, which means that
the realty or an interest therein is the subject matter of the action. The issues
involved in real actions are title to, ownership, possession, partition, foreclosure of
mortgage or condemnation of real property. Not every action involving real property
is a real action because the realty may only be incidental to the subject matter of
the suit. Example is an action for damages to real property, while involving realty is
a personal action because although it involves real property, it does not involve any
of the issues mentioned.
A real action is a local action; its venue depends upon the location of the property
involved in litigation. Actions affecting title to or possession of real property, or
interest therein, shall be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property involved, or a portion thereof is
situated (Sec. 1, Rule 4).
A personal action is transitory; its venue depends upon the residence of the plaintiff
or the defendant at the option of the plaintiff. A personal action may be
commenced and tried where the plaintiff or any of the principal plaintiffs resides, or
where the defendant or any of the principal defendants resides, or in the case of a
non-resident defendant, where he may be found, at the election of the plaintiff
(Sec. 2, Rule 4).
Part of the res gestae
Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof.
So, also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance.
General classes of declarations to which the term res gestae is usually applied: (a)
spontaneous statements, and (b) verbal acts.
Spontaneous statements Statement or exclamation made immediately after some
exciting occasion by a participant or spectator and asserting the circumstances of
that occasion as it is observed by him.
Verbal acts Utterances which accompany some act or conduct to which it is desired
to give a legal effect. When such act has intrinsically no definite legal significance,
or only an ambiguous one, its legal purport or tenor may be ascertained by
considering the words accompanying it, and these utterances thus enter merely as
verbal part of the act.

Res gestae declarations incidental to the main fact or transaction, necessary to

illustrate its character, and also includes acts, words and declarations which are so
closely connected therewith as to constitute a part of the transaction. As applied to
a crime, res gestae means the complete criminal transaction from its beginning or
starting point in the act of the accused until the end is reached.
Sec. 42 The test for the admissibility of evidence as part of the res gestae is
whether the act, declaration or exclamation is so intimately interwoven or
connected with the principal fact or event which it characterizes as to be regarded
as a part of the transaction itself, and also whether it clearly negative any
premeditation or purpose to manufacture testimony.
Factors to consider to determine whether statements offered in evidence as part of
res gestae have been made spontaneous or not: (a) The time that has elapsed
between the occurrence of the act or transaction and the making of the statement;
(b) The place where the statement was made; (c) The condition of the declarant
when he made the statement; (d) The presence or absence of intervening
occurrences between the occurrence and the statement relative thereto; (e) The
nature and circumstances of the statement itself.
Suspension by reason of prejudicial question. A petition for suspension of
the criminal action based upon the pendency of a prejudicial question in a civil
action may be filed in the office of the prosecutor or the court conducting the
preliminary investigation. When the criminal action has been filed in court for trial,
the petition to suspend shall be filed in the same criminal action at any time before
the prosecution rests.
Elements of prejudicial question.
The elements of a prejudicial questions are: (a) the previously instituted civil action
involves an issue similar or intimately related to the issue raised in the subsequent
criminal action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed.
Preliminary Investigation
Nature of right The preliminary investigation as defined in Sec. 1 is the preliminary
investigation proper, which is not a judicial function, but a part of the prosecutions
job, a function of the executive. Preliminary investigation is generally inquisitorial,
and it is often the only means of discovering the persons who may be reasonably
charged with a crime, to enable the prosecutor to prepare his complaint or
information.
The right to preliminary investigation is not a constitutional grant; it is merely
statutory and may be invoked only when specifically created by statute. Preliminary
investigation is a function that belongs to the public prosecutor. It is an executive

function, although the prosecutor, in the discharge of such function, is a quasi

judicial authority tasked to determine whether or not a criminal case must be filed
in court. The right to preliminary investigation may be waived by the accused,
either expressly or impliedly. The posting of a bond by the accused constitutes such
a waiver, such that even if the warrant was irregularly issued, any infirmity attached
to it is cured when the accused submits himself to the jurisdiction of the court by
applying for bail.
Purposes of preliminary investigation Preliminary investigation is an inquiry or
proceeding for the purpose of determining whether there is sufficient ground to
engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof, and should be held for trial.
Generally, preliminary investigation has a three-fold purpose:
(a) To inquire concerning the commission of crime and the connection of accused
with it, in order that he may be informed of the nature and character of the crime
charged
(b) To preserve the evidence and keep the witnesses within the control of the state;
and
(c) To determine the amount of bail, if the offense is bailable
Amendment of Complaint
a. Amendment as a matter of right A plaintiff has the right to amend his complaint
once at any time before a responsive pleading is served by the other party or in
case of a reply to which there is no responsive pleading, at any time within ten (10)
days after it is served.
The defendant may also amend his answer, also as a matter of right, before a reply
is served upon him. b. Amendments by leave of court Required for substantial
amendment made after service of a responsive pleading.
c. Formal amendment A defect in the designation of the parties and other clearly
clerical or typographical errors may be summarily corrected by the court at any
stage of the action, at its initiative or on motion, provided no prejudice is caused
thereby to the adverse party.
Rule 10 Sec. 2 Thus, before an answer is served on the plaintiff, the latter may
amend his complaint as a matter of right. So you can amend the complaint to
correct the error of jurisdiction as a matter of right (without leave of court) before a
responsive pleading is served even though there is already a motion to dismiss filed
for lack of jurisdiction. The court should deny the motion since such motion is not a
responsive pleading. The amendment as a matter of right should be filed before the
order to dismiss becomes final. This section refers to an amendment made before
the trial court, not to amendments before the CA, which is vested with jurisdiction to

admit or deny amended petitions filed before it (Navarro Vda. De Taroma, 478 SCRA
336). Hence, even if no responsive pleading has yet been served, if the amendment
is subsequent to a previous amendment made as a matter of right, the subsequent
amendment must be with leave of court.
Sec. 3 The plaintiff, for example, cannot amend his complaint by changing his cause
of action or adding a new one without leave of court (Calo and San Jose vs. Roldan,
76 Phil. 445; Buenaventura vs. Buenaventura, 94 Phil. 193). After a responsive
pleading is filed, an amendment to the complaint may be substantial and will
correspondingly require a substantial alteration in the defenses of the adverse party.
The amendment of the complaint is not only unfair to the defendant but will cause
unnecessary delay in the proceedings. Leave of court is thus, required. On the other
hand, where no responsive pleading has yet been served, no defenses would be
altered. The amendment of the pleading will not then require leave of court.

Venue and Jurisdiction

Jurisdiction refers to whether a court has the legal authority to hear a case, and
venue refers to where a court case will be heard. In a civil case (a dispute between
two parties), venue is determined by where the parties live or where the original
dispute arose. In a criminal case, the venue is determined by where the alleged
crime occurred
Jurisdiction and venue are both defined by state or federal law. If a court has
jurisdiction of a legal matter, the judge may, if one of the parties to the case makes
a request or on the courts own initiative, determine that venue is not appropriate.
Venue in a civil case may be changed if neither party lives or does business in the
jurisdiction where the case is being heard. Venue may also be changed for the
convenience of the witnesses in a civil case.
In a criminal case, requests for change of venue are typically based on pre-trial
publicity given that the defendant wants the case moved to an area where the jury
pool has not had pre-trial media exposure. Changes of venue are granted or denied
at the discretion of the trial judge, but both civil and criminal parties may appeal an
adverse venue decision.

Difference between Rule 45 and Rule 65

This Court has consistently elaborated on the difference between Rule 45 and 65
petitions. A petition for review oncertiorari under Rule 45 is an ordinary appeal. It is
a continuation of the case from the CA, Sandiganbayan, RTC, or other courts. The

petition must only raise questions of law which must be distinctly set forth and
discussed.
A petition for certiorari under Rule 65 is an original action. It seeks to correct errors
of jurisdiction. An error of jurisdiction is one in which the act complained of was
issued by the court, officer, or quasi-judicial body without or in excess of jurisdiction,
or with grave abuse of discretion which is tantamount to lack of or in excess of
jurisdiction. The purpose of the remedy of certiorari is to annul void proceedings;
prevent unlawful and oppressive exercise of legal authority; and provide for a fair
and orderly administration of justice.
Applying the foregoing, errors in the appreciation of evidence may only be reviewed
by appeal and not by certiorari because they do not involve any jurisdictional
ground. Likewise, errors of law do not involve jurisdiction and may only be corrected
by ordinary appeal.
Summons by publication
within the time specified in the order granting leave to serve summons by
publication which shall not be less than 60 days after notice.
As a rule, summons by publication is available only in actions in rem or quasi in
rem. It is not available as a means of acquiring jurisdiction over the person of the
defendant in an action in personam.
Summons by publication against a nonresident in an action in personam is not a
proper mode of service.
The place and the frequency of the publication is a matter for the court to
determine (Sec. 14) The rule does not distinguish whether the action is in
personam, in rem or quasi in rem. The tenor of the rule authorizes summons by
publication whatever the action may be as long as the identity of the defendant is
unknown or his whereabouts are unknown. Under the previous rulings, jurisdiction
over the defendant in an action in personam cannot be acquired by the summons
by publication (Pantaleon vs. Asuncion, 105 Phil. 761; Consolidated Plyware
Industries vs. Breva, 166 SCRA 516). as under the rules on extraterritorial service
(Sec. 15) as in Sec. 6 under Sec. 16 Like in the case of an unknown defendant or
one whose whereabouts are unknown, the rule affecting residents who are
temporarily out of the Philippines applies in any action. Also, summons by
publication may be effected against the defendant.

The question of whether the trial court has jurisdiction depends on the
nature of the action

 whether the action is in personam, in rem, or quasi in rem. The rules on service of
summons under Rule 14 likewise apply according to the nature of the action. An
action in personam is an action against a person on the basis of his personal
liability. An action in rem is an action against the thing itself instead of
against the person. An action quasi in rem is one wherein an individual is named
as defendant and the purpose of the proceeding is to subject his interest therein to
the obligation or lien burdening the property. In an action in personam, jurisdiction
over the person of the defendant is necessary for the court to validly try and decide
the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction over the res. Jurisdiction over
the res is acquired either (1) by the seizure of the property under legal process,
whereby it is brought into actual custody of the law; or (2) as a result of the
institution of legal proceedings, in which the power of the court is recognized and
made effective. Nonetheless, summons must be served upon the defendant not for
the purpose of vesting the court with jurisdiction but merely for satisfying the due
process requirements
Effect of failure to appear
It shall be the duty of both the parties and their counsels to appear at the pre-trial.
The failure of the plaintiff to appear shall be cause for the dismissal of the action.
This dismissal shall be with prejudice except when the court orders otherwise. The
failure of the defendant to appear shall be cause to allow the plaintiff to present his
evidence ex parte and for the court to render judgment on the basis of the evidence
presented by the plaintiff.
Failure to file the pre-trial brief shall have the same effect as failure to appear at the
pre-trial.
JURISDICTION OF SANDIGANBAYAN
The jurisdiction of the Sandiganbayan is perhaps one of the most often amended
provision from the 1973 Constitution to RA 8249 of 1997. Before RA 8249,
jurisdiction of the Sandiganbayan was determined on the basis of the penalty
imposable on the offense charged. Then, it was amended such that regardless of
the penalty, so long as the offense charged was committed by a public officer, the
Sandiganbayan was vested with jurisdiction. Under RA 8249, to determine whether
the Sandiganbayan has jurisdiction, lawyers must look into two (2) criteria, namely:
The nature of the offense and The salary grade of the public official.

Thus, Sec.4 of RA 8249 provides that the Sandiganbayan shall have original

exclusive jurisdiction over:

I.) Violations of RA 3019 (Anti-graft and Corrupt Practices Law);
II.) RA 1379 (Forfeiture of Illegally Acquired Wealth);
III.) Crimes by public officers or employees embraced in Ch. II, Sec.2 Title VII, Bk. II
of the RPC (Crimes committed by Public Officers) namely:
a) Direct Bribery under Art. 210 as amended by BP 871, May 29, 1985;
b) Indirect Bribery under Art. 211 as amended by BP 871, May 29, 1985;
c) Qualified Bribery under Art. 211-A as amended by RA 7659, Dec. 13, 1993;
d) Corruption of public officials under Art. 212
where one or more of the accused are officials occupying the following positions in
the government whether in a permanent, acting or interim capacity, at the time of
the commission of the offense:
1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade 27 and higher, of the Compensation and
Position Classification Act of 1989 Republic Act No. 6758) specifically including:
a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, provincial treasurers, assessors, engineers and other provincial
department heads;
b) City mayors, vice-mayors, members of the sangguniang panglungsod, city
treasurers, assessors, engineers and other department heads;
c) Officials of the diplomatic service occupying the position of consul and
higher;
d) Philippine Army and Air force colonels, naval captains and all officers of
higher rank;
e) Officers of the PNP while occupying the position of Provincial Director and
those holding the rank of Senior Superintendent or higher;
f) City and provincial prosecutors and their assistants; officials and the
prosecutors in the Office of the Ombudsman and special prosecutor ;

g) President, directors or trustees or managers of government owned or

controlled corporations, state universities or educational institutions or foundations;
2) Members of Congress and Officials thereof classified as Grade 27 and up under
the Compensation and Classification Act of 1989;
3) Members of the Judiciary without prejudice to the provision of the Constitution;
4) Chairmen and members of Constitutional Commissions, without prejudice to
the provision of the Constitution;
5) All other national and local officials classified as Grade 27 and higher under the
Compensation and Position Classification Act of 1989.
IV.) Other offenses or felonies whether simple or complexed with other crimes
committed in relation to their office by the public officials and employees mentioned
above;
V.) Civil and Criminal Cases filed pursuant to and in connection with EO 1, 2, 14 &
14-A issued in 1986
VI.) Petitions for issuance of Writ of mandamus, prohibition, certiorari, habeas
corpus, injunction and other ancillary writs and processes in aid of its appellate
jurisdiction; Provided, jurisdiction is not exclusive of the Supreme Court
VII.) Petitions for Quo Warranto arising or that may arise in cases filed or that may
be filed under EO 1, 2, 14 & 14- A
VIII.) OTHERS provided the accused belongs to SG 27 or higher:
a.) Violation of RA 6713 - Code of Conduct and Ethical Standards
b.) Violation of RA 7080 - THE PLUNDER LAW
c.) Violation of RA 7659 - The Heinous Crime Law
d.) RA 9160 - Violation of The Anti-Money Laundering Law when committed by a
public officer
e.) PD 46 referred to as the gift-giving decree which makes it punishable for any
official or employee to receive directly or indirectly and for the private person to
give or offer to give any gift, present or other valuable thing on any occasion
including Christmas, when such gift, present or valuable thing is given by reason of
his official position, regardless of whether or not the same is for past favors or the

giver hopes or expects to receive a favor or better treatment in the future from the
public official or employee concerned in the discharge of his official functions.
Included within the prohibition is the throwing of parties or entertainment in honor
of the official or employee or his immediate relatives.
f.) PD 749 which grants immunity from prosecution to any person who voluntarily
gives information about any violation of Art.210, 211 or 212 of the RPC, RA 3019,
Sec.345 of the NIRC, Sec. 3604 of the Customs and Tariff Code and other provisions
of the said Codes penalizing abuse or dishonesty on the part of the public officials
concerned and other laws, rules and regulations penalizing graft, corruption and
other forms of official abuse and who willingly testifies against the public official or
employee subject to certain conditions.
It should be noted that private individuals can be sued in cases before the
Sandiganbayan if they are alleged to be in conspiracy with the public officer.
The Sandiganbayan is vested with Appellate Jurisdiction over final judgments,
resolutions or orders of the RTC whether in the exercise of their original or appellate
jurisdiction over crimes and civil cases falling within the original exclusive
jurisdiction of the Sandiganbayan but which were committed by public officers
below Salary Grade 27.

Properties exempt from execution

(a) The judgment obligors family home, or the homestead in which he resides, and
the land necessarily used in connection therewith; (b) Ordinary tools and
implements personally used by him in his trade, employment, or livelihood; (c)
Three horses, or three cows, or three carabaos, or other beasts of burden, such as
the judgment obligor may select necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for that
purpose by the judgment obligor and his family, such as the judgment obligor may
select, of a value not exceeding 100,000 pesos. (f) Provisions for individual or family
use sufficient for four (4) months; (g) The professional libraries and equipment of
judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding 300,000 pesos; (h) One fishing
boat and accessories not exceeding the total value of 100,000 pesos owned by a
fisherman and by the lawful use of which he earns his livelihood; (i) So much of the
salaries, wages, or earnings of the judgment obligor for his personal services with
four (4) months preceding the levy as are necessary for the support of his family; (j)
Lettered gravestones; (k) Monies, benefits, privileges, or annuities accruing or in
any manner growing out of any life insurance; (l) The right to receive legal support,
or money or property obtained as such support, or any pension or gratuity from the
government; and (m) Properties specially exempted by law.

Evidence is called hearsay when its probative force depends, in whole or in part,
on the competency and credibility of some persons other than the witness by whom
it is sought to produce it
Reason for exclusion of hearsay evidence Hearsay testimony is not subject to the
tests which can ordinarily be applied for the ascertainment of the truth of
testimony, since the declarant is not present and available for cross-examination. In
criminal cases, the admission of hearsay evidence would be a violation of the
constitutional provision that the accused shall enjoy the right of being confronted
with the witnesses testifying against him and to cross-examine them. Moreover, the
court is without the opportunity to test the credibility of hearsay statements by
observing the demeanor of the person who made them.1495
Exceptions to the hearsay rule (a) Dying declaration; (b) Entries in the course of
business; (c) Verbal acts; (d) Family reputation or tradition regarding pedigree; (e)
Learned treatises; (f) Entries in official records; (g) Common reputation;(h)
Testimony or deposition at a former proceeding; (i) Declaration against interest; (j)
Waiver; (k) Independently relevant evidence; (l) Commercial lists and the like; (m)
Act or declaration about pedigree; and (n) Part of res gestae.
Provisional Dismissal A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party. The
provisional dismissal of offenses punishable by imprisonment not exceeding six (6)
years or a fine of any amount, or both, shall become permanent one (1) year after
issuance of the order without the case having been revived.
With respect to offenses punishable by imprisonment of more than six (6) years,
their provisional dismissal shall become permanent two (2) years after issuance of
the order without the case having been revived.
Requisites: (a) The prosecution with the express conformity of the accused or the
accused moves for a provisional dismissal of the case; or both the prosecution and
the accused move for a provisional dismissal of the case; case; (b) The offended
party is notified of the motion for a provisional dismissal of the (c) The court issues
an order granting the motion and dismissing the case provisionally; (d) The public
prosecutor is served with a copy of the order of provisional dismissal of the case