Civil Procedure: San Beda College of Law

San Beda College of Law
10
MEMORY AID IN REMEDIAL LAW
CIVIL PROCEDURE
RULE 1
GENERAL PROVISIONS (B)
ACTION IN ACTION IN ACTION
Statutes regulating the procedure of REM PERSONAM QUASI IN REM
courts will be construed as applicable to
actions pending and undetermined at the Directed Directed Directed
time of their passage so long as vested against the against against
rights will not be impaired. thing itself particular particular
persons persons
Under the 1987 Constitution, the rule-
making power of the Supreme Court has Judgment is Judgment is Judgment
the following limitations: binding on the binding only binding upon
whole world upon parties particular
1. shall provide a simplified and impleaded or persons, but
inexpensive procedure for the their the real motive
speedy disposition of cases; successors in is to deal with
2. Uniform for all courts of the interest real property
same grade, and or to subject
3. Shall not diminish, increase or said property
modify substantive rights (Art. to certain
VIII Sec. 5[5]). claims.
Ex. Land Ex. action to Ex. Unlawful
registration recover detainer or
Section 3. Cases governed. case; probate damages; forcible entry;
ACTION CLAIM proceedings action for judicial
for allowance breach of foreclosure of
An ordinary suit in a A right possessed by of a will. contract mortgage.
court of justice one against another
One party prosecutes The moment said

another for the claim is filed before a The distinction is important in
enforcement or court, the claim is determining the EFFECT of the
protection of a right converted into an judgment.
or the prevention or action or suit.
redress of a wrong. (C)
REAL PERSONAL MIXED
CLASSIFICATION OF ACTIONS.
ACTION ACTION ACTION
(A) Ownership or personal property is Both real and
ORDINARY CIVIL SPECIAL CIVIL possession of sought to be personal
ACTION ACTION real property is recovered or where properties are
involved damages for breach involved
of contract are
Governed by ordinary Also governed by sought
rules ordinary rules but Founded on Founded on privity Founded on
SUBJECT to specific privity of of contract both
rules prescribed (Rules estate
62 to 71). ex. Accion Ex. Action for a sum ex. Accion
reinvidicatoria of money publiciana
Formal demand of Special features not with a claim
for damages
ones legal rights in a found in ordinary civil
court of justice in the actions
manner prescribed by The distinction is significant in the
the court or by the determination of venue. With respect to
law mixed actions, the rules on venue of real
actions shall govern, i.e., where the real
property is located.
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDPS: Martessa Nuylan,
Charissimae
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
11
(D)
LOCAL ACTION TRANSITORY Section 6. Construction.
ACTION
General Rule: Liberal construction .
Must be brought in a Generally, must be Exceptions:
particular place, in brought where the a. reglementary periods
the absence of an party resides b. rule on forum shopping
agreement to the regardless of where
contrary the cause of action
arose
RULE 2
Ex. Action to recover Ex. Action to recover CAUSE OF ACTION
real property sum of money
Section 2. Cause of Action, defined.
Section 5. Commencement of action. Essential elements of cause of action
1. Existence of a legal right of the
An action is commenced by: plaintiff;
1. filing of the complaint (the date of 2. Correlative legal duty of the
the filing determines whether or not defendant to respect ones right;
the action has already prescribed); 3. Act or omission of the defendant
and in violation of the plaintiffs
2. payment of the requisite docket fees legal right; and
(determined on the basis of the 4. Compliance with a condition
amount of the claim including the precedent.
damages indicated in body or the
prayer of the pleading) CAUSE OF ACTION RIGHT OF ACTION
delict or wrongful act remedial right or right
It is not simply the filing of the or omission committed to relief granted by
by the defendant in law to a party to
complaint or the appropriate initiatory
violation of the institute an action
pleading but also the payment of the primary rights of the against a person who
prescribed docket fee that vests a trial plaintiff has committed a delict
court with jurisdiction over the subject or wrong against him
matter or nature of the action. The reason for the the remedy or means
action afforded or the
The court may allow the payment of the consequent relief
deficient docket fee within a reasonable the formal statement right that is given
period but not beyond the applicable of alleged facts the right to litigate
prescriptive or reglementary period. because of the
occurrence of the
alleged facts
An action can be commenced by filing
Determined by facts determined by
the complaint by registered mail. In as alleged in the substantive law
which case, it is the date of mailing that complaint and not the
is considered as the date of filing, and prayer therein
not the date of the receipt thereof by
the clerk of court.
RELIEF REMEDY SUBJECT
MATTER
The date of the filing of an amended
the redress, the the thing,
complaint joining additional defendant is protection, procedure or wrongful act,
the date of the commencement of the award or type of contract or
action with regard to such additional coercive action which property which
defendant. measure which may be is

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the breach total, hence there can only

be one action for damages (Blossom &
Co. vs. Manila Gas Corp., 55 Phil. 226)
the plaintiff availed of by directly Section 5. Joinder of causes of action.

prays the court the plaintiff involved in the Rule in this section is PERMISSIVE and the
to render in his as the means action, plaintiff can always file a separate
favor as a to obtain the concerning
action for each cause of action.
consequence of desired which the
the delict relief wrong has
committed by been done and Par. (a): The joinder of causes of action
the defendant with respect may involve the same or different
to which the parties. If the joinder involved different
controversy parties, it must comply with Sec. 6 Rule
has arisen. 3, thus, there must be a question of fact
or law common to both parties joined
Section 4. Splitting a single cause of arising out of the same or series of
action, effect of. transactions.
SPLITTING OF CAUSE OF ACTION is the Par. (b) requires that: only causes of
practice of dividing one cause of action action in ordinary civil actions may be
into different parts and making each joined, obviously because they are
part subject of a separate complaint. subject to the same rules.
Applies NOT only to complaints but also Par. (c) As long as one cause of action
to counterclaims and crossclaims. falls within the jurisdiction of the RTC,
the case can be filed there even if the
MTC has jurisdiction over the others.
Remedy against splitting a single cause
of action: Pars. (d) embodies the TOTALITY RULE
A. Motion to dismiss on the ground of: Section 33 BP129, as amended by RA
Litis pendentia, if the first 7691 - Where there are several claims or
complaint is still pending (Rule causes of actions between the same or
16, Sec. 1[e]); or different parties, embodied in the same
Res judicata, if any of the complaint, the amount of the demand
complaints is terminated by final shall be the totality of the claims in all
judgment (Rule 16, Sec. 1[f]) the causes of actions, irrespective of
whether the causes of action arose out
B. An answer alleging either of the of the same or different transactions.
above-cited grounds as affirmative
defense (Rule 16, Sec. 6) SPLITTING OF JOINDER OF
CAUSE OF ACTION CAUSES OF ACTION
General Rule on Divisible Contract
A contract to do several things at several There is a single cause Contemplates several
times is divisible, and judgment for a of action causes of action
single breach of a continuing contract is
not a bar to a suit for a subsequent PROHIBITED. Causes ENCOURAGED.
breach. multiplicity of suits Minimizes multiplicity
and double vexation of suits and
on the part of the inconvenience on the
Doctrine of Anticipatory Breach defendant parties
Even if the contract is divisible in its
performance and the future periodic
deliveries are not yet due, if the obligor Section 6. Misjoinder of causes of
has already manifested his refusal to action.
comply with his future periodic Not a ground for dismissal of an action. A
obligations, the contract is entire and misjoined cause of action may be

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severed and proceeded with separately. the party entitled to the avails of the
suit.
There is no sanction against non-joinder
of separate causes of action since a
plaintiff needs only a single cause of
action to maintain an action. Impleading the beneficiary as a party in
the suit is now mandatory, in cases
RULE 3 allowed to be prosecuted or defended by
PARTIES TO CIVIL ACTIONS a representative.
Section 1. Who may be parties; CLASSIFICATION OF PARTIES IN

plaintiff and defendant. INTEREST
1. Indispensable parties those without
REQUIREMENTS FOR A PERSON TO BE A whom no final determination can be had
PARTY TO A CIVIL ACTION: of an action. (must be joined)
1. he must be a natural or juridical
person or an entity authorized by 2. Necessary (or proper) parties those
law; who are not indispensable but ought to
2. he must have a legal capacity to sue; be parties if complete relief is to be
and accorded as to those already parties, or
3. he must be the real party in interest. for a complete determination or
settlement of the claim subject of the
PLAINTIFFS- Those having an interest in action. (may or may not be joined)
the subject matter of the action or in
obtaining the relief demanded. 3. Representative parties someone
acting in fiduciary capacity. Maybe a
DEFENDANTS: trustee, guardian, executor or
1. persons who claim an interest in the administrator, or a party authorized by
controversy or the subject thereof law or these Rules.
adverse to the plaintiff; or
An agent acting in his own name and for
2. who are necessary to a complete the benefit of an undisclosed principal
determination or settlement of the may sue or be sued without joining the
questions involved therein; or principal except when the contract
involves things belonging to the principal
3. all those who ordinarily should be
joined as plaintiffs but who do not 4. Pro forma parties those who are
consent thereto, the reason required to be joined as co-parties in
therefore being stated in the suits by or against another party as may
complaint. be provided by the applicable
substantive law or procedural rule such
Neither a dead person nor his estate may as in the case of spouses under Sec. 4.
be a party plaintiff in a court action
Considering that capacity to be sued is 5. Quasi parties those in whose behalf
correlative of the capacity to sue, to the a class or representative suit is brought.
same extent, a decedent does not have
the capacity to be sued and may not be Section 5. Minor or incompetent
named a party defendant in a court persons.
action (Ventura vs. Militante 316 SCRA
226). Under the present rule, a person need
not be judicially declared to be
Section 3. Representatives as parties. incompetent in order that the court may
appoint a guardian ad litem. It is enough
REAL PARTY IN INTEREST the party that he be alleged to be incompetent.
who stands to be benefited in the suit or

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The suit can be brought by or against the

minor or incompetent person personally JOINT DEBTORS indispensable party
BUT with the assistance of his parents or with respect to own share and a
guardian. necessary party with respect to the
share of the others.
Section 6. Permissive joinder of

parties. SOLIDARY DEBTORS either is
indispensable and the other is not even a
PERMISSIVE JOINDER the aggregate necessary party because complete relief
sum of all the claims, determines the may be obtained from either.
jurisdiction of the court.
Section 9. Non-joinder of necessary
Requisites of permissive joinder of parties to be pleaded.
parties.
1. Right to relief arises out of the same The non-inclusion of a necessary party
transaction or series of transactions; may be excused only on meritorious
2. There is a question of law or fact grounds.
common to all the plaintiffs or
defendants; and The court may order the inclusion of the
3. Such joinder is not otherwise omitted necessary party if jurisdiction
proscribed by the provisions of the over his person may be obtained by
Rules on jurisdiction and venue. ordering plaintiff to file an amended
complaint impleading the necessary
SERIES OF TRANSACTIONS transactions party therein as co-defendant.
connected with the same subject of the
action. The only sanction for failure to implead
a necessary party when ordered by the
INDISPENSABLE NECESSARY court and jurisdiction can be obtained
PARTIES PARTIES over said party is a waiver of the claim
against him. This is considered as an
The action cannot The action can exception to the provision on penalties
proceed unless they proceed even in the imposed on a disobedient party under
are joined absence of some Sec. 3 of Rule 17 which would have
necessary parties entailed the dismissal of the complaint
itself.
No valid judgment if The case may be
indispensable party is determined in court
not joined but the judgment Section 11. Misjoinder and non-joinder
therein will not of parties.
resolve the entire
controversy if a Neither misjoinder nor non-joinder of
necessary party is not parties is a ground for dismissal of the
joined action.
They are those with They are those whose Objections to defects in parties should
such an interest in the presence is necessary
be made at the earliest opportunity the
controversy that a to adjudicate the
final decree would whole controversy but moment such defect becomes apparent
necessarily affect their whose interests are so by a MOTION TO STRIKE THE NAMES OF
rights so that the court far separable that a THE PARTIES impleaded.
cannot proceed final decree can be
without their presence made in their absence If there is misjoinder, a separate action
without affecting should be brought against the party
them misjoined.

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The absence of an indispensable party

renders all subsequent actions of the Service of summons upon a defendant
court null and void for want of authority whose identity is unknown may be made
to act, not only as to the absent parties by publication in a newspaper of general
but even as to those present. circulation in accordance with Section 14
of Rule 14.
Section 12. Class suit.

Section 15. Entity without juridical
REQUISITES OF A CLASS personality as defendant.
/REPRESENTATIVE SUIT.
1. subject matter of the They may be sued under the name by
controversy is one of common or which they are generally known, but
general interest to many they cannot sue under such name for
persons; lack of juridical personality.
2. parties affected are so numerous
that it is impracticable to bring The service of summons may be effected
them all before the court; upon all the defendants by serving upon
3. parties bringing the class suit are any of them, or upon the person in
sufficiently numerous or charge of the office or place of business
representative of the class and maintained under such name. (Sec. 8,
can fully protect the interests of Rule 14)
all concerned.
INSTANCES WHERE SUBSTITUTION OF
Class Suit Permissive Joinder PARTIES IS PROPER:
of Parties
There is one single There are multiple A. Death of party; duty of counsel (Sec.
cause of action causes of action 16)
pertaining to separately belonging This provision applies where the claim is
numerous persons to several persons. not thereby extinguished as in cases
involving property and property rights
such as:
Section 14. Unknown identity or name 1. recovery of real and personal
of defendant. property against the estate.
2. enforcement of liens on such
Requisites: properties
1. there is a defendant 3. recovery for an injury to person
2. his identity or name is unknown or property by reason of tort or
3. fictitious name may be used delict committed by the
because of ignorance of deceased.
defendants true name and said
ignorance is alleged in the In this case, the heirs will be substituted
complaint for the deceased OR if no legal
4. identifying description may be representative is named then the court
used: sued as unknown owner, will order the opposing party to procure
heir, devisee, or other the appointment of an executor or
designation administrator for the estate of the
5. amendment to the pleading deceased.
when identity or true name is
discovered In case of minor heirs, the court may
6. defendant is the defendant being appoint a guardian ad litem for them.
sued, not a mere additional
defendant

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The substitute defendant need not be

summoned. The ORDER OF Requisites:
SUBSTITUTION shall be served upon the 1. The action must primarily be for
parties substituted for the court to recovery of money, debt, or
acquire jurisdiction over the substitute interest thereon, and not where
party the money sought therein is
merely incidental thereto.
2. The claim, subject of the action,

arose from a contract, express or
implied, entered into by the
If there is failure to notify the fact of decedent in his lifetime or the
death: the case may continue and liability for which had been
proceedings will be held valid, and assumed by or is imputable to
judgment will bind the successors in him.
interest.
If defendant dies before entry of final
B. Death or separation of a party who judgment in the court where it was
is a public officer (Sec. 17) pending at that time, the action shall
not be dismissed but shall be allowed to
The action may be maintained by and continue until entry of final judgment
against his successor. thereon.
The action contemplated here is one However, execution shall not issue in
brought against the public officer in his favor of the winning party. It should be
official capacity. filed as a claim against the estate of the
decedent.
C. Supervening Incompetence or
incapacity of a party (Sec. 18) Section 21. Indigent party.
The action shall continue to be
prosecuted by or against him, personally Indigent one who has no property or
or assisted by the corresponding income sufficient for his support aside
guardian. from his labor, even if he is self-
supporting when able to work and in
D. Transfer of interest (Sec. 19) employment. He need not be a pauper
Substitution of parties in this section is to entitle him to litigate in forma
NOT mandatory, it being permissible to pauperis.
continue the action by or against the
original party in case of transfer of While the authority to litigate as
interest pendente lite. Unless the an indigent party may be granted upon
substitution by or the joinder of the an ex parte application and hearing, it
transferee is required by the court, may be contested by the adverse party
failure to do so does not warrant the at any time before judgment is
dismissal of the case. A transferee rendered.
pendente lite is a proper, and not an
indispensable party. RULE 4
VENUE OF ACTIONS
The case will be dismissed if the interest
of plaintiff is transferred to defendant VENUE the place where an action must
UNLESS there are several plaintiffs, in be instituted and tried.
which case, the remaining plaintiffs can
proceed with their own cause of action. VENUE JURISDICTION
Section 20. Action on contractual Place where the action Power of the court to
money claims. is instituted hear and decide a case

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temporary, at the time the action is

May be waived Jurisdiction over the instituted.
subject matter and
over the nature of the
action is conferred by
law and cannot be
waived
Procedural Substantive
May be changed by the Cannot be the subject

written agreement of of the agreement of
the parties the parties
The rule on VENUE IS NOT APPLICABLE

in cases Means of waiving venue:
1) Where a specific rule or law 1. failure to object via motion to
provides otherwise; or dismiss
2) The parties have validly agreed 2. affirmative relief sought in the
in writing before the filing of the court where the case is filed
action on the exclusive venue 3. voluntary submission to the
thereof (Sec. 4). court where the case is filed
4. laches
Requisites for venue to be exclusive
1. A valid written agreement Section 3. Venue of actions against
2. Executed by the parties before non-residents.
the filing of the action; and
3. Exclusive nature of the venue. RULES
1. NON-RESIDENT FOUND IN THE
In the absence of qualifying or restrictive PHIL.
words, venue stipulation is merely a. for personal actions
permissive meaning that the stipulated where the plaintiff
venue is in addition to the venue resides; and
provided for in the rule (Polytrade Corp. b. for real actions where
vs. Blanco 30 SCRA 187) the property is located.
2. NON RESIDENT NOT FOUND IN
Section 1. Venue of real actions. THE PHIL.
An action may be filed only
If property is located at the boundaries when the case involves:
of two places: file one case in either a. Personal status of
place at the option of the plaintiff. plaintiff venue: where
plaintiff resides;
If case involves two properties located b. Any property of said
in two different places: defendant located in the
1. If the properties are the object Phil. venue: where the
of the same transaction, file it in property or any portion
any of the two places. thereof is situated or
2. If they are the subjects of two found.
distinct transactions, separate
actions should be filed in each The Supreme Court has the power to
place unless properly joined. order a change of venue to prevent a
miscarriage of justice.
Section 2. Venue of personal actions.
RESIDENCE the place where the party Dismissal of Action for Improper Venue
actually resides with continuity and The court may not motu propio dismiss a
consistency, whether permanent or complaint on the ground of improper

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venue. An exception is provided in

Section 4 of the Revised Rule on
Summary Procedure.
Filing of verified
complaint with the
MTC The Court should not dismiss the
complaint or counterclaim if they are
not verified. The requirement is merely
court may court may
summon the dismiss the case a formal one, and not jurisdictional. It
defendant outright should therefore simply direct the party
concerned to have it verified.
PROHIBITED PLEADINGS / MOTIONS

W/in 10 days If Defendant fails to UNDER THE RULE ON SUMMARY
from receipt of answer in 10 days
summons, The court, motu propio
PROCEDURE.
defendant or on plaintiffs 1. Motion to dismiss the complaint
answers, motion, may render or to quash the complaint or
incoporating judgment based on information except on the
compulsory facts alleged in the
counterclaim or complaint w/o
ground of lack of jurisdiction
crossclaim, and prejudice to over the subject matter or
serves a copy on R9, S3 (c) failure to comply with prior
plaintiff barangay conciliation (referral to
RULES ON SUMMARY the Lupon)
PROCEDURE 2. Motion for a bill of particulars
SUMMARY PROCEDURE IN CIVIL 3. Motion for a new trial or for
reconsideration of a judgment or
Answer to If plaintiff fails to
counterclaim appear in prelim for reopening of trial
and crossclaim conference, complaint 4. Petition for relief from judgment
w/in 10 days may be dismissed. 5. Motion for extension of time to
Defendant entitled to
file pleadings, affidavits, or any
decision based on his
counterclaim. All other paper
crossclaims dismissed. 6. Memoranda
Preliminary 7. Petition for certiorari,
conference w/in 30
days after last
mandamus, or prohibition
CASES
answer is filed against any interlocutory order
issued by the court
If sole defendant 8. Motion to declare defendant in
fails to appear, default
plaintiff entitled to
W/in 5 days after
judgment based on
9. Dilatory motions for
conference, court
complaint and postponement
issues record of
preliminary what is proved 10. Reply
conference therein 11. Third party complaints
12. Interventions
The filing of a prohibited pleading will

W/in 10 days from
receipt of order, not suspend the period to file an answer
submission by the or to appeal.
parties of affidavits
and position papers

Rendition of judgment
Charissimae
w/in 30 Jocelyn
Ventura, days from
Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
receipt
Special of last
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
affidavit, or w/in 15
days after last
clarificatory paper
19
Although a motion to dismiss is a 1. there has been a confrontation

prohibited pleading, its filing after the between the parties before the
answer had already been submitted does lupon chairman or pangkat, AND
not constitute a pleading prohibited by 2. that no conciliation or
the summary rules. What the rules settlement has been reached OR
proscribe is a motion to dismiss that unless the settlement has been
would stop the running of the period to repudiated by the parties
file an answer and cause undue delay. thereto.
While a motion to declare the defendant

in default is prohibited by the rules on
summary procedure, the plaintiff may
nevertheless file a motion to render
judgment as may be warranted when the CASES NOT COVERED BY THE
defendant fails to file an answer. KATARUNGANG PAMBARANGAY LAW:
The issuance of the pre-trial order is an 1. Where one party is the

important part of the summary government or any subdivision or
procedure because it is its receipt by the instrumentality thereof;
parties that begins the ten-day period to 2. Where one party is a public
submit the affidavits and other officer or employee, and the
evidence. dispute relates to the
performance of his official
TRIAL PROCEDURE IN CIVIL CASES functions;
3. Offenses punishable by
No trial date is set. No testimonial imprisonment exceeding 1 year
evidence is required nor cross- or a fine exceeding P5,000.00;
examination of witnesses allowed. All 4. Offenses where there is no
that is required is that within (10) days private offended party;
from receipt by the parties of the 5. Where the dispute involves real
courts pre-trial order, they shall submit properties located in different
(1) the affidavits of their witnesses (2) cities or municipalities UNLESS
and other evidence on the factual issues the parties thereto agree to
set forth in the pre-trial order, Together submit their differences to
with their position papers setting forth amicable settlement by an
the law and the facts relied upon by appropriate lupon;
them. 6. Disputes involving parties who
actually reside in barangays of
Judgments of inferior courts in cases different cities or municipalities,
governed by summary procedure are EXCEPT where such barangay
appealable to the RTC. units adjoin each other and the
parties thereto agree to submit
The decision of the RTC in civil cases their differences to amicable
under this rule, including ejectment settlement by an appropriate
cases, are IMMEDIATELY executory. lupon;
7. Such other classes of disputes
KATARUNGANG PAMBARANGAY LAW which the President may
(Title One, Book III, RA 7160) determine in the interest of
justice.
No complaint, petition, action, or
proceeding involving any matter within However, the court may, at any time
the authority of the lupon shall be filed before trial, motu proprio refer the case
or instituted directly in court or any to the lupon concerned for amicable
other government office for adjudication settlement, non criminal cases not
UNLESS

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20
falling within the authority of the brought for settlement before

latter. lupon of said barangay
2. Residents of different barangays
While the dispute is under mediation, within the same city or
conciliation, or arbitration, the municipality in the barangay
prescriptive periods for offenses and where the respondent or any of
cause of action under existing laws shall the respondents reside at the
be interrupted upon filing of the election of the complainant
complaint with the punong barangay. 3. Disputes involving real property
or any interest therein- where
real property or larger portion
thereof is situated
THE PARTIES MAY GO DIRECTLY TO

COURT IN THE FOLLOWING INSTANCES:
1. Where the accused is under 4. Disputes arising at the
detention; WORKPLACE where the
2. Where the person has otherwise contending parties are employed
been deprived of personal or at the INSTITUTION where
liberty calling for habeas corpus such parties are enrolled for
proceeding; study in the barangay where
3. Where the actions are coupled such workplace or institution
with provisional remedies such located.
as preliminary injunction,
attachment, delivery of CHART ON KATARUNGANG PAMBARANGAY, SEE
PAGE 22.
personal property, and support
pendente lite; and
4. Where the action may otherwise PROCEDURE IN REGIONAL TRIAL
be barred by the statute of COURTS
limitations.
RULE 6
The parties may, at any stage of the KINDS OF PLEADINGS
proceedings, agree in writing to have the Section 1. Pleadings defined.
matter in dispute decided by arbitration
by either the Punong Barangay or PLEADINGS the written allegations of
Pangkat. In such case, arbitrational the parties of their respective claims and
hearings shall follow order of defenses submitted to the court for
adjudicative trials. appropriate judgment.
The settlement and arbitration A motion to dismiss is NOT a pleading.

agreement may be repudiated on the It is the allegations or averments in the
ground that consent is vitiated by fraud, pleading that determines the jurisdiction
violence, or intimidation. Such of the court and the nature of the
repudiation shall be sufficient basis for action.
the issuance of the certification for filing
a complaint in court or any government
office for adjudication. PLEADING MOTION
RULES ON VENUE UNDER THE It relates to the cause An application for an
KATARUNGANG PAMBARANGAY LAW of action; interested order not included in
1. Disputes between residents of in the matters to be the judgment
the same barangay shall be included in the
judgment.

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21
ANSWER the pleading where the

May be initiatory Cannot be initiatory as defendant sets forth his affirmative or
they are always made negative defenses.
in a case already filed
in court
Always filed before May be filed even

judgment after judgment
Section 3. Complaint.
COMPLAINT is a concise statement of
the ultimate facts constituting the
plaintiffs cause or causes of action, with
a specification of the relief sought, but

it may add a general prayer for such 2 kinds of defenses that may be set
further relief as may be deemed just or forth in the answer:
equitable. a. AFFIRMATIVE DEFENSES
allegation of a new matter which
ULTIMATE FACTS - essential facts while hypothetically admitting the
constituting the plaintiffs cause of material allegations in the pleading,
action. would nevertheless prevent or bar
recovery by him. It is in the nature
What are NOT ultimate facts: of Confession and Avoidance
1. Evidentiary or immaterial facts. b. NEGATIVE DEFENSES specific
denial of the material facts or facts
2. Legal conclusions, conclusions or alleged in the pleading
inferences of facts from facts
not stated, or incorrect Insufficient denial or denial amounting
inferences or conclusions from to admissions:
facts stated. 1. General denial
2. Denial in the form of a
3. The details of probative matter negative pregnant
or particulars of evidence,
statements of law, inferences Section 6. Counterclaim
and arguments.
COUNTERCLAIM any claim which a
4. An allegation that a contract is defending party may have against an
valid or void is a mere conclusion opposing party.
of law.
Nature of counterclaim: A counterclaim
TEST OF SUFFICIENCY: if upon is in the nature of a cross-complaint.
admission or proof of the facts being Although it may be alleged in the
alleged, a judgment may be properly answer, it is not part of the answer.
given. A fact is essential if it cannot be Upon its filing, the same proceedings are
stricken out without leaving the had as in the original complaint. For this
statement of the cause of action reason, it must be answered within ten
insufficient. (10) days from service.
Section 4. Answer Section 7. Compulsory Counterclaim

Charissimae
22
RULES ON COUNTERCLAIM
A counterclaim before the MTC must be
within the jurisdiction of said court,
both as to the amount and nature
thereof (De Chua vs. IAC).
Filing of complaint
w/ the Punong
Barangay (PB)
W/in the next working day At any time during the
Proceedings
KATARUNGANG PAMBARANGAY PROCEDURE

Issuance of Parties agree to
summons to submit the
the parties dispute for
arbitration
and the
witnesses
Arbitration Hearings
Mediation (hearing)
Failure of Settlement
mediation
efforts
Execution Repudiation of Award to be

Constitu- w/in 6 arbitration made after the
tion of the months from agreement lapse of the
Pangkat date thereof within 5 days period to
from date of repudiate and
agreement w/in 10 days
thereafter
Pangkat convenes not
later than 3 days
from its constitution
and summons the
Execution w/in
parties
6 months from
the date of the
Pangkat must
award
arrive at a Conciliation
settlement
w/in 15 days
(hearing)
from the day
it convenes
Repudiation of
Settlement settlement w/in 10 Note: Repudiation shall
days from date only be allowed on ground
thereof of vitiation of consent by
fraud, violence or
intimidation.
Execution w/in 6
months from the Failure of Conciliation
date of settlement
REMEDIAL LAW COMMITTEE ISSUANCE OF hearings at the Pangkat
CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea EDP S: Martessa Nuylan,
CERTIFICATION FOR Level and of Arbitration
Charissimae
FILING
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil hearings
OF AAlnaiza Hasiman (Special
Procedure); shall also
Civil Actions and lead to
COMPLAINT
Special Proceedings); Jeenice de Sagun (Criminal Procedure); ElaineIN COURT(Evidence)
Masukat the issuance of
certification for filing a
complaint in court.
23
DOCTRINE OF ANCILLARY JURISDICTION

In an original action before the RTC, the Section 8. Cross-claim
counterclaim may be considered CROSS-CLAIM any claim by one party
compulsory regardless of the amount against a co-party arising out of the
(Sec. 7, Rule 6 ). transaction or occurrence that is the
subject matter either of the original
If a counterclaim is filed in the MTC in action or counterclaim.
excess of its jurisdictional amount, the
excess is considered waived (Agustin vs. If it is not set up in the action, it is
Bacalan). In Calo vs. Ajax Intl, the barred, except:
remedy where a counterclaim is beyond 1. when it is outside the jurisdiction of
the jurisdiction of the the court or;
2. if the court cannot acquire
MTC is to set off the claims and file a jurisdiction over third parties whose
separate action to collect the balance. presence is necessary for the
adjudication of said cross-claim.
COMPULSORY PERMISSIVE
COUNTERCLAIM COUNTERCLAIM In which case, the cross-claim is
considered permissive.
One which arises out It does not arise out of
of or is necessarily nor is it necessarily The dismissal of the complaint
connected with the connected with the
transaction or subject matter of the carries with it the dismissal of
occurrence that is the opposing partys a cross-claim which is purely
subject matter of the claim. defensive, but not a cross-
opposing partys
claim. claim seeking affirmative
relief.
It does not require for It may require for its
its adjudication the adjudication the
presence of third presence of third
parties of whom the parties over whom the Cross Claim Counterclaim 3rd-party
court cannot acquire court cannot acquire Complaint
jurisdiction. jurisdiction.
Against a co- Against an Against a
It is barred if not set It is NOT barred even party opposing party person not a
up in the action. if not set up in the party to the
action. action
Need not be Must be answered, Must arise out May arise out of Must be in
answered; no default. otherwise, the of the or be necessarily respect of
defendant can be transaction connected with the
declared in default. that is the the transaction opponents
subject matter or that is the claim
of the orig. subject matter (Plaintiff)
GENERAL RULE: A compulsory
action or of a of the opposing
counterclaim not set up in the answer is counterclaim partys claim, in
deemed barred. therein. which case, it is
called a
EXCEPTION: If it is an after-acquired compulsory
counterclaim, that is, such claim counterclaim, or
matured after filing of the answer. In it may not, in
this case, it may be pleaded by filing an which case it is
amended answer or a supplemental called a
permissive
answer or pleading.
counterclaim.
Section 10. Reply.

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24
REPLY - the response of the plaintiff to Leave of court to file a third-party

the defendants answer. complaint may be obtained by motion
under Rule 15.
EFFECT OF FAILURE TO REPLY: new
facts that were alleged in the answer are Summons to new party (third, fourth,
deemed controverted. Hence, the filing etc.) is needed for the court to obtain
of the reply is optional except for the jurisdiction over his person, since he is
denial of the genuineness and due not an original party.
execution of an actionable document
used as defense in the answer. Where the trial court has jurisdiction
over the main case, it also has
Section 11. Third (fourth, etc.) party jurisdiction over the third party
complaint. complaint, regardless of the amount
involved as a third party complaint is
THIRD (FOURTH,ETC.) PARTY merely auxiliary to and is a continuation
COMPLAINT a claim that a defending of the main action (Republic v. Central
party may, with leave of court, file Surety & Insurance Co. L-27802, Oct. 26,
against a person not a party to the 1968).
action for contribution, indemnity,
subrogation or any other relief, in Section 12. Bringing new parties.
respect of his opponents claim.
Distinguished from 3rd-party complaint:
THIRD-PARTY COMPLAINT IN A 3rd-party complaint is proper when not
COMPLAINT INTERVENTION one of the third-party defendants
therein is a party to the main action. But
Brings into the action Same if one or more of the defendants in a
a third person who counterclaim or cross-claim is already a
was not originally a party to the action, then the other
party. necessary parties may be brought in
under this section.
Initiative is with the Initiative is with a
person already a party non-party who seeks
to the action. to join the action. RULE 7
PARTS OF A PLEADING
TESTS to determine whether the third-
party complaint is in respect of Section 3. Signature and address.
plaintiffs claim: The signature of the counsel is a
1. Where it arises out of the same certification that:
transaction on which the 1. That he has read the pleading;
plaintiffs claim is based, or, 2. There is good ground to support
although arising out of another it; and
or different transaction, is 3. It is not interposed for delay
connected with the plaintiffs Only the original copies must be signed.
claim; UNSIGNED PLEADING may be stricken
2. Whether the third-party out as sham and false, and the action
defendant would be liable to the may proceed as though the pleading has
plaintiff or to the defendant for not been served. It has no legal effect.
all or part of the plaintiffs claim
against the original defendant; Section 4. Verification.
and
3. Whether the third-party Pleadings need NOT be verified EXCEPT
defendant may assert any when otherwise provided by the law or
defenses which the third-party rules.
plaintiff has or may have to the
plaintiffs claim.

Charissimae
25
A verification must now be based on MANNER OF MAKING ALLEGATIONS IN A

personal knowledge or based on PLEADING
authentic records.
Pleadings should state ultimate facts
essential to the right of action.
ULTIMATE FACTS: those which directly

Section 5. Certification against forum form the bases of the right sought to be
shopping. enforced or the defense relied upon.
If the ultimate facts are NOT alleged,
FORUM SHOPPING the filing of a two or the cause of action would be
more cases based on the same cause of insufficient.
action in different courts for the purpose
of obtaining a favorable decision in Section 4. Capacity.
either.
Capacity to sue and be sued
Test to determine the presence of either personally or in representative
forum-shopping: whether in the two (or capacity must be specifically averred by
more) cases pending, there is identity of the party suing or being sued, and
(a) parties, (b) rights or causes of action, specifically denied by the party
and (c) reliefs sought. questioning such capacity.
The certificate is to be executed by Capacity is challenged by

petitioner, and not by counsel. specific denial, motion to dismiss or bill
of particulars.
Required ONLY for complaints or
initiatory pleadings. Section 5. Fraud, mistake, condition of
the condition
Certificate of non-forum shopping is not
required in a compulsory counterclaim FACTS THAT MAY BE AVERRED
(UST Hosp. vs. Surla). GENERALLY:
1. Conditions precedent (BUT there
EFFECT OF FAILURE TO COMPLY: must still be an allegation that
1. Not curable by amendment of the specific condition precedent
said pleading has been complied with,
2. shall be cause for the dismissal otherwise, it will be dismissed
of the case, without prejudice, for failure to state a cause of
unless otherwise provided, upon action)
motion and after hearing 2. Malice, intent, knowledge, or
other condition of the mind
EFFECT OF SUBMISSION OF FALSE 3. Judgments of domestic or
CERTIFICATION OR NON-COMPLIANCE foreign courts, tribunals, boards,
WITH THE UNDERTAKINGS THEREIN: or officers (no need to show
1. indirect contempt jurisdiction)
2. administrative and criminal 4. Official document or act
actions
FACTS THAT MUST BE AVERRED
EFFECT OF WILFULL AND DELIBERATE PARTICULARLY:
FORUM SHOPPING: 1. Circumstances showing fraud or
1. shall be ground for summary mistake in all averments of
dismissal of the case with fraud or mistake
prejudice; 2. Capacity
2. direct contempt.
RULE 8

Charissimae
26
ACTIONABLE DOCUMENT written That the document was signed

instrument upon which the action or voluntarily and knowingly by the party
defense is based. whose signature appears thereon.
Defenses that the opposing party may

set up even after failure to deny under
oath:
1. Mistake;
2. fraud;
Two permissible ways of pleading an 3. compromise;
actionable document: 4. payment;
1. By setting forth the substance of 5. prescription;
such document in the pleading 6. want or illegality of
and attaching said document consideration; or
thereto as an annex (contents of 7. estoppel
the document annexed are
controlling, in case of variance BUT the following defenses are
in the substance of the waived:
document set forth in the a. forgery in the signature;
pleading and in the document b. want of authority of an agent or
attached); or corporation;
2. By setting forth said document c. want of delivery; or
verbatim in the pleading. d. the party charged signed the
instrument in some other
Where the actionable document is capacity
properly alleged, the failure to
specifically deny under oath the same Section 10. Specific Denial
results in:
1. The admission of the THREE WAYS OF MAKING A SPECIFIC
genuineness and due execution DENIAL:
of said document, EXCEPT that 1. By specifically denying each
an oath is not required: material allegation of the other
a. When the adverse party was party and, whenever possible,
not a party to the setting forth the substance of
instrument; and the matters relied upon for such
b. When an order for the denial;
inspection of the original 2. Part admission or part denial;
document was not complied 3. By an allegation of lack of
with. knowledge or information
2. The document need not be sufficient to form a belief as to
formally offered in evidence. the truth of the averment in the
opposing partys pleading (must
GENUINENESS be made in good faith).
That the document is not spurious,
counterfeit, or of different import on its A denial must not be general. A general
face from the one executed by the denial is regarded as an admission of the
party, or that the party whose signature facts stated in the complaint and
it bears has signed it and that at the entitles plaintiff to a judgment on the
time it was signed it was in words and pleadings.
figures exactly as set out in the
pleadings. NEGATIVE PREGNANT a form of denial
which at the same time involves an
DUE EXECUTION affirmative implication favorable to the
opposing party; It is in effect, an
admission of the averment to which it is

Charissimae
27
directed; It is said to be a denial not his failure to appear nor failure to

pregnant with an admission of the present evidence.
substantial facts in the pleading
responded to.
ORDER OF JUDGMENT BY
Section 11. Allegation not specifically DEFAULT DEFAULT
denied deemed admitted. issued by the court, Rendered by the court
on plaintiffs motion following a default
GENERAL RULE: Allegations NOT for failure of the order or after it
specifically denied deemed admitted defendant to file his received, ex parte,
(such as allegations of usury in the responsive pleading plaintiffs evidence.
seasonably.
complaint, and the authenticity and due
Interlocutory - not Final appealable
execution of actionable documents). appealable
EXCEPTIONS:
1. Allegations as to the amount of
NO default may be declared in the
unliquidated damages
following actions:
2. Immaterial allegations;
1. Annulment of marriage
3. Incorrect conclusions of fact.
2. Declaration of nullity of
marriage
RULE 9
3. Legal Separation
EFFECT OF FAILURE
4. Special civil actions of certiorari,
TO PLEAD
prohibition and mandamus where
comment instead of an answer is
Section 1. Defenses and objections not
required to be filed
pleaded.
GENERAL RULE: Defenses and objections
The court cannot motu proprio declare a
that are not pleaded in a MOTION TO
defendant in default. For defendant to
DISMISS or in the answer are deemed
be declared in default, the plaintiff
waived.
must:
EXCEPTIONS (not waived even if not
1. File a MOTION to declare
raised):
defendant in default
1. Lack of jurisdiction over the
2. Prove that summons have been
subject matter
properly served on the
2. Litis pendentia
defendant
3. Res judicata
3. Prove that the defendant really
4. Prescription of the action
failed to answer within the
proper period.
These defenses may be raised at any
stage of the proceedings even for the CAUSES OF DEFAULT
first time on appeal EXCEPT that lack of 1. Failure to answer within the
jurisdiction over the subject matter may proper period
be barred by laches. (Tijam vs. 2. Non-compliance with the order
Sibonghanoy). of the court to file a bill of
particulars or in case of
The presence of these grounds insufficient compliance
authorizes the court to motu proprio therewith (Rule 12, Section 4)
dismiss the claims. These grounds must, 3. Refusal to comply with the
however, appear from the pleadings or modes of discovery (Rule 29,
the evidence on record. Section 3, par. c)
4. Failure to furnish plaintiff with a
Section 3. copy of the answer
DEFAULT the failure of the defendant If the defendant was declared in default
to answer within the proper period. It is upon an original complaint, the filing of
the amended complaint resulted in the

Charissimae
28
withdrawal of the original complaint, PARTIAL DEFAULT:

hence, the defendant was entitled to 1. The pleading asserting a claim
file answer to the amended complaint as states a common cause of action
to which he was not in default. against several defending parties
2. some of the defending parties
EFFECT OF ORDER OF DEFAULT: answer and the others fail to do
1. While the party in default cannot so
take part in the trial, he is 3. the answer interposes a common
nonetheless entitled to notice of defense
subsequent proceedings.
2. He may still be called on as a EFFECT OF PARTIAL DEFAULT: The
witness, in behalf of the non- court will try the case against ALL
defaulting defendants. defendants upon the answer of some
EXCEPT where the defense is personal to
the one who answered, in which case, it
DEFAULT will not benefit those who did not
answer.
After the
lapse of time REMEDY FROM JUDGMENT BY DEFAULT
to file an (FLOW CHART)
answer, the Motion denied:
plaintiff may Defendant
move to allowed to file an Judgment by default
declare the answer
defendant in
default
Defendant Motion for new trial or reconsideration at

answers any time after service of judgment by
default and within 15 (30) days therefrom
Motion granted:
Court issues order
of default and
renders judgment,
or require plaintiff Failure to file motion for new trial/
to submit evidence Denial of said motion
ex parte.
Perfect appeal from said judgment by

default within the balance of said
Court
15 (30) - day period
maintains
Before judgment order of
by default is default
rendered,
defendant may: Failure to appeal without
defendants faulk
move to set aside
order of default
upon showing:
FAME
He has a Petition for relief from judgment within
meritorious 60 days from notice of the judgment but
defense within 6 months from entry thereof
Avail of Rule 65 in
proper cases EXTENT OF RELIEF TO BE AWARDED
IN A
Annulment of Judgment
under Rule 47
Presentation
of plaintiffs JUDGMENT BY DEFAULT:
evidence ex- Shall not exceed the amount OR be
Court sets aside parte
order of default and different in kind from that prayed for
defendant is allowed
to file an answer
REMEDIAL LAW CIfOMMITTEE

plaintiff If plaintiff
CHAIRPERSON: Jinkyproves
Ann his
Uy ASST. Cfails to prove
HAIRPERSONS : Allen Farias, Maricris Oronea EDPS: Martessa Nuylan,
Charissimae allegations, his allega-
Ventura, Jocelyn Zabala SUBJECT
judgment by HEADS:tions,
Jona Obia
case is(Civil Procedure); Alnaiza Hasiman (Special Civil Actions and
Special
Case set Proceedings);
for Jeenice de Sagun (Criminal
default. Procedure); Elaine Masukat (Evidence)
dismissed.
pre-trial
29
NOR award unliquidated damages. 1ST PART: refers to amendment to

conform to evidence when issues NOT
raised by the pleadings are tried with
RULE 10 the express or implied consent of the
AMENDED AND SUPPLEMENTAL parties
PLEADINGS - but failure to amend does NOT affect
the result of the trial of these issues
AMENDMENTS
Section 1. Amendments in general. 2ND PART: refers to amendment to
authorize presentation of evidence if
When the complaint is amended, 2 evidence is objected to at the trial on
situations may arise: the ground that it is not within the issues
1. If the complaint merely corrects made by the pleadings.
or modifies the original
complaint, then the action is SUPPLEMENTAL PLEADINGS
deemed commenced upon the A cause of action which accrued after
filing of the original complaint; the filing of the original complaint may,
2. If the amended complaint in the discretion of the court, be
alleges a new cause of action, pleaded in a supplemental complaint if
then that cause of action is there was a valid subsisting cause of
deemed commenced upon the action at the time the original complaint
filing of the amended was filed.
complaint.
Section 2. Amendments as a matter of AMENDED SUPPLEMENTAL

right.
PLEADING PLEADING
Amendment for the first time is a matter
Refers to facts Refers to facts arising
of right before a responsive pleading is existing at the time of after the filing of the
filed, or in case of a Reply, within 10 the commencement original pleading.
days after it was served. of the action.
Since a motion to dismiss is NOT a Take the place of the Taken together with
responsive pleading, an amendment may original pleading. the original pleading.
be had even if an order of dismissal has
been issued as long as the amendment is Can be made as a Always with leave of
made before order of dismissal becomes matter of right as court
when no responsive
final.
pleading has yet been
filed
Section 3. Amendments by leave of
court.
Section 7. Filing of amended pleadings.
Instances when amendment by leave of
court may not be allowed: The amended pleading supersedes the
1. When cause of action, defense original pleading.
or theory of the case is changed;
2. Amendment is intended to An amendment which merely
confer jurisdiction to the court; supplements and amplifies facts
3. Amendment to cure a premature originally alleged in the complaint
or non-existing cause of action; relates back to the date of the
4. Amendment for purposes of commencement of the action and is not
delay. barred by the statute of limitations
Section 5. Amendment to conform to which expired after service of the
or authorize presentation of evidence. original complaint.
EFFECT OF AMENDED PLEADING:

Charissimae
30
1. Admissions in the superseded 4. In case of a non-resident defendant

pleading can still be received in on whom extraterritorial service of
evidence against the pleader; summons is made, the period to
2. Claims or defenses alleged answer should be at least 60 days.
therein but not incorporated or
reiterated in the amended The court may extend the time to file
pleading are deemed waived. the pleadings BUT may NOT shorten
them.
The amended or superseded, original
pleading is not expunged but remains on The 15-day period begins to run from
the record although the admission of the receipt of summons.
amended pleading amounts to
withdrawal of the original pleading. Section 3. Answer to amended
complaint.
RULE 11 1. If the filing of an amended
WHEN TO FILE RESPONSIVE PLEADINGS complaint is a matter of right -
within 15 days from service of
Answer to the complaint the amended complaint.
1. Within 15 days after service of 2. If the filing of the amended
summons, UNLESS a different period complaint is NOT a matter of
is fixed by the Court (Sec. 1) right within 10 days counted
from notice of the court order
2. In case the defendant is a foreign admitting the same.
private juridical entity:
a. if it has a resident agent If no new answer is filed by the
within 15 days after service defendant in case an amendment has
of summons to him been made after he had filed his answer,
b. if it has no resident agent, the original answer of the defendant
but it has an agent or officer may serve as the answer to the amended
in the Philippines within 15 complaint, and hence, cannot be
days after service of declared in default.
summons to said agent or
officer Section 5. Answer to third (fourth,
c. if it has no resident agent etc.)-party complaint.
nor agent nor officer in The third-party defendant is served with
which case service of summons just like the original
summons is to be made on defendant, hence, he also has 15, 30, 60
the proper government days from service of summons, as the
office which will then send a case may be, to file his answer.
copy by registered mail to
the home office of the Section 7. Answer to supplemental
foreign private corporation complaint.
within 30 days after receipt Leave of court is required in filing, the
of summons by the home court may fix a different period for
office of the foreign private answering the supplemental complaint in
entity. lieu of the reglementary 10-day period.
3. In case of service of summons by Section 10. Omitted counterclaim or

publication within the time cross-claim.
specified in the order granting leave The pleader may set up a counterclaim
to serve summons by publication, or cross-claim by amendment before
which shall NOT be less than 60 days judgment when he fails to set it up by
after notice (Rule 14, Sec.15). reason of oversight, inadvertence, or
excusable neglect ort when justice
requires. Leave of court is necessary.

Charissimae
31
which the order is

RULE 12 directed; or
BILL OF PARTICULARS b. make such order as it
may deem just.
BILL OF PARTICULARS- a more definite
statement of any matter which appears 2. If plaintiff, his compliant will be
vague or obscure in a pleading. stricken off and dismissed (Rule
12, sec. 4; Rule 17, sec. 3)
PURPOSE: to aid in the preparation of a
responsive pleading. 3. If defendant, his answer will be
stricken off and his counterclaim
Motion for bill of particulars must be dismissed, and he will be
filed within the reglementary period for declared in default upon motion
the filing of a responsive pleading. The of the plaintiff (Rule 12, sec. 4;
filing of a motion if sufficient in form Rule 17, sec. 4; Rule 9, sec. 3).
and substance, will interrupt the time to
plead.
RULE 13
The motion for bill of particulars may be FILING AND SERVICE OF PLEADINGS,
granted in whole or in part as not all the JUDGMENTS AND OTHER PAPERS
allegations questioned by the movant
are necessarily ambiguous as to require Notice given to a party who is duly
clarification. represented by counsel is a nullity,
unless service thereof on the party
A bill of particulars may be filed either himself was ordered by the court or the
in a separate or an amended pleading. technical defect was waived.
A bill of particulars becomes part of the
pleading which it supplements.
Section 3. Manner of filing.
EFFECTS OF MOTION 1. Personally
1. If the motion is granted, the 2. by registered mail
movant can wait until the bill of
particulars is served on him by Filing by mail should be through the
the opposing party and then he registry service which is made by deposit
will have the balance of the of the pleading in the post office, and
reglementary period within not through other means of
which to file his responsive transmission.
pleading.
If registry service is not available in the
2. If his motion is denied, he will locality of either sender or addressee,
still have such balance of the service may be done by ordinary mail.
reglementary period to do so,
counted from service of the If a private carrier is availed of by the
order denying his motion. In party, the date of actual receipt by the
either case, he will have at least court of such pleading and not the date
5 days to file his responsive of delivery to the carrier, is deemed to
pleading. be the date of the filing of that
pleading.
Effect of non-compliance:
1. If the Order is not obeyed or in NOTE: PERSONAL and SUBSTITUTED
case of insufficient compliance service as applied to pleadings have a
therewith, the court: different meaning compared to summons
a. may order the striking under Rule 14.
out of the pleading or
the portion thereof to

Charissimae
32
a. by handling a copy to defendant;

or
b. tendering him copy if he refuses;
MODES OF SERVICE c. complete upon actual delivery
PLEADINGS
1. PERSONAL SERVICE 2. Service by ordinary mail:
a. Delivering personally a copy to Complete upon expiration of 10
the party or his counsel or; days after mailing, unless the
b. Leaving a copy in counsels court provides otherwise.
office with his clerk or with a
person having charge thereof or; 3. Service by registered mail:
c. Leaving the copy between 8 a.m. a. Complete upon actual receipt by
and 6 p.m. at the partys or the addressee; or
counsels residence, if known, b. After 5 days from the date he
with a person of sufficient age received the 1st notice of the
and discretion residing therein--- postmaster, whichever date is
if no person found in his office, earlier.
or if his office is unknown, or if
he has no office. Section 12. Proof of filing.
Filing is proved by its existence in the
2. SERVICE BY MAIL record of the case.
If no registry service is available in the
locality, of either sender or addressee, If it is not in the record, and:
service may be done by ordinary mail. If filed personally: proved by the
written or stamped acknowledgment of
3. SUBSTITUTED SERVICE its filing by the clerk of court on a copy
Delivering the copy to the clerk of court of the same; or
with proof of failure of both personal
and service by mail. If filed by registered mail: proved by
-the registry receipt and the affidavit of
JUDGMENTS, FINAL ORDERS, the person who did the mailing.
RESOLUTIONS (Sec.9)
1. By personal service; or Section 13. Proof of service
2. By registered mail; 1. Proof of personal service:
3. By publication, if party is a. Written admission of the party
summoned by publication and served; or
has failed to appear in the b. Official return of the server; or
action. c. Affidavit of the party serving.
They can be served only under the three 2. Proof of service by ordinary mail:
modes. Affidavit of the person mailing;
They CANNOT be served by substituted

service. 3. Proof of service by registered mail:
a. Affidavit, and
NOTE: A resort to modes other than by b. Registry receipt issued by the
personal service must be accompanied mailing office.
by a written explanation why the
service or filing was not done personally Section 14. Notice of lis pendens.
(Sec. 11).
LIS PENDENS - a notice of a pendency of
Section 10. Completeness of service. the action between the parties involving
title to or right of possession over real
1. Personal service property.

Charissimae
33
It serves as a warning to all persons, complaint, as the original complaint was

prospective purchasers or deemed withdrawn upon such
encumbrancers of the property in amendment.
litigation to keep their hands off the
property in litigation unless they are
prepared to gamble on the result of the
proceedings. Section 3. By whom served.
Summons may be served by:
The defendant may also record a notice 1. Sheriff
of lis pendens when he claims an 2. Sheriffs deputy, or
affirmative relief in his answer. 3. Other proper court officers, or
4. For justifiable reasons, by any
Notice of lis pendens CANNOT be suitable person authorized by
cancelled on an ex parte motion or upon the court issuing the summons.
the mere filing of a bond by the party on
whose title the notice is annotated, as Enumeration is EXCLUSIVE.
section 14 provides that such
cancellation may be authorized ONLY ALIAS SUMMONS issued when original
upon order of court, after proper has not produced its effect because it is
showing that: defective in form or manner of service,
1. The notice is for the purpose of and when issued, supersedes the first
molesting the adverse party; or (Section 5).
2. It is not necessary to protect the
rights of the party who caused it KINDS OF SERVICE OF SUMMONS:
to be recorded. 1. personal service
2. substituted service
RULE 14 3. by publication
SUMMONS
In actions in personam where the
PURPOSE OF SUMMONS: defendant cannot be served with
1. to acquire jurisdiction over the summons personally or by substituted
person of the defendant, and; service, the case must first be converted
2. to give notice to the defendant into an in rem or quasi in rem action by
that an action has been attaching the property of the defendant
commenced against him. found in the Philippines before summons
can be served by publication. If no
EFFECT OF NON-SERVICE: Unless there property can be found, the action shall
is waiver, non-service or irregular be archived but shall not be dismissed.
service renders null and void all (Citizens Surety vs. Court Appeals)
subsequent proceedings and issuances in
the action from the order of default up SERVICE OF SUMMONS ON DIFFERENT
to and including the judgment by default ENTITIES
and the order of execution.
Service on entity Upon any or all
Where the defendant has already been w/o juridical defendants being sued
served with summons on the original personality under common name; or
person in charge of office
complaint, no further summons is
required on the amended complaint if it Service upon In case of minors: by
does not introduce new causes of action. minors and serving upon the minor,
incompetents regardless of age, AND
But where the defendant was declared in upon his legal guardian, or
default on the original complaint and the also upon either of his
plaintiff subsequently filed an amended parents.
complaint, new summons must be served In case of incompetents:
on the defendant on the amended by serving on him
personally AND upon his

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34
legal guardian, but not property within the

upon his parents, unless Philippines in
when they are his legal which defendant
guardians has a lien or
IN ANY EVENT, if the interest;
minor or incompetent has
no legal guardian, the demands a relief
which consists
plaintiff must obtain the wholly or in part in
appointment of a guardian excluding the
ad litem for him. defendant from
any interest in any
Service upon Serve on officer having property within the
prisoner management of the jail or Phil; or
prison property of
defendant has
Service upon To the president, been attached in
domestic private managing partner, general the Phil.
juridical entity manager, corporate
ENTITY secretary, treasurer, or Mode of service
in-house counsel. a. with leave of court
NOTE: Service upon a served outside the
person other than those Phil. By personal
mentioned is invalid and service; or
does not bind the b.with leave of court
corporation. The serve by publication
enumeration is in a newspaper of
EXCLUSIVE. general circulation,
in which case copy of
Service upon Serve on resident agent ; the summons and
foreign private or if none; on govt order of court must
juridical entity official designated by law; also be sent by
or registered mail to
on any officer or agent of the last known
the corporation within the address of
Philippines. defendant; or
c. any other manner the
Service upon in case defendant is the court deem
public Republic of the Philippines sufficient.
corporations - by serving upon the
Solicitor General
in case of a province, city Service upon a Substituted service or
or municipality, or like resident with leave of court,
public corporations by temporarily out of personal service out of
serving on its executive the Phil. the Phil. as under
head, or on such other extraterritorial service
officer or officers as the
law or the court may Service upon an With leave of court, by
direct. unknown publication in a
defendant or newspaper of general
Extraterritorial Requisites whose circulatiuon
service a. defendant does whereabouts are
not reside or is unknown
not found within
the Phil. Section 20. Voluntary appearance.
b. he action either:
affects the
Any form of appearance in court, by the
personal status of
plaintiff; defendant, by his agent authorized to do
relates to or the so, or by attorney, is equivalent to
subject of which is service of summons EXCEPT where such

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35
appearance is precisely to object to the manner as shall ensure its receipt at

jurisdiction of the court over the person least 3 days before the hearing.
of the defendant. EXCEPTIONS:
1. Ex parte motions
Inclusion in a motion to dismiss of other 2. Urgent motions
grounds aside from lack of jurisdiction 3. Motions agreed upon by the
over the person of the defendant shall parties to be heard on shorter
NOT be deemed a voluntary notice or jointly submitted by
appearance. the parties, and
4. Motions for summary judgment
RULE 15 which must be served at least 10
MOTIONS days before its hearing
5. Non-litigated motions.
MOTION is an application for relief Section 5. Notice of hearing.

other than by a pleading. NOTICE OF HEARING shall:
1. Be addressed to all parties
GENERAL RULE: Motions must be in concerned
writing. 2. Specify the time and date of the
EXCEPTION: Those made in open court hearing which must not be later
or in the course of hearing or trial. than 10 days after the filing of
the motion
KINDS OF MOTIONS
NOTE: Any motion that does not comply
a. motion EX PARTE- made without with Sections 4, 5 and 6 of this Rule is a
the presence or a notification to the mere scrap of paper, should not be
other party because the question accepted for filing and, if filed, is not
generally presented is not entitled to judicial cognizance and does
debatable. not affect any reglementary period
involved for the filing of the requisite
b. motion OF COURSE where the pleading.
movant is entitled to the relief or
remedy sought as a matter of Omnibus Motion Rule - All available
discretion on the part of the court. grounds for objection in attacking a
pleading, order, judgment, or
c. LITIGATED motion one made with proceeding should be invoked at one
notice to the adverse party to give time, otherwise, they shall be deemed
an opportunity to oppose. waived.
d. SPECIAL motion- motion addressed Motion for leave to file a pleading or

to the discretion of the court. motion shall be accompanied by the
pleading or motion sought to be
GENERAL RULE: A motion cannot pray admitted, otherwise, the latter will be
for judgment. denied.
EXCEPTIONS:
1. Motion for judgment on the RULE 16
pleadings MOTION TO DISMISS
2. Motion for summary judgment
3. Motion for judgment on A Motion to Dismiss is NOT a responsive
demurrer to evidence. pleading.
Section 4. Hearing on motion. Section 1. Grounds.

3-DAY NOTICE RULE 1. No jurisdiction over the person
GENERAL RULE: Service of the copy of of the defending party
motions should be made in such a

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36
2. No jurisdiction over the subject Effect of motion to dismiss: A motion to

matter of the claim dismiss hypothetically admits the truth
3. Improper venue of the facts alleged in the complaint.
4. No legal capacity to sue
5. Litis pendentia However, such admission is limited only
6. Res judicata to all material and relevant facts which
7. Prescription are well pleaded in the complaint.
8. States no cause of action
An action cannot be dismissed on a
9. Claim or demand has been paid, ground not alleged in the motion even if
waived, abandoned, or otherwise said ground is provided for in Rule 16.
extinguished
10. Claim is unenforceable under the EXCEPT:
Statute of Frauds 1. Those cases where the court may
11. Non-compliance dismiss a case motu proprio
with a condition (Sec. 1, Rule 9)
2. Such ground appears in the
precedent for filing allegations of the complaint or in
claim plaintiffs evidence
REQUISITES OF LITIS PENDENTIA

1. Parties to the action are the
same
2. There is substantial identity in
the cause of action and relief
sought
3. The result of the first action is
determinative of the second in
any event and regardless of
which party is successful
Motion to dismiss may be filed in either

suit, not necessarily in the one instituted
first.
REQUISITES OF RES JUDICATA

1. Previous final judgment
2. Jurisdiction over the subject
matter and the parties by the
court rendering it
3. Judgment upon the merits
4. In a case prosecuted between
same parties
5. Involving the same subject
matter
6. Same cause of action
There could be res judicata without a

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

complaint states no cause of action,

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37
such fact can be determined only from Defendant is granted only the balance of
the facts alleged in the complaint. the reglementary period to which he was
entitled at the time he filed his motion
Where the plaintiff has not exhausted to dismiss, counted from his receipt of
all administrative remedies, the the denial order, but not less than 5 days
complaint not having alleged the fact of in any event.
such exhaustion, the same may be
dismissed for failure to state a cause of The same rule of granting only the
action. balance of the period is followed where
the court, instead of denying the motion
Non-compliance with P.D. 1508 to dismiss, orders the amendment of the
(Katarungang Pambarangay Law) may pleading challenged by the motion, in
result to dismissal of the case on the which case, the balance of the period to
ground of non-compliance with a answer runs from his receipt of the
condition precedent. amended pleading.
An action cannot be dismissed on the

ground that the complaint is vague or
indefinite. The remedy of the defendant Section 5. Effect of dismissal
is to move for a bill of particulars or GENERAL RULE: The action or claim may
avail of the proper mode of discovery. be refiled.
EXCEPTION: The action cannot be
GENERAL TYPES OF A MOTION TO refiled if it was dismissed on any of
DISMISS these grounds:
1. motion to dismiss before answer 1. Res judicata;
under Rule 16 2. Prescription;
2. motion to dismiss under Rule 17 3. Extinguishment of the claim
a. upon notice by plaintiff or demand;
b. upon motion of plaintiff 4. Unenforceability under the
c. due to fault of plaintiff Statute of Frauds.
3. motion to dismiss on demurrer to
evidence after plaintiff has rested Section 6. Pleading grounds as
his case under Rule 33 affirmative defenses.
4. motion to dismiss the appeal filed If no motion to dismiss had been filed,
either in the lower court (Rule any of the grounds for dismissal provided
41,Sec. 13) or in the appellate for in Rule 16, INCLUDING IMPROPER
court (Rule 50, Sec.1 ). VENUE, may be pleaded as affirmative
defenses and preliminarily heard in the
discretion of the court.
EFFECTS OF REMEDY
Dismissal under this section WITHOUT
ACTION ON MTD prejudice to the prosecution in the same
Order granting motion Appeal from the order or separate action of a COUNTERCLAIM
to dismiss is final of dismissal pleaded in the answer
order
Order denying the Certiorari and
motion to dismiss is prohibition if there is
RULE 17
interlocutory grave abuse of DISMISSAL OF ACTIONS
discretion amounting
to lack or excess of Section 1. Dismissal upon notice by
jurisdiction under Rule plaintiff.
65
Dismissal is effected not by motion but
by mere NOTICE of dismissal which is a
Section 4. Time to plead. matter of right BEFORE the defendant

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has answered or moved for a summary COUNTERCLAIM IS COMPULSORY OR

judgment. PERMISSIVE.
But notice of dismissal requires an order Dismissal under this rule is WITHOUT
of the court confirming the dismissal. PREJUDICE, EXCEPT:
Such dismissal is WITHOUT PREJUDICE, 1. When otherwise stated in the
EXCEPT: motion to dismiss;
1. Where the notice of dismissal so 2. When stated to be with
provides; prejudice in the order of the
2. Where the plaintiff has previously court.
dismissed the same case in a
court of competent jurisdiction The approval of the court is necessary in
(TWO-DISMISSAL RULE); the dismissal or compromise of a class
3. Even where the notice of dismissal suit.
does not provide that it is with
prejudice but it is premised on Section 3. Dismissal due to fault of
the fact of payment by the plaintiff.
defendant of the claim
involved. CAUSES FOR DISMISSAL
1. Plaintiff fails to appear for no
Section 2. Dismissal upon motion of justifiable cause on the date of
plaintiff. the presentation of his evidence
in chief on the complaint
Where the plaintiff moves for the 2. Plaintiff fails to prosecute his
dismissal of his complaint to which a action for an unreasonable
counterclaim has been interposed, the length of time (NOLLE
dismissal shall be limited to the PROSEQUI)
complaint. 3. Plaintiff fails to comply with
these Rules or any order of the
Such dismissal shall be without prejudice court. Unjustifiable inaction on
to the right of the defendant to either: the part of plaintiff to have the
1. Prosecute his counterclaim in a case set for trial is a ground for
separate action, dismissal for failure to
prosecute.
In this case, the court should
render the corresponding order Complaint may be dismissed
granting and reserving his right 1. Upon motion of the defendant,
to prosecute his claim in a or
separate complaint. 2. Upon courts own motion.
-OR- Dismissal shall have the effect of an

ADJUDICATION UPON THE MERITS
2. To have the same resolved in the (WITH PREJUDICE), unless otherwise
same action. declared by the court.
In such case, defendant must

manifest such preference to the
trial court within 15 days from
notice to him of plaintiffs SECTION 2 SECTION 3
motion to dismiss.
Dismissal is at the Dismissal is not
instance of the procured by plaintiff
These alternative remedies of the plaintiff; though justified by
defendant are available to him causes imputable to
REGARDLESS OF WHETHER HIS him;

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Dismissal is a matter Dismissal is a matter A special authority for an attorney to

of procedure, without of evidence, an compromise is required under Sec. 23,
prejudice unless adjudication on the Rule 138. Under Art. 1878 (c) of the
otherwise stated in merits; Civil Code, a special power of attorney
the order of the court
is required.
or on plaintiffs
motion to dismiss his
own complaint;
Dismissal is without Dismissal is without

prejudice to the right prejudice to the right
of the defendant to of the defendant to
prosecute his prosecute his
counterclaim in a counterclaim on the
separate action unless same or separate
w/in 15 days from action.
notice of the motion
he manifests his
intention to have his
counterclaim resolved
in the same action
RULE 18
PRE-TRIAL EFFECT OF NON-APPEARANCE OF
PLAINTIFF:
PRE-TRIAL- a mandatory conference and Cause for dismissal of the action, with
personal confrontation before the judge prejudice, unless otherwise ordered by
between the parties and their respective the court.
counsel.
EFFECT OF NON-APPEARANCE OF
The plaintiff must promptly move ex DEFENDANT:
parte that the case be set for pre-trial , Cause to allow the plaintiff to present
and this he must do upon the service and evidence ex parte and the court to
filing of the last pleading. render judgment on the basis thereof.
The pre-trial and trial on the merits of Pre-trial brief. It is the mandatory duty
the case must be held on separate of the parties to seasonably file their
dates. pre-trial briefs under the conditions and
with the sanctions provided therein.
When non-appearance of a party may
be excused (Sec.4): Failure to file pre-trial brief has the
1. If a valid cause is shown same effect as failure to appear at the
therefore pre-trial.
2. If a representative shall appear
in his behalf fully authorized in Record of pre-trial. The contents of the
writing to: PRE-TRIAL order shall control the
a. Enter into an amicable subsequent course of the action, UNLESS
settlement modified before trial to prevent
b. Submit to alternative modes manifest injustice.
of dispute resolution
c. Enter into stipulations or A party is deemed to have waived the
admissions of facts and of delimitations in a pre-trial order if he
documents failed to object to the introduction of
evidence on an issue outside of the pre-

Charissimae
40
trial order, as well as in cross-examining INTERVENTION

the witness in regard to said evidence.
WHO may intervene?
FOR CHART ON PRE-TRIAL PLS. SEE THE NEXT
PAGE.
1. One who has legal interest in the
matter in litigation
2. One who has legal interest in the
success of either of the parties,
3. One who has an interest against
both parties
4. One who is so situated as to be
adversely affected by a
distribution or other disposition
of property in the custody of the
court or of an officer thereof.
FACTORS TO BE CONSIDERED BY THE

COURT
1. Whether or not the intervention
will unduly delay or prejudice
the adjudication of the rights of
the original parties;
PRE-TRIAL
No Amicable Failure to
Settlement Settlement Appear
Agreements
made by parties; If plaintiff is If defendant
Amendments to Absent, when is absent,
pleading; so required to court may
Schedule of trial attend, the hear evidence
court may of plaintiff
dismiss the ex parte
case
TRIAL
If evidence is insufficient to
prove plaintiffs cause of
Court action or defendants
renders counterclaim, court rules in
decision favor of either one or
dismisses the case
2.
Whether or not the intervenors
rights may be fully protected in
a separate proceeding.
RULE 19

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41
The interest which entitles a person to RULE 21

intervene in a suit must be on the SUBPOENA
matter in litigation and of such direct
and immediate character that the
intervenor will either gain or lose by the
SUBPOENA SUMMONS
direct legal operation and effect of the
an order to appear and Order to answer
judgment. testify or to produce complaint
books and documents
may be served to a Served on the
INTERVENTION INTERPLEADER non-party defendant
needs tender of does not need tender
An ancillary action. An original action. kilometrage, of kilometrage and
attendance fee and other fees
reasonable cost of
Proper in any of the Presupposes that the
production fee
four situations plaintiff has no
mentioned in this interest in the subject
Rule. matter of the action SUBPOENA AD TESTIFICANDUM a
or has an interest process directed to a person requiring
therein, which in him to attend and to testify at the
whole or in part, is not hearing or the trial of an action, or at
disputed by the other any investigation conducted by
parties to the action. competent authority, or for the taking of
his deposition.
Defendants are Defendants are being
already original sued precisely to SUBPOENA DUCES TECUM a process
parties to the pending implead them directed to a person requiring him to
suit bring with him books, documents, or
other things under his control.
Section 2. Time to intervene. Section 2. By whom issued

At any time before rendition of WHO may issue
judgment by the trial court. 1. Court before whom the witness
is required to attend
JUSTIFICATION: Before judgment is 2. Court of the place where the
rendered, the court, for good cause deposition is to be taken
shown, may still allow the introduction 3. Officer or body authorized by
of additional evidence and that is still law to do so in connection with
within the liberal interpretation of the investigations conducted by said
period for trial. officer or body
4. Any Justice of the SC or of the
Since no judgment has yet been CA in any case or investigation
rendered, the matter subject of the pending within the Philippines.
intervention may still be readily resolved
and integrated in the judgment disposing SUBPOENA TO A PRISONER must be for
of all claims in the case. a valid purpose; if prisoner required to
appear in court is sentenced to death,
REMEDIES FOR THE DENIAL OF reclusion perpetua or life imprisonment
INTERVENTION: and is confined in prison must be
1. APPEAL authorized by the SC.
2. MANDAMUS if there is grave
abuse of discretion Section 4. QUASHING A SUBPOENA.
If there is improper granting of A. Subpoena DUCES TECUM may be
intervention, the remedy of the party is quashed upon proof that:
certiorari. 1. It is unreasonable and
oppressive;

Charissimae
42
2. The articles sought to be possession of the adverse party or of a

produced do not appear prima witness.
facie to be relevant to the
issues; Rationale of discovery: to enable the
3. The person asking for the parties to obtain the fullest possible
subpoena does not advance the knowledge of the issues and evidence
cost for the production of the long before the trial to prevent such
articles desired. trial from being carried on in the dark.
B. Subpoena AD TESTIFICANDUM may Modes of discovery under the Rules of

be quashed if the witness is not bound Court
thereby. 1. Depositions pending action (Rule
23).
In EITHER case, the subpoena may be 2. Depositions before action or
quashed for failure to tender the witness pending appeal (Rule 24).
fees and kilometrage allowed by the 3. Interrogatories to parties (Rule
Rules. 25).
4. Admission by adverse party (Rule
GENERAL RULE 26).
a. The court which issued the 5. Production or inspection of
subpoena may issue a warrant documents, or things (Rule 27).
for the arrest of the witness and 6. Physical and mental examination
make him pay the cost of such of persons (Rule 28).
warrant and seizure, if the court
should determine that his Discovery before answer.
disobedience was willful and It is only in the exceptional or unusual
without just cause (Sec. 8); case that the need for discovery arises,
or that it should be allowed before
b. The refusal to obey a subpoena service of answer.
without adequate cause shall be
deemed a contempt of the court Modes of Discovery are intended to be
issuing it (Sec.9). CUMULATIVE, and not alternative nor
Exceptions: mutually exclusive.
Provisions regarding the compelling of
attendance (Sec. 8) and contempt (Sec. Discovery is NOT MANDATORY but failure
9) does not apply where: to avail carries sanctions in Rules 25 and
26.
a. Witness resides more than 100
km from his residence to the
place where he is to testify by RULE 23
the ordinary course of travel, DEPOSITIONS PENDING ACTION
generally, by overland
transportation (VIATORY DEPOSITION is a written testimony of a
RIGHT). witness given in the course of a judicial
proceeding in advance of the trial or
b. Permission of the court in which hearing upon oral examination or in
the detention prisoners case is response to written interrogatories and
pending was not obtained. where an opportunity is given for cross-
examination.
RULES OF DISCOVERY
DISCOVERY - is the procedure by which Depositions are intended as a means to
one party in an action is enabled to compel disclosure of facts resting in the
obtain before trial knowledge of relevant knowledge of a party or other person,
facts and of material evidence in the which are relevant in a suit/proceeding.

Charissimae
43
CLASSIFICATIONS OF DEPOSITIONS DIRECTOR, or

1. Depositions on ORAL MANAGING AGENT of
EXAMINATION and Depositions a public or private
upon WRITTEN corp., partnership,
or association which
INTERROGATORIES
is a party
2. Depositions DE BENE ESSE -
those taken for purposes of a Witness, whether or By any party for any
pending action (Rule 23) ; and not a party purpose if the court
3. Depositions IN PERPETUAM REI finds the 5 instances
MEMORIAM - those taken to occurring
perpetuate evidence for
purposes of anticipated action,
or in the event of further SCOPE OF INQUIRY IN DEPOSITIONS:
proceedings in a case on appeal, 1. Matter which is relevant to the
and to preserve it against danger subject of the pending action;
of loss (Rule 24). 2. Not privileged
3. Not restricted by a protective
WHEN TAKEN order
WITH LEAVE OF COURT
1. after jurisdiction has been Certiorari will not lie against an order
obtained over any defendant or admitting or rejecting a deposition in
over the property which is the evidence, the remedy being an appeal
subject of the action and from the final judgment.
BEFORE answer.
2. Deposition of a person confined Section 7. Effect of taking depositions.
in prison.
A party shall not be deemed to make a
person his own witness for any purpose
WITHOUT LEAVE OF COURT by taking his deposition because
AFTER answer AND deponent is not depositions are taken for discovery and
confined in prison. not for use as evidence.
Section 4. Use of depositions. Exception: If a party offers the

Where the witness is available to testify deposition in evidence, then he is
and the situation is not one of those deemed to have made the deponent his
excepted under Sec. 4, his deposition is witness (Sec.8)
inadmissible in evidence and he should
be made to testify. Exception to the Exception: Unless the
deposition is that of any adverse party,
It can be used as evidence by a party for and unless, of course, the deposition is
any purpose under the specific used for impeaching or contradicting the
conditions in Sec. 4. deponent (Sec.8).
Section 10 and 11. Persons before

DEPONENT USE whom depositions may be taken.
Any person By any party for WITHIN THE PHILIPPINES:

contradicting or 1. judge
impeaching the 2. notary public
testimony of deponent
3. any person authorized to
as witness
administer oaths, as stipulated
A party or any one By an adverse party for by the parties in writing
who at the time of any purpose
the deposition was OUTSIDE THE PHILIPPINES:
an OFFICER,

Charissimae
44
1. on notice, before a secretary of trial only in case the deponent is not

embassy or legation, consul available.
general, consul, vice-consul, or
consular agent of the Phil. Depositions under this Rule do not prove
2. before such person or officer as the existence of any right and the
may be appointed by commission testimony perpetuated is not in itself
or letters rogatory conclusive proof, either of the existence
3. any person authorized to of any right nor even of the facts to
administer oaths, as stipulated which they relate, as it can be
by the parties in writing controverted at the trial in the same
manner as though no perpetuation of
Section 12. Commission or letters testimony was ever had. However, in the
rogatory. absence of any objection to its taking,
and even if the deponent did not testify
at the hearing, the perpetuated
testimony constitutes prima facie proof
COMMISSION LETTERS ROGATORY
of facts referred to in the deposition.
Issued to a non- Issued to the
judicial foreign officer appropriate judicial
who will directly take officer of the foreign Section 6. Use of deposition.
the testimony country who will direct
somebody in said If deposition is taken under this Rule, it
foreign country to take may be used in any action involving the
down testimony SAME SUBJECT MATTER subsequently
Applicable rules of Applicable rules of brought.
procedure are those of procedure are those of
the requesting court the foreign court Section 7. Depositions pending appeal.
requested to act
Sec. 7 is the procedure in perpetuating
Resorted to if Resorted to if the
testimony AFTER JUDGMENT IN THE RTC
permission of the execution of the
foreign country is commission is refused in and DURING THE PENDENCY OF AN
given the foreign country APPEAL.
Leave of court is not Leave of court is
necessary necessary
Section 18. Motion to terminate or
limit examination. RULE 25
INTERROGATORIES TO PARTIES
MAY BE FILED:
1. any time during the taking of the PURPOSE of Written Interrogatories: to
deposition elicit facts from any adverse party
2. on motion or petition of any (answers may also be used as admissions
party or of the deponent; or of the adverse party)
3. upon showing that the
examination is conducted in : Written interrogatories and
a. bad faith the answers thereto must both
b. in such manner as be FILED and SERVED.
unreasonably to annoy,
embarrass, or oppress
the deponent or party Interrogatories Bill of Particulars
A party may properly A party may properly
seek disclosure of seek disclosure only of
RULE 24 matters of proof matters which define
DEPOSITIONS BEFORE ACTION OR which may later be the issues and become
made a part of the a part of the
PENDING APPEAL
records as evidence. pleadings.
Depositions under this Rule are also
A party may serve written
taken conditionally, to be used at the
interrogatories:

Charissimae
45
1. WITHOUT LEAVE OF COURT The only exception is when the court

after answer has been served, allows it for GOOD CAUSE shown and to
for the first set of prevent a failure of justice.
interrogatories.
2. WITH LEAVE OF COURT before Depositions Upon Interrogatories to
answer has been served Written Parties under Rule
(REASON: at that time, the Interrogatories to 25
issues are not yet joined and the Parties under Rule
disputed facts are not yet clear, 23 Sec. 25
when more than one set of As to Deponent As to Deponent
interrogatories is to be served.) Party or ordinary party only
witness
A judgment by default may be rendered As to Procedure As to Procedure
against a party who fails to answer With intervention of no intervention.
written interrogatories the officer authorized Written interrogatories
by the Court to take are directed to the
Only one set of interrogatories by the deposition party himself
same party is allowed. Leave of court is
necessary for succeeding sets of
interrogatories. As to Scope As to Scope
Direct, cross, redirect, only one set of
re-cross interrogatories
Section 6. Effect of failure to serve
written interrogatories.
Interrogatories Interrogatories
no fixed time 15 days to answer
Rule 25 and Rule 26 are directed to the unless extended or
party who fails and refuses to RESORT to reduced by the court
the discovery procedures, and should not
be confused with the provisions of Rule
29 which provides for sanctions or other RULE 26
consequences upon a party who refuses ADMISSION BY ADVERSE PARTY
or fails to COMPLY with discovery
procedures duly availed of by opponent. Section 1. Request for admission.
PURPOSE OF written request for

admission is to expedite trial and relieve
The justification for this provision is that the parties of the costs of proving facts
the party in need of relevant facts which will not be disputed on trial and
having foregone the opportunity to the truth of which can be ascertained by
inquire into the same from the other reasonable inquiry.
party through means available to him, he
should not thereafter be permitted to When request may be made: at any time
unduly burden the latter with courtroom after the issues have been joined.
appearances or other cumbersome
processes. What request may include
1. Admission of the genuineness of
Unless a party had been served written any material and relevant
interrogatories, he may not be document described in and
compelled by the adverse party: exhibited with the request.
1. to give testimony in open court, 2. Admission of the truth of any
or material and relevant matter of
2. give a deposition pending fact set forth in the request.
appeal. 3. Under this rule, a matter of fact
not related to any documents
may be presented to the other
party for admission or denial.

Charissimae
46
party
Section 2. Implied Admission.
The effect of a FAILURE to make a reply
to a request for admission is that each of
the matters of which an admission is RULE 28
requested is deemed admitted. PHYSICAL AND MENTAL EXAMINATION
OF PERSONS
A sworn statement either denying
specifically each matter or setting forth
in detail the reasons why he cannot The mental condition of a party is in
truthfully admit or deny those matters controversy in proceedings for
must be filed and served upon the party GUARDIANSHIP over an imbecile or
requesting the admission. insane person, while the physical
condition of the party is generally
Section 3. Effect of admission. involved in PHYSICAL INJURIES cases.
USE: An admission under this section is
for the purpose of the pending action Since the results of the examination are
only and cannot be used in other intended to be made public, the same
proceedings. are not covered by the physician-patient
privilege.
The party who fails or refuses to request
the admission of facts in question is Section 4. Waiver of privilege.
prevented from thereafter presenting
evidence thereon UNLESS otherwise Where the party examined requests and
allowed by the court (Sec.5). obtains a report on the results of the
examination the consequences are:
1. he has to furnish the other party
RULE 27 a copy of the report of any
PRODUCTION OR INSPECTION OF previous or subsequent
DOCUMENTS OR THINGS examination of the same
physical and mental condition,
Production of documents affords more AND
opportunity for discovery than a 2. he waives any privilege he may
subpoena duces tecum because in the have in that action or any other
latter, the documents are brought to the involving the same controversy
court for the first time on the date of regarding the testimony of any
the scheduled trial wherein such other person who has so
documents are required to be produced. examined him or may thereafter
The TEST to be applied in determining examine him.
the relevancy of the document and the
sufficiency of their description is one of RULE 29
reasonableness and practicality. REFUSAL TO COMPLY WITH MODES OF
DISCOVERY
PRODUCTION OR SUBPOENA DUCES
INSPECTION OF TECUM SANCTIONS
DOCUMENTS OR 1. Contempt;
THINGS 2. Payment of reasonable fees;
Essentially a mode of means of compelling 3. The matters regarding which the
discovery production of evidence questions were asked, character
The Rules is limited to may be directed to a or description of land et al., be
the parties to the person whether a taken to be in accordance with
action party or not the claim of party obtaining the
The order under this may be issued upon an order;
Rule is issued only ex parte application. 4. Prohibition on the refusing party
upon motion with to produce evidence or support
notice to the adverse

Charissimae
47
or oppose designated claims or Section 5. Order of trial unless

defenses; directed by the court.
5. Striking out pleadings, order the
dismissal of the action or stay
the action until compliance or to Plaintiff presents
render judgment by default. evidence
6. Order the arrest of the refusing
party except in cases of physical
or mental examination. Defendant presents Defendant files
evidence to demurrer to
RULE 30 support his evidence
TRIAL defense/countercla
im/crossclaim/
TRIAL judicial process of investigating third party
complaint
and determining the legal controversies
starting with the production of evidence
by the plaintiff and ending with his
closing arguments.
Third If court If court
party grants denies
GENERAL RULE: when an issue exists,
defendant motion: motion:
trial is necessary. Decision should not be presents Renders Continues
made without trial. eidence, if dismisal with
EXCEPTIONS: when there may be any hearing
judgment without trial:
1. Judgment on the Pleading
(Rule 34)
2. Summary Judgment (Rule 35) Rebuttal
3. Judgment on Compromise Evidence by After
4. Judgment by Confession Parties Presentation of
5. Dismissal with Prejudice evidence:
(Rule 17) oral arguments
submission of
DECISION memoranda
Section 3. Requisites of motion to
postpone trial for absence of evidence.
Unless the court for special reasons
There must be an affidavit showing: otherwise directs, the trial shall be
1. materiality or relevance of such limited to the issues stated in the pre-
evidence; and trial order.
2. due diligence in procuring it.
Section 6. Agreed statements of facts.
If the adverse party admits the facts for This is known as STIPULATION OF FACTS
which evidence is to be presented, the and is among the purposes of a pre-trial.
trial will not be postponed.
The parties may also stipulate verbally in
Section 4. Requisites of motion to open court. Such stipulations are binding
postpone trial for illness of party or unless relief therefrom is permitted by
counsel. the court on good cause shown, such as
There must be an affidavit or sworn error or fraud.
certification showing:
1. presence of party or counsel at But counsel cannot stipulate on what
the trial is indispensable; and their respective EVIDENCE consists of
2. character of his illness is such as and ask that judgment be rendered on
to render his non-attendance the basis of such stipulation.
excusable.

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48
Stipulations of facts are not permitted in 2. if filed with different branches

actions for ANNULMENT OF MARRIAGE of a court and one of such cases
and for LEGAL SEPARATION. has NOT been partially tried.
Section 8. Suspension of actions. REQUISITES FOR CONSOLIDATION:

Art. 2030 of the Civil Code. Every civil 1. When actions involving a
action or proceeding shall be suspended common question of law or fact,
1. If willingness to discuss a and
possible compromise is 2. The actions are pending before
expressed by one or both the same court
parties; or if filed with DIFFERENT
2. If it appears that one of the courts, authorization from
parties, before the the SC is necessary.
commencement of the action or
proceeding, offered to discuss a 3 WAYS OF CONSOLIDATING CASES:
possible compromise but the 1. by RECASTING THE CASES
other party refused the offer. ALREADY INSTITUTED,
conducting only one hearing and
Section 9. Judge to receive evidence; rendering only one decision;
delegation to clerk of court. 2. by CONSOLIDATING THE EXISTING
GENERAL RULE: the judge must himself CASES and holding only one
personally receive and resolve the hearing and rendering only one
evidence of the parties. decision; and
However, the reception of such 3. by HEARING ONLY THE PRINCIPAL
evidence may be delegated under the CASE and suspending the hearing
following conditions: on the others until judgment has
1. The delegation may be made been rendered in the principal
only in defaults or ex parte case. (TEST-CASE METHOD)
hearings, or an agreement in
writing by the parties. Consolidation of cases on appeal and
2. The reception of evidence shall assigned to different divisions of the SC
be made only by the clerk of and the CA is also authorized. Generally,
that court who is a member of the case which was appealed later and
the bar. bearing the higher docket no. is
3. Said clerk shall have no power to consolidated with the case having the
rule on objections to any lower docket no.
question or to admission of
evidence or exhibits; and
4. He shall submit his report and RULE 32
transcripts of the proceedings, TRIAL BY COMMISSIONER
together with the objections to
be resolved by the court, within COMMISSIONER- a person to whom a
10 days from the termination of cause pending in court is referred, for
the hearing. him to take testimony, hear the parties
and report thereon to the court, and
RULE 31 upon whose report, if confirmed,
CONSOLIDATION OR SEVERANCE judgment is rendered.
Reference to a commissioner may be had
GENERAL RULE: Consolidation is by the written consent of both parties.
discretionary upon the court
EXCEPTIONS: Consolidation becomes a Situations when reference to a
matter of duty when: Commissioner may be made on motion
1. if the cases are pending before (Sec.2):
the same judge OR 1. Examination of a long account

Charissimae
49
2. Taking of an account is
necessary
CIVIL CASES CRIMINAL CASES
3. Question of fact, other than
Defendant need not ask leave of court is
upon the pleading arises; or for leave of court; necessary so that the
4. Carrying a judgment or order accused could
into effect. present his evidence
if the demurrer is
Disobedience to a subpoena issued by denied
the commissioner is deemed a contempt if the court finds if the court finds the
of the court which appointed the latter. plaintiffs evidence prosecutions
insufficient, it will evidence insufficient,
RULE 33 grant the demurrer by it will grant the
dismissing the demurrer by
DEMURRER TO EVIDENCE
complaint. The rendering judgment
judgment of dismissal is acquitting the
Section 1. Demurrer to evidence. appealable by the accused. Judgment of
plaintiff. If plaintiff acquittal is not
appeals and judgment appeallable; double
is reversed by the jeopardy sets-in
DEMURRER TO MOTION TO DISMISS appellate court, it will
EVIDENCE decide the case on the
It is presented after presented before a basis of the plaintiffs
the plaintiff has responsive pleading evidence with the
rested his case (answer) is made by consequence that the
the defendant defendant already loses
The ground is based it may be based on any his right to present
on insufficiency of of those enumerated evidence no res
evidence in Rule 16 judicata in dismissal
due to demurrer
2 Scenarios if court denies if court denies the
demurrer, defendant demurrer:
will present his If demurrer was with
MOTION DENIED MOTION GRANTED evidence leave, accused may
present his evidence
BUT REVERSED ON
If the demurrer was
APPEAL without leave,
Movant shall have the Movant is deemed to accused can no
right to present his have waived his right longer present his
evidence to present evidence. evidence and submits
The decision of the the case for decision
appellate court will based on the
be based only on the prosecutions
evidence of the evidence
plaintiff as the
defendant loses his
right to have the case JUDGMENT ON DEMURRER TO EVIDENCE
remanded for
is a judgment rendered by the court
reception of his
evidence. dismissing a case upon motion of the
denial is order of the court is defendant, made after plaintiff has
INTERLOCUTORY. Sec. an ADJUDICATION ON rested his case, on the GROUND that
1 , Rule 36 (that THE MERITS, hence, upon the facts presented by the plaintiff
judgment should state the requirement in and the law on the matter, plaintiff has
clearly and distinctly Sec. 1, Rule 36 not shown any right to relief.
the facts and the law should be complied
on which it is based), with. RULE 34
will not apply.
JUDGMENT ON THE PLEADINGS
The denial is NOT
appealable.
A judgment on the pleadings must be on
motion of the claimant. (NO

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50
SUPPORTING PAPERS ARE REQUIRED SUMMARY JUDGMENTS

BECAUSE EVERTHING IS BASED ON THE
PLEADINGS.) SUMMARY JUDGMENT
One granted by the court for the prompt
HOWEVER, if at the pre-trial the court disposition of civil actions wherein it
finds that a judgment on the pleadings is clearly appears that there exists NO
proper, it may render such judgment genuine issue or controversy as to any
motu proprio. material fact.
GROUNDS: Who can File

1. Answer fails to tender an issue 1. Plaintiff: he must wait for the
because of: answer to be filed and served, and
a. general denial of the thus for the issue to be joined,
material allegations of before he can move for summary
the complaint; judgment.
b. insufficient denial of the 2. Defendant: he can move for
material allegations of summary judgment at anytime, that
the complaint ; or is, anytime after filing and service of
2. Answer admits material the complaint even before he
allegations of the adverse answers
partys pleading
The motion for summary judgment must
By moving for judgment on the be supported by (1) affidavit, (2)
pleading, plaintiff waives his claim depositions of the adverse party or a
for unliquidated damages. Claim for third party, or (3) admissions of the
such damages must be alleged and adverse party, all intended to show that:
proved. a. there is no genuine issue as to
any material fact, except
NO JUDGMENT ON THE PLEADINGS IN damages which must always be
ACTIONS FOR proved, and
1. Declaration of nullity of b. the movant is entitled to a
marriage judgment as a matter of law.
2. Annulment of marriage
3. Legal Separation The summary judgment may be a
judgment on the merits, in which case,
an appeal may be taken therefrom.
Motion to Dismiss Motion for

judgment on the SUMMARY JUDGMENT JUDGMENT
pleadings JUDGMENT ON THE BY DEFAULT
PLEADINGS (Rule 9)
Filed by a defendant Filed by the plaintiff Based on the based solely on based on the
to a complaint, if the answer raises pleadings, the pleadings. complaint and
counterclaim, cross- no issue. depositions, evidence, if
claim or 3rd-party admissions presentation is
complaint and affidavits required.
Available to generally Available to
both plaintiff available only plaintiff.
If the complaint states no cause of and defendant to the plaintiff,
action, a motion to dismiss should be unless the
filed and not a motion for judgment on defendant
the pleading. presents a
counterclaim.
RULE 35

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51
There is The answer no issues as no Not appealable.

no genuine fails to tender answer is filed
issue between an issue or by the A JUDGMENT is considered RENDERED
the parties, there is an defending Upon filing of the signed decision. This
i.e. there may admission of party.
includes an amended decision because
be issues but material
these are allegations. an amended decision is a distinct and
irrelevant separate judgment and must follow the
10-day notice 3-day notice 3-day notice established procedural rule.
required required rule applies.
May be On the merits On the merits The power to amend a judgment is
interlocutory inherent to the court before judgment
or on the becomes final and executory.
merits
After judgment has become executory,
the court cannot amend the same
RULE 36
JUDGMENTS, FINAL ORDERS AND ENTRY EXCEPT:
THEREOF 1. To make corrections of
clerical errors, not
substantial amendments, as
JUDGMENT- final consideration and by an amendment nunc pro
determination by a court of the rights of tunc.
the parties, upon matters submitted to it 2. To clarify an ambiguity
in an action or proceeding. which is borne out by and
justifiable in the context of
The date of finality of the judgment or the decision.
final order shall be deemed to be the 3. In judgments for support,
date of its entry. which can always be
amended from time to time.
REQUISITES OF A JUDGMENT:
1. It should be in writing, personally
and directly prepared by the judge MANNER OF ATTACKING JUDGMENTS:
2. Must state clearly and distinctly the
facts and the law on which it is 1. Direct attack
based a. before finality
3. It should contain a dispositive part 1. motion for new trial or
and should be signed by the judge reconsideration;
and filed with the clerk of court. 2. appeal
b. after finality
PROMULGATION- the process by which a 1. relief from judgment, rule
decision is published, officially 38
announced, made known to the public or 2. annulment of judgment,
delivered to the clerk of court for filing, Rule 47.
coupled with notice to the parties or
their counsel. 2.Collateral attack
MEMORANDUM DECISION- a decision of

the appellate court which adopts the
findings and the conclusion of the trial
court.
JUDICIAL COMPROMISE
A judgment based on a
compromise which has the force
of law and is conclusive between
parties.

Charissimae
52
PROMULGATION OF JUDGMENT rendered to enter or record such

judgment as has been formerly
Court Renders Decision rendered but has not been
entered as thus rendered
its only function is to record
Filing appeal within some act of the court which was
Losing Party 15/30 days from done at a former time, but
notice of judgment which was not then recorded, in
order to make the record speak
the truth, without any changes
in substance or any material
Accepts Within 15/30 days
decision from notice of respect.
without further judgment:
contest Motion for Judgment upon Agreement or
reconsideration; or Compromise
motion for new trial
A compromise agreement between the
parties to a case on which the decision
Court of the court was based has upon the
maintains
decision
parties the effect and authority of res
Court grants motion: judicata. It is immediately executory.
1.modifies decision; or
2.grants new trial
If no appeal is Judgment by Confession
taken or did Judgment upon confession is one which
not avail of
remedies,
is rendered against a party upon his
judgment petition or consent. It usually happens
becomes final Losing party may when the defendant appears in court
and executory appeal within the and confesses the right of the plaintiff to
remaining period judgment or files a pleading expressly
agreeing to the plaintiffs demand.
Section 4. Several judgments.
Several judgment is proper where the Two kinds of judgment by confession
liability of each party is clearly 1. A judgment by COGNOVIT
separable and distinct from his co- ACTIONEM here, the defendant
parties such that the claims against each after service instead of entering
of them could have been the subject of a plea, acknowledged and
separate suits, and the judgment for or confessed that the plaintiffs
against one of them will not necessarily cause of action was just and
affect the other. rightful.
2. A judgment by CONFESSION
A several judgment is NOT proper in RELICTA VERIFICATIONE after
actions against solidary debtors. pleading and before trial, the
defendant both confessed the
Section 6. Separate Judgments plaintiffs cause of action and
Proper when more than one claim for withdrew or abandoned his plea
relief is presented in an action and a or other allegations, whereupon
determination as to the issues material judgment was entere against him
to the claim has been made. The action without proceeding to trial.
shall proceed as to the remaining
claims.
Judgment upon Judgment by

Compromise Confession
The provisions and An affirmative and
Judgment NUNC PRO TUNC (literally terms are settled and voluntary act of the
means now for then) agreed upon by the defendant himself.
parties to the action, The court exercises a

Charissimae
53
and which is entered certain amount of Purpose: to set aside the judgment or
in the record by the supervision over the final order and grant a new trial.
consent of the court. entry of judgment.
WHEN to file: within period for taking
Clarificatory Judgment appeal.
rendered by the court, upon motion,
when a judgment previously rendered is WHERE to file: with the trial court
ambiguous and difficult to comply with. which rendered the questioned
judgment.
AMENDED OR SUPPLEMENTAL
CLARIFIED DECISION MOTION FOR A NEW MOTION FOR
JUDGMENT TRIAL RECONSIDERATION
The grounds are: fraud, The grounds are: the
It is an entirely new Does not take the accident, mistake or damages awarded are
decision and place of or extinguish excusable negligence or excessive, that the
supersedes the the original judgment newly discovered evidence is insufficient
original judgment evidence which could to justify the decision
not, with reasonable or final order, or that
Court makes a Serves to bolster or diligence, have the decision or final
thorough study of the add to the original discovered and produced order is contrary to
original judgment and judgment at the trial, and which if law.
renders the amended presented would
and clarified judgment probably alter the result
only after considering Second motion may be Second motion from
all the factual and allowed same party is
legal issues prohibited
If a new trial is granted if the court finds that
the trial court will set excessive damages
RULE 37 aside the judgment or have been awarded or
NEW TRIAL OR RECONSIDERATION final order that the judgment or
final order is contrary
to the evidence or law,
Order denying it may amend such
motion for new trial judgment or final order
accordingly
Second motion for new trial

based on grounds not existing or REQUISITES for NEWLY-DISCOVERED
available when 1st motion was EVIDENCE
filed 1. Must have been discovered after
trial
2. Could not have been discovered
Appeal from the judgment or and produced at the trial
final order and assign as one of
3. If presented, would alter the
the errors the denial of the
motion for new trial result of the action
4. Otherwise it is called
FORGOTTEN EVIDENCE.
An order denying a motion for new trial
is not appealable. A motion suspends or tolls the running of
the reglementary period for appeal
NEW TRIAL - the rehearing of a case except when the same is pro-forma.
already decided by the court but before
the judgment rendered thereon becomes PRO-FORMA MOTION - when it does not
final and executory, whereby errors of comply with Rule 15 and Rule 37, e.g. it
law or irregularities are expunged from does not point out specifically the
the record, or new evidence is findings or conclusions of the judgment
introduced, or both steps are taken. as are contrary to law, making express

Charissimae
54
reference to the testimonial or Purpose: To reconsider or amend

documentary evidence or to the judgment or final order
provisions of law alleged to be contrary WHEN to file: within period for taking an
to such findings or conclusions, and is appeal
merely intended to delay the
proceedings OR if there is no affidavit of WHERE to file: with the trial court
merit. which rendered the judgment or final
order sought to be reconsidered
Section 6. Effect of granting of motion
for new trial RULE 38
When motion is granted, the original RELIEF FROM JUDGMENTS, ORDERS, OR
judgment is thereby vacated and the OTHER PROCEEDINGS
action stands for trial de novo, but the
recorded evidence taken upon the REMEDIES AGAINST FINAL AND
former trial so far as the same is EXECUTORY JUDGMENTS OR ORDERS
material and competent to establish the
issues, shall be used at the new trial 1. Petition for Relief from
taking the same. Judgment (Rule 38)
2. Annulment of judgments or final
The order denying a motion for new trial orders or resolutions (Rule 47) on
is NOT appealable. the ground of:
o Extrinsic fraud, to be filed
MOTION FOR NEW MOTION FOR within 4 years from the
TRIAL REOPENING OF THE discovery of the fraud;
TRIAL o Lack of jurisdiction, before
Specifically Not mentioned in the it is barred by laches or
mentioned in the Rules but is estoppel
Rules nevertheless a 3. Direct or collateral attack
recognized procedural against a void or voidable
recourse or device judgment
deriving validity and o DIRECT ATTACK when the
acceptance from long
established usage validity of the judgment
NOTE: It is actually itself is the main issue of the
mentioned in the Rules action, a petition for
of Criminal Procedure certiorari and action to
Proper only after May properly be annul judgment on the
promulgation of presented only after ground of extrinsic fraud or
judgment either or both the lack of jurisdiction
parties have formally o COLLATERAL ATTACK if the
offered and closed
judgment can be resisted in
their evidence before
judgment any other action in which it
Based upon specific Controlled by no other is involved.
grounds set forth rule than the
under Rule 37 in civil paramount interests of
cases and Rule 121 in justice, resting entirely
criminal cases on the sound discretion RULE 37 RULE 38
of a trial court, the Available BEFORE Available AFTER
exercise of which judgment becomes judgment has become
discretion will not be final and executory final and executory
reviewed on appeal Applies to Applies to judgments,
UNLESS a clear abuse JUDGMENTS or FINAL final orders and other
thereof is shown ORDERS only proceeding:
1.Land Registration
2.Special Proceedings
MOTION FOR RECONSIDERATION 3. Order of Execution

Charissimae
55
FINAL JUDGMENT OR ORDER- one which

GROUNDS: GROUNDS: disposes of the whole subject matter or
i. FAME FAME terminates the particular proceedings or
ii. Newly discovered action, leaving nothing to be done by the
evidence
court but to enforce by execution what
WHEN AVAILED OF: WHEN AVAILED OF:
has been determined.
Within the time to within 60 days from
appeal knowledge of the EXECUTION OF JUDGMENT
judgment AND
within 6 months from Judgment is If the winning

entry of judgment executed by party does not
If denied, the order If denied, the order motion within move for
of denial is NOT denying a petition for 5 years from execution w/in
appealable, hence relief is NOT date of its 5 years but
remedy is appeal appealable; the entry before 10
from the judgment remedy is appropriate years from the
civil action under Rule date of entry
65 of judgment,
Legal remedy Equitable remedy Execution is a the same can
Motion need not be Petition must be matter of right only be revived
verified verified after by means of a
expiration of new action /
TWO HEARINGS UNDER RULE 38 period to petition
1. Hearing to determine whether appeal and no
the judgment should be set aside appeal is
2. If yes, a hearing on the merits of perfected
the case.
Discretionary
The period fixed by Rule 38 is non- execution upon
extendible and is never interrupted. good reasons
stated in a
special order
after due
RULE 39 hearing
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
EXECUTION remedy provided by law Sheriff enforces writ of execution

for the enforcement of a final judgment.
AGAINST WHOM ISSUED: execution can

only issue against a party and not against Losing party is made to indemnify thru:
one who has not had his day in court. payment with interest;
levy and sale of personal property;
levy and sale of real property;
WRIT OF EXECUTION: judicial writ
issued to an officer authorizing him to delivery of personal and real property
execute the judgment of the court.
TEST TO DETERMINE WHETHER A
ESSENTIAL REQUISITE OF A WRIT OF JUDGMENT OR ORDER IS FINAL OR
EXECUTION: a writ of execution to be INTERLOCUTORY: The test is whether
valid, must conform strictly to the the judgment or order leaves nothing
decision or judgment which gives it life. more for the court to do with respect to
the merits of the case.
It cannot vary the terms of the judgment
it seeks to enforce SPECIAL JUDGMENT one that requires
the performance of an act OTHER THAN:

Charissimae
56
1. The payment of money; and

2. The sale of real or personal
property
Section 1. Execution Upon Judgments GROUNDS FOR EXECUTION PENDING
and Final Orders. APPEAL:
1. Insolvency of the judgment
EXECUTION ISSUES AS A MATTER OF debtor.
RIGHT: 2. Wastage of asset by judgment
1. on motion debtor.
2. upon a judgment or order that
disposes of the action or Section 3. Stay of Discretionary
proceeding AND Execution. The party against whom an
3. upon expiration of the period to execution is directed may file a
appeal therefrom and NO appeal supersedeas bond to stay discretionary
has been duly perfected. execution.
GENERAL RULE: court cannot refuse SUPERSEDEAS BOND- one filed by a

execution petitioner and approved by the court
UNLESS: before the judgment becomes final and
1. Execution is UNJUST OR executory and conditioned upon the
IMPOSSIBLE performance of the judgment appealed
2. Equitable grounds like a CHANGE from in case it be affirmed wholly or in
IN SITUATION of the parties part.
which makes execution
inequitable Supersedeas bond guarantees
3. Judgment NOVATED by parties satisfaction of the judgment in case of
4. Execution is enjoined affirmance on appeal, not other things
5. Judgment has become DORMANT like damage to property pending the
appeal
QUASHAL OF WRIT PROPER WHEN:
1. Improvidently issued The court may, in its discretion, order an
2. Defective in substance execution before the expiration of the
3. Issued against the wrong party time within which to appeal provided:
4. Judgment already satisfied 1. There is a motion for execution
5. Issued without authority filed by the winning party
2. There is notice of said motion to
Section 2. Discretionary Execution the adverse party; and
3. There are good reasons stated in
a special order after due
DISCRETIONARY EXECUTION AS A hearing.
EXECUTION MATTER OF RIGHT
GENERAL RULE: an order of execution is
NOT appealable otherwise there would
May issue before Period to appeal has be no end to the litigation between the
the lapse of period already lapsed and parties.
to appeal no appeal is EXCEPTIONS:
perfected 1. When the terms of the judgment
are not very clear;
Discretionary upon Ministerial duty of
the court; there is the court PROVIDED
2. When the order of execution
inquiry on whether there are no varies with the tenor of the
there is GOOD supervening events judgment.
REASON for
execution Section 4. Judgments NOT Stayed By
Appeal
1. INJUNCTION

Charissimae
57
2. RECEIVERSHIP If party REFUSES TO VACATE PROPERTY,

3. ACCOUNTING remedy is NOT contempt. The Sheriff
4. SUPPORT must oust the party. But if demolition is
5. Such other judgments involved, there must be a special order.
declared to be immediately
executory unless otherwise If party REFUSES TO DELIVER, sheriff will
ordered by the trial court. take possession and deliver it to winning
party.
Section 6. Execution By Motion Or
Independent Action. When the party REFUSES TO COMPLY,
court can appoint some other person at
MODE OF ENFORCEMENT the expense of the disobedient party and
1. By motion within 5 years from the act done shall have the same effect
date of its entry as if the required party performed it,
2. By independent action after 5 the disobedient party incurs no liability
years from entry AND before it is for contempt.
barred by statute of limitations
Section 11. Execution of Special
Judgment for support does not become Judgments.
dormant, thus it can always be executed When judgment requires the
by motion. performance of any act other than for
money and delivery of property.
5-year period may be extended by the
conduct of judgment debtor. The writ of execution shall be served
upon the party required to obey the
A revived judgment is a new judgment same and such party may be punished
thus another 5/10-year period to for contempt if he disobeys.
execute and revive is given the party.
LEVY - act by which an officer sets apart
Section 7. Execution In Case Of Death or appropriates a part of the whole of
Of Party. the property of the judgment debtor for
If the obligor dies AFTER entry but purposes or the execution sale. The levy
BEFORE LEVY on his property, execution on execution shall create a lien in favor
will be issued for recovery of real or or the judgment creditor over the right,
personal property or enforcement of a title and interest of the judgment debtor
lien thereon. But for a sum of money, in such property at the time of the levy.
judgment cannot be enforced by writ but
as a claim against his estate/probate The levy on execution creates a lien in
proceedings. favor of the judgment creditor subject
to prior liens and encumbrances.
If he dies AFTER a VALID LEVY has been
made, execution sale proceeds. GARNISHMENT - act of appropriation by
Section 8. Issuance, Form and Contents the court when property of debtor is in
of a Writ of Execution. the hands of third persons
Remedies in an order granting or The garnishee or the 3rd person who is in

denying the issuance of a writ of possession of the property of the
execution judgment debtor is deemed a forced
Appeal is the remedy for an order intervenor.
denying the issuance of a writ of
execution.
Section 10. Execution Of Judgments

ATTACHMENT GARNISHMENT
For Specific Act.

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58
Refers to corporeal refers to money, a. Judgment obligor, or his

property in the stocks, credits and successor in interest, in whole or
possession of the other incorporeal any part of the property; OR
judgment debtor. property which belong b. Redemptioner who is a creditor
to judgment debtor
having a:
but is in the possession
or under the control of 1) Lien by attachment on
a third person the property sold
subsequent to the lien
under which the
Section 16. Proceedings Where property was sold,
Property Claimed By Third Person. 2) Lien by judgment on the
property sold subsequent
REMEDIES of THIRD PARTY CLAIMANT to the lien under which
the property was sold;
1. Summary hearing before the 3) Lien by mortgage on the
court which authorized the property sold subsequent
execution; to the lien under which
2. TERCERIA or third party claim the property was sold.
filed with the sheriff;
3. Action for damages on the bond WHEN CAN REDEMPTION BE MADE?
posted by judgment creditors; or
4. Independent reinvidicatory BY THE JUDGMENT OBLIGOR: Within one
action. (1) year from the date of registration of
the certificate of sale.
The remedies are cumulative and may be
resorted to by third party claimant BY THE REDEMPTIONER:
independently of or separately from the 1. Within one year from the date of
others. registration of the certificate of
sale; or
If winning party files a bond, it is only 2. Within sixty days from the last
then that the sheriff can take the redemption by another
property in his possession. IF NO BOND, redemptioner
cannot proceed with the sale. If the judgment obligor redeems, no
further redemption is allowed (Sec.
SALE ON EXECUTION 29).
Notice of sale is required before levied
property can be sold at public auction The period of redemption is NOT
(Sec. 15). suspended by an action to annul the
foreclosure sale.
Remedy against an irregular sale is
MOTION TO VACATE OR SET ASIDE THE CAN REDEMPTION BE PAID IN OTHER
SALE to be filed in the court which FORMS THAN CASH?
issued the writ. YES. The rule is liberality in allowing
redemption (aid rather than defeat the
REDEMPTION (Secs. 27 & 28) right) and it has been allowed in the
Right of Redemption: case of a cashiers check, certified bank
1. Personal Property NONE; sale is checks and even checks.
absolute
2. Real Property there is a right of The offer to redeem must be
redemption accompanied with a bona fide tender or
delivery of the redemption price.
WHO may redeem (Sec. 27)
Only the following: However, a formal offer to redeem with
a tender is not necessary where the right
to redeem is exercised through the filing

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59
of a complaint to redeem in the courts, 1. The purchaser or his successor-

within the period to redeem. in-interest FAILS TO RECOVER
POSSESSION of the property or;
RIGHTS OF THE JUDGMENT DEBTOR: 2. Purchaser after having acquired
1. Remain in possession of the possession is evicted due to:
property a. Irregularities in the
2. Collect rents and profits proceedings concerning the
3. Cannot be Ejected sale.
4. Use the property in the same b. Reversal or setting aside of
manner it was previously used judgment.
5. Make necessary repairs c. The fact that the property
was exempt from execution.
Section 33. Deed and possession to be d. A third person has vindicated
given at expiration of redemption his claim to the property.
period; by whom executed or given.
REMEDIES OF THE JUDGMENT
CREDITOR IN AID OF EXECUTION
The PURCHASER is entitled to a
CONVEYANCE AND POSSESSION of the 1. If the execution is returned
property if there is no redemption. He is unsatisfied, he may cause
substituted to and acquires all the examination of the judgment
rights, title, interest and claims of the debtor as to his property and
judgment obligor to the property at the income (Section 36)
time of levy.
2. He may cause examination of
The deed of conveyance is what the debtor of the judgment
operates to transfer to the purchaser debtor as to any debt owed by
whatever rights the judgment debtor had him or to any property of the
in the property. The certificate of sale judgment debtor in his
after execution sale merely is a possession (Section 37)
memorial of the fact of sale and does
not operate as a conveyance. 3. If after examination, the court
finds that there is property of
The purchaser acquires no better right the judgment debtor either in
than what the judgment debtor has in his own hands or that of any
the property levied upon. Thus, if the person, the court may order the
judgment debtor had already transferred property applied to the
the property executed prior to the levy satisfaction of the judgment
and no longer has an interest in the (Section 37)
property, the execution purchaser
acquires no right. 4. If the court finds the earnings
of the judgment debtor are
WHEN A THIRD PERSON IS IN POSSESSION, more than sufficient for his
The procedure is for the court to order a familys needs, it may order
hearing and determine the nature of payment in installments
such adverse possession. (Section 40)
5. The court may appoint a

Section 34. Recovery of price if sale is receiver for the property of the
not effective; revival of judgment. judgment debtor not exempt
from execution or forbid a
THE PURCHASER MAY RECOVER THE transfer or disposition or
PURCHASE PRICE WHEN interference with such property
(Section 41)

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60
6. If the court finds that the

judgment debtor has an In respect to the Condition, status or
ascertainable interest in real personal, political, relationship of the
property either as mortgagor, or legal condition or person
status of a
mortgagee, or otherwise, and
particular person
his interest can be ascertained
without controversy, the court
may order the sale of such
Par (B) is referred to as bar by former
interest. (Section 42)
judgment or RES JUDICATA in
judgments IN PERSONAM
7. If the person alleged to have
the property of the judgment
RES JUDICATA - final judgments on the
debtor or be indebted to him,
merits by a court of competent
claims an adverse interest in
jurisdiction is conclusive as to the rights
the property, or denies the
of the parties or their privies in all later
debt, the court may authorize
suits on points determined in the former
the judgment-creditor to
judgment.
institute an action to recover
the property, forbid its transfer
REQUISITES:
and may punish disobedience
1. A FINAL judgment or order
for contempt (Section 43)
2. JURISDICTION over the subject
matter and the parties by the
Section 46. When Principal Bound By
court rendering it
Judgment Against Surety.
3. Judgment UPON THE MERITS
The principal is bound by the same
4. Between the two cases:
judgment from the time he has notice of
IDENTITY OF PARTIES
the action or proceeding and has been
IDENTITY OF SUBJECT MATTER
given an opportunity at the suretys
IDENTITY OF CAUSE OF ACTION
request, to join the defense.
THERE IS IDENTITY OF CAUSE OF ACTION
Section 47. Effect Of Judgment Or
when the two actions are based on the
Final Orders.
same delict or wrong committed by the
Refers to judgments which are
defendant even if the remedies are
considered as conclusive and may be
different.
rebutted directly by means of relief from
judgment or annulment of judgment or
Under the doctrine of res judicata, no
indirectly by offering them in evidence
matter how
under the parole evidence rule. Appeal decision of MTC by filing notice of
erroneous a
appeal and pay appellate court docket
judgment may be,
Par (A) refers to rule ON RES JUDICATA fee in the same MTC within 15 days from
once it becomes receipt of judgment
in judgments IN REM
final, it cannot be
corrected. The only grounds are lack
of jurisdiction,
JUDGMENT or EFFECT: CONCLUSIVE
collusion or fraud. 15 days from perfection of appeal,
FINAL ORDER AS TO MTC clerk transmits record to RTC
Par. (C) is known as conclusiveness
Against a specific Title to the thing
thing
of judgment or
rule of AUTER Notice to parties that an appeal is being
Probate of a will or Will or administration ACTION PENDENT taken from the decision of MTC
administration of However, ONLY prima
the estate of a facie evidence of the CONCLUSIVENESS OF JUDGMENT
deceased person death of the testator has the effect of
or intestate Within 15 days from notice of appeal:
preclusion only appellant submits memorandum to
of issues. the RTC
appellee files his own memorandum
15 days from receipt of appellants
memorandum

Charissimae
If uncontested,
Ventura, Jocelyn Zabala SUBJECT HEADS: Jona Obia (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Any party may
Special Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence) judgment is appeal by filing a
entered in the petition for
book of entries review with the
RTC
61
parties in both actions may be the

same but the causes of action are ORDINARY APPEAL - an appeal by notice
different. of appeal from a judgment or final order
of a lower court on questions of fact and
law.
BAR BY FORMER CONCLUSIVENESS OF
JUDGMENT JUDGMENT APPEAL TO THE RTC
Mode of Appeal Notice of Appeal
There is identity of There is ONLY identity of within fifteen (15) days from receipt
parties, subject PARTIES AND SUBJECT of decision.
matter and causes MATTER
of action
After an appeal to the RTC has been
perfected, the MTC loses its
The first judgment The first judgment is jurisdiction over the case and any
constitutes as an conclusive only as to motion for the execution of the
ABSOLUTE BAR TO matters directly adjudged judgment should be filed with the
ALL MATTERS and actually litigated in RTC.
directly adjudged the first action. Second The Summary Rules no longer apply
and those that action can be prosecuted. when the cases is on appeal.
might have been
adjudged.
Section 2. When to Appeal.
1. Within 15 days after notice of
judgment or final order;
Section 48. Effect Of Foreign Judgment 2. Where a record on appeal is
Or Final Orders: required, within 30 days from
notice of judgment or final order
by filing a notice of appeal and a
THE EFFECT OF FOREIGN JUDGMENTS record on appeal;
Provided that the foreign tribunal had 3. Period to appeal shall be
jurisdiction: interrupted by a timely motion
for new trial or reconsideration.
1. IN CASE OF JUDGMENT AGAINST 4. No motion for extension of time
A SPECIFIC THING, the judgment to file a motion for new trial or
is CONCLUSIVE upon the TITLE reconsideration shall be
TO THE THING; allowed.
2. IN CASE OF A JUDGMENT
AGAINST A PERSON, the
judgment is PRESUMPTIVE Section 3. How to Appeal.
EVIDENCE of a right as between By Notice of Appeal:
the parties and their successors- 1. File a notice of appeal with the
in-interest by a subsequent title. trial court.
2. The notice of appeal must
In both instances, the judgment may be indicate:
repelled by evidence of want of a. parties
jurisdiction, notice, collusion, fraud or b. judgment or final order
clear mistake of law or fact. appealed from
c. material date showing
RULE 40 timeliness of appeal
APPEAL FROM MUNICIPAL TRIAL 3. A copy served on the adverse
COURTS TO THE REGIONAL TRIAL party.
COURTS 4. Payment in full of docket fees
and other lawful fees
APPEAL FROM MTC TO RTC

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62
ORDINARY APPEAL PETITION FOR Section 8. Appeal from orders

REVIEW dismissing case without trial; lack of
Matter of right Discretionary jurisdiction
All the records are No records are
elevated from the elevated unless the If lower court dismissed case without
court of origin court decrees it trial on the merits:
Notice of record on Filed with the CA RTC may:
appeal is filed with 1. Affirm, or
the court of origin
2. Reverse, in which case, it shall
remand the case for further
By Record on appeal: proceedings.
1. for special proceedings such as
probate; and If dismissal is due to lack of jurisdiction
2. in such other cases where over the subject matter:
multiple appeals are allowed as RTC may:
in partition and in 1. Affirm; if RTC has jurisdiction,
expropriation. shall try the case on the merits
as if the case was originally filed
Section 4. Perfection of Appeal; effect with it, or
thereof. 2. Reverse, in which case, it
remand the case for further
Appeal is deemed perfected: proceedings.
1. by notice of appeal: as to him,
upon the filing of the notice of If the case was tried on the merits by
appeal in due time; the lower court without jurisdiction
2. by record on appeal: as to him, over the subject matter:
upon the approval of the record RTC shall not dismiss the case if it has
on appeal filed in due time. original jurisdiction, but shall decide the
case, and shall admit amended pleadings
Effect of a perfected appeal: or additional evidence.
The court loses jurisdiction upon the
perfection or approval of appeal and
when the period of appeal for other RULE 41
parties expire. APPEAL FROM REGIONAL
TRIAL COURTS
Residual power of the court prior to the
transmittal of the original record or
record on appeal: APPEALABLE CASES
1. to issue orders for the 1. Judgments or final orders that
preservation of the rights of the completely disposes of the case.
parties which do not involve 2. A particular matter in a
matters litigated by appeal; judgment declared by the Rules
2. to approve compromise prior to to be appealable.
the transmittal of the record;
3. permit appeal by an indigent; NON APPEALABLE CASES
4. order execution pending appeal 1. Order dismissing an action without
under Rule 39, Sec.2 ( motion prejudice
for execution was filed before 2. Order of Execution
the expiration of the period to 3. Judgments or final orders for or
appeal; against one or more of several
5. allow withdrawal of the appeal. parties or in separate claims while
the main case is pending
4. Orders disallowing or dismissing an
Appeal

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63
5. Interlocutory orders
6. Orders denying: File a notice of File a verified File a verified
a. Petition for relief; appeal or a petition for petition for
b. Motion for new trial or record on review with review on
reconsideration; and appeal with the the CA. Pay certiorari with
c. Motion to Set aside a court of origin the docket the SC (R 45)
judgment, by consent, (RTC) and give and lawful Pay docket
confession or compromise a copy to the fees, and P and lawful
on the ground of fraud, adverse party. 500 as deposit fees and P 500
mistake, duress or any for costs with for costs.
ground vitiating consent. the CA. Submit proof
Furnish RTC of service of a
Remedy in cases where appeal is not and adverse copy to the
allowed party copy of lower court
Special civil action of certiorari or such (R 42). and adverse
party.
prohibition if there is lack or excess of
jurisdiction or grave abuse of discretion
or mandamus if there is no performance Within 15 days Within 15 days Within 15
of duty. from the notice from notice of days from
of the judgment the decision notice of the
INTERLOCUTORY ORDER An order for notice of to be judgment or
which does not dispose of the case but appeal and reviewed or order or
leave something else to be done by the within 30 days from the denial of the
trial court on the merits of the case. for records on denial of a MR MR or new
appeal. The or new trial. trial.
period for filing
A judgment based on compromise is not
is interrupted
appealable and is immediately by a timely
executory. motion for
reconsidera-
Section 2. Modes of appeal. tion or new
trial.
Ordinary Petition for Petition for
appeal review review on Section 7. Approval of record on
(appeal by writ [Rule 42] certiorari appeal.
of error) [Rule 45]
Procedure if the appeal is through a
Case is decided Case is The case
record on appeal
by the RTC in decided by raises only a
its original the MTC. question of
jurisdiction Appealed to law 1. file record on appeal
Appealed to the the RTC. 2. appellee may file an objection
CA Petition for within 5 days from his receipt
review with thereof
the CA 3. if there is no objection the court
may:
approve it as presented; OR
direct its amendment on its
own or upon the motion of
the adverse party
4. if an amendment is ordered the
appellant must redraft the
record within the time ordered
or if there is no time, within 10
days from receipt
5. submit the record for approval
with notice on the adverse party

Charissimae
64
The period to appeal is MANDATORY and COURT OF APPEALS in an original action

JURISDICTIONAL. Failure to appeal on for certiorari under Rule 65 (St. Martin
time makes the decision final and Funeral Home vs. NLRC, Sept. 16, 1998).
executory and deprives the appellate
court of jurisdiction. A party adversely affected by a decision
or ruling of the CTA en banc may file
However in few instances the court has with the Supreme Court a verified
allowed due course to such appeals on petition for review on certiorari pursuant
strong and compelling reasons of to Rule 45 (Sec. 12, RA 9282).
justice.
RULE 42
PETITION FOR REVIEW FROM THE RULE 44
REGIONAL TRIAL COURTS TO THE ORDINARY APPEALED CASES
COURT OF APPEALS
Petition for review is not a matter of Section 9. Appellants reply brief.

right but discretionary on the CA. It may
only give due course to the petition if it Failure to file appellant's brief on time is
shows on its face that the lower court a ground for dismissal of the appeal.
has committed an error of fact and/or If a motion to dismiss an appeal has been
law that will warrant a reversal or filed, it suspends the running of the
modification of the decision or judgment period for filing the appellant brief, as
sought to be reviewed; OR dismiss the the same would be unnecessary should
petition if it finds that it is patently the motion be granted.
without merit, or prosecuted manifestly
for delay, or the questions raised therein The failure of the appellant to make
are too unsubstantial to require specific assignment of errors in his brief
consideration. or page references to the record as
required in this section is a ground for
It is merely discretionary on the CA to dismissal of his appeal.
order the elevation of the records. This
is because until the petition is given due Section 15. Questions that may be
course, the trial court may still issue a raised on appeal.
warrant of execution pending appeal and
in some cases such as ejectment and The appeal can raise only questions of
those of Summary Procedure, the law or fact that
judgments are immediately executory. It 1. were raised in the court below;
is only when the CA deems it necessary and
that the Clerk of the RTC will be ordered 2. are within the issues framed by
to elevate the records of the case. the parties thereon.
BRIEF vs. MEMORANDUM

RULE 43
APPEALS FROM THE COURT OF TAX
APPEALS AND THE QUASI-JUDICIAL
BRIEF MEMORANDUM
AGENCIES TO THE CA
Judgments and final orders or resolutions

of the NLRC are reviewable by the

Charissimae
65
Appeals to the SC can be taken from a

Ordinary appeals Certiorari, Prohibition, judgment or final order or resolution of
Mandamus, Quo the CA, the Sandiganbayan, the RTC or
Warranto and Habeas such other courts as maybe authorized
Corpus cases
by law and only by verified petition for
review on certiorari on questions of law
except only in appeals from judgments
Filed within 45 days within 30 days of the RTC in criminal cases wherein the
penalty imposed is life imprisonment or
reclusion perpetua which shall be
Contents specified Shorter, briefer, only
by Rules one issue involved - no elevated by ordinary appeal, or wherein
subject index or the death penalty is imposed which is
assignment of errors just subject to automatic review.
facts and law applicable
GENERAL RULE: the findings of fact of

the CA are final and conclusive and
cannot be reviewed on appeal to the
RULE 45 SC.
APPEAL BY CERTIORARI TO THE
SUPREME COURT EXCEPTIONS to CONCLUSIVENESS OF
FACTS:
1. When the finding is grounded

RTC, Sandiganbayan or CA
renders decision entirely on speculations, surmise
or conjecture;
2. When inference made is
manifestly absurd, mistaken or
Any party files a petition for review on impossible;
certiorari w/in 15 days from notice of 3. When the judgment is premised
final judgment or order of lower court on a misrepresentation of facts;
or notice of denial of motion for
reconsideration or new trial 4. When there is grave abuse of
discretion in the appreciation of
facts;
5. When the findings of fact are
conflicting;
Appellant serves copies of petition on
adverse parties and to the lower court,
6. When the CA in making its
and pay the corresponding docket fees findings went beyond the issues
of the case and the same is
contrary to both the admissions
of appellants and appellees;
SC may dismiss the petition or require 7. When the findings of fact of the
the appellee to comment CA are at variance with those of
Section 1. Filing of petition the trial court, the SC has to
with Supreme Court review the evidence in order to
arrive at the correct findings
If given due course, parties may
submit memoranda based on the record;
8. When the findings of fact are
conclusions without citation of
specific evidence on which they
SC may affirm, reverse, or modify are based;
judgment of the lower court

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66
9. When the facts set forth in the order appealed from preliminary injunction
petition as well as in the or temporary
petitioners main and reply restraining order is
briefs are not disputed by the issued does not stay
the challenged
respondents;
proceeding
10. The findings of fact of the CA is
premised on the supposed The petitioner and the The parties are the
evidence and is contradicted by respondent are the aggrieved party
the evidence on record; original parties to the against the lower
11. When certain material facts and action, and the lower court or quasi-judicial
circumstances have been court or quasi-judicial agency and the
overlooked by the trial court agency is not prevailing parties
which, if taken into account, impleaded
would alter the result of the
case in that they would entitle Motion for Motion for
reconsideration is not reconsideration or for
the accused to acquittal. required new trial is required
If a motion for
reconsideration or new
trial is filed, the
period shall not only
be interrupted but
another
QUESTIONS OF LAW QUESTIONS 60 daysOFshall
be given to the
FACT
Certiorari under Rule 45 vs. certiorari petitioner ( SC Admin.
doubt or controversy doubt or difference
Matter 002-03 )
under Rule 64/65 ( special civil action) as to what the law is arises as to the truth
on certain facts or falsehood of facts,
The court is in the Court exercises
or as to probative
exercise of its original jurisdiction
value of the evidence
CERTIORARI UNDER CERTIORARI UNDER appellate jurisdiction
presented
and power of review
RULE 45 RULE 64/65 if the appellate court the determination
can determine the involves evaluation or
petition is based on petition raises the issue raised without review of evidence
questions of law issue as to whether reviewing or
the lower court acted evaluating the
without jurisdiction or evidence
in excess of Can involve questions query invites the
jurisdiction or with of interpretation of calibration of the
grave abuse of the law with respect whole evidence
discretion to certain set of facts considering mainly the
credibility of
It is a mode of appeal Special civil action witnesses, existence
and relevancy of
Involves the review of Directed against an specific surrounding
the judgment award interlocutory order of circumstances and
or final order on the the court or where relation to each other
merits there is no appeal or and the whole
any other plain, probabilities of the
speedy or adequate situation
remedy
Must be made within filed not later than 60 RULE 46

the reglementary days from notice of ORIGINAL CASES
period judgment, order or
resolution appealed Section 2. To what actions applicable.
from
Under B.P. Blg. 129, the CA has original
Stays the judgment or Unless a writ of

Charissimae
67
jurisdiction to issue writs of mandamus, rendered and may be availed of though

prohibition, certiorari, habeas corpus the judgment has been executed.
and quo warranto, and auxiliary writs or
processes, whether or not they are in aid One important condition for the
of its appellate jurisdiction, and it has availment of this remedy - the petitioner
exclusive original jurisdiction over failed to move for new trial in, or appeal
actions for annulment of judgments of from, or file a petition for relief against,
Regional Trial Courts. or take other appropriate remedies
assailing the questioned judgment or
final order or resolution through no fault
attributable to him.
Section 4. Jurisdiction over person,
how acquired. If he failed to avail of those other
JURISDICTION IS ACQUIRED: remedies without sufficient justification,
he cannot resort to annulment provided
1. Over the PETITIONER - by filing in this Rule, otherwise he would benefit
of the petition. from his own inaction or negligence.
2. Over the RESPONDENT - by the
service on the latter of the order Grounds for ANNULMENT OF
or resolution indicating the JUDGMENT
courts initial action on the 1. extrinsic fraud or collateral
petition and NOT by the service fraud;
on him of the petition or by his 2. lack of jurisdiction;
voluntary submission.
Extrinsic fraud shall not be a valid
Section 5. Action by the court. ground if it was availed of, or could have
been availed of, in a motion for new
PROCEDURAL OUTLINE (original cases trial or petition for relief.
in the Court of Appeals)
1. Filing of the petition EXTRINSIC OR COLLATERAL FRAUD is
2. Order to acquire jurisdiction any fraudulent act of the prevailing
over respondents OR Outright party in the litigation which is
dismissal for failure to comply to committed outside of the trial of the
requirements also form and case, whereby the defeated party has
payment of docket and other been prevented from exhibiting fully and
legal fees. fairly presenting his side of the case.
3. Require respondents to file
COMMENT within 10 days from
NOTICE
EXTRINSIC LACK OF
4. Court may require the filing of a
REPLY or such other pleadings as FRAUD JURISDICTION
it may deem necessary
5. Determination of FACTUAL Period of 4 years from Before it is barred
Filing discovery by laches or
ISSUES, the court may delegate
action estoppel
the reception of evidence on
such issues to any of its Effect of Trial court Original action
members. judgment will try the may be refiled
case
RULE 47
ANNULMENT OF JUDGMENTS OR FINAL Section. 5. Action by the court.
ORDERS AND RESOLUTIONS Two stages:
1. A preliminary evaluation of the
Annulment of judgment is a remedy in petition for prima facie merit
law independent of the case where the therein, and
judgment sought to be annulled was

Charissimae
68
2. The issuance of summons as in 1. by agreement of the parties, as

ordinary civil cases and such where the case was amicably
appropriate proceedings settled by them.
thereafter as contemplated in 2. where the appealed case has
Sec. 6. become moot or academic.
3. where the appeal is frivolous or
The rule allows the CA to dismiss the dilatory.
petition outright as in special civil
actions. Section 2. Dismissal of improper appeal
to the Court of Appeals
For the court to acquire jurisdiction over
the respondent, the rule requires the
No transfer of appeals, erroneously
issuance of summons should prima facie
taken to it or to the Court of Appeals,
merit be found in the petition and the
whichever of these tribunals has
same is given due course.
appropriate appellate jurisdiction, will
RULE 48 be allowed. Also, elevating such appeal
PRELIMINARY CONFERENCE by the wrong mode of appeal shall be a
ground for dismissal.
Section 3. Binding effect of the results A resolution of the Court of Appeals
of the conference dismissing the appeal and remanding the
case to the trial court for further
In the CA, this procedural device may be proceedings is merely interlocutory,
availed of not only in original actions but hence a motion for its reconsideration
also in cases on appeal wherein a new filed year later may be entertained and
trial was granted on the ground of newly granted
discovered evidence. The CA can act as a
trier of facts, hence the preliminary
Section 3. Withdrawal of Appeal
conference authorized is a convenient
adjunct to such power and function.
Court of Appeals may dismiss the appeal
outright even without motion. The
RULE 49
remedy if dismissed for improper appeal
ORAL ARGUMENT
is to refile it in the proper forum but has
to be within the prescribed period.
Section 3. No hearing or oral argument
for motions
RULE 51
JUDGMENT
Motions in the SC and the CA do not
contain notices of hearing as no oral
Law of the Case the opinion delivered
arguments will be heard in support
on a former appeal. It means that
thereof; and if the appellate court
whatever is once irrevocably
desires to hold a hearing thereon, it will
established, as the controlling legal rule
itself set the date with notice to the
or decision between the same parties in
parties.
the same case, continues to be the law
of the case, whether correct on general
RULE 50
principles or not, so long as the facts on
DISMISSAL OF APPEAL
which such decision was predicated
continue to be the facts before the
Section 1. Grounds for dismissal of
court.
appeal
With the exception of Section 1 (b)
But this rule does not apply to
dismissal of an appeal is directory and
resolutions rendered in connection with
not mandatory.
the case wherein no rationale has been
expounded on the merits of that action.
Other grounds for the dismissal of an
appeal are:

Charissimae
69
Section 5. Form of Decision MOTION FOR RECONSIDERATION

The requirement for the statement of
facts and the law refers to a decision or The rules now prohibit a second motion
for that matter a final resolution. The for reconsideration.
same are not required on minute
resolutions since these usually dispose of Sec. 3 provides a time limit of 90 days
the case not on its merits but on for the resolution of a motion for
procedural or technical considerations. reconsideration filed with the Court of
Appeals from the date the same was
Although the court may, if it feels submitted for resolution, which is
necessary, briefly discuss the matter on normally the filing of the last pleading
the merits in an extended resolution. required by the rules of court or the
expiration of such period.
Rules now requires the service of the

motion to the adverse party
With respect to petitions for review and
motions for reconsideration, the
Constitution merely requires a statement RULE 53
of the legal basis for the denial thereof NEW TRIAL
or refusal of due course thereto. The
court may opt, but it is not required to Filing of a motion for new trial is at any
issue an extended resolution thereon. time after the perfection of the appeal
from the decision of the lower court and
Section 6. HARMLESS ERROR before the Court of Appeals loses
The court, at every stage of the jurisdiction over the case
proceeding, must disregard any error or
defect which does not affect the The ground is newly discovered evidence
substantial rights of the parties such as which could not have been discovered
error in admission or exclusion of prior to the trial in the court below by
evidence or error or defect in the ruling the exercise of due diligence and of such
or order. character as would probably alter the
result.
Section 8. Questions that may be
decided RULE 56
Only errors claimed and assigned by a PROCEDURE IN THE SUPREME COURT
party will be considered by the court,
except errors affecting its jurisdiction A. ORIGINAL CASES
over the subject matter. To this Rule specifically states what cases may
exception has now been added errors be originally filed with the Supreme
affecting the validity of the judgment Court
appealed from or the proceedings 1. petition for certiorari,
therein. prohibition, mandamus, quo
warranto, habeas corpus;
Even if the error complained of by a 2. disciplinary proceedings against
party is not expressly stated in his members of the judiciary and
assignment of errors but the same is attorneys
closely related to or dependent on an 3. cases affecting ambassadors,
assigned error and properly argued in his other public ministers and
brief such error may now be considered consuls
by the court.
B. APPEALED CASES Mode of Appeal
RULE 52 In criminal cases where the penalty
imposed is death or reclusion perpetua,
an appeal made to the Supreme Court is

Charissimae
70
through a notice of appeal filed with the depart from the Phils. with
RTC in all other cases, an appeal made intent to defraud his creditors;
to the supreme court is through a
petition for review on certiorari. 2. In actions for recovery of money
or property embezzled or
PROVISIONAL REMEDIES fraudulently converted to his
Also known as ancillary or auxiliary own use by a public officer, or
remedies, are writs and processes an officer of a corp., or an
available during the pendency of the attorney, factor, broker, agent
action which may be resorted to by a or clerk, in the course of his
litigant to preserve and protect certain employment as such, or by any
rights and interests therein pending person in a fiduciary capacity;
rendition, and for purposes of the
ultimate effects, of a final judgment in 3. In actions to recover property
the case. unjustly taken or concealed,
when the property or any of its
part, has been concealed or
disposed of to prevent its being
found by the applicant or any
The following are the provisional authorized person;
remedies provided for in the Rules of
Court 4. In actions against a person guilty
1. Preliminary Attachment (Rule of fraud in incurring or
57) performing an obligation upon
2. Preliminary Injunction (Rule 58) which the action is based;
3. Receivership (Rule 59)
4. Replevin (Rule 60) 5. In actions against a party who
5. Support Pendente Lite (Rule 61) has removed or disposed of his
property, or is about to do so,
PD 1818 prohibits the issuance of with intent to defraud his
injunctive writs not only against creditors;
government entities but also against any
person or entity involved in the 6. In actions against non-residents
execution, implementation, and not found in the Phils., or on
operation of government infrastructure whom summons is served by
projects. publication.
RULE 57 RULE 58
PRELIMINARY ATTACHMENT PRELIMINARY INJUNCTION
The proper party may have the property Preliminary Injunction an order granted
of the adverse party attached at the at any stage of an action or proceeding
commencement of the action or at any prior to the judgment requiring a party
time before entry of judgment. or a court, agency or a person to refrain
from a particular act or acts.
WHEN issued
PRELIMINARY MANDATORY Injunction
1. In actions for recovery of a an order requiring the performance of a
specified sum of money or particular act or acts.
damages, except moral and
exemplary, on a cause of action Grounds
arising from law, contract, 1. applicant is entitled to the relief
quasi-contract, delict or quasi-
demanded; or
delict against a party about to

Charissimae
71
2. commission, continuance or non- GROUNDS FOR OBJECTION

performance of the act 1. insufficiency;
complained of would work 2. if injunction would cause
injustice to the applicant if not irreparable damage to the
enjoined; or person enjoined while the
3. the acts sought to be enjoined applicant can be fully
probably violates the rights of compensated for such damages,
the applicant respecting the PROVIDED the former files a
subject of the action and BOND.
tending to render the judgment
ineffectual. Distinctions
Section 5.
There must be prior notice to the person INJUNCTION PROHIBITION
directed against a Directed against a
sought to be enjoined and a hearing
party in the action court, tribunal or a
before preliminary injunction may be person exercising
granted. judicial powers
does not involve Based on the ground
If great or irreparable injury would jurisdiction of the that the court against
result to the applicant, the court may court whom the writ is
issue ex parte a temporary restraining sought had acted
order, effective only for 20 days from without or in excess of
service on the party sought to be jurisdiction
enjoined.
it may be the main Always the main
If the matter is of extreme urgency and action itself or just a action
the applicant will suffer grave injustice provisional remedy
and irreparable injury, the judge may
issue a TRO effective only for 72 hours
from issuance. Its effectivity may be
extended after conducting a summary RULE 59
hearing w/in the 72-hrs period until the RECEIVERSHIP
application for preliminary injunction
WHEN MAY BE GRANTED
can be heard.
1. applicant has an interest in the
property or fund subject of the
The total period of effectivity of the
proceeding and such property is
TRO shall not exceed 20 days, including
in danger of being lost or
the 72 hours.
materially injured unless a
receiver is appointed;
If application is denied or not resolved
2. in foreclosure of mortgage, when
within said period, the TRO is deemed
the property is in danger of
automatically vacated.
being wasted or dissipated and
that its value is probably
Effectivity of TRO is not extendible.
insufficient to discharge the
There is no need of a judicial declaration
mortgage debt or that it has
to that effect.
been agreed upon by the parties;
3. after judgment, to preserve the
A TRO issued by the CA or any of its
property during the pendency of
members is effective for 60 days from
an appeal or to dispose of it
service on the party sought to be
accdg. to the judgment or to aid
enjoined.
execution;
4. when appointment of receiver is
A TRO issued by the SC or a member
the most convenient and feasible
therof is effective until further orders.
means of preserving,

Charissimae
72
administering or disposing of the RULE 61

property in litigation. SUPPORT PENDENTE LITE
A person who refuses or neglects to When may be applied for: at the

deliver property within his control and commencement of the action or at any
which is the subject of the action to the time before judgment or final order.
receiver may be punished for contempt
and liable to the receiver for the money Failure to comply with an order granting
or the value of the property PLUS support pendente lite may warrant the
damages. issuance of an order of execution against
the non-complying party. He may
The receiver shall also file a bond before likewise be liable for contempt.
entering upon his duties separate from
the bond filed by the applicant. See matrix on provisional remedies
more detailed information.
RULE 60
REPLEVIN
The sheriff shall retain the property for

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

to object or his counter-bond is
insufficient, the sheriff shall deliver the
property to the applicant.
Distinctions
REPLEVIN ATTACHMENT
May be sought only Available even if

when the principal recovery of property is
action is recovery of only incidental to the
personal property. relief sought.
Can be sought only when May be resorted to even

defendant is in actual if the property is in
possession of the possession of a third
property. person.
CANNOT be availed of Can be AVAILED of even

when property is in if property is in
custodia legis CUSTODIA LEGIS.
Available before Available from

defendant answers commencement but
before entry of
judgment
Bond is DOUBLE the Bond is FIXED by the

value of the property court

Charissimae

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MEMORY AID IN REMEDIAL LAW

One party prosecutes The moment said

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

the breach total, hence there can only

the plaintiff availed of by directly Section 5. Joinder of causes of action.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Section 1. Who may be parties; CLASSIFICATION OF PARTIES IN

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

The suit can be brought by or against the

Section 6. Permissive joinder of

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

The absence of an indispensable party

Section 12. Class suit.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

The substitute defendant need not be

2. The claim, subject of the action,

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

temporary, at the time the action is

May be changed by the Cannot be the subject

The rule on VENUE IS NOT APPLICABLE

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

venue. An exception is provided in

PROHIBITED PLEADINGS / MOTIONS

The filing of a prohibited pleading will

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

Although a motion to dismiss is a 1. there has been a confrontation

While a motion to declare the defendant

The issuance of the pre-trial order is an 1. Where one party is the

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

falling within the authority of the brought for settlement before

THE PARTIES MAY GO DIRECTLY TO

The settlement and arbitration A motion to dismiss is NOT a pleading.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

ANSWER the pleading where the

Always filed before May be filed even

a specification of the relief sought, but

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

KATARUNGANG PAMBARANGAY PROCEDURE

Execution Repudiation of Award to be

MEMORY AID IN REMEDIAL LAW

DOCTRINE OF ANCILLARY JURISDICTION

Section 10. Reply.

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

REPLY - the response of the plaintiff to Leave of court to file a third-party

REMEDIAL LAW COMMITTEE

MEMORY AID IN REMEDIAL LAW

A verification must now be based on MANNER OF MAKING ALLEGATIONS IN A

ULTIMATE FACTS: those which directly