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Professor: Judge Myra B. Quiambao

Source: Riano, Willard B. (2009). CIVIL PROCEDURE (A RESTATEMENT FOR THE BAR) RULES 1-71. Quezon City: Rex Printing Company, Inc.

Contents D. Appeal by Certiorari to the Supreme Court (Rule 45) 53

Chapter I - Fundamental Concepts .............................................2 II. Remedies After a Judgment Becomes Final and Executory
I. The Basics of the Civil Litigation Process .............................2 ............................................................................................. 55
II. Powers of the Supreme Court ............................................2 A. Petition for Relief or Relief from Judgments, Orders or
III. The Rules of Court .............................................................2 Other Proceedings (Rule 38) ........................................... 55
IV. Nature of Philippine Courts ..............................................2 B. Annulment of Judgments or Final Orders or Resolutions
V. Pleadings in Civil Cases ......................................................3 (Rule 47).......................................................................... 56
VI. Filing and Service of Pleadings, Judgments and Other C. Certiorari (Rule 65) ..................................................... 58
Papers in Civil Cases ...............................................................7 D. Collateral Attack of a Judgment ................................. 58
VII. Motions in Civil Cases ......................................................8 Chapter XI Execution of Judgments ....................................... 58
Chapter II Cause of Action and Actions ....................................9
I. Cause of Action (Rule 2) ......................................................9
II. Actions .............................................................................11
Chapter III Jurisdiction, Venue and Parties ............................12
I. Jurisdiction ........................................................................12
II. Venue (Rule 4) ..................................................................17
III. Parties .............................................................................18
Chapter IV Filing, Amendment and Dismissal by the Plaintiff 22
A. Filing of the Complaint (Rules 1 & 13).........................22
B. Amendment of Complaint (Rule 10) ...........................22
C. Dismissal by the Plaintiff (Rule 17) ..............................23
Chapter V Summons ..............................................................24
Chapter VI Proceedings After Service of Summons ...............27
A. Motion for Bill of Particulars .......................................27
B. Motion to Dismiss .......................................................27
Chapter VII Answer, Other Pleadings, Default, Judgment on
the Pleadings, Summary Judgment ...........................................29
A. Answer ........................................................................29
B. Counterclaim ...............................................................30
C. Cross-Claim..................................................................31
D. Third (Fourth, Etc.) Party Complaint .........................32
E. Intervention.................................................................32
F. Reply ............................................................................32
G. Default ........................................................................33
H. Judgment on the Pleadings .........................................34
I. Summary Judgment......................................................34
Chapter VIII Pre-Trial and Modes of Discovery ......................35
A. Pre-Trial.......................................................................35
B. Modes of Discovery.....................................................37
Interrogatories to Parties (Rule 25) .................................38
Admission by Adverse Party (Rule 26).............................39
Production or Inspection of Documents or Things (Rule
27) ...................................................................................40
Physical and Mental Examination of Persons (Rule 28) ..40
Chapter IX Trial, Demurrer to Evidence and Judgment ..........41
A. Trial .............................................................................41
B. Demurrer to Evidence .................................................42
C. Judgment.....................................................................43
Chapter X Post Judgment Remedies ......................................46
I. Remedies Before a Judgment Becomes Final and Executory
A. Motion for Reconsideration (Rule 37) ........................47
B. Motion for New Trial (Rule 37) ...................................48
APPEALS ...............................................................................48
A. Appeal from Municipal Trial Courts to the Regional
Trial Courts (Rule 40) .......................................................50
B. Appeal from the Regional Trial Courts to the Court of
Appeals (Rule 41) ............................................................51
C. Petition for Review from the Regional Trial Courts to
the Court of Appeals (Rule 42) ........................................52
Chapter I - Fundamental Concepts not judicial proceedings. The Lupon and the Pangkat
do not have inherent adjudicatory powers. They
I. The Basics of the Civil Litigation Process resolve disputes or attempt to do so through
mediation and conciliation. Any adjudicatory power
I. Complaint exercised by any of these bodies must be agreed
upon by the parties in writing.
A. Right of Action and Cause of Action 2. The primordial aim of the Katarungang Pambarangay
B. Jurisdiction, Venue and Parties, Prescription and Law is to reduce the number of court litigations and
Conditions Precedent prevent the deterioration of the quality of justice
C. Preparation of the Complaint which has been brought about by the indiscriminate
D. Filing of the Complaint filing of cases in the courts.
E. Dismissal of the Action by the Plaintiff
F. Amendment of the Complaint Initiation of proceedings
1. Upon payment of the appropriate filing fee, any
II. Summons individual who has a cause of action against another
III. Answer individual involving any matter within the authority of
IV. Pre-Trial the Lupon may complain, orally or in writing to the
V. Trial chairman of the Lupon (Punong Barangay).
VI. Judgment 2. Upon receipt of the complaint, the chairman shall
VII. Post Judgment Remedies summon the respondents within the next working
VIII. Execution day to appear. If the chairman fails in his mediation
efforts within fifteen (15) days from the first meeting,
II. Powers of the Supreme Court he shall set a date to constitute the Pangkat
Rule-Making Power of the Supreme Court
Limitations on the Rule-Making Power of the Supreme Court Personal appearance of parties
Legislative Power and the Rule-Making Power of the Supreme
Court The parties must appear in person and without the assistance
Liberal Construction of the Rules of Court of counsel or representatives, except for minors and
Power of the Supreme Court to Suspends its Own Rules incompetents who may be assisted by their next-of-kin who are
Power to Amend the Rules not lawyers.
Power to Stay Proceedings and Control its Processes
Parties to the proceedings
III. The Rules of Court
No complaint by or against corporations, partnerships or other
juridical entities shall be filed, received or acted upon.
The Procedural Rules Under the Rules of Court Are Not Laws
Substantive Law Distinguished from Remedial Law
Subject matters for settlement
Prospective Effect of the Rules of Court
Applicability to Pending Actions; Retroactivity
GR: All disputes may be the subject of the barangay
When Procedural Rules Do Not Apply to Pending Actions
proceedings for amicable settlement.
Applicable Actions or Proceedings
Scope of Civil Procedure
a. Where one party is the government, or any
IV. Nature of Philippine Courts
subdivision or instrumentality thereof;
Courts of Law and Equity
b. Where one party is a public officer or employee, and
Application of Equity; Equity Jurisdiction
the dispute relates to the performance of his official
Principle of Hierarchy
When the Doctrine of Hierarchy of Courts May be Disregarded
Doctrine of Non-Interference or Doctrine of Judicial Stability
c. Offenses punishable by imprisonment exceeding one
Constitutional and Statutory Courts
(1) year or a fine exceeding Five thousand pesos
Civil and Criminal Courts
Courts of Record and Courts Not of Record
Superior and Inferior Courts
d. Offenses where there is no private offended party;
Courts of General and Special Jurisdiction
Courts of Original and Appellate Jurisdiction
e. Where the dispute involves real properties located in
Original and Exclusive Jurisdiction Distinguished
different cities or municipalities unless the parties
Concurrent Jurisdiction
thereto agree to submit their differences to amicable
Meaning of Court
settlement by an appropriate lupon;
Court Distinguished From a Judge
Katarungang Pambarangay Law (Secs. 399-422, Chapter 7,
f. Disputes involving parties who actually reside in
Title One, Book III, R.A. No. 7160)
barangays of different cities or municipalities, except
1. The proceeding before the Lupong Tagapamayapa or
where such barangay units adjoin each other and the
the Pangkat ng Tagapagkasundo of the Barangay are
parties thereto agree to submit their differences to

2|P L A T O N
amicable settlement by an appropriate lupon. Note: The repudiation shall be sufficient basis for the
Where the parties are not actual residents in the issuance of the certification for filing a complaint
same city of municipality or adjoining Barangays,
there is no mandatory requirement for them to 2. Under the Rules on Summary Procedure:
submit their dispute to the Lupon;
Sec. 18. Referral to Lupon. Cases requiring referral to the
g. Such other classes of disputes which the President Lupon for conciliation under the provisions of Presidential Decree
may determine in the interest of Justice or upon the No. 1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice and may be
recommendation of the Secretary of Justice.
revived only after such requirement shall have been complied
with. This provision shall not apply to criminal cases where the
Referral to the Lupon by the court accused was arrested without a warrant.

The court in which non-criminal case is filed may motu proprio Sec. 19. Prohibited pleadings and motions. The following
refer the case, at any time before trial, to the Lupon concerned pleadings, motions or petitions shall not be allowed in the cases
for amicable settlement, the foregoing rules notwithstanding covered by this Rule: (a) Motion to dismiss the complaint or to
and even if the case does not fall within the authority of the quash the complaint or information except on the ground of lack
of jurisdiction over the subject matter, or failure to comply with
the preceding section;

Form of settlement
3. Under Sec. 1(j) of Rule 16, a motion to dismiss a civil
complaint may be filed if a condition precedent to the
All amicable settlements shall be in writing, in a language or
filing of an action is not complied with. Failure to
dialect known to the parties, signed by them, and attested to
undergo the barangay conciliation proceedings is
by the lupon chairman or the pangkat chairman, as the case
non-compliance of a condition precedent.
may be.
4. The court may not motu proprio dismiss a case on the
Effect of amicable settlement and award
ground of failure to comply with the requirement for
1. The amicable settlement and arbitration award shall
barangay conciliation, the ground not being among
have the effect of a final judgment of a court upon
those mentioned for the dismissal of a complaint on
the expiration of ten (10) days from the date thereof,
the initiative of the court.
unless repudiation of the settlement has been made
or a petition to nullify the award has been filed
5. The conciliation proceedings required is not a
before the proper city or municipal court.
jurisdictional requirement because the failure to have
2. Any party to the dispute may, within ten (10) days
prior recourse to it does not deprive the court of its
from the date of the settlement, repudiate the same
by filing with the lupon chairman a statement to that
effect sworn to before him, where the consent is
6. It is well-settled that the non-referral of a case for
vitiated by fraud, violence or intimidation. Failure
barangay conciliation when so required under the law
shall be deemed a waiver of the right to challenge the
is not jurisdictional in nature and may therefore be
settlement on said grounds.
deemed waived if not raised seasonably in a motion
to dismiss.
Execution of award or settlement
1. Execution shall issue upon the expiration of ten (10)
V. Pleadings in Civil Cases
days from date of settlement or receipt of award.
2. The amicable settlement or award may be enforced
Nature of pleadings
by the Lupon within six (6) months from date of
settlement or date of receipt of the award or from
Pleadings are written statements of the respective claims and
the date the obligation stipulated or adjudged in the
defenses of the parties submitted to the court for appropriate
settlement becomes due and demandable. After the
judgment. Pleadings cannot be oral because they are clearly
lapse of such time, the settlement or award may be
described as written statements.
enforced by the appropriate local court pursuant to
the applicable provisions of the Rules of Court.
Necessity and purpose of pleadings
1. Pleadings are necessary to invoke the jurisdiction of
Importance of barangay conciliation proceedings
the court. It is necessary, in order to confer
1. No complaint, petition, action, or proceeding
jurisdiction on a court, that the subject matter be
involving any matter within the authority of the lupon
presented for its consideration in a mode sanctioned
shall be filed or instituted directly in court or any
by law and this is done by filing of a complaint or
other government office for adjudication, unless
other pleading.
there has been a confrontation between the parties
2. Pleadings are intended to secure a method by which
before the lupon chairman or the pangkat, and that
the issues may be properly laid before the court.
no conciliation or settlement has been reached as
Pleadings are designed to present, define and narrow
certified by the lupon secretary or pangkat secretary
the issues, to limit the proof to be submitted in the
as attested to by the lupon or pangkat chairman or
trial, to advise the court and the adverse party of the
unless the settlement has been repudiated by the
issues and what are relied upon as the causes of
parties thereto.
action or defense.

3|P L A T O N
shall be all named in the original complaint or petition; but in
Construction of pleadings subsequent pleadings, it shall be sufficient if the name of the
1. In this jurisdiction, all pleadings shall be liberally first party on each side be stated with an appropriate indication
construed so as to do substantial justice. The whether there are other parties. E.g.: Pedro Reyes, et al.
intention of the pleader is controlling factor in
construing a pleading ad should be read in Variance between caption and allegations in the pleading
accordance with its substance, not its form. 1. It is not the caption of the pleading but the
2. It has also been ruled that a party is strictly bound by allegations therein which determine the nature of the
the allegations, statements or admissions made in his action and the court shall grant relief warranted by
pleadings and cannot be permitted to take a the allegations and proof even if no such relief is
contradictory position. prayed for.
2. The allegations of the pleading determine the cause
Construction of ambiguous allegations in pleadings of action and not the title of the pleading.

In case there are ambiguities in the pleadings, the same must Body of the pleading
be construed most strongly against the pleader and that no 1. The body of the pleading sets forth its designation,
presumptions in his favor are to be indulged in. the allegations of the partys claims or defenses, the
relief prayed for, and the date of the pleading.
System of pleading in the Philippines 2. The allegations in the body of the pleading shall be
divided into paragraphs and shall be so numbered for
The system of pleading used in the Philippines is the Code ready identification. This numbering scheme is
Pleading following the system observed in some states of the significant because in subsequent pleadings, a
United States like California and New York. paragraph may be referred to only by its number
without need for repeating the entire allegations in
Pleadings allowed by the Rules of Court the paragraph. Each paragraph shall contain a
a) Complaint; statement of a single set of circumstances so far as
b) Answer; that can be done with convenience.
c) Counterclaim;
d) Cross-claim; Designation of causes of actions joined in one complaint
e) Third (fourth, etc.) party complaint;
f) Complaint-in-intervention; and When two or more causes of action are joined, the first cause
g) Reply of action shall be prefaced with the words, first cause of
action, or the second cause of action by the words, second
Pleadings allowed under the Rules on Summary Procedure cause of action, and so on for the others.
a) Complaint;
b) Compulsory counterclaim; Allegations ultimate facts
c) Cross-claim; pleaded in the answer; and 1. Every pleading, including the complaint, is not
d) Answers thereto supposed to allege conclusions. A pleading must only
aver facts because conclusions are for the courts to
Pleadings not allowed in a petition for a writ of amparo or make.
habeas data 2. Not all facts may be allowed as averments in a
pleading. Under Sec. 1 of Rule 6, every pleading shall
In addition to certain prohibited motions, the following omit from its allegations statements of mere
pleadings are not allowed: evidentiary facts.
a) Counter-claim; 3. Ultimate facts i.e., the facts essential to a partys
b) Cross-claim; cause of action or defense or such facts as are so
c) Third-party complaint; essential that they cannot be stricken out without
d) Reply; and leaving the statement of the cause of action
e) Pleadings in intervention. inadequate.

The same provisions prohibit the filing of a petition for Relief

certiorari, mandamus or prohibition against any interlocutory 1. Following the averments of the cause of action of the
order. plaintiff, the complaint must contain a statement of
the relief sought from the court and to which he
Caption of the pleading believes he is entitled (prayer or wherefore). The
Rules of Court requires that the relief sought be
The caption contains the following: (a) the name of the court; specified, although the statement may include a
(b) the title of the action; and (c) the docket number, if general prayer for such further or other relief as may
assigned. be deemed just or equitable.
2. The relief or prayer, although part of the complaint,
Title of the action does not constitute a part of the statement of the
cause of action.
The title of the action contains the names of the parties whose 3. It is important to remember that the court may grant
participation in the case shall be indicated. This means the a relief not prayed for as long as the relief is
parties shall be indicated as either plaintiff or defendant. They

4|P L A T O N
warranted by the allegations of the complaint and the
proof. The verification requirement is significant, as it is intended to
secure an assurance that the allegations in a pleading are true
Signature and address and correct and not the product of the imagination or a matter
1. The complaint must be signed by the plaintiff or of speculation, and that the pleading is filed in good faith. The
counsel representing him indicating his address. This absence of a proper verification is cause to treat he pleading as
address should not be a post office box. unsigned and dismissible.
2. In the absence of a proper notice to the court of a
change of address, service upon the parties must be Effect of lack of a verification
made at the last address of their counsel of record. 1. A pleading required to be verified but lacks the
3. A signed pleading is one that is signed either by the proper verification shall be treated as an unsigned
party himself or his counsel. pleading. Hence, it produces no legal effect.
2. It is only a formal and not a jurisdictional
Effect of an unsigned pleading requirement.
3. The absence of a verification may be corrected by
The signature in a pleading is important for it to have a legal requiring an oath.
effect. Under the Rules of Court, an unsigned pleading
produces no legal effect. The court however, is authorized to Other requirements
allow the pleader to correct the deficiency if the pleader shows 1. All pleadings, motions and papers filed in court by
to the satisfaction of the court, that the failure to sign the counsel shall bear in addition to counsels current
pleading was due to mere inadvertence and not to delay the Professional Tax Receipt Number (PTR), counsels
proceedings. current IBP Official Receipt Number indicating its date
of issue.
Significance of the signature of counsel 2. To indicate their Roll of Attorneys Number in all
1. The signature of a counsel in a pleading is significant. papers and pleadings filed in judicial and quasi-
His signature constitutes a certificate by him that (a) judicial bodies.
he has read the pleading, (b) that to the best of his 3. All practicing members of the bar are required to
knowledge, information and belief there is good indicate in all pleadings filed before the courts or
ground to support it, and (c) that it is not interposed quasi-judicial bodies, the number and date of issue of
for delay. their MCLE Certificate of Compliance or Certificate of
2. A counsel who deliberately files an unsigned pleading Exemption.
shall be subject to an appropriate disciplinary action.
A disciplinary action will likewise be taken against him Certification against forum shopping
if he signs a pleading in violation of the Rules, when 1. The certification against forum shopping is a sworn
he alleges scandalous or indecent matter in his statement certifying to the following matters:
pleading, or when he fails to promptly report to the a. That the party has not commenced or filed
court a change in his address. any claim involving the same issues in any
3. It has been held that counsels authority and duty to court, tribunal, or quasi0judicial agency
sign a pleading are personal to him. and, to the best of his knowledge, no such
other action or claim is pending;
When counsel is subject to disciplinary action in connection b. That if there is such other pending action or
with pleadings claim, a complete statement of the present
a) When he deliberately files an unsigned pleading; status thereof; and
b) When he signs a pleading in violation of the Rules; c. That if he should therefore learn that the
c) When he alleges in the pleading scandalous or same, or similar action or claim has been
indecent matter; or filed or is pending, he shall report that fact
d) When he fails to promptly report to the court a within five (5) days therefrom to the court
change of his address. wherein his aforesaid complaint or
initiatory pleading has been filed.
Verification in a pleading 2. The certification is mandatory but not jurisdictional.

GR: The pleading need not be under oath. This means that a Meaning of forum shopping
pleading need not be verified.
There is forum shopping when, as a result of an adverse opinion
XPN: A pleading will be verified only when a verification is in one forum, a party seeks a favorable opinion, other than by
required by a law or by a rule. appeal or certiorari in another. There can also be forum
shopping when a party institutes two or more suits in different
How a pleading is verified courts, either simultaneously or successively, in order to ask the
courts to rule on the same or related causes and/or to grant the
A pleading is verified by an affidavit. This affidavit declares that: same or substantially the same reliefs on the supposition that
(a) the affiant has read the pleading, and (b) that the one or the other court would make a favorable disposition or
allegations therein are true and correct of his personal increase a partys chances of obtaining a favorable decision or
knowledge or based on authentic records. action.

Significance of a verification Rationale against forum shopping

5|P L A T O N
It has also been held that the rules on forum shopping which
The rationale against forum shopping is that a party should not were precisely designed to promote and facilitate the orderly
be allowed to pursue simultaneous remedies in two different administration of justice, should not be interpreted with such
fora. Filing multiple petitions or complaints constitutes abuse absolute liberalness as to subvert its own ultimate and
of court processes, which tends to degrade the administration legitimate objective which is the goal of all rules of procedure
of justice, wreaks havoc upon orderly judicial procedure, and that is, to achieve substantial justice as expeditiously as
adds to the congestion of the heavily burdened dockets of the possible. The rule is subject to the power of the Supreme Court
courts. Thus, the rule proscribing forum shopping seeks to to suspend procedural rules and to lay down exceptions to the
promote candor and transparency among lawyers and their same.
clients in the pursuit of their cases before the courts to
promote the orderly administration of justice, prevent undue Signing the certification when the plaintiff is a juridical entity
inconvenience upon the other party, and save the precious
time of the courts. It also aims to prevent the embarrassing A juridical entity, unlike a natural person, can only perform
situation of two or more courts or agencies rendering physical acts through properly delegated individuals. The
conflicting resolutions or decisions upon the same issue. certification against forum shopping where the plaintiff or a
principal party is a juridical entity like a corporation, may be
How to determine existence of forum shopping executed by properly authorized persons. This person may be
1. To determine whether a party violated the rule the lawyer of a corporation. As long as he is duly authorized by
against forum shopping, the most important question the corporation and has personal knowledge of the facts
to ask is whether the elements of litis pendentia are required to be disclosed in the certification against forum
present or whether a final judgment in one case will shopping, the certification may be signed by the authorized
result to res judicata in another. Otherwise stated, to lawyer.
determine forum shopping, the test is to see whether
in the two or more cases pending, there is identity of Pleadings requiring a certification against forum shopping
parties, rights or causes of action, and reliefs sought.
2. Forum-shopping exists when the elements of litis The certification against forum shopping applies to the
pendentia are present or where a final judgment in complaint and other initiatory pleadings asserting a claim.
one case will amount to res judicata in another. Litis These initiatory pleadings include not only the original
pendentia requires the concurrence of the following complaint but also a permissive counterclaim, cross-claim, third
requisites: (1) identity of parties, or at least such (fourth, etc.)party complaint, complaint-in-intervention,
parties as those representing the same interests in petition or any application in which a party asserts his claim for
both actions; (2) identity of rights asserted and reliefs relief. The rule does not require a certification for a compulsory
prayed for, the reliefs being founded on the same counterclaim because it cannot be the subject of a separate
facts; and (3) identity with respect to the two and independent adjudication. It is therefore, not an initiatory
preceding particulars in the two cases, such that any pleading.
judgment that may be rendered in the pending case,
regardless of which party is successful would amount Effects of non-compliance with the rule on certification
to res adjudicata in the other case. against non-forum shopping
3. What is pivotal in determining whether forum- 1. The failure to comply with the required certification is
shopping exists or not is the vexation caused the not curable by a mere amendment and shall be a
courts and parties-litigants by a party who asks cause for the dismissal of the action.
different courts and/or administrative agencies to The dismissal for failure to comply with the
rule on the same or related causes and/or grant the certification requirement is not to be done by the
same or substantially the same reliefs, in the process court motu proprio. The rule requires that the
creating possibility of conflicting decisions being dismissal be upon motion and after hearing.
rendered by the different courts and/or 2. If the case is dismissed for failure to comply with the
administrative agencies upon the same issues. certification requirement, the dismissal is, as a rule,
4. At its most basic, however, prohibited forum without prejudice, unless the order of dismissal
shopping refers to actions involving the same otherwise provides.
issues. 3. The failure to submit a certification against forum
shopping is a ground for dismissal, separate and
Who executes the certification against forum shopping distinct from forum shopping as a ground for
It is the plaintiff or principal party who executes the
certification under oath. The certification must be executed by No appeal from an order of dismissal
the party, not the attorney.
This is because an order dismissing an action without prejudice
It is the petitioner and not the counsel who is in the best is not appealable. The remedy provided for under Sec. 1 of Rule
position to know whether he or it actually filed or caused the 41 is to avail of the appropriate special civil action under Rule
filing of a petition. A certification signed by counsel is a 65.
defective certification and is a valid cause for dismissal.
Effect of willful and deliberate forum shopping
Liberal interpretation of the rules in the signing of the
certification against forum shopping If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be a ground for

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summary dismissal. Hence, no motion to dismiss and hearing The filing of a pleading or paper shall be proved by its existence
are required. The dismissal in this case with prejudice and shall in the record of the case. If it is not in the record:
constitute direct contempt, as well as cause for administrative 1. If filed personally, the filing shall be proved by the
sanctions. written or stamped acknowledgment of its filing by
the clerk of court in a copy of the same.
Effect of submission of a false certification 2. If filed by registered mail, proof of filing is by the
registry receipt and by the affidavit of the person who
Under the Rules, it shall constitute indirect contempt of court did the mailing, containing a full statement of the
without prejudice to the corresponding administrative and date and place of depositing the mail in the post
criminal sanctions. office in a sealed envelope addressed to the court,
with postage fully prepaid, and with instructions to
Effect of non-compliance with the undertakings the postmaster to return the mail to the sender after
10 days if not delivered.
It has the same effect as the submission of a false certification.
Papers required to be filed and served
VI. Filing and Service of Pleadings, Judgments and Other a) Judgments,
Papers in Civil Cases b) Resolutions,
c) Orders,
Meaning of filing d) Pleadings subsequent to the complaint,
e) Written motion,
Filing is the act of presenting the pleading or other papers to f) Notices,
the clerk of court. g) Appearances,
h) Demands,
Meaning of service i) Offers of judgment, or
j) Similar papers
Service is the act of providing a party with a copy of the
pleading or paper concerned. Modes of service
a) Personally, or
Upon whom service shall be made b) By mail
1. If a party has not appeared by counsel, then common c) Otherwise, by substituted service
reason suggests that service must be made upon him.
2. If a party has appeared by counsel, then service upon Personal service
said party shall be made upon his counsel or one of 1. The preferred mode of service; If another mode is
them, unless service upon the party himself is used, the service must be accompanied by a written
ordered by the court. explanation why the service was not done personally,
3. It has been held that notice or service made upon a otherwise, the paper may be considered as not
party who is represented by counsel is a nullity. XPN: having been filed. XPN: Papers emanating from the
Ordered by the court. court.
4. The reason is simplethe parties, generally, have no 2. Under Section 11, Rule 13 of the Rules, personal
formal education or knowledge of the rules of service of pleadings and other papers is the general
procedure, specifically, the mechanics of an appeal or rule while resort to the other modes of service and
availment of legal remedies; thus, they may also be filing is the exception. When recourse is made to the
unaware of the rights and duties of a litigant relative other modes, a written explanation why service or
to the receipt of a decision. filing was not done personally becomes
5. Where one counsel appears for several parties, indispensable. If no explanation is offered to justify
service shall be made upon said counsel but he shall resorting to the other modes, the discretionary power
be entitled only to one copy of any paper served of the court to expunge the pleading comes into play.
upon him by the opposite side. 3. Personal service is made by: (a) delivering a copy of
the papers served personally to the party or his
Manner of filing counsel, or (b) by leaving the papers in his office with
1. There are two modes of filing, to wit: his clerk or a person having charge thereof. If no
a. By presenting the original copy of the person is found in the office, or his office is not
pleading, notice, appearance, motion, order known or he has no office, then by leaving a copy of
or judgment personally to the clerk of court; the papers at the partys or counsels residence, if
or known, with a person of sufficient age and discretion
b. By registered mail. residing therein between 8am and 6pm.
2. In the first mode, the clerk of court shall indicate or
endorse on the pleading or paper filed, the date and When personal service is deemed complete
hour of filing.
3. In the second mode, the date of mailing as shown by Upon actual delivery following the above procedure, personal
the post office stamp on the envelope or registry service is deemed complete.
receipt shall be considered as the date of filing.
Service by mail
How to prove filing 1. The preferred service by mail is by registered mail.
Service by ordinary mail may be done only if no

7|P L A T O N
registry service is available in the locality of either the c) The supporting affidavits and other papers. Note: The
sender of the addressee. last requirement applies only when so mandated by
2. By depositing the copy in the post office, in a sealed the Rules or when necessary to prove facts stated in
envelope, plainly addressed to the party or his the motion.
counsel at his office, if known, or otherwise at his
residence, if known, with postage fully prepaid, and Hearing of the motion
with instructions to the postmaster to return the mail 1. As a rule, every written motion shall be set for
to the sender after 10 days if not delivered. hearing by the applicant.
2. Every written motion is deemed a litigated motion,
When service by mail is deemed complete i.e., one which requires the parties to be heard before
1. By ordinary mail, upon expiration of 10 days after a ruling on the motion is made by the court because it
mailing, unless the court otherwise provides. affects the substantial rights of the parties.
2. By registered mail, upon actual receipt by the 3. An ex parte motion, on the contrary, is one which
addressee, or after 5 days from the date he received does not require that the parties be heard and which
the first notice of the postmaster, whichever is the court may act upon without prejudicing the rights
earlier. of the other party. This kind of motion is not covered
by the hearing requirement of the Rules.
Substituted service 4. An example of an ex parte motion is that one filed by
1. Availed only when there is a failure to effect service the plaintiff pursuant to Sec. 1 of Rule 18 in which he
personally or by mail (i.e., when the office and moves promptly that the case be set for pre-trial. On
residence of the party or counsel is unknown). the other hand, a motion to dismiss (Rule 16), a
2. Effected by delivering the copy to the clerk of court, motion for judgment on the pleadings (Rule 34) and a
with proof of failure of both personal service and summary judgment (Rule 35), on the other hand, are
service by mail. litigated motions.
5. A motion for extension of time is not a litigated
When substituted service is complete motion. It has been said that "ex parte motions are
frequently permissible in procedural matters, and
Complete at the time of delivery of the copy of the clerk of also in situations and under circumstances of
court. emergency; and an exception to a rule requiring
notice is sometimes made where notice or the
How to prove service resulting delay might tend to defeat the objective of
1. Personal service: the written admission of the party the motion."
served; by the official return of the server, or the
affidavit of the party serving, containing full Notice of the motion
information of the date, place and manner of service. 1. The motion contains the notice of hearing shall be
2. Ordinary mail: the affidavit of the person mailing of served in such a manner as to ensure its receipt by
the facts showing compliance with Sec. 7 of Rule 13. the other party at least three (3) days before the date
3. Registered mail: such affidavit and the registry receipt of hearing, unless the court for good cause sets the
issued by the mailing office. The registry return card is hearing on shorter notice.
to be filed immediately upon its receipt by the 2. The notice of hearing shall be addressed to all the
sender, or in lieu thereof the unclaimed letter parties concerned.
together with the certified or sworn copy of the 3. The notice of hearing shall specify the time and date
notice given by the postmaster to the addressee. of the hearing which shall not be later than ten (10)
days after the filing of the motion.
VII. Motions in Civil Cases
Service of the motion
Definition of a motion
The motion must be served upon the other party. A motion set
A motion is an application for relief other than by a pleading. for hearing shall not be acted upon by the court without proof
of service thereof.
Form of motions
1. All motions must be in writing. Excepted from this Motion day
written requirement are those motions (a) made in
open court, and (b) motions made in the course of a All hearings shall be scheduled for hearing in Friday afternoon,
hearing or trial. or if Friday is a non-working holiday, in the afternoon of the
2. The Rules that apply to pleadings shall also apply to next working day. This rule does not apply to motions requiring
written motions so far as concerns caption, immediate attention.
designation, signature, and other matters of form.
Effect of failure to set the motion for hearing, to include a
Contents of a motion notice of hearing and to serve the motion (Secs. 4, 5, 6 of Rule
Motions are to contain the following:
a) A statement of the relief sought to be obtained; The well-settled rule is that a motion which fails to comply with
b) The grounds upon which the motion is based; and the requirements under Secs. 4, 5 and 6 of Rules 15, is a useless
price of paper.

8|P L A T O N
1. The cause of action must be unmistakably be stated
A motion which does not comply with the rules on motion is or alleged in the complaint or that all the elements of
considered pro forma and thus, will be treated as one filed the cause of action required by substantive law must
merely to delay the proceedings. clearly appear from the mere reading of the
The omnibus motion rule 2. Where there is a defect or an insufficiency in the
1. The rule is a procedural principle which requires that statement of the cause of action, a complaint may be
every motion that attacks a pleading, judgment, order dismissed not because of an absence or a lack of a
or proceeding shall include all grounds then available, cause of action but because the complaint states no
and all objections not so included shall be deemed cause of action. The dismissal will therefore, be
waived. anchored on a failure to state a cause of action.
2. XPN:
a. that the court has no jurisdiction over the Failure to state a cause of action and lack of a cause of action;
subject matter; Failure to establish a cause of action
b. litis pendencia; 1. A failure to state a cause of action is not the same as
c. res judicata; and an absence or a lack of a cause of action. The former
d. prescription (Sec.1, Rule 9). refers to an insufficiency in the allegations of the
3. A motion to dismiss is a typical example of a motion complaint while the latter refers to the failure to
subject to the omnibus motion rule, since a motion to prove or to establish by evidence ones stated cause
dismiss attacks a complaint which is a pleading. of action. Note: Under Rule 16, the ground is that
Following the omnibus motion rule, if a motion to the pleading asserting the claim states no cause of
dismiss is filed, then the motion must invoke all action.
objections which are available at the time of the filing 2. The ground for dismissal based on the fact that the
of said motion. If the objection which is available at pleading asserting the claim states no cause of action
the time is not included in the motion, that ground is (raised in a motion under Rule 16) is different from
deemed waived. It can no longer be invoked as an the ground that the case of the claimant should be
affirmative defense in the answer which the movant dismissed for lack of cause of action (raised in a
may file following the denial of his motion to dismiss. demurrer to evidence under Rule 33).
3. There is a failure to state a cause of action if
Chapter II Cause of Action and Actions allegations in the complaint taken together, do not
completely spell out the elements of a particular
I. Cause of Action (Rule 2) cause of action.
4. Only the facts alleged in the complaint, and no other
Meaning should be considered to determine the sufficiency of
the cause of action.
A cause of action is the act or omission by which a party
violates the rights of another. Test of sufficiency of the statement of a cause of action

Elements of a cause of action Whether or not admitting the facts alleged, the court could
1. A right in favor of the plaintiff by whatever means render a valid verdict in accordance with the prayer of the
and under whatever law it arises or is created; complaint.
2. An obligation on the part of the named defendant to
respect or not to violate such right; and Allegations of the complaint determine whether or not the
3. Act or omission on the part of such defendant in complaint states a cause of action
violation of the right of the plaintiff or constituting a 1. Current jurisprudence establishes the rule that the
breach of the obligation of the defendant to the court ought not to consider matters outside of the
plaintiff for which the latter may maintain an action complaint in determining whether or not a complaint
for recovery of damages or other appropriate relief. states a cause of action.
2. The sufficiency of the statement of the cause of
Cause of action as applied to administrative cases action must appear on the face of the complaint and
its existence may be determined only by the
The issue is not whether the complainant has a cause of action allegations of the complaint, consideration of other
against the respondent, but whether the respondent has facts being proscribed and any attempt to prove
breached the norms and standards of the office. extraneous circumstances not being allowed.

Cause of action in specific cases Allegations of the complaint also determine the nature of the
cause of action
Action distinguished from cause of action
The cause of action in a complaint is not what the designation
An action is the suit filed in court for the enforcement or of the complaint states, but what the allegations in the body of
protection of a right or the prevention or redress of a wrong. A the complaint define and describe.
cause of action is the basis of the action filed.
How to state the cause of action
Failure to state a cause of action 1. The pleading asserting the claim or the cause of
action must contain only the ultimate facts. These

9|P L A T O N
facts must be stated in a plain, concise, and Pleading capacity to sue or be sued
methodical and logical form. Evidentiary facts must
be omitted. Facts showing the capacity of a party to sue or be sued must be
2. The ultimate facts refer to the essential facts of the averred. If a party is suing or sued in a representative capacity,
claim. A fact is essential if it cannot be stricken out the same must also be averred. If a party is an organized
without leaving the statement of the cause of action association of persons, its legal existence must likewise be
insufficient. The ultimate facts are the important and averred.
substantial facts which form the basis of the primary
right of the plaintiff and which make up the wrongful Pleading fraud, mistake or condition of the mind
act or omission of the defendant. The ultimate facts 1. When making averments of fraud or mistake, the
do not refer to the details of probative matter or to circumstances constituting such fraud or mistake
the particulars of evidence by which the material must be stated with particularity. These particulars
elements are to be established. They are the would necessarily include the time, place and specific
principal, determinate, constitutive facts, upon the acts of fraud committed against him.
existence of which, the entire cause of action rests. 2. Malice, intent, knowledge or other conditions of the
3. The complaint, in stating the cause of action, should mind of a person may be averred generally.
not contain sham, false, redundant, immaterial,
impertinent, or scandalous matters. These matters Pleading alternative causes of actions or defenses
may be stricken out upon motion by a party within 1. A party must set forth two or more statements of a
twenty (20) days after service of the pleading upon claim or defense, alternatively or hypothetically,
him or upon the courts own initiative at any time. either in one cause of action or defense or in separate
causes of action or defenses.
Conditions precedent 2. This provision recognizes that the liability of the
1. Matters which must be complied with before a cause defendant may possibly be based on either one of
of action arises. When a claim is subject to a two possible causes of action. (See La Mallorca v. CA,
condition precedent, the compliance of the same 17 SCRA 729)
must be alleged in the pleading. 3. The same provision has affinity to the rule (Section 13
2. Examples: of Rule 3) which authorizes suing two or more
a. A tender of payment is required before defendants in the alternative.
making a consignation (Art. 1256, CC). 4. Pleading alternative causes of action normally leads
b. Exhaustion of administrative remedies is to inconsistent claims.
required in certain cases before resorting to 5. The rule does not require that all of the alternative
judicial action. causes of action be sufficient for the plaintiff to be
c. Prior resort to barangay conciliation entitled to relief. It is enough that one of them if
proceedings is necessary in certain cases. made independently would be sufficient to support a
d. Earnest efforts toward a compromise must cause of action. (See Section 2 of Rule 8).
be undertaken when the suit is between 6. A party may set forth two or more defenses
members of the same family and if no alternatively or hypothetically.
efforts were in fact made, the case must be The rule allowing alternative defenses is consistent
dismissed (Art. 151). with the omnibus motion rule which requires that all
e. Arbitration may be a condition precedent motions attacking a pleading shall include all
when the contract between the parties objections then available, and all objections not so
provides for arbitration first before included shall be deemed waived.
recourse to judicial remedies.
3. The failure to comply with a condition precedent is an Pleading actionable documents
independent ground for a motion to dismiss: that a 1. Actionable document is referred to as the
condition precedent for filing the claim has not been document relied upon by either the plaintiff and the
complied with. defendant.
2. Whenever an actionable document is the basis of a
Pleading a judgment pleading, the rule specifically directs the pleader to
1. It is sufficient to aver the judgment or decision. There (a) set forth in the pleading the substance of the
is no need to allege matters showing the jurisdiction instrument or the document, and to attach the
to render the judgment or decision. original or the copy of the document to the pleading
2. Under Sec. 3(n) of Rule 131, there is a presumption, as an exhibit and which shall form part of the
though disputable, that a court or judge acting as pleading; or (b) with like effect, to set forth in the
such, whether in the Philippines or elsewhere, was pleading said copy of the instrument or document.
acting in the lawful exercise of jurisdiction.
How to contest an actionable document; oath required
Pleading an official document or act 1. When the action is founded upon a document
pleaded in the manner required by Sec. 7 of Rule 8,
In pleading a document or an act, it is sufficient to aver that the the party who has no intent of admitting the
document was issued in compliance with law. With respect to genuineness and due execution of the document,
an act, it is likewise sufficient to allege that the act was done must contest the same by (a) specifically denying the
also in compliance with law. genuineness and due execution of the document

10 | P L A T O N
under oath; and (b) setting forth what he claims to be Effect of splitting a single cause of action
the facts. 1. If two or more suits are instituted for a single cause of
2. A mere specific denial of the actionable document is action, the filing of one or a judgment upon the
insufficient. The denial must be coupled with an oath merits in ay of one is available as a ground for
(must be verified). The absence of an oath will result dismissal of the others. The remedy then of the
in the implied admission of the due execution and defendant is to file a motion to dismiss.
genuineness of the document.
Hence, if the first action is pending when the second
When oath is not required action is filed, the latter may be dismissed based on
a) When the adverse party does not appear to be a litis pendencia. If a final judgment had been rendered
party to the document; or in the first action when the second action is filed, the
b) When compliance with an order for an inspection of latter may be dismissed based on res judicata.
the original instrument is refused.
2. Note that it need not be the second action filed that
Defenses cut-off by the admission of genuineness and due should be dismissed. The phraseology of the present
execution rule no longer confines the dismissal to the second
action. As to which action should be dismissed would
When a party is deemed to have admitted the genuineness and depend upon judicial discretion and the prevailing
due execution of an actionable document, defenses that are circumstances of the case.
implied from said admission are necessarily waived like the
defenses of forgery of the document, lack of authority to Joinder of causes of action
execute the document, that the party charged signed the 1. Joinder of causes of action is the assertion of as many
document in some other capacity than that alleged in the causes of action as a party may have against another
pleading, or that the document was never delivered. Also cut- in one pleading alone.
off by the admission is the defense that the document was not 2. When the claims in all the causes of action are
in words and figures as set out in the pleadings. principally for the recovery of money, the aggregate
amount claimed shall be the test of jurisdiction. This
Defenses not cut-off by the admission of genuineness and due situation follows the so-called totality test for
execution purposes of jurisdiction.
a) Payment; 3. The joinder does not include special civil actions or
b) Want of consideration; those actions governed by special rules.
c) Illegality of consideration; 4. Before there can be proper joinder of parties when
d) Usury; and there are two or more defendants, or one or more
e) Fraud. plaintiffs, the right to relief should arise out of the
same transaction or series of transactions and that
These defenses are not inconsistent with the admission and are there exists a common question of law or fact.
not therefore, barred.
Remedy in case of misjoinder of actions
Splitting a single cause of action
When there is a misjoinder of causes of action, the erroneously
Splitting a single cause of action is the act of instituting two or joined cause of action can be severed and proceeded with
more suits for the same cause of action. In splitting a cause of separately upon motion by a party or upon the courts own
action, the pleader divides a single cause of action, claim or initiative. Misjoinder is not a ground for the dismissal of an
demand into two or more parts, brings a suit for one of such action.
parts with the intent to reserve the rest for another separate
action. II. Actions

Prohibition against splitting a single cause of action Definition

1. Splitting a cause of action is not allowed by the Rules 1. An action is the legal and formal demand of ones
of Court. A party may not institute more than one right from another person made and insisted upon in
suit for a single cause of action. a court of justice.
2. The practice of splitting a single cause of action is 2. In this jurisdiction, it is settled that the terms action:
discourage because it breeds multiplicity of suits, and suit are synonymous.
clogs the court dockets, leads to vexatious litigation,
operates as an instrument of harassment, and Civil actions and criminal actions
generates unnecessary expenses to the parties. 1. A civil action is one by which a party sues another for
3. The rule against splitting a single cause of action the enforcement or protection of a right, or the
applies not only to complaints but also to prevention or redress of a wrong.
counterclaims and cross-claims. 2. A criminal action is one by s=which the State
4. A single act may sometimes violate several rights of a prosecutes a person for an act or omission punishable
person. Nevertheless the plaintiff has only one cause by law.
of action regardless of the number of rights violated. 3. It has been held that proceedings are to be regarded
as criminal when the purpose is primarily
Anticipatory Breach punishment, and civil when the purpose is primarily

11 | P L A T O N
(2) as a result of the institution of legal proceedings, in which the power
Actions distinguished from special proceedings of the court is recognized and made effective.

Nonetheless, summons must be served upon the defendant not for the
The purpose of a special proceeding is to establish a status, a
purpose of vesting the court with jurisdiction but merely for satisfying
right or a particular fact. the due process requirements.

Real and personal actions A resident defendant who does not voluntarily appear in court, such as
1. An action is real when it affects title to or possession petitioner in this case, must be personally served with summons as
of real property, or an interest therein. All other provided under Sec. 6, Rule 14 of the Rules of Court. If she cannot be
actions are personal actions. personally served with summons within a reasonable time, substituted
2. An action is real when it is founded upon the privity service may be effected (1) by leaving copies of the summons at the
defendants residence with some person of suitable age and discretion
of real estate. That means that realty, or an interest
then residing therein, or (2) by leaving the copies at defendants office
therein is the subject matter of the action (issues: or regular place of business with some competent person in charge
title to, ownership, possession, partition, foreclosure thereof in accordance with Sec. 7, Rule 14 of the Rules of Court.
of mortgage or any interest in real property).
Jurisdiction over the res
Significance of the distinction between a personal and real
action Extraterritorial service; Other Rules on Summons

In personam and in rem actions Application of Principles

1. A proceeding in personam is a proceeding to enforce
personal rights and obligations brought against the Chapter III Jurisdiction, Venue and Parties
person and is based on the jurisdiction of the person,
although it may involve his right to, or the exercise of
I. Jurisdiction
ownership of, specific property, or seek to compel
him to control or dispose of it in accordance with the
Meaning of jurisdiction
mandate of the court. The purpose of a proceeding in
1. Jurisdiction is the power and authority of the court to
personam is to impose through the judgment of a
hear, try and decide a case.
court, some responsibility or liability directly upon the
2. It is not only the power to hear and determine a case,
person of the defendant.
but also the power to enforce its determination, as
2. A proceeding quasi in rem is one brought against
the judgment or decree is the end for which the
persons seeking to subject the property of such
jurisdiction is exercised, and it is only through the
persons to the discharge of the claims assailed.
judgment and its execution that the power of the
Actions quasi in rem deal with the status, ownership
court is made efficacious and its jurisdiction
or liability of a particular property but which are
intended to operate on these questions only as
between the particular parties to the proceedings and
Power of the court
not to ascertain or cut-off the rights or interests of all
possible claimants.
Jurisdiction is not the power of the judge but of the court.
3. An action in personam is not necessarily a personal
Neither is it the decision rendered.
action. Nor is a real action necessarily and action in
Test of jurisdiction
Quasi in rem actions
Whether the court has the power to enter into the inquiry and
not whether the decision is right or wrong.
Significance of distinction between actions in rem, in
personam and quasi in rem
Matter of substantive law
The question of whether the trial court has jurisdiction depends on the
nature of the action, i.e., whether the action is in personam, in rem, or Jurisdiction is a matter of substantive law because it is
quasi in rem. The rules on service of summons under Rule 14 of the conferred by law.
Rules of Court likewise apply according to the nature of the action.
Not subject to waiver or stipulation
An action in personam is an action against a person on the basis of his
personal liability. An action in rem is an action against the thing itself Jurisdiction over the subject matter cannot be waived, enlarged
instead of against the person. An action quasi in rem is one wherein an or diminished by stipulation of the parties.
individual is named as defendant and the purpose of the proceeding is
to subject his interest therein to the obligation or lien burdening the
property. Duty of the court to determine its jurisdiction

In an action in personam, jurisdiction over the person of the defendant When it appears that the court has no jurisdiction over the
is necessary for the court to validly try and decide the case. In a subject matter of a complaint filed before it, the court shall
proceeding in rem or quasi in rem, jurisdiction over the person of the dismiss the claim and can do so motu proprio.
defendant is not a prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over the res. Jurisdiction Jurisdiction versus the exercise of jurisdiction
over the res is acquired either (1) by the seizure of the property under
legal process, whereby it is brought into actual custody of the law; or

12 | P L A T O N
1. Jurisdiction is the power or authority of the court. The c. Cannot be conferred by an erroneous belief
exercise of this power or authority is the exercise of by the court that it has jurisdiction;
jurisdiction. d. Cannot also be conferred by the parties or
2. Where there is jurisdiction over the subject matter, by contract;
the decision on all other questions arising in the case e. Cannot be granted by agreement of the
is but an exercise of jurisdiction. parties, acquired through, or waived,
enlarged or diminished by, any act or
Error of judgment and error of jurisdiction; distinctions omission of the parties. Neither can it be
1. An error of judgment is one which the court may conferred by acquiescence of the court;
commit in the exercise of its jurisdiction. As long as f. Cannot be conferred by the parties silence,
the court acts within its jurisdiction, any alleged acquiescence or consent.
errors committed in the exercise of its discretion will
amount to nothing more than mere errors of How jurisdiction over the subject matter is determined
2. An error of jurisdiction is one where the act It is a settled rule that jurisdiction over the subject matter is
complained of was issued by the court without or in determined by the allegations of the complaint regardless of
excess of jurisdiction. Errors of jurisdiction occur whether or not the plaintiff is entitled to his claims asserted
when the court exercises a jurisdiction not conferred therein.
upon it by law. It may also occur when the court or
tribunal although with jurisdiction, acts in excess of Jurisdiction is not determined either by the defenses or by
its jurisdiction or with grave abuse of discretion evidence in the trial (See Pages 145-147).
amounting to lack of jurisdiction.
3. Errors of judgment are correctible by appeal. Errors of Applicability to criminal actions (See Pages 147-148).
jurisdiction are correctible only by the extraordinary
writ of certiorari. Exception to the rule that jurisdiction is determined by the
4. Where a court has jurisdiction, a wrong decision is allegations of the complaintejectment cases (See Pages 148-
not void. Any judgment rendered without jurisdiction 151).
is a total nullity and may be struck down at any time,
even on appeal; the only exception is when the party Doctrine of primary jurisdiction
raising the issue is barred by estoppel.
Courts will not resolve a controversy involving a question which
Lack of jurisdiction and excess of jurisdiction is within the jurisdiction of an administrative tribunal especially
where the question demands the exercise of sound
LACK OF JURISDICTION EXCESS OF JURISDICTION administrative discretion requiring the special knowledge,
The legal power to determine Being clothed with the power experience and service of the administrative tribunal to
the case is not present to determine the case, determine technical and intricate matters of fact.
oversteps its authority as
determined by law Doctrine of continuity of jurisdiction (adherence of
Jurisdiction and cause of action 1. Once a court has acquired jurisdiction, that
jurisdiction continues until the court has done all that
JURISDICTION CAUSE OF ACTION it can do in the exercise of that jurisdiction or until it
An authority The act or omission violative finally disposes of the case.
of the rights of others 2. As a consequence of this principle, jurisdiction is not
Conferred by law Exists because of a violation affected by a new law placing a proceeding under the
of a right jurisdiction of another tribunal except when
otherwise provided in the statute or if the statute is
Jurisdiction over the subject matter clearly intended to apply to actions pending even
before its enactment.
The term, subject matter refers to the item with respect to
which the controversy has arisen, or concerning which the Law which governs jurisdiction
wrong has been done, and it is ordinarily the right, the thing, or
the contract under dispute. Jurisdiction being a matter of substantive law, the established
rule is that the statute in force at the time of the
How jurisdiction over the subject matter is conferred commencement of the action determines the jurisdiction of the
1. It is conferred by law which may be either the court.
Constitution or a statute.
2. The law that confers jurisdiction refers to a Objections to jurisdiction over the subject matter (See Pages
substantive law, not a procedural law. It likewise does 154-156).
not refer to an administrative order or a circular.
3. Since jurisdiction is conferred by law, jurisdiction: Effect of estoppels on objections to jurisdiction
a. Cannot be conferred by the administrative 1. While it is true that jurisdiction over the subject
policy of any court; matter may be raised at any stage of the proceedings
b. Cannot be conferred by a courts unilateral since it is conferred by law, it is nevertheless settled
assumption of jurisdiction;
13 | P L A T O N
that a party may be barred from raising it on the 1. Generally, jurisdiction over the issues is conferred
ground of estoppel. and determined by the pleadings of the parties.
2. The doctrine of estoppel by laches in relation to 2. Jurisdiction over the issues may also be conferred by
objections to jurisdiction first appeared in the waiver or failure to object to the presentation of
landmark case of Tijam v. Sibonghanoy. The doctrine evidence on a matter not raised in the pleadings.
is based upon grounds of public policy and is
principally a question of the inequity or unfairness of Distinction between a question of law and a question of fact
permitting a right or claim to be enforced or asserted.
3. In Lao v. Republic, a party who has invoked the QUESTION OF LAW QUESTION OF FACT
jurisdiction of the court over a particular matter to When the doubt or difference When the doubt or difference
secure affirmative relief cannot be permitted to arises as to what the law is on arises as to the truth or
afterwards deny that same jurisdiction to escape a certain set of facts falsehood of the alleged facts.
The test of whether a question is one of law or of fact is not the
Tijam ruling, an exception rather than the rule appellation given to such question by the party raising the
same; rather, it is whether the appellate court can determine
The general rule remains: a courts lack of jurisdiction may be the issue raised without reviewing or evaluating the evidence,
raised at any stage of the proceedings even on appeal. in which case, it is a question of law; otherwise it is a question
of fact.
Jurisdiction over the parties
1. The manner by which the court acquires jurisdiction When an issue arises even if not raised in the pleadings (See
over the parties depends on whether the party is the Pages 166-168).
plaintiff or the defendant.
2. Jurisdiction over the plaintiff is acquired by his filing Jurisdiction of Municipal Trial Courts, Metropolitan Trial Court
of the complaint or petition. By doing so, he submits and Municipal Circuit Trial Court (Under B.P. 129 as amended
himself to the jurisdiction of the court. XPN: If no by R.A. 7691)
juridical capacity, it will not confer jurisdiction (Merryl
Lynch Inc. v. CA). XPN to the XPN: When equitable Actions for Forcible Entry and Unlawful Detainer
justice demands or when barred by estoppel.
3. Jurisdiction over the person of the defendant is Real Actions Other than Forcible Entry and Unlawful Detainer
obtained either by a valid service of summons upon
him or by his voluntary submission to the courts Demand not Exceeding P300,000.00 or P400,000.00
Actions Involving Personal Property
When jurisdiction over the person of the defendant is
required Admiralty and Maritime Cases

Jurisdiction over the person of the defendant is required only in Probate Proceedings; Provisional Remedies
an action in personam. Jurisdiction over the person of the
defendant is not a prerequisite in an action in rem and quasi in Delegated Jurisdiction
Special Jurisdiction (See Pages 168-201).
Voluntary appearance of the defendant
Cases subject to summary procedure
As a rule, an appearance in whatever form without expressly
objecting to the jurisdiction of the court over the person, is a The civil cases subject to summary procedure are:
submission to the jurisdiction of the court. When the a) Forcible entry and unlawful detainer cases; and
appearance is precisely to object to the jurisdiction of the court
over his person, it is not considered an appearance in court and b) All other cases where the total claim does not exceed
should not be construed as a submission by the defendant of P100,000.00 (outside Metro Manila), or does not
his person to the jurisdiction of the court. exceed P200,000.00 (Metro Manila), exclusive of
interest and costs. Probate proceedings are not
Objections to jurisdiction over the person of the defendant covered by the rule on summary procedure even if
(See Page 162). the gross value of the estate does not exceed
P100,000 or P200,000.
Effect of pleading additional defenses aside from lack of
jurisdiction over the person of the defendant (See Page 163). Certain basic principles need be remembered in civil cases
subject to a summary procedure:
Jurisdiction over the issue a) Not all pleadings in an ordinary civil action are
allowed in a summary procedure. The only pleadings
An issue is a disputed point or question to which parties to an allowed are: (a) complaint, (b)compulsory
action have narrowed down their several allegations and upon counterclaims, (c) cross-claims pleaded in the answer,
which they are desirous of obtaining a decision. and (d) answers thereto. (Sec. 3)

How jurisdiction over the issue is conferred and determined

14 | P L A T O N
b) The court in a summary procedure may dismiss the 1. By virtue of A.M. No. 08-8-7-SC, the Rules of
case outright on any of the grounds for the dismissal Procedure for Small Claims Cases took effect on
of a civil action. (Sec. 4) October 1, 2008.

c) Should the defendant fail to answer the complaint The Rules of Civil Procedure apply suppletorily to
within the period of ten (10) days from service of small claims cases but only insofar as they are not
summons, the court may, motu proprio, or on motion inconsistent with A.M. No. 08-8-7-SC. Thus, certain
of the plaintiff, render judgment (not an order motions and pleadings normally allowed in civil
declaring the defendant in default) as may be actions are prohibited in small claims cases.
warranted by the facts alleged and limited to what is
prayed for. (Sec. 6) The following are not allowed under Sec. 14 of A.M.
No. 08-8-7-SC:
d) There shall be a preliminary conference held but a) Motion to dismiss the compliant except on
there shall be no trial. Instead the parties shall submit the ground of lack of jurisdiction;
affidavits and position papers. (See Secs. 7, 8 and 9) b) Motion for a bill of particulars;
c) Motion for new trial, or for reconsideration
e) Within thirty (30) days after receipt of the last of a judgment, or for reopening of trial;
affidavits and position papers, or the expiration of the d) Petition for relief from judgment;
period for filing the same, the court shall render e) Motion for extension of time to file
judgment. (Sec. 10) pleadings, affidavits, or any other paper;
f) Memoranda;
f) As a rule a motion to dismiss is not allowed except on g) Petition for certiorari, mandamus, or
either of two grounds (i) lack of jurisdiction over the prohibition against any interlocutory order
subject matter, or (ii) failure to comply with the issued by the court;
barangay conciliation proceedings (Sec. 19[a]) h) Motion to declare the defendant in default;
i) Dilatory motions for postponement;
g) Sec. 19. Prohibited pleadings and motions. The j) Reply;
following pleadings, motions or petitions shall not be k) Third-party complaints; and
allowed in the cases covered by this Rule: l) Interventions.
1) Motion to dismiss the complaint or to
quash the complaint or information except One characteristic of a small claim action is the use of
on the ground of lack of jurisdiction over forms which simply have to be filled up by a party or
the subject matter, or failure to comply the court.
with the preceding section;
2) Motion for a bill of particulars; 2. The purpose of the small claims process is to provide
3) Motion for new trial, or for reconsideration an inexpensive and expeditious means to settle
of a judgment, or for opening of trial; disputes over small amounts.
4) Petition for relief from judgment;
5) Motion for extension of time to file The small claims process is designed to function
pleadings, affidavits or any other paper; quickly and informally. There are no attorneys, no
6) Memoranda; formal pleadings and no strict legal rules of evidence.
7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order 3. The Rule governs the procedure in actions before the
issued by the court; Metropolitan Trial Courts, Municipal Trial Courts in
8) Motion to declare the defendant in default; Cities, Municipal Trial Courts and Municipal Circuit
9) Dilatory motions for postponement; Trial Courts for the payment of money where the
10) Reply; value of the claim does not exceed One Hundred
11) Third party complaints; Thousand Pesos (P100,000.00) exclusive of interests
12) Interventions. and costs.

h) It must be emphasized that in a civil case governed by 4. The Rule applies to the following actions: (a) All
the Rules on Summary Procedure, no hearing is actions that are purely civil in nature where the claim
conducted. Instead, the parties are required to or relief prayed for by the plaintiff is solely for
submit their respective position papers. payment or reimbursement of sum of money, and (b)
The civil aspect of criminal actions, either filed prior
Determination of Jurisdictional Amount to the institution of the criminal action, or reserved
upon the filing of the criminal action in court,
Totality Rule pursuant to Rule of 111 of the Revised Rules of
Criminal Procedure.
Territorial Extent of Court Processes
5. The claims or demands referred to may be for any of
Review of Judgments of the MTC the following:
a) for money owed;
Jurisdiction over small claims cases b) for damages; or

15 | P L A T O N
c) for enforcement of a barangay amicable 8. Plaintiff may join in a single statement of claim one or
settlement or an arbitration award more separate small claims against a defendant
involving money claims covered by this Rule provided that the total amount claimed, exclusive of
pursuant to Sec. 417 of RA 7160. interest and costs, does not exceed P100,00.00.

If it is for money owed, the claim may arise from a: 9. After the court determines that the case falls under
1. Contract of Lease; this Rule, it may, from an examination of the
2. Contract of Loan; allegations of the Statement of Claim and such
3. Contract of Services; evidence attached thereto, by itself, dismiss the case
4. Contract of Sale; or outright of any of the grounds apparent from the
5. Contract of Mortgage. Claim for the dismissal of a civil action.

If the claim be for damages, said claim may arise 10. If no ground for dismissal is found, the court shall
from: forthwith issue Summons (Form 2-SCC) on the day of
1. Fault or negligence; receipt of the Statement of Claim, directing the
2. Quasi-contract; or defendant to submit a verified Response.
3. Contract.
The court shall also issue a Notice (Form 4-SCC) to
While there are various sources of the claims which both parties, directing them to appear before it on a
can be the subject of a small claims action, the claims specific date and time for hearing, with a warning
must be solely for money. that no unjustified postponement shall be allowed, as
provided in Section 19 of this Rule.
Some of the kinds of cases which are allowed as small
claims include the following: The summons and notice to be served on the
a) Actual damage caused to vehicles, other defendant shall be accompanied by a copy of the
personal property, real property or person; Statement of Claim and documents submitted by
b) Payment or reimbursement for property, plaintiff, and a copy of the Response (Form 3-SCC) to
deposit, or money loaned; be accomplished by the defendant. The Notice shall
c) Payment for services rendered, insurance contain an express prohibition against the filing of a
claim, rent, commissions, or for goods sold motion to dismiss or any other motion under Section
and delivered; 14 of this Rule. (except on the ground of lack of
d) Money claim pursuant to contact, warranty jurisdiction)
or agreement; and
e) Purely civil action for payment of money 11. The defendant shall file with the court and serve on
covered by bounced or stopped check. the plaintiff a duly accomplished and verified
Response within a non - extendible period of ten (10)
6. The action is commenced by filing Form I-SCC with days from receipt of summons. The Response shall be
the court. Form I-SCC is the Statement of Claim and accompanied by certified photocopies of documents,
which must be duly accomplished and verified. The as well as affidavits of witnesses and other evidence
claim must be filed in duplicate. No other formal in support thereof. No evidence shall be allowed
pleading other than the Statement of Claim is during the hearing which was not attached to or
necessary to initiate a small claims action. submitted together with the Response, unless good
cause is shown for the admission of additional
The plaintiff shall pay the docket and other legal fees evidence.
unless allowed to litigate as an indigent.
12. Should the defendant fail to file his response within
The Statement of Claim must be accompanied by a the required period, the court by itself shall render
Certification of Non-Forum Shopping written in Form judgment as may be warranted by the facts alleged in
I-A SCC. the Statement of claim limited to what is prayed for.
The court however, may, in its discretion, reduce the
If the Claim is based on an actionable document, two amount of damages for being excessive or
(2) duly certified photocopies of the document must unconscionable.
accompany the Statement of claim. Also to be
attached are the affidavits of witnesses and other 13. If at the time the action is commenced, the defendant
evidence to support the claim. possesses a claim against the plaintiff that (a) is
within the coverage of this rule, exclusive of interest
7. The affidavits submitted shall state only facts if direct and costs; (b) arises out of the same transaction or
personal knowledge of the affiants. event that is the subject matter of the plaintiff's
claim; (c) does not require for its adjudication the
No evidence shall be allowed during the hearing joinder of third parties; and (d) is not the subject of
which was not attached to or submitted together another pending action, the claim shall be filed as a
with the Claim, unless good cause is shown for the counterclaim in the response; otherwise, the
admission of additional evidence. defendant shall be barred from suit on the

16 | P L A T O N
The defendant may also elect to the file a
counterclaim against the plaintiff that does not arise 16. After the hearing, the court shall render its decision
out of the same transaction or occurrence , provided on the same day, based on the facts established by
that the amount and nature thereof are within the the evidence (Form 13-SCC). The decision shall
coverage of this Rule and the prescribed docket and immediately be entered by the Clerk of Court in the
the other legal fees are paid. court docket for civil cases and a copy thereof
forthwith served on the parties.
14. The parties shall appear at the designated date of
hearing personally or through a representative 17. The decision shall be final and unappealable.
authorized under a Special Power of Attorney (Form
5-SCC ) to enter into an amicable settlement, to If the decision is rendered in favor of the plaintiff,
submit of Judicial Dispute Resolution (JDR) and to execution shall issue upon motion (Form 9-SCC).
enter into stipulations or admissions of facts and of
documentary exhibits. Jurisdiction of Regional Trial Courts (Under B.P. 129 as
amended by R.A. 7691)
No attorney shall appear in behalf of or represent a
party at the hearing, unless the attorney is the Special Jurisdiction to Try Special Cases
plaintiff or defendant.
Jurisdiction Over Intracorporate Controversies
Failure of the plaintiff to appear shall be cause for the
dismissal of the claim without prejudice. The The RTC is a Court of General Jurisdiction
defendant who appears shall be entitled to judgment
on a permissive counterclaim. Actions Incapable of Pecuniary Estimation

Failure of the defendant to appear shall have the Extent of Trial Court's Jurisdiction When Acting as a Probate
same effect as failure to file a Response under Section Court
12 of this Rule. This shall not apply where one of two
or more defendants who are sued under a common Jurisdiction of the Court of Appeals (Under B.P. 129 as
cause of action and have pleaded a common defense amended by R.A. 7691)
appears at the hearing.
Power to Try and Conduct Hearings
Failure of both parties to appear shall cause the
dismissal with prejudice of both the claim and Jurisdiction of the Supreme Court
The Supreme Court is not a Trier of Facts
A request for postponement of a hearing may be
granted only upon proof of the physical inability of Exceptions
the party to appear before the court on the
scheduled date and time. A party may avail of only Cases Which Under the Constitution Must be Heard En Banc
one (1) postponement.
Jurisdiction of the Family Courts
15. At the hearing, the judge shall conduct Judicial
Dispute Resolution (JDR) through mediation, II. Venue (Rule 4)
conciliation, early neutral evaluation, or any other
mode of JDR. Any settlement (Form 7-SCC) or Meaning of venue
resolution (Form 8-SCC) of the dispute shall be
reduced into writing, signed by the parties and Venue is the place, or the geographical area where an action is
submitted to the court for approval (Form 12-SCC). to be filed and tried. In civil cases, it relates only to the place of
the suit and not to the jurisdiction of the court.
If JDR fails and the parties agree in writing (Form 10-
SCC) that the hearing of the case shall be presided Venue is not a matter of substantive law
over by the judge who conducted the JDR, the
hearing shall so proceed in an informal and Venue is procedural and not substantive. In civil cases, venue is
expeditious manner and terminated within one (1) not a matter of jurisdiction. Because it is merely procedural, the
day. parties can waive the venue of a case.

Absent such agreement, (a) in case of a multi-sala Dismissal based on improper venue
court , the case shall, on the same day, be 1. The trial court cannot motu proprio dismiss a case on
transmitted (Form 11-SCC) to the Office of the Clerk the ground of improper venue. The court may dismiss
of Court for immediate referral by the Executive an action motu proprio in case of lack of jurisdiction
Judge to the pairing judge for hearing and decision over the subject matter, litis pendencia, res judicata
within five (5) working days from referral; and (b) in and prescription, but not for impoper venue.
case of single sala court, the pairing judge shall hear 2. Unless and until the defendant objects to the venue
and decide the case in the court of origin within five in a motion to dismiss, the venue cannot be truly said
(5) working days from referral by the JDR judge. to be improperly laid, because the venue although

17 | P L A T O N
technically wrong may be acceptable to the parties Denial of a motion to dismiss based on improper venue; no
for whose convenience the rules on venue have been appeal
An order denying a motion to dismiss is merely interlocutory. It
When court may make a motu proprio dismissal based on is not final. Only final orders or judgments may be appealed
improper venue from. The normal remedy is to file an answer and interpose the
ground as an affirmative defense, go to trial and appeal from
The court may, however, effect a motu proprio dismissal of the the adverse judgment. However, if the denial is tainted with
complaint based on improper venue in an action covered by the grave abuse of discretion amounting to lack of jurisdiction, the
rules on summary procedure. remedy is certiorari and prohibition.

How venue is determined Improper venue is not jurisdictional

1. If the action is personal venue is transitory hence, 1. If the facts of the problem show that the venue is
the venue is the residence of the plaintiff or the improper, it would not be correct to file a motion to
defendant at the option of the plaintiff. If the dismiss anchored on lack of jurisdiction because
defendant is a non-resident, the venue is the venue has nothing to do with jurisdiction in a civil
residence of the plaintiff or where the non-resident case.
defendant may be found, at the election of the 2. In criminal actions venue is jurisdictional it being an
plaintiff. essential element of jurisdiction.

If the action is real, the venue is local hence, the Venue distinguished from jurisdiction
venue is the place where the real property involved,
or any portion thereof, is situated. However, when VENUE JURISDICTION
the defendant is a non-resident and is not found in The place where the case is to The authority to hear and
the Philippines, and the action affects the personal be heard or tried determine a case
status of the plaintiff, or any property of the A matter of procedural law Substantive
defendant located in the Philippines, the venue is the Establishes a relation Establishes a relation
residence of the plaintiff or where the property or between plaintiff and between the court and the
any portion thereof is situated. defendant, or petitioner and subject matter
2. Actions for damages and actions to collect a sum of May be conferred by the act Fixed by law and cannot be
money must be filed in either the residence of the or agreement of the parties conferred by agreement of
plaintiff or the residence of the defendant at the the parties
election of the plaintiff. Such actions are personal Not a ground for a motu A ground for a motu proprio
actions. proprio dismissal (except in dismissal
cases subject to summary
3. Actions to recover ownership of real property are real procedure (Sec. 4)
actions and must be filed in the place where the real
property is located. Actions for unlawful detainer, III. Parties
forcible entry and accion publiciana are real actions
and must be likewise filed in the place where the
Parties to a civil action
subject property is situated.
1. There are two main categories of parties to a civil
action namely, the plaintiff and the defendant.
Stipulations on venue
2. The plaintiff is the claiming party; the original
1. The parties may agree on specific venue which could
claiming party and is the one who files the complaint.
be in a place where neither of them resides. The
It also applies to a defendant who files a
parties may stipulate on the venue as long as the
counterclaim, a cross-claim or a third party complaint.
agreement is (a) in writing, (b) made before the filing
3. The defendant is the original defending party. It
of the action, and (3) exclusive as to the venue.
refers also to a defendant in a counterclaim, the
2. A stipulation that any suit arising from this contract
cross-defendant, or the third (fourth, etc.)-party-
shall be filed only in Quezon City is exclusive in
character and is clear enough to preclude the filing of
the case in any other place.
Who may be parties
3. It must be reiterated and made clear that under
1. Natural persons,
Section 4(b) of Rule 4 of Rules of Court, the general
2. Juridical persons, and
rules on venue of actions shall not apply where the
3. Entities authorized by law.
parties, before the filing of the action, have validly
agreed in writing on an exclusive venue.
Juridical persons as parties (Art. 44, CC)
4. The settled rule on stipulations regarding venue, is
1. The State and its political subdivisions;
that while they are considered valid and enforceable,
2. Other corporations, institutions and entities for public
venue stipulations in a contract do not, as a rule,
interest or purpose, created by law; and
supersede the general rule set forth in Rule 4 of the
3. Corporations, partnerships and associations for
Revised Rules of Court in the absence of qualifying or
private interest or purpose to which the law grants a
restrictive words.
juridical personality, separate and distinct from that
of each shareholder, partner or member.
18 | P L A T O N
The mere failure to include the name of a party in the title of
Entities authorized by law to be parties the complaint is not fatal because the Rules of Court requires
the courts to pierce the form and go into the substance and not
One need not be a natural or a juridical person to be a party to to be misled by a false or wrong name in the pleadings. The
a civil action. As long as an entity is authorized by law to be a averments are controlling and not the title.
party, such entity may sue or be sued or both.
Rule on standing as distinguished from the concept of real
E.g.: The estate of a deceased person may be a party to an party-in-interest
action. 1. Locus standi is defined as a right of appearance in a
court of justice on a given question.
Entity without a juridical personality as a defendant (See Sec. 2. The question as to who the real party-in-interest
15) involves only a question on whether a person would
be benefited or injured by the judgment or whether
Remedy when a party impleaded is not authorized to be a or not he is entitled to the avails of the suit.
1. Where the plaintiff is not a natural or a juridical Indispensable parties
person or an entity authorized by law, a motion to 1. An indispensable party is a real party-in-interest
dismiss may be filed on the ground that the plaintiff without whom no final determination can be had of
has no legal capacity to sue. an action.
2. Where it is the defendant who is not any of the 2. An indispensable party is a party who has such an
above, the complaint may be dismiss on the ground interest in the controversy or subject matter that a
that the pleading asserting the claim states no cause final adjudication cannot be made, in his absence,
of action or failure to state a cause of action, without injuring or affecting that interest, a party
because there cannot be a cause of action against who has not only an interest in the subject matter if
one who cannot be a party to a civil action. the controversy, but also has an interest of such
nature that a final decree cannot be made without
Averment of capacity to sue or be sued affecting his interest or leaving the controversy in
such a condition that its final determination may be
Fact showing the capacity of a party to sue or be sued or the wholly inconsistent with equity and good conscience.
authority of a party to sue or be sued in a representative
capacity or the legal existence of an organized association of When an indispensable party is not before the court,
persons that is made a party must be averred. the action should be dismissed.

A minor or an incompetent as a party The joinder of indispensable parties is mandatory.

A minor or an incompetent, may sue or be sued. He can be a 3. A person is not an indispensable party, however, if his
party but with the assistance of his father, mother, guardian, or interest in the controversy or subject matter is
if he has none, a guardian ad litem. separable from the interest of the other parties, so
that it will not necessarily be directly or injuriously
Real party in interest affected by a decree which does complete justice
1. A real party in interest is the party who stands to be between them; if his presence would merely permit
benefited or injured by the judgment in the suit, or complete relief; or if he has no interest in the subject
the party entitled to the avails of the suit. matter of the action.
2. The interest must be real, which is a present
substantial interest as distinguished from a mere Compulsory joinder of indispensable parties
expectancy or a future, contingent subordinate or 1. Although normally, a joinder of parties is permissive,
consequential interest. the joinder of a party becomes compulsory when the
3. The determination of who the real party-in-interest one involved is an indispensable party.
requires going back to the elements of a cause of 2. The presence of all indispensable parties is a
action. condition sine qua non for the exercise of judicial
Prosecution/defense of an action in the name of the real party
in interest Dismissal for failure to implead an indispensable party
1. Every action must be prosecuted and defended in the 1. The absence of indispensable parties renders all
name of the real party-in-interest. subsequent actions of the trial court null and void for
2. Impleading the beneficiary as a party is mandatory want o f authority to act, not only as to the absent
since said beneficiary is deemed to be the real party- parties but even as to those present.
in-interest. 2. An outright dismissal is not the immediate remedy
3. If the action is prosecuted in the name of one who is authorized by the Rules because under the Rules a
not the real party-in-interest, the ground for dismissal non-joinder (or misjoinder) of parties is not a ground
should be that the complaint states no cause of form dismissal of an action.
action of fails to state a cause of action.
Necessary parties
Failure to include the name of a party in the pleading

19 | P L A T O N
A necessary party is not indispensable to the action. A final is not joined when he is supposed to be joined but it
determination of the case can be had among the parties is not impleaded in the action.
already impleaded where a necessary party for some justifiable 2. Under the Rules neither misjoinder nor non-joinder of
reason, is not joined. But a necessary party ought to be joined parties is a ground for the dismissal of an action.
as a party if complete relief is to be accorded as to those Parties may be dropped or added by order of the
already parties. court on motion of any party or on its own initiative
at any stage of the action and on such terms as are
Distinction between an indispensable and a necessary party just.
3. The failure to obey the order of the court to drop or
INDISPENSABLE PARTY NECESSARY PARTY add a party is a ground for the dismissal of the
Must be joined under any and Should be joined whenever complaint under Sec. 3, Rule 17 of the Rules of Court
all conditions possible 4. What the rule contemplates is erroneous or mistaken
non-joinder and misjoinder of parties.
Effect of justified failure to implead a necessary party
Unknown defendant
The non-inclusion of a necessary party does not prevent the
court from proceeding in the action, and the judgment Whenever the identity or name of the defendant is unknown,
rendered therein shall be without prejudice to the rights of he may be sued as the unknown owner heir, devisee, or by such
such necessary party. other designation as the case may require; when his identity or
true name is discovered, the pleading must be amended
Duty of pleader when a necessary party is not joined accordingly.

If a pleader has no intent to implead a necessary party, the Effect of death of a party on the attorney-client relationship
pleader is under obligation to: (a) set forth the name of said
necessary party, if known, and (b) state the reason why the It divests a counsel of his authority to represent his client;
necessary party is omitted. A reason justifying the non-joinder neither does he become the counsel of the heirs of the
of a necessary party is when said party is outside the deceased unless his services are engaged by said heirs.
jurisdiction of the court.
Duty of counsel upon the death of his client
When court may order joinder of a necessary party
Whenever a party to a pending action dies, and the claim is not
If the reason given for the non-joinder of the necessary party is thereby extinguished, it shall be the duty of his counsel to
found by the court to be unmeritorious, it may order the inform the court within thirty (30) days after such death. The
pleader to join the omitted party if jurisdiction over his person counsel has also the obligation to give the name and address of
may be obtained. his legal representative or representatives. This duty is
mandatory and Failure of counsel to comply with this duty is a
Effect of failure to comply with the order of the court ground for disciplinary action.

The failure to comply with the order of the court to include a Action of court upon notice of death; effect of death on the
necessary party, without justifiable cause, shall be deemed a case
waiver of the claim against such party 1. Upon the receipt of the notice of death, the court
shall forthwith order said legal representative or
Unwilling co-plaintiff representatives to appear and be substituted within a
period of thirty (30) days from notice.
An unwilling co-plaintiff is a party who is supposed to be a 2. Where the deceased has no heirs, the court shall
plaintiff but whose consent to be joined as a plaintiff cannot be require the appointment of an executor or
obtained as when he refuses to be a party to the action. Under administrator.
Sec. 10 of Rule 3, said unwilling co-plaintiff (a) may be made a 3. It is possible that the court may order the opposing
defendant, and (b) the reason therefor shall be stated in the party to procure the appointment of an executor or
complaint. administrator for the estate of the deceased. This
may happen in any of the three situations: (a) the
Alternative defendants counsel for the deceased does not name a legal
representative, or (b) there is a representative named
Where the plaintiff cannot definitely identify who among two but he fails to appear within the specified period.
or more persons should be impleaded as a defendant, ha may
join all of them as defendants in the alternative. Under Sec. 13 When there is no need to procure an executor or
of Rule 3, where the plaintiff is uncertain against who of administrator
several persons he is entitled to relief, he may join any or all of
them as defendants in the alternative, although a right to relief Under the second paragraph of Sec. 16 of Rule 3, The heirs of
against one may be inconsistent with a right of relief against the deceased may be allowed to be substituted for the
the other. deceased, without requiring the appointment of an executor or
Misjoinder and non-joinder of parties
1. A party is misjoined when he is made a party to the No requirement for service of summons
action although he should not be impleaded. A party

20 | P L A T O N
1. Service of summons is not required to effect a 2. Includes an exemption from the payment of docket
substitution. fees, and of transcripts of stenographic notes.
2. It is not the amendment of the pleading, but the However, the amount of the docket and other lawful
order of substitution and its service that effects the fees, which the indigent was exempt from paying,
substitution of the deceased by his representative or shall be lien on the judgment.
Role of the Solicitor General
Purpose and importance of substitution of the deceased 1. Only the Solicitor General can bring and defend
1. The protection of the right of every party to due actions on behalf of the Republic of the Philippines
process. and that actions filed in the name of the Republic or
2. Non-compliance with the rules on substitution of a its agencies and instrumentalities, if not initiated by
deceased party renders the proceedings of the trial the Solicitor General will be summarily dismissed.
court infirm because the court acquired no 2. In any action involving the validity of any treaty, law,
jurisdiction over the person of the legal ordinance, executive order, presidential decree, rules
representative of heirs of the deceased because no or regulations, the court, in its discretion, may require
man should be affected by a proceeding to which he the appearance of the Solicitor General who may be
is a stranger. heard in person or through a representative duly
3. Formal substitution is however, not necessary when designated by him.
the heirs themselves voluntarily appeared in the 3. In criminal actions brought before the Court of
action, participated therein and presented evidence Appeals or the Supreme Court, the authority to
in defense of deceased defendant. represent the State is solely vested in the Solicitor
Examples of action which survived the death of a party 4. See also Sec. 5 of Rule 110 of the Revised Rules on
1. Actions and obligations arising from delicts survive. Criminal Procedure
2. Actions based on the tortuous conduct of the
defendant survive the death of the latter. Suit by or against spouses
3. Actions to recover real and personal property, actions
to enforce a lien thereon, and actions to recover Husband and wife shall sue or be sued jointly except as
damages for an injury to person or property and suits provided by law (e.g.: Exclusive property of a spouse).
based on the alleged tortuous acts of the defendant
survive. Class suit; requisites
1. A class suit is an action where one or more may sue
Note: If the action does not survive (like the purely personal for the benefit of all if the requisites for said action
actions of support, annulment of marriage and legal are complied with.
separation), the court shall simply dismiss the case. 2. Whether the suit is or is not a class suit depends upon
the attendant facts.
Actions for the recovery of money on contractual claims 3. Requisites:
a. The subject matter of the controversy must
When the action is for recovery of money arising from contract be of common or general interest to many
and the defendant dies before entry of final judgment, the persons;
court shall not dismiss the suit. It shall continue and his legal b. The person are so numerous that it is
representative or legal heir shall substitute the deceased. If the impracticable to join all as parties;
plaintiff obtains a favorable judgment, said judgment shall be c. The parties actually before the court are
enforced as a money claim against the estate of the deceased. sufficiently numerous and representatives
as to fully protect the interests of all
Incompetency or incapacity of a party during the pendency of concerned; and
the action d. The representatives sue or defend for the
benefit of all.
In case a party becomes incompetent or incapacitated during
the pendency of the action, the court, upon motion, may allow Commonality of interest in the subject matter
the action to be continued by or against the incompetent or
incapacitated party with the assistance of his legal guardian or A class suit does not require a commonality of interest in the
guardian ad litem. questions involved in the suit. What is required by the Rules us
a common or general interest in the subject matter of the
Transfer of interest litigation. The subject matter of the action is meant the
physical, the things real or personal, the money, lands, chattels,
In case of any transfer of interest, the action may be continued and the like, in relation to the suit which is prosecuted and not
by or against the original party, unless the court upon motion the delict or wrong committed by the defendant.
directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party. No Class suit when interests are conflicting

Indigent parties No Class suit by a corporation, to recover property of its

1. One who has no money or property sufficient and members
available for food, shelter and basic necessities.
No Class suit to recover real property individually held

21 | P L A T O N
evidence not objected to by the adverse party, the pleadings
No Class suit to recover damages for personal reputation are sought to be amended on motion of a party.

Common or general interest in the environment and natural Amendment where no cause of action exists
Amendments of pleadings are allowed under Rule 10 of the 1997 Rules
Chapter IV Filing, Amendment and Dismissal by the of Civil Procedure in order that the actual merits of a case may be
determined in the most expeditious and inexpensive manner without
Plaintiff regard to technicalities, and that all other matters included in the case
may be determined in a single proceeding, thereby avoiding multiplicity
A. Filing of the Complaint (Rules 1 & 13) of suits. Section 5 thereof applies to situations wherein evidence not
within the issues raised in the pleadings is presented by the parties
Meaning of filing during the trial, and to conform to such evidence the pleadings are
Significance of Filing of the Complaint subsequently amended on motion of a party. Thus, a complaint which
fails to state a cause of action may be cured by evidence presented
Payment of Docket Fees and Acquisition of Jurisdiction
during the trial.
Payment of Docket Fees for Cases on Appeal
However, the curing effect under Section 5 is applicable only if a cause
B. Amendment of Complaint (Rule 10) of action in fact exists at the time the complaint is filed, but the
complaint is defective for failure to allege the essential facts. For
Amendment as a matter of right example, if a complaint failed to allege the fulfillment of a condition
1. A plaintiff has the right to amend his complaint once precedent upon which the cause of action depends, evidence showing
that such condition had already been fulfilled when the complaint was
at any time before a responsive pleading is served by
filed may be presented during the trial, and the complaint may
the other party or in case of a reply there is no accordingly be amended thereafter.
responsive pleading, at any time within ten (10) days
after it is served. Note: Sec. 2 refers to an It thus follows that a complaint whose cause of action has not yet
amendment made before the trial court, not to accrued cannot be cured or remedied by an amended or supplemental
amendments before the Court of Appeals. pleading alleging the existence or accrual of a cause of action while the
2. The subsequent amendment must be with leave of case is pending. Such an action is prematurely brought and is,
court. therefore, a groundless suit, which should be dismissed by the court
upon proper motion seasonably filed by the defendant. The underlying
3. Before the service of a responsive pleading, a party
reason for this rule is that a person should not be summoned before
has the absolute right to amend his pleading, the public tribunals to answer for complaints which are immature.
regardless of whether a new cause of action or
change in theory is introduced. Amendment to correct a jurisdictional defect before a
responsive pleading is served
Applicability of mandamus
The argument that the court cannot allow such type of
The trial courts duty to admit an amended complaint made as amendment since the court must first possess jurisdiction over
a matter of right is purely ministerial. the subject matter of the complaint before it can act on any
amendment has no application upon an amendment that is
A motion to dismiss is not a responsive pleading made as a matter of right.
1. Such a motion is not a responsive pleading and its
filing does not preclude the exercise of the plaintiffs Amendment to correct a jurisdictional defect after a
right to amend his complaint. responsive pleading is served
2. Even if the motion to dismiss is granted by the court,
the plaintiff may still amend his complaint as a matter An amendment of the complaint to correct a jurisdictional error
of right before the dismissal becomes final as long as cannot be validly done after a responsive pleading is served.
no answer has yet been served. The amendment this time would require leave of court, a
matter which requires the exercise of sound judicial discretion.
Amendment by leave of court The exercise of this discretion requires performance of a
1. Leave of court is required for an amendment made positive act by the court. If it grants the amendment, it would
after service of a responsive pleading. be acting on a complaint over which it has no jurisdiction. Its
2. After a responsive pleading is filed, an amendment to action would be one performed without jurisdiction.
the complaint may be substantial and will
correspondingly require a substantial alteration in the The situation is vastly different from an amendment as a matter
defenses of the adverse party. of right. Here, the court does not act. The admission of the
3. The clear import of Sec. 3 of Rule 10 is that under the amendment is a ministerial duty of the court. Since it would not
1997 Rules, an amendment may now be allowed by be acting in this regard, it could not be deemed as acting
the court even if it substantially alters the cause of without jurisdiction.
action or defense.
Amendment to conform to the evidence
Amendment to cure a failure to state a cause of action 1. In the event that a party presents evidence on a
matter not in issue, the adverse party has a reason to
Section 5 of Rule 10 likewise applies to situations wherein object.
evidence not within the issues raised in the pleadings is But when issues not raised in the pleadings are tried
presented by the parties during the trial and was not objected with the express or implied consent of the parties,
to. The provision also covers situations where, to conform to
22 | P L A T O N
such as when no objection is made by either, such 1. A supplemental pleading is one which sets forth
issues not raised shall be treated as if they had been transactions, occurrences, or events which have
put in issue by the pleadings. happened since the date of the pleading sought to be
2. In a situation where issues not raised in the pleadings superseded.
are tried with the express or implied consent of the 2. The filing of supplemental pleadings requires leave of
parties, Sec. 5 of Rule 10 authorizes the amendment court. The court may allow the pleading only upon
of the pleadings to conform to the evidence upon such terms as are just. This leave is sought by the
motion of a party at any time, even after judgment. filing of a motion with notice to all parties.
This is because the issues tried shall be treated in all
respects as if they had been raised in the pleadings Cause of action in supplemental pleadings
even if not actually previously raised in the pleadings. 1. When the cause of action in the supplemental
If the parties fail to amend the pleadings, such failure complaint is different from the cause of action
will not affect the trial of these issues because such mentioned in the original complaint, the court should
issues are deemed to have been raised in the not admit the supplemental complaint.
pleadings of the parties. This provision under the 2. As its very nature denotes, a supplemental pleading
Rules virtually authorizes an implied amendment of only serves to bolster or add something to the
the pleadings. primary pleading. A supplemental pleading exists side
3. Sec. 5 of Rule 10 envisions two situations: The first is by side with the original. It does not replace that
when evidence is introduced on an issue not alleged which it supplements.
in the pleadings and no objection was interposed by
the other party. The second is when evidence is Answer to a supplemental pleading; not mandatory (See Sec.
offered on an issue not raised in the pleadings but an 6, Rule 10 and Sec. 7, Rule 11)
objection was interjected. The rule in the second
scenario is that the court may nevertheless admit the C. Dismissal by the Plaintiff (Rule 17)
evidence where the objecting party fails to show that
the admission of the evidence would prejudice him in Dismissal by Mere Notice of Dismissal
his defense. The court must however, give him a 1. Before the service of an answer or the service of a
continuance to enable him to meet the new situation. motion for summary judgment, a complaint may be
dismissed by the plaintiff by filing a notice of
Effect of the amendment on the original pleading dismissal.
2. Upon the filing of the notice of dismissal, the court
An amended pleading supersedes the original one which it shall issue an order confirming the dismissal.
amends. It has been held however, that the original complaint 3. It is not the order confirming the dismissal which
is deemed superseded and abandoned by the amendatory operates to dismiss the complaint. As the name of the
complaint only if the latter introduces a new or different cause order implies, said order merely confirms a dismissal
of action. already effected by the filing of the notice of
dismissal. Since the order issued by the court merely
Effect of the amendment on admissions made in the original confirms the dismissal, it follows that the court does
pleading not have to approve the dismissal because it has no
discretion on the matter. Before an answer or a
Admissions made in the original pleadings cease to be judicial motion for summary judgment has been served upon
admissions. They are to be considered as extrajudicial the plaintiff, the dismissal by the plaintiff by the filing
admissions. However, admissions in superseded pleadings may of a notice is a matter of right. The dismissal occurs as
be received in evidence against the pleader and in order to be of the date the notice is filed by the plaintiff and not
utilized as extrajudicial admissions, they must, in order to have the date the court issues the order confirming the
such effect, be formally offered in evidence. dismissal.

When summons not required after complaint is amended Dismissal without prejudice
1. Where the defendants have already appeared before
the trial court by virtue of a summons in the original GR: A dismissal made by the filing of a notice of dismissal is a
complaint, the amended complaint may be served dismissal without prejudice, i.e., the complaint can be refiled.
upon them without need of another summons, even
if new causes of action are alleged. Conversely, when XPN: The dismissal will be one with prejudice in any of the
the defendants have not yet appeared in court, new following situations:
summons on the amended complaint must be served 1. The notice of dismissal by the plaintiff provides that
on them. the dismissal is with prejudice; or
2. Where a new defendant is impleaded, summons must 2. The plaintiff has previously dismissed the same case
be served upon him so that the court may acquire in a court of competent jurisdiction.
jurisdiction over his person because logically, the new
defendant cannot be deemed to have already Two-dismissal rule
appeared by virtue of summons under the original
complaint in which he was not yet a party. The two-dismissal rule applies when the plaintiff has (a) twice
dismissed actions, (b) based on or including the same claim, (c)
Supplemental pleadings in a court of competent jurisdiction. The second notice of
dismissal will bar the refiling of the action because it will

23 | P L A T O N
operate as an adjudication of the claim upon the merits. In 2. The dismissal due to the fault of the plaintiff may be
other words, the claim may only be filed twice, the first being done by the court on its own motion (motu proprio)
the claim embodied in the original complaint. Since as a rule, or upon a motion filed by the defendant.
the dismissal is without prejudice, the same claim may be
refiled. If the refiled claim or complaint is dismissed again Effect of dismissal on the counterclaim (Sec. 3, Rule 17)
through a second notice of dismissal, that second notice 1. Without prejudice to the right of the defendant to
triggers the application of the two-dismissal rule and the prosecute his counterclaim in the same action or in a
dismissal is to be deemed one with prejudice because it is separate action.
considered as an adjudication upon the merits. 2. See Pinga vs. Heirs of Santiago, G.R. No. 170354, June
30, 2006.
Dismissal by Filing a Motion to Dismiss
Dismissal with prejudice (Sec. 3, Rule 17)
Once either an answer or a motion for summary judgment has
been served on the plaintiff, the dismissal is no longer a matter The dismissal shall have the effect of an adjudication on the
of right and will require the filing of a motion to dismiss, not a merits, unless otherwise declared by the court. Hence, as a
mere notice of dismissal. rule, it is a dismissal with prejudice.

The dismissal under Sec. 2 of Rule 17 is no longer a matter of Chapter V Summons

right on the part of the plaintiff but a matter of discretion upon
the court. Nature of summons
1. The writ by which the defendant is notified of the
Effect of dismissal upon a counterclaim already pleaded (Sec. action brought against him.
2, Rule 17) 2. The issuance of summons is not discretionary on the
1. Prior to the service upon the defendant of the part of the court or the clerk of court but is a
plaintiffs motion to dismiss, and the court grants the mandatory requirement.
said motion to dismiss, the dismissal shall be limited
to the complaint. Purpose of summons
2. The defendant if he so desires may prosecute his 1. In an action in personam, the purpose of summons is
counterclaim either in a separate action or in the not only to notify the defendant of the action against
same action. Should he choose to have his him but also to acquire jurisdiction over his person.
counterclaim resolved in the same action, he must 2. In an action in rem or quasi in rem, jurisdiction over
notify the court of his preference within 15 days from the defendant is not mandatory and the court
notice of the plaintiffs motion to dismiss. Should he acquires jurisdiction over an action as long as it
opt to prosecute his counterclaim in a separate acquires jurisdiction over the res. Note: The purpose
action, the court should render the corresponding is to satisfy the constitutional requirements of due
order granting and reserving his right to prosecute his process.
claim in a separate complaint.
3. A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3 To whom summons is directed
of Rule 17, wherein the dismissal of the complaint
does not carry with it the dismissal of the A writ directed to the defendant, not to the plaintiff. It shall be
counterclaim. The same provision also grants the signed by the clerk of court and under seal.
defendant a choice in the prosecution of his
counterclaim. Who serves summons

Dismissal without prejudice (Sec. 2, Rule 17) May be served by the sheriff, his deputy, or other proper court
officer, or for justifiable reasons by any suitable person
The dismissal authorized under Sec. 2 of Rule 17 is a dismissal authorized by the court issuing the summons.
without prejudice except if the order of dismissal specifies that
it is without prejudice. Duty of server upon completion of service
1. Within 5 days, serve a copy of the return, personally
Dismissal Due to the Fault of Plaintiff or by registered mail, to the plaintiffs counsel, and
1. A complaint may be dismissed even if the plaintiff has shall return the summons to the clerk who issued it,
no desire to have the same dismissed. Sec. 3 of Rule accompanied by proof of service.
17 provides the following grounds for dismissal: 2. After the completion of the service, a proof of service
a. The failure of the plaintiff, without is required to be filed by the server of the summons.
justifiable reasons, to appear on the date of 3. The proof of service of summons shall be made in
the presentation of his evidence in chief; writing by the server and shall set forth the manner,
b. The failure of the plaintiff to prosecute his place, and date of service; shall specify any papers
action for an unreasonable length of time; which have been served with the process and the
c. The failure of the plaintiff to comply with name of the person who received the same; and shall
these Rules of Court; or be sworn to when made by a person other than a
d. The failure of the plaintiff to obey any order sheriff or his deputy.
of the court.
Uniformity of the rules on summons

24 | P L A T O N
The rules on summons apply with equal force in actions before head, or on such other officer or officers as the law or
the Regional Trial Courts, the Municipal Trial Courts, the the court may direct.
Municipal Circuit Trial Courts and the Metropolitan Trial Courts.
(See Sec. 1 of Rule 5) Service upon a defendant whose identity or whereabouts are
unknown despite diligent inquiry
Contents of the summons
1. The summons shall contain the following matters: Service may, with prior leave of court, be effected upon the
a. The name of the court and the names of the defendant, by publication in a newspaper of general circulation.
parties to the action; The place and the frequency of the publication is a matter for
b. A direction that the defendant answers the court to determine.
within the time fixed by the Rules; and
c. A notice that unless he defendant so Pursuant to this provision, summons by publication applies in
answers, plaintiff will take judgment by any action and the rule does not distinguish whether the action
default and may be granted the relief is in personam, in rem or quasi in rem.
prayed for.
2. A copy of the complaint shall be attached to the Service upon a resident temporarily out of the Philippines
original and each copy of the summons.
Service may, by leave of court, be effected out of the
Service of summons without copy of the complaint defective Philippines as under the rules on extraterritorial service in Sec.
15 of Rule 14:
Service upon an entity without a juridical personality a) By personal service as in Sec. 6 of Rule 14;
1. See Section 15, Rule 3 b) By publication in a newspaper of general circulation
2. Service may be effected upon all the defendants by together with a registered mailing of a copy of the
serving summons upon (a) any one of them, or (b) summons and the order of the court to the last
upon the person in charge of the office or of the place known address of the defendant; or
of business maintained in such name. c) By any manner the court may deem sufficient.

Service upon a prisoner See also substituted service under Sec. 7 of Rule 14

Effected upon him by the officer managing the jail or institution Service upon a foreign private juridical entity which has
where said prisoner is confined. For this purpose, the jail transacted business in the Philippines
manager is deemed deputized as a special sheriff. 1. Made on (a) its resident agent designated in
accordance with law, i.e., SEC, BSP, Insurance law,
Service upon a minor and an incompetent etc; or if there be no such agent, (b) on the
government official designated by law to that effect,
Service shall be made (a) upon him personally AND (b) on his or (c) on any of its officers or agents within the
legal guardian if he has one, or if none, upon his guardian ad Philippines.
litem (applied for by the plaintiff). If a minor, service may be 2. It has been held that when a foreign corporation has
made also upon his father or mother. designated a person to receive summons on its behalf
pursuant to the Corporation Code, that designation is
Service upon a private domestic juridical entity exclusive and service of summons on any other
1. When the defendant is a corporation, partnership or person is inefficacious.
association organized under the laws of the
Philippines with a juridical personality, service may be Acquisition of jurisdiction over the person of the defendant
made on the following persons (exclusively): 1. Courts jurisdiction over a defendant is acquired
a. President, either upon a valid service of summons or the
b. Managing partner defendants voluntary appearance in court.
c. General manager, 2. Under Sec. 20 of Rule 14, the defendants voluntary
d. Corporate secretary, appearance in the action shall be equivalent to
e. Treasurer, or service of summons.
f. In-house counsel 3. Service of summons is not only a means of acquiring
2. A strict compliance with the mode of service is jurisdiction over the person of the defendant. It is
necessary to confer jurisdiction of the court over a also a means of complying with the due process
corporation. The officer upon whom service is made requirement of notice under the constitution.
must be one who is named in the statute; otherwise
the service is insufficient. Purpose: to render it A. Service in person on the defendant
reasonably certain that the corporation will receive 1. Only if the suit is one strictly in personam
prompt and proper notice. 2. This is done by handing a copy thereof to the
defendant in person. If he refuses to receive and sign
Service upon a public corporation for it, the remedy of the server is to tender the
1. When the defendant is the Republic of the summons to the defendant.
Philippines, service may be effected on the Solicitor 3. If the defendant cannot be served in person within a
General. reasonable time, only then may substituted service
2. When the defendant is a province, city or under Sec. 7 of Rule 14 be availed of.
municipality, service may be effected on its executive

25 | P L A T O N
B. Substituted service of summons defendant in the summons, its importance, and the
1. It is necessary to establish the following: prejudicial effects arising from inaction on the
a. The impossibility of service of summons on summons.
person within a reasonable time; 4. Where the substituted service has been validly
b. The efforts exerted to locate the person to served, its validity is not affected by the defendants
be served; failure to actually receive the summons from the
c. Service upon a person of sufficient age and person with whom the summons had been left.
discretion in the same place as the
defendant or some competent person in When Defendant Prevents Service of Summons
charge of his office or regular place of
business. C. Summons by publication
2. Reasonable time a period of time longer than that 1. This service always requires permission of the court.
demarcated by the word prompt and presupposes 2. As a rule, summons by publication is available only in
that a prior attempt at personal service had failed. actions in rem or quasi in rem. It is not available as a
3. Reasonable time so much time as is necessary means of acquiring jurisdiction over the person of the
under the circumstances for a reasonably prudent defendant in an action in personam.
and diligent man to do, conveniently, what the 3. Against a resident: service in person (Sec. 6 of Rule
contract or duty requires that should be done. 14); if defendant cannot be served within a
a. To the plaintiff, no more than 7 days since reasonable time, substituted service will apply (Sec. 7
an expeditious processing of the complaint of Rule 14) but not summons by publication. XPN:
is what the party wants. a. where the identity or whereabouts of the
b. To the sheriff, 15 to 30 days because at the defendant are unknown (Sec. 14 of Rule
end of the month, it is a practice for the 14); and
branch clerk to require the sheriff to submit b. when the defendant is a resident
a return of summons assigned to the sheriff temporarily out of the Philippines (Sec. 16
for service. of Rule 14).
4. A mere general claim or statement in the Sheriffs 4. Against a nonresident: service upon his person while
Return that the server made several attempts to within the Philippines. Summons by publication
serve the summons, without making reference to the against a nonresident in an action in personam is not
details of facts and circumstances surrounding such proper mode of service.
attempts, does not comply with the rules on 5. Publication is notice to the whole world that the
substituted service. Note: Several attempts means proceeding has for its object to bar indefinitely all
at least 3 tries, preferably on at least two different who might be minded to make an objection of any
dates. In addition the sheriff must cite why such sort against the right sought to be established.
efforts were unsuccessful. 6. Proof of service is done through the following:
5. An ineffective substituted service has certain adverse a. Affidavit of the printer, his foreman or
effects, i.e., the period to file a motion to dismiss for principal clerk, business or advertising
lack of jurisdiction over the defendants person does manager, to which affidavit a copy of the
not commence to run; the trial court does not acquire publication shall be attached; and
jurisdiction over the person of the defendant. b. Affidavit showing the deposit of a copy of
the summons and order for publication in
How substituted service is made the post office.
1. Under Sec. 7 of Rule 14:
a. Leaving copies of the summons at the Extraterritorial service of summons
defendants residence with a person of 1. Requisites under Sec. 15 of Rule 14:
suitable age and discretion residing therein, a. the defendant is a nonresident;
or b. he is not found in the Philippines; and
b. Leaving copies of the summons at the c. the action against him is either in rem or
defendants office or regular place of quasi in rem. XPN: Sec. 16 of Rule 14
business with some competent person in (Residents temporarily out of the
charge thereof. Philippines)
2. A person of suitable age and discretion is one who 2. Actions in rem or quasi in rem:
has attained the full age of full legal capacity (18 a. Actions that affect the personal status of
years old) and is considered to have enough the plaintiff;
discernment to understand the importance of b. Actions which relate to, or the subject
summons. Note: Discernment is defined as the ability matter of which is property within the
to make decisions which represent a responsible Philippines, in which the defendant claims a
choice and for which an understanding of what is lien or interest, actual or contingent;
lawful, right or wise may be presupposed. Relation c. Actions in which the relief demanded
of confidence consists, wholly or in part, in excluding the
3. A competent person in charge of the office or regular defendant from an interest in property
place of business must be the one managing the located in the Philippines; and
office or business of defendant, such as the president d. When the defendants property has been
or manager; and such individual must have sufficient attached in the Philippines.
knowledge to understand the obligation of the

26 | P L A T O N
Modes of extraterritorial service with sufficient definiteness or particularity to
1. The following are alternative modes of extraterritorial enable the movant to prepare his responsive
service, all of which require a prior leave of court: pleading, not to enable the movant to prepare for
a. By personal service as provided for in Sec. 6 trial (appropriate remedy: discovery procedures
of Rule 14 governing service in person on under Rule 23 to 29 or pre-trial under Rule 18).
defendant; 2. To clarify the allegations in the pleading so an adverse
b. By publication in a newspaper of general party may be informed with certainty of the exact
circulation in such places and for such time character of a cause of action or a defense.
as the court may order, in which case a 3. See also Sec. 1, 5 and 6 of Rule 8 when such motion is
copy of the summons and the order of the not proper.
court shall be sent by registered mail to the
last known address of the defendant; or Requirements for the motion
c. In any manner the court may deem
sufficient. Aside from the requirements for a motion as set forth in Rule
2. Compliance with due process is actually the 15, the motion shall point out the (a) defects complained of, (b)
underlying purpose of all modes of extraterritorial the paragraph wherein they are contained, and (c) the details
service. desired.

Summons when complaint is amended Action of the court

1. Three possible actions: (a) to deny the motion
Q: Should another summons be served upon the defendant if outright, (b) to grant the motion outright, or (c) to
the complaint is amended? hold a hearing on the motion.
2. If the motion for bill of particulars is granted, the
A: It depends on whether or not the defendant has appeared court shall order the pleader to submit a bill of
before the trial court by virtue of a summons on the original particulars to the pleading to which the motion is
complaint. It is not the change in the cause of action that gives directed. The compliance shall be effected within 10
rise to the need to serve another summons for the amended days from notice of the order, or within the period
complaint, but rather the acquisition of jurisdiction over the fixed by the court.
person of the defendant. 3. In complying with the order, the pleader may file the
bill of particulars either in a separate pleading or in
Chapter VI Proceedings After Service of Summons the form of an amended pleading.
4. The bill of particulars submitted becomes part of the
Preliminary Statements pleading for which it is intended.

A. Motion for Bill of Particulars Effect of non-compliance with the order of the court or
insufficient compliance
1. If there are matters in the complaint which are vague
or ambiguous or not averred with sufficient The court has the following options: (a) to order the striking out
definiteness, one may file a motion for bill of of the pleading, (b) to order the striking out of the portions of
particulars. the pleading to which the order was directed, or (c) to make
2. As long as the allegations of a complaint make out a such other order it may deem just.
cause of action, the ambiguity in some allegations of
the complaint or the failure to allege facts with When the movant shall file his responsive pleading
sufficient particularity does not justify the filing of a 1. A motion for bill of particulars is not a pleading,
motion to dismiss. The proper remedy is to file a hence, not a responsive pleading. Whether or not his
motion for bill of particulars. motion is granted, the movant may file his responsive
3. It must be made clear that a motion for bill of pleading. When he files a motion for bill of
particulars is not directed only to a complaint. It is a particulars, the period to file the responsive pleading
motion that applies to any pleading which in the is stayed or interrupted. After service of the bill of
perception of the movant contains ambiguous particulars upon him or after notice of the denial of
allegations. his motion, he may file his responsive pleading within
the period to which he is entitled to at the time the
When to file the motion motion for bill of particulars is filed.
1. To be filed before, not after responding to a pleading. 2. F the movant has less than 5 days to file his
When directed to a complaint, within 15 days after responsive pleading after service of the bill of
the service of summons. When directed to a particulars or after notice of the denial of his motion,
counterclaim, within 10 days from service of the he nevertheless has 5 days within which to file his
counterclaim. (Sec. 4 of Rule 11) responsive pleading.
2. In case of a reply to which no responsive pleading is
provided for by the Rules, the motion must be filed B. Motion to Dismiss
within 10 days of the service of said reply.
Effective August 26, 2004, within one day from receipt of the
Purpose of the motion complaint, summons shall contain a reminder to the defendant
1. To seek an order from the court directing the pleader to observe restraint in filing a motion to dismiss and instead
to submit a bill of particulars which avers matters allege the grounds thereof as defenses in the answer.

27 | P L A T O N
2. That the court has no jurisdiction over the subject
A motion to dismiss is not a pleading matter of the claim;
3. That venue is improperly laid;
It is merely a motion. Under the Rules, a motion is an 4. That the plaintiff has no legal capacity to sue;
application for relief other than by a pleading. The pleadings 5. That there is another action pending between the
allowed under the Rules are: same parties for the same cause;
a) Complaint, 6. That the cause of action is barred by a prior judgment
b) Answer, or by the statute of limitations;
c) Counterclaim, 7. That the pleading asserting the claim states no cause
d) Cross-claim, of action;
e) Third (fourthetc.) party complaint, Curable by amendment
f) Complaint in intervention, and 8. That the claim or demand set forth in the plaintiff's
g) Reply pleading has been paid, waived, abandoned, or
otherwise extinguished;
Hypothetical admissions of a motion to dismiss 9. That the claim on which the action is founded is
unenforceable under the provisions of the statute of
A motion to dismiss hypothetically admits the truth of the frauds; and
factual allegations of the complaint. The admission extends 10. That a condition precedent for filing the claim has not
only to such matters of fact that have been sufficiently pleaded been complied with.
and not to mere epithets charging fraud, allegations of legal Not jurisdictional in nature, hence, deemed
conclusions or erroneous statements of law, inferences from waived if not raised.
facts not stated, matters of evidence or irrelevant matters.
Laches as a ground for a motion to dismiss under Rule 16
Omnibus motion
1. When a motion to dismiss is filed, all grounds The language of the rule, particularly on the relation of the words
available at the time the motion is filed must be "abandoned" and "otherwise extinguished" to the phrase "claim or
invoked in the motion. Grounds not so invoked are demand deemed set forth in the plaintiffs pleading" is broad enough to
deemed waived. The grounds not waived however, include within its ambit the defense of bar by laches. However, when a
party moves for the dismissal of the complaint based on laches, the trial
are lack of jurisdiction over the subject matter, litis
court must set a hearing on the motion where the parties shall submit
pendencia, res judicata and prescription (Sec.1, Rule not only their arguments on the questions of law but also their
9). evidence on the questions of fact involved. Thus, being factual in
2. The above rule applies only when a motion to dismiss nature, the elements of laches must be proved or disproved through
is filed. Where no motion to dismiss is filed, the the presentation of evidence by the parties.
grounds for a motion to dismiss may be availed of as
affirmative defenses in the answer. No defense is Res judicata as a ground for a motion to dismiss
waived because no motion to dismiss was filed. 1. Based on two grounds, namely: (1) public policy and
necessity, which makes it to the interest of the State
Contents and form of the motion that there should be an end to litigationrepublicae
1. The motion to dismiss shall state the relief sought and ut sit litium; and (2) the hardship on the individual of
the grounds upon which it is based and shall be being vexed twice for the same causenemo debet
accompanied by supporting affidavits and papers. bis vexari et eadem causa.
2. The motion shall be set for hearing by the applicant 2. Accordingly, courts will simply refuse to reopen what
and shall contain a notice of hearing addressed to all has been decided.
parties concerned. Such notice shall specify the time
and date of the hearing which must not be later than Concept of res judicata
ten (10) days after the filing of the motion. 1. Comprehends two distinct concepts: (1) bar by prior
3. The notice requirement in a motion is mandatory and judgment, and (2) conclusiveness of judgment.
its absence renders the motion defective. As a rule, a 2. The first concept bars the prosecution of a second
motion without a notice of hearing is considered pro action upon the same claim, demand or cause of
forma and does not affect the reglementary period action.
for the filing of the requisite pleading.
The second conceptconclusiveness of judgment
Time to file the motion states that a fact or question which was in issue in a
1. Within the time for filing the answer but before filing former suit and was there judicially passed upon and
said answer, a motion to dismiss may be filed on any determined by a court of competent jurisdiction, is
of the grounds mentioned in Rule 16. conclusively settled by the judgment therein as far as
2. A motion to dismiss that is filed after the answer has the parties to that action and persons in privity with
been filed is considered filed out of time and the them are concerned and cannot be again litigated in
defending party is stopped from filing the motion to any future action between such parties or their
dismiss. This is only a general rule. privies, in the same court or any other court of
3. XPN: Section 1 of Rule 9. concurrent jurisdiction on either the same or
different cause of action, while the judgment remains
Grounds for motion to dismiss unreversed by proper authority.
1. That the court has no jurisdiction over the person of
the defending party; Elements of res judicata

28 | P L A T O N
1. The former judgment must be final; (E.g., dismissal was anchored on improper venue,
2. The court which rendered it had jurisdiction over the refile the action in the proper venue)
subject matter and the parties; 2. He may appeal from the order of dismissal where the
3. The judgment must be on the merits; and ground relied upon is one which bars the refiling of
4. There must be between the first and the second the complaint like res judicata, prescription,
actions, identity of parties, subject matter and causes extinguishment of the obligation or violation of the
of action. statutes of frauds. Note: Under Section1 (g) of Rule
41, it is an order dismissing an action without
Note: The application of the doctrine does not require absolute prejudice which cannot be appealed from.
identity of parties but merely substantial identity of parties Conversely, where the dismissal is with prejudice, an
(when there is community of interest or privity of interest appeal from the order of dismissal is not precluded.
between a party in the first and a party in the second case even 3. The plaintiff may also avail of a petition for certiorari
if the first case did not implead the latter). if the court gravely abuses its discretion in a manner
amounting to lack of jurisdiction.
Application of res judicata to quasi-judicial proceedings
When complaint cannot be refiled
No res judicata in criminal proceedings 1. The cause of action is barred by a prior judgment;
2. The cause of action is barred by the statute of
Pleading grounds as affirmative defenses limitations;
1. If no motion to dismiss has been filed, any of the 3. That the claim or demand has been paid, waived,
grounds provided for dismissal under this Rule may abandoned, or otherwise extinguished; and
be pleaded as an affirmative defense in the answer 4. That the claim on which the action is founded is
and, in the discretion of the court, a preliminary unenforceable under the provisions of the statute of
hearing may be had thereon as if a motion to dismiss frauds.
has been filed.
2. Implied under Sec. 6 of Rule 16 is the rule that the Effect of dismissal of complaint on the counterclaim
grounds for a motion to dismiss are not waived even
if the defendant fails to file a motion to dismiss The dismissal of a complaint shall be without prejudice to the
because he may still avail of the defenses under Rule prosecution in the same or a separate action of a counterclaim
16 as affirmative defenses in his answer. pleaded in the answer of the defendant.
3. As a rule, a preliminary hearing is not authorized
when a motion to dismiss has been filed. XPN: If the Under Sec. 6 of Rule 16, the dismissal of the main action does
trial court had not categorically resolved the motion not carry with it the dismissal of the counterclaim.
to dismiss or when it is evident that the action is
4. May a ground previously inoked in a denied motion (Rule 16) (Rule 33)
to dismiss be invoked anew? Yes. Grounded on preliminary Based on insufficiency of
objections evidence
Remedy of the defendant if the motion is denied May be filed by any defending May be filed only by the
1. The movant shall file his answer within the balance of party against whom a claim is defendant against the
the period prescribed by Rule 11 to which he was asserted in the action complaint of the plaintiff
entitled at the time of serving his motion, but not less Should be filed within the May be filed only AFTER the
than five (5) days in any event. The order of denial, time but PRIOR to the filing of plaintiff has completed the
being interlocutory is not appealable by express the answer presentation of his evidence
provision of Sec. 1 (b), Rule 41. If DENIED, the defendant If DENIED, defendant may
2. The remedy would therefore be certiorari, prohibition answers, or else he may be present evidence
or mandamus under Rule 65. This remedy however, is declared in default
predicated upon an allegation and a showing that the
denial of the motion was tainted with grave abuse of If GRANTED, plaintiff may If GRANTED, but on appeal
discretion amounting to lack of jurisdiction where the appeal or if subsequent case the order of dismissal is
remedy chosen is either certiorari or prohibition or is not barred, he may re-file reversed, the defendant loses
both. In case the remedy chosen is mandamus, there the case his right to present evidence
must be a showing that the respondent court
unlawfully neglected the performance of an act which Chapter VII Answer, Other Pleadings, Default,
the law specifically enjoins.
Judgment on the Pleadings, Summary Judgment
3. An order denying a motion to dismiss is an
interlocutory order which neither terminates nor
finally disposes of a case, as it leaves something to be
A. Answer
done by the court before the case is finally decided
on the merits. Nature of an answer

Remedies of the plaintiff if the motion to dismiss is granted The answer is a pleading in which a defending party sets forth
1. Depending on the ground for the dismissal of the his defenses
action, the plaintiff may simply refile the complaint.
Defenses in the answer (negative or affirmative)

29 | P L A T O N
the promissory note shall be deemed a part of the
A defense is negative when the material averments alleged in pleading. The copy of the note may also be set forth
the pleading of the claimant are specifically denied. A negative in the pleading, i.e., it may be copied verbatim.
defense is stated in the form of a specific denial. (actionable document)
If the party desires to deny the genuineness and the
Effect of absence of a specific denial due execution of the document, he must do two
1. Material averments in the complaint (except as to the things: (a) to specifically deny the document, and to
amount of unliquidated damages), not specifically set forth what he claims to be the facts, and (b) deny
denied are deemed admitted. the document under oath. Otherwise, he is deemed
a. Effect: there is no more triable issues. The to have admitted the genuineness and due
plaintiff may file a motion for judgment on execution of the promissory note
the pleadings under Rule 34 Note: The failure to deny the genuineness and due
2. An admission in a pleading cannot be controverted by execution of an actionable document does not
the party making such admission because the preclude a party from arguing against it by evidence
admission is conclusive as to him. of fraud, mistake, compromise, payment, statute of
limitations, estoppel, and want of consideration.
Note: A party who desires to contradict his own
judicial admission may do so only by either of two Allegations of usury will be deemed admitted if not denied
ways: (a) by showing that the admission was made under oath. The allegations of usury which requires a specific
through palpable mistake, or (b) that no such denial under oath must be:
admission was made. a) Allegations of usury in a complaint (not allegations of
usury in the answer), and
Purpose of specific denial b) The complaint is filed to recover usurious interests.
(See Sec. 11, Rule 8)
To make him disclose the matters alleged in the complaint
which he succinctly intends to disprove at the trial, together Matters not deemed admitted by the failure to make a
with the matter which he relied upon to support the denial. specific denial
a) The amount of unliquidated damages
Kinds of specific denials b) Conclusions in a pleading which do not have to be
1. Absolute denialthe defendant specifies each denied at all because only ultimate facts need be
material allegation of fact the truth of which he does alleged in a pleading
not admit and, whenever practicable sets forth the c) Non-material averments or allegations are not
substance of the matters upon which he relies to deemed admitted because only material allegations
support his denial. have to be denied
2. Partial denialthe defendant does not make a total
denial of the material allegations in a specific Affirmative defenses
paragraph. He denies only a part of the averment. If 1. A defense is affirmative when it alleges new matters
he chooses this type of denial, he specifies that part which, while hypothetically admitting the allegations
the truth of which he admits and denies only the of the pleading of the claimant, would nevertheless,
remainder. prevent or bar recovery by the claiming party.
3. Denial by disavowal of knowledgethe defendant 2. It is one which is not a denial of an essential
alleges that he is without knowledge or information ingredient in the plaintiffs cause of action, but one
sufficient to form a belief as to the truth of a material which, if established, will be a good defense, i.e., an
averment made in the complaint. avoidance of the claim.
a. Fraud
Negative pregnant b. Statute of limitations
c. Release
A negative pregnant does not qualify as a specific denial. It is d. Payment
conceded to be actually an admission. e. Illegality
f. Statute of frauds
In a pleading, it is a negative implying also an affirmative and g. Estoppel
which although is stated in a negative form really admits the h. Former recovery
allegations to which it relates. i. Discharge in bankruptcy
j. Any other matter by way of confession and
When a specific denial must be coupled with an oath avoidance
1. A denial of an actionable document
2. A denial of allegations of usury in a complaint to B. Counterclaim
recover usurious interest.
Nature of a counterclaim
If the cause of action in the complaint is founded upon a 1. A counterclaim is any claim, which a defending party
promissory note, the said note is the basis of the action. may have against an opposing party. It partakes of a
Under the Rules, the substance of the promissory complaint by the defendant against the plaintiff.
note shall be set forth or stated in the pleading and 2. Any claim may refer to a claim for (a) money, or (b)
the original or copy thereof shall be attached to the some other relief against an opposing party.
pleading as an exhibit. When attached as an exhibit

30 | P L A T O N
3. A counterclaim is not intrinsically a part of an answer shopping and whenever
because it is a separate pleading. It may, however, be required by law, also a
included in the answer. (Answer With A certificate to file action issued
Counterclaim) by the Lupong Tagapamayapa
4. A counterclaim may be compulsory or permissive. Failure to answer a Must be answered by the
compulsory counterclaim is party against whom it is
Compulsory counterclaim not a cause for a default interposed otherwise, he may
1. Elements declaration be declared in default as to he
a. It arises out of, or is necessarily connected with counterclaim
the transaction or occurrence that is the subject
matter of the opposing partys claim; How to set up an omitted compulsory counterclaim
b. It does not require for its adjudication the
presence of third parties over whom the court A compulsory counterclaim not initially set up because of the
cannot acquire jurisdiction; and pleaders oversight, inadvertence, excusable neglect or when
c. The court has jurisdiction to entertain both as to justice requires, may be set up, by leave of court by
the amount and nature. amendment of the pleadings before judgment (Sec. 10, Rule
2. One compelling test of compulsoriness is the logical 11). If not set up in the action, the compulsory counterclaim
relation between the claim alleged in the complaint shall be barred (Sec. 2, Rule 9).
and that in the counterclaim.
How to set up a counterclaim arising after the filing of the
Incompatibility between a compulsory counterclaim and a answer
motion to dismiss
A counterclaim, which either matured or was acquired by a
A party who desires to plead a compulsory counterclaim should party after serving his pleading, may, with the permission of the
not file a motion to dismiss. If he files a motion to dismiss and court, be presented as a counterclaim by supplemental
the complaint is dismissed there will be no chance to invoke the pleading before judgment.
But if he opts to set up his compulsory counterclaim, Period to answer a counterclaim
he may still plead his ground for dismissal as an
affirmative defense in his answer. Within 10 days. Note: This rule has more relevance to a
permissive counterclaim which has to be answered.
Permissive counterclaim
Effect of dismissal of a complaint on the counterclaim already
Generally, a counterclaim is permissive if any of the elements of set up
a compulsory counterclaim is absent. 1. Sec. 6, Rule 16: The dismissal of the complaint under
this section shall be without prejudice to the
Tests to determine whether a counterclaim is compulsory or prosecution in the same or separate action of a
not: counterclaim pleaded in the answer.
1. Are the issues of fact or law raised by the claim and 2. Sec. 2, Rule 17: The dismissal shall be limited to the
the counterclaim largely the same? complaint. The dismissal shall be without prejudice to
2. Would res judicata bar a subsequent suit on the right of the defendant to prosecute his
defendants claims, absent the compulsory counterclaim in a separate action unless within 15
counterclaim? days from notice of the motion he manifests his
3. Will substantially the same evidence support or preference to have his counterclaim resolved in the
refute plaintiffs claim as well as the defendants same action.
counterclaim? 3. Sec. 3, Rule 17: The dismissal is without prejudice to
4. Is there any logical relation between the claim and the right of the defendant to prosecute his
the counterclaim, such that the conduct of separate counterclaim in the same or separate action.
trials of the respective claims of the parties would
entail a substantial duplication of effort and time by C. Cross-Claim
the parties and the court?
Nature of cross-claim
Distinctions between a compulsory and a permissive 1. A cross-claim is any claim by one party against a co-
counterclaim party arising out of the transaction or occurrence that
is the subject matter either of the original action or of
Compulsory Permissive a counterclaim therein. The cross-claim may include a
Must be contained in an May be set up as an claim that the party against whom it is asserted is
answer otherwise, barred independent action and will liable or maybe liable to the cross-claimant for all or
not be barred if not contained part of a claim asserted in the action against the
in the answer to the cross-claimant.
complaint 2. A cross-claim is asserted by a defending party against
Not an initiatory pleading Considered an initiatory a co-defending party so that the latter may be held
pleading liable for the claim which the claimant seeks to
Does not require the Accompanied by a recover from the cross-claimant.
certificates mentioned certification against forum
31 | P L A T O N
3. A cross-claim that a party has at the time the answer the Rules of Court. This third person who intervenes
is filed shall be contained in said answer. is one who is not originally impleaded in the action.
2. It is never an independent proceeding but is ancillary
The cross-claim must be set up in the same action. and supplemental to an existing litigation. Its purpose
is to enable a stranger to an action to become a party
If through oversight, inadvertence, or excusable to protect his interest.
negligence, it is not asserted, it may still be set up 3. It cannot alter the nature of the action and the issues
with leave of court, by amendment of the pleadings. already joined.
4. Intervention in an action is neither compulsory nor
It has to be set up in the action because if not set up mandatory but only optional and permissive.
it shall be barred. 5. It is not an absolute right as it can be secured only in
accordance with the terms of the applicable statute
Note however, that the cross-claim that shall be or rule.
barred if not asserted is the cross-claim already
existing at the time the answer is filed, not the cross- Requisites for intervention
claim that may mature or may be acquired after 1. There must be a motion for intervention filed before
service of the answer. rendition of judgment by the trial court. A motion is
necessary because leave of court is required before a
As to the latter, Section 9 of Rule 11 declares that it person may be allowed to intervene.
may, by leave of court, be set up by way of a 2. The movant must show in his motion that he has:
supplemental pleading. a. A legal interest in (a) the matter in
litigation, (b) the success of either of the
Distinctions Between a Counterclaim and a Cross-Claim parties in the action, or (c) against both
Period to answer a cross-claim b. That the movant is so situated as to be
adversely affected by a distribution or other
A cross-claim must be answered within ten (10) days from disposition of property in the custody of the
service. court or of an officer thereof; and
c. That the intervention must not unduly delay
D. Third (Fourth, Etc.) Party Complaint or prejudice the adjudication of the rights of
the original parties and that the
Nature of a third-party complaint intervenors rights may not be fully
1. This pleading is a claim which a defending party may, protected in a separate proceeding.
with leave of court, file against a person who is not
yet a party to the action for contribution, indemnity, Procedure for intervention
subrogation or any other relief, in respect of his 1. The intervenor shall file a motion for intervention
opponents claim. attaching thereto his pleading-in-intervention. Note:
2. A complaint independent of, and separate and The intervenor shall file a complaint-in-intervention if
distinct from the plaintiffs complaint. Note: Trial he asserts a claim against either or all of the original
courts are not especially enjoined by law to admit a parties, or an answer-in-intervention if he unites with
third-party complaint. the defending party in resisting a claim against the
3. It is not proper to file a third-party complaint against latter;
one who is already a party to the action such as 2. The motion and the pleading shall be served upon the
against the plaintiff (must be by way of counterclaim) original parties;
or a co-defendant (by way of cross-claim). 3. The answer to the complaint-in-intervention shall be
filed within 15 days from notice of the order
Leave of court admitting the same, unless a different period is fixed
by the courts.
The filing of a third party complaint requires leave of court and
hence, its admission is subject to judicial discretion. Leave of Meaning of legal interest
court is not required in filing a counterclaim or a cross-claim.
One that is actual and material, direct and of an immediate
Answer to a third-party complaint character, not merely contingent or expectant so that the
intervenor will either gain or lose by the direct legal operation
The time to answer a third-party complaint shall be governed of the judgment.
by the same rule as the answer to the complaint, hence, within
15 days from service of summons. Time for intervention

E. Intervention The motion may be filed at any time before rendition of

judgment by the trial court. Hence, intervention after trial and
Nature of intervention decision can no longer be permitted.
1. A legal proceeding by which a person who is not a
party to the action is permitted by the court to F. Reply
become a party by intervening in a pending action
after meeting the conditions and requirements set by Nature of reply

32 | P L A T O N
1. A pleading, the function of which is to deny, or allege Failure to file an answer under the Rule on Summary
facts in denial or avoidance of new matters alleged by Procedure
way of defense in the answer and thereby joins or 1. The defendant who fails to file an answer within the
makes issue as to such new matters. reglementary period is not supposed to be declared
2. The responsive pleading to an answer. It is not a in default. Instead, the court motu proprio, or on
responsive pleading to a counterclaim (the proper motion of the plaintiff, shall render judgment (not to
response is an answer to the counterclaim) or a cross- declare the defendant in default) as ay be warranted
claim (answer to the cross-claim. by the facts alleged in the complaint and limited to
what is prayed for.
Filing of reply, not mandatory 2. The plaintiff is prohibited from filing a motion to
declare the defendant in default.
The gist of the rule is: The material allegations of a complaint
must be specifically denied but the allegations of new matters Effect of a declaration/order of default
or material allegations of the answer need not be denied 1. The party declared in default loses his standing in
because they are deemed denied by the Rules for the plaintiff. court. The loss of such standing prevents him from
taking part in trial.
When filing of reply is advisable 2. While the defendant can no longer take part in the
trial, he is nevertheless entitled to notices of
When the defense in the answer is based upon a written subsequent proceedings. It is submitted that he may
instrument or document, said instrument is considered an participate in the trial, not as a party but as a witness.
actionable document. Hence, the plaintiff has to file a reply 3. A declaration of default is not an admission of the
under oath if he desires to deny specifically the genuineness truth or the validity of the plaintiffs claims.
and due execution of the actionable document of he wants to
avoid an admission of such matters (See Section 8 of Rule 8). Effect of partial default

G. Default The court shall try the case against all the defending parties
based on the answers filed and render judgment upon the
Nature of default evidence presented where the claim states a common cause of
1. A procedural concept that occurs when the defending action against them.
party fails to file his answer within the reglementary
period. It does not occur from the failure of the Action of the court after the declaration/order of default
defendant to attend either the pre-trial or the trial. 1. Under the rules, when a party is declared in default,
2. The plaintiff will present his evidence ex parte and the court may do either of two things:
the court will render judgment on the basis thereof. a. To proceed to render judgment, or
3. The failure of the defendant to attend hearings for b. To require the plaintiff to present his
the presentation of the evidence of the adverse party evidence ex parte.
amounts not to a default, but to a waiver of the 2. The choice of which action to take is a matter of
defendants right to object to the evidence presented judicial discretion.
during such hearings and to cross-examine the 3. The court need not personally receive the evidence if
witnesses presented. it decides to hear the evidence of the plaintiff. The
reception of the evidence may be delegated to the
Requisites before a party may be declared in default clerk of court.
a) There must be a motion to declare the defending
party in default filed by the claiming party; and Judicial discretion to admit answer filed out of time
b) Summons has been validly and previously served
upon him; It is not correct to say that a trial court has no recourse but to
c) The defending party must have failed to file his declare a defending party in default when he fails to file an
answer within the reglementary period or within the answer within the required period. In fact, the rule is that the
period fixed by the court; answer should be admitted where it is filed before a defending
d) There must be proof of the failure to file the answer; party is declared in default and no prejudice is caused to the
e) The defending party must be notified of the motion other party and that there is no showing that the defendant
to declare him in default; and intends to delay the case.
f) There must be a hearing of the motion to declare the
defendant in default. The hornbook rule is that default judgments are generally
No motu proprio declaration of default
Remedies of a defending party declared in default
Before the defending party can be declared in default, (a) the a) Remedy after notice of order and before judgment
claiming party must file a motion to declare said defending the defendant must file a motion under oath to set
party in default; (b) the defending party must be notified of the aside the order of default and show that (a) the
motion to declare him in default; and (c) the claiming party failure to answer was due to fraud, mistake, or
must prove that the defending party has failed to answer within excusable negligence, and that (b) the defendant has
the period provided by the Rules of Court. a meritorious defense.
b) Remedy after judgment and before judgment
becomes final and executorthe defendant may file a

33 | P L A T O N
motion for new trial under Rule 37. He may also material allegations of the complaint are deemed
appeal from the judgment as being contrary to the admitted.
evidence or the law.
c) Remedy after the judgment becomes final and Motion required
executorythe defendant may file a petition for relief
from judgment under Rule 38. It cannot be rendered by the court motu proprio. It can be done
d) Where the defendant has however, been wrongly or only where there is a prior motion to the effect filed by the
improvidently declared in default, the court can be appropriate party. XPN: If at the pre-trial the court finds that a
considered to have acted with grave abuse of judgment on the pleadings is proper, it may render such
discretion amounting to lack of jurisdiction and when judgment motu proprio.
the lack of jurisdiction is patent in the face of the
judgment or from the judicial records, he may avail of Cases where judgment on the pleadings will not apply
the special civil action of certiorari under Rule 65. 1. In the following cases, a judgment on the pleadings
will not lie:
Current judicial trend on defaults a. Actions for the declaration of nullity of a
1. Courts are enjoined to be liberal in setting aside marriage;
orders of default b. Actions for annulment of marriage; and
2. Suits should as much as possible be decided on the c. Actions for legal separation.
merits and not on technicalities 2. In the above cases, the material facts alleged in the
3. Judgments by default are frowned upon. complaint shall always be proved.

Implied lifting of the order of default (See Page 355) I. Summary Judgment

Extent of relief in a judgment by default Nature of summary judgment

1. Also called accelerated judgment, is proper where,
A judgment rendered against a party in default shall not exceed upon a motion filed after the issues had been joined
the amount or be different in kind from that prayed for nor and on the basis of the pleadings and papers filed, the
award unliquidated damages. court finds that there is no genuine issue as to any
material facts except as to the amount of damages.
Cases where a declaration/order of default cannot be made 2. What triggers a summary judgment is the absence of
1. Default is not allowed in the following actions: a genuine factual issue. It is not proper where there
a. Annulment of marriage; are factual issues to be resolved by the presentation
b. Declaration of nullity of marriage; and of evidence.
c. Legal separation 3. In Asian Development and Construction Corporation v.
Philippine Commercial and Industrial Bank, G.R. No.
d. Summary proceedings 153827, the Court reiterated the principles governing
e. Small claims summary judgment as follows:
2. If no answer is filed in any of the above actions, the
court shall order the prosecuting attorney to Under the Rules, summary judgment is appropriate when
investigate whether or not collusion exists between there are no genuine issues of fact which call for the
the parties. IF there is no collusion, the court shall presentation of evidence in a full-blown trial. Even if on their
order said prosecuting attorney to intervene for the face the pleadings appear to raise issues, when the
affidavits, depositions and admissions show that such issues
State in order to see to it that the evidence submitted
are not genuine, then summary judgment as prescribed by
is not fabricated. the Rules must ensue as a matter of law. The determinative
factor, therefore, in a motion for summary judgment, is the
Judgment by default for refusal to comply with the modes of presence or absence of a genuine issue as to any material
discovery fact.
a) If a party refuses to obey an order requiring him to
comply with the various modes of discovery; or A genuine issue is an issue of fact which requires the
b) If a party or officer or managing agent of a party presentation of evidence as distinguished from a sham,
willfully fails to appear before the officer who is to fictitious, contrived or false claim. When the facts as pleaded
appear uncontested or undisputed, then there is no real or
take his deposition or a party fails to serve answers to
genuine issue or question as to the facts, and summary
interrogatories. judgment is called for. The party who moves for summary
judgment has the burden of demonstrating clearly the
H. Judgment on the Pleadings absence of any genuine issue of fact, or that the issue posed
in the complaint is patently unsubstantial so as not to
Nature of judgment on the pleadings constitute a genuine issue for trial. Trial courts have limited
1. The concept will not apply when no answer is filed. It authority to render summary judgments and may do so only
when there is clearly no genuine issue as to any material
will come into operation when an answer is SERVED
fact. When the facts as pleaded by the parties are disputed
and FILED but the same fails to tender an issue or or contested, proceedings for summary judgment cannot
admits the material allegations of the adverse partys take the place of trial.
2. An answer fails to tender an issue when the material 4. The trial court cannot motu proprio decide that
allegations of the other party are admitted or not summary judgment on an action is in order. The
specifically denied by the pleader. Under the rules, defending party or the claimant, as the case may be,
34 | P L A T O N
must invoke the rule on summary judgment by filing a and Municipal Circuit Trial Courts, pre-trial is also
MOTION. The adverse party must be NOTIFIED of the mandatory.
motion and furnished with supporting affidavits, 4. A pre-trial conference is likewise mandatory in both
depositions or admissions before hearing is civil and criminal cases under the Rules on Summary
conducted. Procedure.
5. A summary judgment is permitted only if there is NO 5. The courts authority is confined to a mere
genuine issue as to any material fact and a moving determination of the propriety of rendering a
party is entitled to a judgment as a matter of law. judgment on the pleadings or a summary judgment.
The requisite motion should be filed and heard
Distinctions between judgment on the pleadings and a pursuant to Rule 34.
summary judgment
Referral to the Philippine Mediation Center
PLEADINGS JUDGMENT At the start of the preliminary conference, the judge is
There is an absence of a Involves an issue, but the mandated to refer the parties and/or their counsels to the
factual issue in the case issue is not genuine mediation unit of the PMC for purposes of mediation. If
because the answer tenders mediation fails, the judge will schedule the continuance of the
no issue at all preliminary conference.
Filed by a claiming party like a Filed by either the claiming or
plaintiff or a counterclaimant defending party How pre-trial is called
Based on the pleadings alone Based on the pleadings, 1. Under the Rules, it shall be the duty of the plaintiff,
affidavits, depositions and not of the defendant, to promptly file a motion to set
admissions the case for pre-trial. This motion is an ex parte
Only a 3-day notice to the A 10-day notice to the motion. This means that the motion need not be the
adverse party is required prior adverse party is required; the subject of a hearing.
to the date of hearing based adverse party in turn may 2. The ex parte motion to set the case for pre-trial is to
on the regular rules on serve opposing affidavits, be made by the plaintiff after the last pleading has
motion depositions or admission at been served and filed. Specifically, the motion is to be
least 3 days before the filed within 5 days after the last pleading joining the
hearing issues has been served and filed. If the plaintiff fails
to file said motion within the given period, the branch
Chapter VIII Pre-Trial and Modes of Discovery clerk of court shall issue a notice of pre-trial.

The meaning of last pleading

A. Pre-Trial
1. The last permissible pleading that a party can file is
the reply to the answer to the last pleading asserting
Nature and purpose of a pre-trial
a claim.
1. A pre-trial is a procedural device held prior to the trial
2. Where the last pleading has not yet been served and
for the court to consider the following purposes:
filed, the case is not yet ready for pre-trial. For
a. The possibility of an amicable settlement or
purposes of the pre-trial, the expiration of the period
of a submission to alternative modes of
for filing the last pleading without it having been
dispute resolution;
served and filed is sufficient.
b. The simplification of the issues;
c. The necessity or desirability of amendments
Notice of pre-trial
to the pleadings;
d. The possibility of obtaining stipulations or
It shall be served on the counsel of the party if the latter is
admissions of facts and of documents to
represented by counsel. Otherwise the notice shall be served
avoid unnecessary proof. Note: essentially
on the party himself. The counsel is charged with the duty of
notifying his client of the date, time and place of the pre-trial.
e. The limitation of the number of witnesses;
f. The advisability of a preliminary reference
Appearance in the pre-trial
of issues to a commissioner;
g. The propriety of rendering judgment on the
It shall be the duty of both the parties and their counsels to
pleadings, or summary judgment, or of
appear at the pre-trial.
dismissing the action should a valid ground
therefor be found to exist;
Effect of failure to appear by the plaintiff
h. The advisability or necessity of suspending
1. It shall be cause for the dismissal of the action with
the proceedings; and
prejudice except when the court orders otherwise.
i. Such other matters as may aid in the
2. Since the dismissal of the action shall be with
prompt disposition of the action.
prejudice, unless otherwise provided, the same shall
2. The pre-trial is MANDATORY in civil cases.
have the effect of an adjudication on the merits thus,
3. In all criminal cases cognizable by the Sandiganbayan,
final. The remedy of the plaintiff is to appeal from the
Regional Trial Court, Metropolitan Trial Court,
order of dismissal.
Municipal Trial Court in Cities, Municipal Trial Court,
Effect of failure to appear by the defendant

35 | P L A T O N
1. It shall be cause to allow the plaintiff to present his Hence, if it is the plaintiff who fails to file a pre-trial
evidence ex parte and for the court to render brief, such failure shall be cause for dismissal of the
judgment on the basis of the evidence presented by action. If it is the defendant who fails to do so, such
the plaintiff. failure shall be cause to allow the plaintiff to present
2. The order of the court allowing the plaintiff to his evidence ex parte.
present his evidence ex parte does not dispose the 2. The dismissal of a complaint for failure to file pre-trial
case with finality. The order is therefore, merely brief is discretionary on the part of the trial court.
interlocutory hence, not appealable. Remedy: Move
for the reconsideration of the order and if denial is No termination of pre-trial for failure to settle
tainted with grave abuse of discretion, he may file a 1. Instead, the judge should expose the parties to the
petition for certiorari. advantages of pre-trial. He must also be mindful that
there are important aspects of the pre-trial that
How non-appearance is excused ought to be taken up to expedite the disposition of
1. Only if a valid cause is shown for such non- the case.
appearance AND a representative shall appear in his 2. If all efforts to settle fail, the trial judge shall
behalf fully authorized in writing to enter into any of endeavor to achieve the other purposes of a pre-trial
the following matters: (a) an amicable settlement, (b) like, among others, obtaining admissions or
alternative modes of dispute resolution, and (c) stipulations of fact.
stipulations or admissions of facts. 3. The court shall ask the parties to agree on the specific
2. The written authority must be in the form of a special dates for continuous trial, adhere to the case flow
power of attorney. If the party is a corporation, the chart determined by the court and use the time
SPA must be supported by a board resolution. frame for each stage in setting the trial dates.

Filing and contents of pre-trial briefs Adherence to the One Day Examination of Witness
1. The parties shall file with the court their respective Rule shall be required where the witness shall be fully
pre-trial briefs which shall be received at least 3 days examined in 1 day only, subject to the courts
before the date of the pre-trial. This pre-trial brief discretion during the trial on whether or not to
shall be served on the adverse party. extend the examination for justifiable reasons.
2. The pre-trial brief shall contain the following matters:
a. A statement of their willingness to enter Where no settlement has been effected, the court
into amicable settlement or alternative shall follow the Most Important Witness Rule, where
modes of dispute resolution, indicating the the court shall determine the most important witness
desired terms thereof; and limit the number of such witnesses and require
b. A summary of admitted facts and proposed the parties and/or counsels to submit to the branch
stipulation of facts; clerk of court the names, addresses and contact
c. The issues to be tried or resolved; numbers of the witnesses to be summoned by
d. The documents or exhibits to be presented, subpoena.
stating the purpose thereof;
e. A manifestation of their having availed or Note however, that the court may also refer the case
their intention to avail themselves of to a trial by commissioner under Rule 32.
discovery procedures or referral to
commissioners; and Questions are to be asked by the judge
f. The number and names of the witnesses,
and the substance of their respective During the pre-trial, the judge shall be the one to ask questions
testimonies. on issues raised by the parties and all questions or comments
by counsel or parties must be directed to the judge to avoid
Importance of identification and marking of evidence hostilities between the parties.

The current rule establishes the policy that no evidence shall be Pre-trial order
presented and offered during the trial in support of a partys 1. This order of the court is issued by the court upon the
evidence-in-chief other than those that had been earlier termination of the pre-trial. Under A.M. No. 03-109-
identified and pre-marked during the pre-trial, except if SC, the pre-trial order shall be issued within 10 days
allowed by the court for good cause shown. after the termination of the pre-trial. This order
recites in detail the following:
Legal effect of representations and statements in the pre-trial a. Matters taken up in the conference;
brief b. The action taken thereon;
c. The amendments allowed to the pleadings;
The parties are bound by the representations and statements in and
their respective pre-trial briefs. Hence, such representations d. The agreements or admissions made by the
and statements are in the nature of judicial admissions in parties as to any of the matters considered.
relation to Sec.4 of Rule 129 of the Rules of Court. 2. Should the action proceed to trial, the pre-trial order
(a) defines and limits the issues to be tried, and (b)
Effect of failure to file a pre-trial brief controls the subsequent course of the action, XPN:
1. The failure to file the pre-trial brief shall have the a. if it is modified before trial to prevent
same effect as failure to appear at the pre-trial. manifest injustice;

36 | P L A T O N
b. issues impliedly included therein or may be A discovery is a device employed by a party to obtain
inferable therefrom by necessary information about relevant matters on the case from the
implication; and adverse party in preparation for the trial.
c. amendment to conform to evidence.
Purpose of discovery
Pre-trial in civil cases compared to pre-trial in criminal cases
The modes of discovery are designed to serve as an additional
IN CIVIL CASES IN CRIMINAL CASES device aside from a pre-trial, to narrow and clarify the basic
Set when the plaintiff moves Ordered by the court and no issues between the parties, to ascertain the facts relative to the
ex parte to set the case for motion to set the case for pre- issues and to enable the parties to obtain the fullest possible
pre-trial trial is required from either knowledge of the issues and facts before civil trials and thus
the prosecution or the prevent the said trials to be carried on in the dark.
Made after the last pleading Ordered by the court after It is intended to make certain that all issues necessary to the
has been served and filed arraignment and within 30 disposition of a case are properly raised.
days from the date the court
acquires jurisdiction over the Duty of the court in relation to the modes of discovery
person of the accused
Considers the possibility of Does not include the Modes of discovery under the Rules of Court
amicable settlement as an considering of the possibility 1. Depositions pending action (Rule 23);
important objective of amicable settlement of 2. Depositions before action or pending appeal (Rule
criminal liability as one of its 24);
purpose 3. Interrogatories to parties (Rule 25);
Requires the proceedings to All agreements or admissions 4. Admission by adverse party (Rule 26);
be recorded in the Minutes made or entered during the 5. Production or inspection of documents and things
of Preliminary Conference to pre-trial conference shall be (Rule 27); and
be signed by both parties reduced in writing and signed 6. Physical and mental examination of persons (Rule 28).
and/or counsel by both the accused and
counsel, otherwise, they Depositions (Rules 23-24)
cannot be used against the 1. It is the taking of the testimony of any person,
accused whether he be a party or not, but at the instance of a
The sanctions for non- The sanctions are imposed party to the action. It may be either by:
appearance in a pre-trial are upon the counsel for the a. An oral examination, or by
imposed upon the plaintiff accused or the prosecutor b. A written interrogatory.
and the defendant 2. A deposition may be sought for use in a future action,
A pre-trial brief is specifically A pre-trial brief is not during a pending action, or for use in a pending
required to be submitted specifically required appeal.
If the deposition is for use during a pending trial
Preliminary conference under the Revised Rules on Summary action, it is commonly called a deposition de benne
Procedure esse and is governed by Rule 23.
If it is to perpetuate a testimony for use in future
1. Under the Revised Rules on Summary Procedure, a proceedings as when it is sought before the existence
preliminary conference shall be held not later than of an action, or for cases on appeal, it is called a
thirty (30) days after the last answer is filed. Here, the deposition perpetuam rei memoriam.
rules on pre-trial in ordinary cases shall apply except
when inconsistent with the rules on summary When leave of court is required and not required for taking a
procedure. deposition pending action
2. The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the Leave of court is not required after an answer has been served
dismissal of his complaint. The defendant who but leave of court is required before the services of an answer
appears in the absence of the plaintiff shall be but after jurisdiction has been acquired over the defendant or
entitled to judgment on his counterclaim. All cross- over the property subject of the action.
claims shall be dismissed.
An answer ex abudanti cuatela (out of abundant caution or to be on
3. Within five (5) days after the termination of the the safe side) does not make an answer less of an answer. Thus, when
preliminary conference, the court shall issue an order an answer ex abudanti cuatela is filed, deposition may be made
stating the matters taken up in the conference. WITHOUT leave of court.

The Enhanced Pre-Trial Proceeding Deposition of a prisoner

B. Modes of Discovery His deposition may be taken only with leave of court and upon
such terms as the court may prescribe.
Meaning of discovery
Before whom taken (depositions pending action)
1. Within the Philippines, a deposition need not be
taken before a judge, although it may be taken before
37 | P L A T O N
one. It may also be taken before a notary public or c. (Alternative mode of testimony) For any
before any person authorized to administer oaths if purpose by any party, where the deponent
the parties so stipulate in writing. is a witness if the court finds that
2. Outside the Philippines, a deposition may be taken i. The witness is dead; or
before: ii. The witness resides at a distance
a. A secretary of an embassy or legation, more than one hundred (100)
consul general, consul, vice-consul, or kilometers from the place of trial
consular agent of the Republic of the or hearing, or is out of the
Philippines; Philippines, unless it appears that
b. Such person or officer as may be appointed his absence was procured by the
by commission or letters rogatory; or party offering the deposition; or
c. A person authorized to administer oaths by iii. The witness is unable to attend or
written stipulation of the parties. testify because of age, sickness,
infirmity, or imprisonment; or
Examination of the deponent iv. The party offering the deposition
1. A party desiring to take the deposition of any person has been unable to procure the
upon ORAL EXAMINATION shall give reasonable attendance of the witness by
notice in writing to every party to the action stating subpoena; or
the time and place for taking the deposition and the v. Upon application and notice, that
name and address of each person to be examined. such exceptional circumstances
After the notice is served, the court may make any exist.
order for the protection of the parties and the
deponents. Deposition upon written interrogatories
2. The attendance of witnesses may be compelled by
the use of subpoenas. A deposition need not be conducted through an oral
3. The deponent may be examined or cross examined examination. It may be conducted through written
following the procedures for witnesses in a trial. He interrogatories which shall be served upon every other party.
may be asked questions on direct, cross, re-direct or The party served may also serve cross-interrogatories upon the
re-cross. He has the same rights as a witness and may party proposing to take the deposition within 10 days from
be impeached like a court witness because Sections 3 service of the written interrogatories. The latter may, within 5
to 18 of Rules 132 apply to a deponent. days serve re-direct interrogatories and within 3 days the other
4. Unless otherwise provided by the court, the party may serve re-cross interrogatories. Copies of all these
deponent may be examined: interrogatories shall be delivered to the officer before whom
a. regarding any matter not privileged, the deposition is taken and who shall take the responses and
b. which is relevant to the pending action, prepare the record.
c. whether relating to the claim or defense of
any party, including the existence, Perpetuation of testimony before action or pending appeal
description, nature, custody, condition and 1. The perpetuation of a testimony is done by filing a
location of any books, documents, or other verified petition in the place of the residence of any
tangible things and the identity and location expected adverse party. This petition is filed by a
of persons having knowledge of relevant person who desires to perpetuate his own testimony
facts. or that of another regarding any matter that may be
5. The officer before whom the deposition is taken has cognizable in any court of the Philippines.
no authority to rule on the objections interposed 2. Notices shall be sent in accordance with the Rules and
during the course of the deposition although any if the court is satisfied that the perpetuation of the
objections shall be noted by the officer upon the testimony may prevent a failure or delay of justice, it
deposition. Any evidence that is objected to shall still shall make the appropriate order for the taking of the
be taken but subject to the objection. deposition.
3. The deposition taken under this Rule is admissible in
Use of depositions pending action evidence in any action subsequently brought
1. Any part or all of the deposition, so far as admissible involving the same subject matter.
under the rules of evidence, may be used: 4. A deposition for the perpetuation of testimony in a
a. Against any party who was present or case pending appeal may likewise be availed of under
represented at the taking of the deposition, the same rules as those followed in perpetuation of
or testimony pending action and those prescribed for
b. Against one who had due notice of the depositions pending action.
2. The deposition may be used for the following Interrogatories to Parties (Rule 25)
a. For contradicting or impeaching the Purpose of interrogatories to parties
testimony of the deponent as a witness;
b. For any purpose by the adverse party where Availed of by a party to the action for the purpose of eliciting
the deponent is a party; material and relevant facts from any adverse party.

Answers may also be used as admissions of the adverse party

38 | P L A T O N
To avoid unnecessary inconvenience to the parties in going
Distinguished from a bill of particulars through the rigors of proof, before trial (after the issue had
been joined), a party may request the other to:
A bill of particulars is designed to clarify ambiguities in a 1. Admit the genuineness of any material and relevant
pleading or to state with sufficient definiteness allegations in a document described in and exhibited with the
pleading. A bill of particulars therefore, is directed to a request.
pleading. Interrogatories to parties are not directed to a 2. Admit the truth of any material and relevant matter
particular pleading. Instead, they seek to disclose all material of fact set forth in the request.
and relevant facts from a party.
Filing of written request for admission
Distinguished from written interrogatories in a deposition
A party is advised to file and serve a written request for
Written interrogatories in a deposition are not served upon the admission on the adverse party of those material and relevant
adverse party directly. They are instead delivered to the officer facts at issue which are, or ought to be, within the personal
before whom the deposition is to be taken. Interrogatories to knowledge of said adverse party. The party who fails to file and
parties are served directly upon the adverse party. serve the request shall not be permitted to present evidence on
such facts, unless allowed by the court for good cause shown
Procedure and to prevent a failure of justice.
1. The mode of discovery is availed of by FILING and
SERVING upon the adverse party written Filing and service of a sworn statement of admission or denial;
interrogatories to be answered by the party served. If effect of failure to file and serve
the party is a juridical entity, the written 1. It is advisable for the party to whom the written
interrogatories shall be answered by any of its request is directed to file and serve upon the party
officers competent to testify in its behalf. Note: the requesting the admission a sworn statement either:
answers may constitute as JUDICIAL ADMISSIONS. a. Specifically denying the matters of which
2. No party may, without leave of court, serve more admission is requested, or
than one set of interrogatories to be answered by the b. If he does not deny the same, to set forth in
same party. detail the reasons why he cannot truthfully
3. The interrogatories shall be answered fully in writing admit or deny those matters.
and shall be signed and sworn to by the person This sworn statement shall be filed and served within
making them. The party upon whom the the period designated in the request but which shall
interrogatories have been served shall file and serve a not be less than 15 days from the service of such
copy of the answers on the party submitting the request, or within such further time as the court may
interrogatories within 15 days after service thereof. allow.
This time may, upon motion, be extended or 2. If the party to whom the written request for
shortened by the court. admission does not file the required sworn statement
4. The party against whom it is directed may make each of the matters of which an admission is
objections to the interrogatories. If he does so, said requested shall be deemed admitted.
objections shall be presented to the court within 10 3. Any admission made by a party as a consequence of
days after service of the interrogatories. The filing of the failure to comply with the request is only for the
the objections shall have the effect of deferring the purpose of the PENDING ACTION and shall not be
filing and service of the answer to the interrogatories. deemed an admission for any other purpose.
Likewise, the admission cannot be used against the
Effect of failure to serve written interrogatories admitting party in any other proceeding.
1. A party NOT SERVED with written interrogatories may
not be compelled by the adverse party to give Deferment of compliance
testimony in open court, or to give deposition
pending appeal, XPN: allowed by the court for good To avoid implied admission, the party may have the compliance
cause or to prevent a failure of justice. of the filing and service of the sworn statement deferred. This
2. This provision encourages the use of written deferment may be effected by the filing with the court
interrogatories and although a party is not compelled objections to the request for admission. Compliance shall be
to use this discovery procedure, the rule imposes deferred until such objections are resolved by the court.
sanctions for his failure to serve written
interrogatories by depriving him of the privilege to Withdrawal of admission
call the adverse party as a witness or to give a
deposition pending appeal. Admissions made, whether express or implied, are not final and
irrevocable. The court may allow the party making the
Admission by Adverse Party (Rule 26) admission to withdraw or amend the admission upon such
terms as may be just. To effect the withdrawal, the admitting
Purpose of admission by adverse party party should file a motion to be relieved of the effects of his
To allow one party to request the adverse party in writing to
admit certain material and relevant matters which most likely The party who fails or refuses to request the admission of facts in
question is prevented from thereafter presenting evidence thereon
will not be disputed during the trial.
UNLESS otherwise allowed by the court.

39 | P L A T O N
Production or Inspection of Documents or Things (Rule
27) Applies to an action in which the mental and physical condition
of a party is in controversy. Examples of this action would be:
Purpose a) An action for annulment of a contract where the
ground relied upon is insanity or dementia;
1. To allow a party to seek an order from the court in b) A petition for guardianship of a person alleged to be
which the action is pending to: insane;
a. order any party to produce and permit the c) An action to recover damages for personal injury
inspection and copying or photographing, where the issue is the extent of the injuries of the
by or on behalf of the moving party, of any plaintiff.
designated documents, papers, books,
accounts, letters, photographs, objects or Procedure
tangible things, not privileged, which 1. A MOTION must be filed showing GOOD CAUSE for
constitute or contain evidence material to the examination, with notice to the other parties as
any matter involved in the action and which well aside from the party to be examined. The motion
are in his possession, custody or control. shall likewise SPECIFY the time, place, manner,
b. order any party to permit entry upon conditions and scope of the examination and by the
designated land or other property in his persons by whom it is made. Note: Notice to the
possession or control for the purpose of party to be examined and to all other parties.
inspecting, measuring, surveying, or 2. The party examined may request the party causing
photographing the property or any the examination to be made to deliver to him a copy
designated relevant objects or operation of a detailed written report of the examining
thereon. physician setting out his findings and conclusions.
2. Requisites: After such request and delivery, the party causing the
a. Documents must not be privileged against examination to be made shall be entitled upon
disclosure. Reason: Books and papers request to receive from the party examined a like
which, because of their confidential report of any examination, previously or thereafter
character, could not be received in made, of the same mental or physical condition. If
evidence; refused, the court may make an order requiring
b. The items be specifically described; delivery on such terms as are just. If it is the physician
c. The items must constitute or contain who fails or refuses to make a report, the court may
evidence material to any matter involved in exclude his testimony.
the action; and
d. The items are in the partys possession, Waiver of privilege
custody or control.
By requesting and obtaining a report of the examination or by
Q What are privileged communications? taking the deposition of the examiner, the party examined
A waives any privilege he may have in that action or any other
1. Communications between: involving the same controversy, regarding the testimony of
a. Husband and wife every other person who has examined or may thereafter
b. Attorney and client examine him in respect of the same mental or physical
c. Physician and patient examination.
d. Priest and penitent
e. Public officers and public interest Refusal to Comply with the Modes of Discovery (Rule 29)
2. Editors may not be compelled to disclose the source
of published news The sanctions for the refusal to comply with the modes of
3. Voters may not be compelled to disclose for whom discovery may be summarized as follows:
they voted
4. Trade secrets A. Refusal to answer any question
5. Information contained in tax census returns; and 1. The court may upon proper application, compel a
6. Bank deposits deponent who refuses to answer an oral examination.
The same applies to a witness who refuses to answer
Filing a motion; order of the court an interrogatory submitted. A refusal to answer after
1. A motion must be filed by the party seeking the being directed by the court may be considered as a
production or inspection of documents and things contempt of court.
and the motion must show good cause and The court may order the deponent, a party, or the
supporting the same. counsel advising the refusal, or both of them, to pay
2. The order shall specify the time, place and manner of the proponent the amount of reasonable expenses
making the inspection and taking copies and incurred in obtaining the order, including attorneys
photographs and may prescribe such terms and fees.
conditions as are just. 2. If the application for an order to compel a deponent
to answer is denied because of the absence of a
Physical and Mental Examination of Persons (Rule 28) substantial justification, the court may require the
proponent or the counsel advising the application, or

40 | P L A T O N
both of them, to pay to the refusing party or 3. The matter of how, and when, the above sanctions
deponent the amount of reasonable expenses should be applied is one that primarily rests on the
incurred in opposing the application, including sound discretion of the court where the case is
attorneys fees. pending, having always in mind the paramount and
overriding interest of justice.
B. Refusal to answer designated or particular questions or
refusal to produce documents or things or to submit to Chapter IX Trial, Demurrer to Evidence and Judgment
physical or mental examination
1. The court may order that the matters regarding which A. Trial
the questions were asked shall be taken as
established for purposes of the action in accordance Nature of trial
with the claim of the party obtaining them.
2. The court may issue an order refusing to allow the A trial is the judicial process of investigating and determining
disobedient party to refuse or support designated the legal controversies, starting with the production of
claims or defenses or prohibiting him from evidence by the plaintiff and ending with his closing arguments.
introducing in evidence designated documents or
things or items of testimony, or from introducing GR: When an issue exists, trial is necessary. Decision should not
evidence of physical or mental condition. be made without trial.
3. The court may issue an order striking out pleadings or
parts thereof, or staying further proceedings until the XPN: When trial is unnecessary:
order is obeyed, or dismissing the action or 1. Where the pleadings of the parties tender no issue at
proceeding or any part thereof, or rendering a all, a judgment on the pleadings may be directed by
judgment by default against the disobedient party. the court. (Rule 34)
4. The court may direct the arrest of any party or agent 2. Where from the pleadings, affidavits, depositions and
of a party for disobeying any of the orders of the other papers, there is actually no genuine issue, the
court, except an order to submit to a physical court may render a summary judgment. (Rule 35)
examination. 3. Where the parties have entered into to a compromise
or an amicable settlement either during the pre-trial
C. Refusal to be sworn or while the trial is in progress. (Rule 18)
4. Judgment by confession
A refusal after being directed by the court may be considered 5. Where the complaint has been dismissed with
as contempt of court. prejudice. (Sec. 5, Rule 16; Sec. 3, Rule 17; Sec. 5,,
Rule 7.
D. Refusal to admit 6. Where the case falls under the operation of the Rules
on Summary Procedure.
If a party refuses to admit the genuineness of any document or 7. Where, the parties in writing, upon the facts involved
the truth of any matter of fact and serves a sworn denial in the litigation, and submit the case for judgment on
thereof and if the other party later on proves the genuineness the facts agreed upon, without the introduction of
of the document or the truth of such matter of fact, the court evidence. If however, there is no agreement as to all
upon proper application, may order the former to pay the the facts in the case, trial may be held only as to the
reasonable expenses in making such proof, including attorneys disputed facts. (Sec. 6, Rule 30)
Trial and hearing
E. Failure to attend depositions or to serve answers to
interrogatories A hearing is a broader term. It is not confined to the trial
1. The court may (a) strike out all or any part of the presentation of the evidence because it actually embraces
pleading of that party, or dismiss the action or several stages in the litigation. It includes the pre-trial and the
proceeding or any part thereof, or (b) enter a determination of granting or denying a motion.
judgment by default against that party, and in its
discretion, (c) order him to pay reasonable expenses TRIAL HEARING
incurred by the other, including attorneys fees. Reception of evidence and other Not confined in trial but embraces
2. The consequences will apply if a party refuses to processes several stages of litigation,
answer the whole set of written interrogatories, and including the pre-trial stage.
not just a particular question. Where the party The period for the introduction of Does not necessarily imply
refuses to answer a particular question, despite an evidence by both parties presentation of evidence in open
court but the parties are afforded
order compelling him to answer, Section 3 (c) of Rule
the opportunity to be heard.
29 will apply:
a. The court may issue an order striking out
When Trial is Unnecessary
pleadings or parts thereof;
b. The court may issue an order staying
Notice of trial
further proceedings until the order is
obeyed; or
Upon entry of the case in the trial calendar, the clerk of court
c. The court may issue an order rendering a
shall notify the parties of the date of trial in such manner as to
judgment by default against the disobedient
ensure its receipt at least 5 days before such date.

41 | P L A T O N
Calendaring of cases (See Sec. 1, Rule 20) GR: The judge shall PERSONALLY receive the evidence to be
adduced by the parties.
Session hours
1. From 8:30 A.M. to noon (devoted to the conduct of XPN: Reception may be delegated to the clerk of court who is a
trial) and from 2:00 P.M. to 4:30 P.M. (utilized for the member of the bar, in any of the following cases:
conduct of (1) pre-trial conferences; (2) writing of 1. In default hearings;
decisions, resolutions, or orders; or (3) the 2. In ex parte hearings; or
continuation of the trial on the merits, whenever 3. In any case by written agreement of the parties.
rendered necessary as may be required by the Rules
of Court, statute or circulars in specified cases) from Issues in the trial
Monday to Friday.
2. Unless the docket of the court requires otherwise, The trial shall be limited to the issues stated in the pre-trial
not more than 4 cases shall be scheduled for trial order. This is the general rule unless the court so directs for
daily. special reasons.

Adjournments and postponements; Limitations on the Agreed statement of facts (Stipulation of Facts)
authority to adjourn
The parties to any action may agree, IN WRITING (or verbally
GR: A court may adjourn a trial from day to day, and to any made in open court), upon the facts involved in the litigation,
stated time, as the expeditious and convenient transaction of and submit the case for judgment on the facts agreed upon,
business may require. without the introduction of evidence (a trial need not be
conducted) but if the parties agree only on some facts in issue,
XPN: The court has no power to adjourn a trial for a period the trial shall be held as to the disputed facts in such order as
longer than 1 month from each adjournment, nor more than 3 the court shall prescribe.
months in all.
Consolidation or Severance
XPN to the XPN: When authorized in writing by the Court 1. When the actions that involve a common question of
Administrator. law or fact are pending before the court, the court
may order joint hearing or trial of any or all the
Postponement on the ground of illness of either party or matters in issue in the actions and may order the
counsel by complying with the following: consolidation of all the actions.
1. A MOTION for postponement must be filed; 2. On the other hand, the court may also order a
2. The motion must be supported by an AFFIDAVIT or separate trial of any claim, cross-claim, counterclaim,
SWORN CERTIFICATION showing that or third-party complaint or issues. The court may do
a. The presence of the party or counsel at the so in furtherance of convenience or to avoid
trial is indispensable, and prejudice.
b. That the character of the illness is such as to
render his non-attendance excusable. B. Demurrer to Evidence

Postponement on the ground of absence of evidence upon Motion to dismiss in Rule 16 distinguished from demurrer to
compliance with the following: evidence
1. A MOTION for postponement must be filed;
2. The motion must be supported by an AFFIDAVIT or A demurrer to evidence under Rule 33 is in effect, a motion to
SWORN CERTIFICATION showing the dismiss but is not the motion to dismiss described under Rule
a. Materiality or relevancy of the evidence, 16.
b. That due diligence has been used to MOTION TO DISMISS DEMURRER TO EVIDENCE
procure it (under Rule 16)
When to file
If the adverse party admits the facts to be given in evidence, BEFORE filing of answer AFTER the plaintiff rests its
the trial shall not be postponed even if he reserves the right to case or after the completion
object to the admissibility of the evidence. of the presentation of
Postponement is not a matter of right Grounds
The 10 grounds enumerated That upon the facts and the
It is addressed to the sound discretion of the court. In the in Rule 16 law, the plaintiff has shown
absence of grave abuse of discretion, it cannot be compelled by no right to relief
mandamus. If denied
The defendant may file his The defendant may present
Note: A motion for postponement should not be filed on the responsive pleading his evidence
last hour especially when there is no reason why it could have If granted
been presented earlier.
The complaint may be refiled The complaint may not be
depending on the ground of filed. The remedy of the
Reception of evidence
dismissal plaintiff is to APPEAL from the
42 | P L A T O N
dismissal 5. The judgment must be in writing, personally and
directly prepared by the judge. Note: A verbal
Effect of denial of the demurrer to evidence judgment is not in esse, therefore, ineffective;
1. The defendant shall have the right to present his 6. The judgment must state clearly (and distinctly) the
evidence. This means that the denial does not deprive facts and the law on which it is based, signed by the
the defendant to adduce evidence in his behalf. judge and filed with the clerk of court.
2. The court should set the date for the reception of the
defendants evidence in chief. It should not proceed A decision need not be a complete recital of the evidence
to grant the relief demanded by the plaintiff. presented. So long as the factual and legal basis is distinctly and
3. Interlocutory and is therefore, NOT APPEALABLE. It clearly set forth, the judgment is valid.
can however, be the subject of a petition for
certiorari in case of grave abuse of discretion or an Orders Granting of Denying a Motion to Dismiss
oppressive exercise of judicial authority.
4. The provision of the Rules of Court governing Denials of a petition for review or a motion for
demurrer to evidence does not apply to an election reconsideration
case. (See Sec. 4, Rule 1)
The Constitution of the Philippines also requires that the refusal
Effect of granting of the demurrer to evidence to give due course to or the denial of a petition for review or of
1. The case shall be dismissed. However, if on appeal a motion for reconsideration must state the legal basis
the order granting the motion is reversed, the therefor.
defendant loses his right to present evidence.
2. The reviewing court cannot remand the case for Conflict between the dispositive portion and body of the
further proceedings; rather, it should render decision
judgment on the basis of the evidence presented by 1. A judgment has two parts, namely,
the plaintiff. a. Ratio decidendi or the body of the
3. A demurrer to evidence abbreviates judicial judgment, and
proceedings, it being an instrument for the b. Fallo or the dispositive portion of the
expeditious termination of an action. judgment.
2. The ratio decidendi is not the part of the judgment
Demurrer in a civil case as distinguished from a demurrer in a that is subject to execution but the fallo because it is
criminal case the latter which is the judgment of the court.
3. It is the dispositive part of the judgment that actually
CIVIL CASE CRIMINAL CASE settles and declares the rights and obligations of the
Leave of court is NOT required A demurrer is filed WITH or parties, finally, definitely, and authoritatively.
before filing a demurrer WITHOUT leave of court 4. The general rule is that where there is a conflict
If granted, the order of The order of dismissal is NOT between the dispositive portion or fallo of the
dismissal is appealable appealable because of the decision and the body of the decision, the fallo
constitutional policy against controls. Note: The fallo to reviewis the final order
double jeopardy while the opinion in the body is merely a statement
If denied, the defendant may The accused may adduce his ordering nothing.
proceed to present his evidence only if the demurrer 5. Where the inevitable conclusion from the body of the
evidence is filed with leave of court decision is so clear that there was a mere mistake in
the dispositive portion, the body of the decision will
C. Judgment prevail.

Ambiguity in the judgment; clarificatory judgment

Meaning of judgment
Where the judgment is difficult to execute because of
A judgment is the final ruling by a court of competent
ambiguity in its terms, it is suggested that the remedy to avail
jurisdiction regarding the rights or other matters submitted to
of is to have the court remove the ambiguity by the filing of a
it in an action or proceeding.
motion for a clarificatory judgment and not to assail the
judgment as void.
Judgment and decision
Resolutions of the Supreme Court
Judgment is normally synonymous with decision.
1. Resolutions of the Supreme Court denying petitions
to review decisions of the Court of Appeals, are not
Requisites of a valid judgment
decisions within the purview of the Constitution.
1. The court must be clothed with authority to hear and
2. Minute resolutions are likewise not decisions falling
determine the matter before it;
within the constitutional requirement.
2. The court must have jurisdiction over the parties and
the subject matter;
Interlocutory orders
3. The parties must have been given an opportunity to
adduce evidence in their behalf;
Interlocutory orders are NOT decisions within the constitutional
4. The evidence must have been considered by the
definition. They are those that determine incidental matters
tribunal in deciding the case;

43 | P L A T O N
that do not touch on the merits of the case or put an end to the
proceedings. Extension of the period to render a decision

The proper remedy to question improvident interlocutory order An extension of the period may be set by the Supreme Court
is a petition for certiorari under Rule 65, not Rule 45. A petition within which to decide a case upon request by the judge
for review under Rule 45 is the proper mode of redress to concerned on account of heavy caseload or by other reasonable
question only final judgments. excuse. Without an extension granted by the court, a delay in
the disposition of cases is tantamount to gross inefficiency on
Memorandum decisions the part of the judge.
1. A memorandum decision is one rendered by an
appellate court and incorporated by reference the Judgment penned by a judge who did not hear the evidence
findings of fact and conclusions of law contained in 1. It is not necessary that the judge who heard the
the decision or order under review. evidence be the same judge who shall pen the
2. This is to avoid the cumbersome reproduction and decision.
repetition of the decision of the lower court in the 2. The fact alone that the judge who penned the
decision of the higher court. decision was not the same judge who heard the case
3. It must also provide direct access to the facts and the and received the evidence therein would not render
law being adopted, which must be contained in a the findings in the said decision erroneous and
statement attached to the decision, and made an unreliable.
indispensable part of the decision.
4. As long as a memorandum decision states the nature Judgment penned by a judge who had ceased to be a judge
of the case, summarizes the facts with references to 1. A decision penned by a judge after his retirement
the record and contains a statement of the applicable cannot be validly promulgated and cannot acquire a
laws and jurisprudence and the tribunals assessment binding effect.
and conclusions on the case, the constitutional 2. When a judge retires, all his authority to decide any
requirement of a valid judgment will not be case, i.e., to write, to sign and promulgate the
transgressed. decision has also retired with him.
3. It is well-settled that, to be binding, a judgment must
Meaning of rendition of judgment be duly signed and promulgated during the
1. Rendition of a judgment is the filing of the same with incumbency of the judge whose signature appears
the clerk of court. thereon. A decision is void if promulgated after the
2. Even if the judgment has already been put in writing judge who rendered it had ceased to be a judge of the
and signed, it is still subject to amendment if it has court.
not yet been filed with the clerk of court and before
its filing does not yet constitute the real judgment of Judgment penned by a judge who was transferred
the court.
A judge who was permanently transferred to another court of
Period within which to render a decision equal jurisdiction before the case heard by him was decided
1. All cases must be decided or resolved by may validly prepare and sign his decision on the said case and
a. the Supreme Court within 24 months from send the same to the court where he was originally assigned.
the date of their submission for decision;
b. all lower collegiate courts within 12 Judgments of the Supreme Courtform part of the legal
months, unless reduced by the Supreme system
Court; and
c. all other lower courts within 3 months, Rule of stare decisis
unless reduced by the Supreme Court. 1. The rule holds that when the Supreme Court has laid
2. A case is deemed submitted for resolution upon the down a principle of law applicable to a certain state
filing of the LAST pleading, brief or memorandum of facts, it will adhere to that principle and apply it to
required by the Rules of Court or by the court. all future cases where the facts are substantially the
3. The 90-day period for deciding the case commences same.
from the submission of the case for decision without 2. A point of law, once established by the court, will
memoranda. In case the court requires or allows its generally be followed by the same court and by all
filing, the case shall be considered submitted for courts of lower rank in subsequent cases involving a
decision upon the filing of the LAST memorandum, or similar legal issue.
the expiration of the period to do so, whichever is 3. The principle enjoins adherence to judicial
earlier. In cases where the court allows the filing of precedents.
memoranda, no further orders announcing the 4. It is founded on the necessity for securing certainty
submission of the case for decision is necessary and stability in the law and does not require identity
before they are deemed submitted for decision. of or privity of parties.

Note: The speedy disposition of cases by judges is in fact Obiter dictum

unequivocally directed by Canon 6 of the Code of Judicial 1. An obiter dictum is an opinion expressed by a court,
Ethics: He should be prompt in disposing of all matters which is not necessary to the decision of the case
submitted to him, remembering that justice delayed is often before it. It is neither enforceable as a relief nor a
justice denied. source of a judicially actionable claim.

44 | P L A T O N
2. Such is not binding as a precedent. 4. A judgment or final order of a tribunal of a foreign
country, having jurisdiction to render the judgment or
When a judgment becomes final final order, has the following effects:
a. If the judgment is on a specific thing, the
The term final when used to describe a judgment may be judgment is conclusive upon the title to the
used in two senses: thing;
1. It refers to a judgment that disposes of a case in a b. If the judgment is against a person, the
manner that leaves nothing more to be done by the judgment is presumptive evidence of a right
court in respect thereto. The remedy is to appeal. as between the parties and their successors
2. It refers to a judgment that is no longer appealable in interest by a subsequent title.
and is already capable of being executed because the In either case, the judgment or final order may
period for appeal has elapsed without a party having however, be assailed only on any of the following
perfected an appeal or if there has been an appeal it grounds:
has already been resolved by a highest possible a) Evidence of want of jurisdiction;
tribunal. (Also referred to as Final and executory). b) Want of notice to the party;
c) Collusion;
Conclusiveness of judgments (immutability of judgments) d) Fraud; or
1. A judgment that has attained finality can no longer be e) Clear mistake of fact or law.
2. It may no longer be modified in any respect, even if Judgment on the merits
the modification is meant to correct what is perceived 1. A judgment is on the merits when it amounts to a
to be an erroneous conclusion of fact or law, and legal declaration of the respective rights and duties of
regardless of whether the modification is attempted the parties, based upon the disclosed facts.
to be made by the court rendering it or by the highest 2. Jurisprudence does not require that a judgment on
court of the land. the merits be one rendered after a full blown trial.
3. The court loses jurisdiction over the judgment to 3. One that is rendered after consideration of the
amend or alter the same but it retains jurisdiction to evidence submitted by the parties during the trial of
execute it during its lifetime. the case.

Exceptions to the Rule of Immutability of Judgments Doctrine of law of the case

GR: Once a judgment has become final and executory, it can no According the this principle, whatever is once irrevocably
longer be disturbed, altered or modified established as the controlling legal rule or decision between the
same parties in the case continues to be the law of the case,
XPN: whether correct on general principles or not, so long as the
a) The correction of clerical errors; facts on which such decision was predicated continue to be the
b) The so-called nunc pro tunc entries which cause no facts of the case before the court.
prejudice to any party and void judgments;
c) Whenever circumstances transpire after the finality The principle generally finds application in cases where an
of the decision rendering its execution unjust and appellate court passes on a question and remands the case to
inequitable; the lower court for further proceedings. The question there
d) In cases of special and exceptional nature as when settled becomes the law of the case upon subsequent appeal.
facts and circumstances transpire which render the
judgments execution impossible or unjust, when Several judgment
necessary in the interest of justice to direct its 1. A several judgment is one rendered by a court against
modification to harmonize the disposition with one or more defendants, but not against all, leaving
prevailing circumstances; the action to proceed against the others.
e) Void judgments 2. A several judgment is proper when the liability of
each party is clearly separate and distinct from that of
Res judicata effect of a final judgment or final order his co-parties. (E.g., debtors in a joint obligation).
1. Res judicata has two aspects:
a. Bar by prior judgmentthe judgment or Separate judgment
final order is a bar to the prosecution of a
subsequent action based on the same claim This kind of judgment presupposes that there are several claims
or cause of action; and for relief presented in a single action. The judgment will
b. Conclusiveness of judgmentthe judgment terminate the action with respect to one claim and the action
or final order precludes the relitigation of shall proceed as to the remaining claims.
particular issues or facts on a different
demand or cause of action. 1. One rendered by a court disposing of a claim, among several
2. By force of res judicata, a final judgment is conclusive others, presented in a case after determination of the issues
not only on the matters or issues directly or actually material to a particular claim and all counterclaims arising
out of transaction or occurrence, which is the subject matter
determined by the decision but also on all issues that
of said claim.
could have been raised in relation thereto. 2. It is proper when more than one claim for relief is presented
3. A significant effect of a final judgment or order is its in an action and a determination as to the issues material to
being appealable.

45 | P L A T O N
the claim has been made. The action shall proceed as to the 8. A motion to set aside the compromise on a ground
remaining claims. vitiating consent applies only to a judgment upon a
compromise. When the compromise is not judicial
Conditional judgment and is a result of the contract between the parties,
the proper remedy is an action to annul the
On the effectivity of which depends upon the occurrence or the compromise.
non-occurrence of an event. Such judgment is generally void
because of the absence of a disposition. Judgment upon a confession

Judgment sin perjuicio This is a judgment rendered by the court when a party
1. A brief judgment containing only the dispositive expressly agrees to the other partys claim or acknowledges the
portion, without prejudice to the making of a more validity of the claim against him.
extensive discussion of the findings of fact and law to
support it. This is not actually a final decision, should Judgment against an entity without a juridical personality
be avoided and should not be looked with favor.
2. May refer to a dismissal of a case without prejudice Section 15, Rule 3 Section 6, Rule 36
to its being re-filed. When two or more persons The judgment shall be actually
not organized as an entity against the parsons who form
Judgment nunc pro tunc (now for then) with juridical personality the entity without a juridical
1. A judgment intended to enter into the record acts nevertheless transact with personality and the judgment
which had already been done, but which do not yet third persons under a shall set out their individual or
appear in the record. common name, they may be proper names, if known.
2. The function of which is not to render a new sued under the name by
judgment or to correct a judicial error but to make which they are generally or
the records show what the judicial action really was commonly known.
but was omitted from the records.
Entry of judgment; date thereof
Judgment upon a compromise 1. The entry of judgment refers to the physical act
1. This is a judgment rendered by the court on the basis performed by the clerk of court in entering the
of a compromise agreement entered into between dispositive portion of the judgment in the book of
the parties to the action. entries of judgment after the same has become final
2. A compromise has upon the parties the effect of res and executory.
judicata which had already been laid to rest by the 2. The record shall contain:
parties themselves can no longer be relitigated. a. The dispositive portion of the judgment or
3. A compromise is perfected by mere consent, final order, and
manifested by the meeting of the offer and the b. Shall be signed by the clerk of court,
acceptance upon the thing and the cause which c. With a certificate by said clerk that the
constitutes the contract. It is perfected upon the judgment has already become final and
meeting of the minds and does not need a judicial executory.
approval for its perfection. 3. The date of the entry of judgment is the date when
4. Under Article 2028 of the Civil Code, a compromise the judgment becomes final and executory regardless
agreement is defined as a contract whereby the of the date when the physical act of entry was done.
parties, by making reciprocal concessions, avoid
litigation or put an end to one already commenced. Relevance of knowing the date of the entry of a judgment
5. Once approved by the court, a judicial compromise is
not appealable and it thereby becomes immediately There are some proceedings the filing of which is reckoned
executory. The order approving the compromise from the date of the entry of judgment.
agreement thus becomes a final act, and it forms part
and parcel of the judgment that can be enforce by a E.g.
writ of execution unless otherwise enjoined by a a) The execution of a judgment by motion is within 5
restraining order. years from the entry of judgment;
6. If one of the parties refuses to abide by the b) The filing of a petition for relief has, as one of its
compromise, the other party may either enforce the periods, not more than 6 months from the entry of
compromise or regard it as rescinded and insist upon judgment or final order.
the original demand.
7. To assail a judgment by compromise, there must be a
Chapter X Post Judgment Remedies
proper motion to set aside the compromise on the
ground that the compromise agreement was
Available remedies to the aggrieved party
obtained either by:
1. BEFORE a judgment becomes final and executory, the
a. Fraud;
aggrieved or losing party ay avail of the following
b. Violence;
c. Intimidation;
a. Motion for reconsideration;
d. Falsity of documents; or
b. Motion for new trial; and
e. Some other vices of consent.
c. Appeal

46 | P L A T O N
2. AFTER the judgment becomes executory, the losing EXPRESS REFERENCE to the testimonial or
party may avail of the following: documentary evidence or to the provisions of law
a. Petition for relief from judgment; alleged to be contrary to such findings or conclusions.
b. Action to annul a judgment;
c. Certiorari; and Note: Non-compliance with this requirement would reduce the
d. Collateral attack of a judgment. motion to a mere pro forma motion and shall not toll the
reglementary period of appeal.
I. Remedies Before a Judgment Becomes Final and
Executory Pro forma motion

A. Motion for Reconsideration (Rule 37) One which does not satisfy the requirements of the rules and
one which will be treated as a motion intended to delay the
Object of the motion proceedings.
1. The motion is one that is directed against a judgment
of a final order. It is not the motion for Resolution of the motion
reconsideration of an interlocutory order which for
instance, precedes a petition for certiorari. The motion shall be resolved within 30 days from the time it is
2. It is a prohibited motion is a case that falls under submitted for resolution.
summary procedure and under the Rule of Procedure
for Small Claims. Denial of the motion; the fresh period rule

When to file If the motion is denied, the movant has a fresh period of 15
1. Within the PERIOD FOR APPEAL. No motion for days from receipt or notice of the order denying or dismissing
extension of time to file a motion for reconsideration the motion within which to file a notice of appeal. (See Neypes
shall be allowed. v. Court of Appeals, G.R. No. 141524).
2. The period for appeal is within 15 days after notice to
the appellant of the judgment or final order appealed Order of denial, not appealable
from. Where the record on appeal is required, the
appellant shall file a notice of appeal and a record on The fresh period rule does not refer to the period within
appeal within 30 days from notice of the judgment or which to appeal from the order denying the motion for
final order. A record on appeal shall be required only reconsideration but to the period within which to appeal from
in special proceedings and other cases of multiple or the judgment itself because an order denying a motion for
separate appeals. reconsideration is not appealable. (See Section 9, Rule 37).
3. The above-mentioned 15-day period begins to run
upon receipt of notice of the decision or final order Remedy when motion is denied
appealed from. Such period has been considered to 1. Not to appeal from the order of denial but to appeal
begin upon receipt of notice by the COUNSEL OF from the judgment or final order itself subject of the
RECORD, which is considered notice to the parties. motion for reconsideration.
Service of judgment on the party is prohibited and is 2. Effective December 27, 2007, it is submitted that an
not considered the official receipt of the judgment. order denying a motion for reconsideration is NO
XPN: When the court or tribunal orders service upon LONGER ASSAILABLE BY CERTIORARI because of the
the party or when the technical defect in the manner amendment to Rule 41 by A.M. No. 07-7-12-SC.
of notice is waived.
Effect of granting a motion for reconsideration
Effect of the filing of the motion on the period to appeal
It may AMEND such judgment or final order accordingly. The
The filing of a timely motion for reconsideration INTERRUPTS amended judgment is in the nature of a new judgment which
the period of appeal. supersedes the original judgment. It is not a mere supplemental
decision which does not supplant the original but only serves to
add something to it.
Grounds for a motion for reconsideration
1. The MOTION for reconsideration must be IN Partial reconsideration
WRITING, a WRITTEN NOTICE of which must be
served on the adverse party, and may be anchored on If the court finds that a motion affects the issues of the case as
any of the following grounds: to only a part, or less than all of the matters in controversy, or
a. That the DAMAGES awarded are excessive; only one, or less than all, of the parties to it, the order may
b. That the EVIDENCE is insufficient to justify grant a reconsideration as to such issues if severable without
the decision or final order; or interfering with the judgment or final order upon the rest.
c. That the DECISION or final order is contrary
to law. The single motion rule
2. It is not sufficient to mention the ground relied upon.
It is necessary for the motion to POINT OUT A party shall not be allowed to file a second motion for
specifically the findings or conclusions of the reconsideration of a judgment or final order. Note: This rule
judgment or final order which are not supported by only applies when the motion is directed against a judgment or
the evidence or which are contrary to law, making
47 | P L A T O N
a final order. The rule does not apply to a motion for the motion within which to file a notice of appeal. (See Neypes
reconsideration of an interlocutory order. v. Court of Appeals, G.R. No. 141524).

B. Motion for New Trial (Rule 37) Order of denial, not appealable

When to file The fresh period rule does not refer to the period within
1. A motion for new trial is filed WITHIN THE PERIOD which to appeal from the order denying the motion for new
FOR APPEAL. No motion for extension of time to file a trial because the order is not appealable. (See Section 9, Rule
motion for new trial shall be allowed. 37).
2. A motion for new trial is prohibited in cases covered
by the Rule on Summary Procedure and under the Remedy when motion is denied
Rule of Procedure for Small Claims Cases.
Effective December 27, 2007, it is submitted that an order
Effect of the filing of the motion on the period to appeal denying a motion for new trial is NO LONGER ASSAILABLE BY
CERTIORARI because of the amendment to Rule 41 by A.M. No.
The filing of a timely motion for new trial INTERRUPTS the 07-7-12-SC.
period to appeal.
The remedy available therefore, would be that prescribed
Form of a motion for new trial under Section 9 of Rule 37, i.e., to appeal from the judgment of
final order.
Like a motion for reconsideration, the motion for new trial shall
be made IN WRITING, stating the GROUND or grounds Effect of granting a motion for new trial
therefore, a WRITTEN NOTICE of which shall be served by the
movant on the adverse party. If the court grants the motion, the original judgment or final
order shall be VACATED, and the action shall stand for trial de
Grounds for a motion for new trial novo. The recorded evidence taken upon the former trial shall
The aggrieved party may move the trial court to SET ASIDE the be used at the new trial without retaking the same if the
judgment or final order and grant a new trial for one or more of evidence is material and competent.
the following causes materially affecting the substantial rights
of said party: Partial new trial
1. Fraud, accident, mistake or excusable negligence 1. If the court finds that a motion affects the issues of
which ordinary prudence could not have guarded the case as to only a part, or less than all of the
against and by reason of which such aggrieved party matters in controversy, or only one, or less than all,
has probably been impaired in his rights (supported of the parties to it, the order may grant a
by affidavits of merit); or reconsideration as to such issues if severable without
2. Newly discovered evidence, which he could not, with interfering with the judgment or final order upon the
reasonable diligence, have discovered and produced rest.
at the trial, and which if presented would probably 2. When there is an order for a partial new trial, i.e., less
alter the result (supported by affidavits of the witness than all of the issues are ordered retried, the court
by whom such evidence is expected to be given, or by may either:
duly authenticated documents which are proposed to a. ENTER a judgment or final order as to the
be introduced in evidence). rest, or
b. STAY the enforcement of such judgment or
Affidavit of merit final order until after the new trial.
1. One showing the facts (not mere conclusions or
opinions) constituting the valid cause of action or Second motion for new trial
defense which the movant may prove in case a new
trial is granted, because a new trial would serve no While a second motion for reconsideration is not allowed, a
purpose and would just waste the time of the court second motion for new trial is AUTHORIZED by the Rules. A
as well as the parties if the complaint is after all motion for new trial shall include all grounds THEN AVAILABLE.
groundless or the defense is nil or ineffective. Those not so included are deemed waived. However, when a
2. Under the Rules, the moving party must show that he ground for new trial was not existing or available when the first
has a meritorious defense. motion was made, a second motion for new trial may be filed
within the period allowed but excluding the time during which
Gross negligence of counsel NOT a ground for new trial the first motion had been pending.

Resolution of the motion APPEALS

The motion shall be resolved within 30 days from the time it is General principles on appeal
submitted for resolution. 1. The right to appeal is not part of due process but a
mere statutory privilege that has to be exercised only
Denial of the motion; the fresh period rule in the manner and in accordance with the provisions
of law.
If the motion is denied, the movant has a fresh period of 15 2. The right to appeal is not a constitutional or a natural
days from receipt or notice of the order denying or dismissing right.

48 | P L A T O N
3. The general rule is that the remedy to obtain reversal b) It is an error that affects the validity of the
or modification of judgment on the merits is appeal. judgment appealed from;
c) It is an error which affects the proceedings;
Note: A party is not allowed to question the decision d) It is an error closely related to or dependent
on the merits and also invoke the extraordinary on an assigned error and properly argued
remedy of certiorari under Rule 65 and an ordinary on the brief;
appeal under Rule 41 cannot be allowed since one e) It is a plain and clerical error;
remedy would necessarily cancel out the other. f) Where there are jurisprudential
developments affecting the issues; or
4. An appeal may be taken only from judgments or final g) When the issues raised present a matter of
orders that completely disposes of the case. An public policy.
interlocutory order is not appealable until after the 2. Jurisprudence likewise provides some exceptions to
finality of the judgment on the merits. the rule:
a) The Supreme Court is clothed with ample
Judgment or orders that are not appealable authority to review matters, even if they
a) An order denying a motion for new trial or are not assigned as errors on appeal, if it
reconsideration; (See A.M. No. 07-7-12-SC) finds that their consideration is necessary in
b) An order denying a petition for relief or any similar arriving at a just decision of the case.
motion seeking relief from judgment; 3. It has also been held that the Court of Appeals for
c) An interlocutory order; instance, is imbued with sufficient authority and
d) An order disallowing or dismissing an appeal; discretion to review matters, not otherwise assigned
e) An order denying a motion to set aside a judgment by as errors on appeal, if it finds that the consideration is
consent, confession or compromise on the ground of necessary in arriving at a complete and just resolution
fraud, mistake or duress, or any other ground of the case or to serve the interest of justice or to
vitiating consent; avoid dispensing piecemeal justice.
f) An order of execution;
g) A judgment or final order for or against one or more Appeals in criminal cases
of several parties or in separate claims, 1. In criminal cases, it is axiomatic that where an
counterclaims, cross-claims and third-party accused appeals the decision against him, he throws
complaints, while the main case is pending, unless the open the whole case for review and it then becomes
court allows an appeal therefrom; and the duty of the Supreme Court to correct any error as
h) An order dismissing an action without prejudice. may be found in the appealed judgment, whether it
was made the subject of assignment of errors or not.
Remedy in case the judgment or final order is not appealable 2. An appeal in a criminal case opens the entire case for
review. The Court can correct errors unassigned in
The aggrieved party may file the appropriate special civil action the appeal.
under Rule 65. XPN: An aggrieved party may no longer assail an
order denying a motion for new trial or a motion for Payment of docket fee
reconsideration by way of Rule 65 as per A.M. No. 07-7-12-SC, 1. The payment of docket fee within the prescribed
such ground having been removed from the enumeration in period is MANDATORY for the perfection of an
Sec. 1 of Rule 41. Remedy: Appeal from the judgment (Sec. 9, appeal. Without such payment, the appellate court
Rule 37). does not acquire jurisdiction over the subject matter
of the action and the decision sought to be appealed
Issues that may be raised on appeal from becomes final and executory. Note: Non-
1. It is already well-settled in this jurisdiction that a payment of the appellate court docket and other
party may not change his theory of the case on lawful fees within the reglementary period is a
appeal. (Sec. 15, Rule 44) ground for the dismissal of an appeal.
2. Also, defenses not pleaded in the answer may not be 2. GR: The payment in full of the docket fees within the
raised for the first time on appeal. Accordingly, courts prescribed period is mandatory.
of justice have no jurisdiction or power to decide a
question not I issue. XPN:
a) The failure to pay appellate court docket
Issues that the appellate court decides on appeal fee within the reglementary period allows
1. The appellate court shall consider no error unless only discretionary dismissal, NOT automatic
stated in the assignment of errors. dismissal, of the appeal.
2. As a rule, no question will be entertained on appeal b) Such power should be used in the exercise
unless it has been raised in the court below. (See of the Court's sound discretion "in
exceptions below) accordance with the tenets of justice and
fair play and with great deal of
When errors not raised on appeal may be considered circumspection considering all attendant
1. The court may consider an error not raised on appeal circumstances."
provided the same falls within any of the following
categories: Record on appeal; notice of appeal
a) It is an error that affects the jurisdiction 1. An appeal is normally made by filing a notice of
over the subject matter; appeal with the court which rendered the judgment

49 | P L A T O N
or final order appealed from. No record on appeal 1. NOTICE OF APPEALupon the filing of the notice of
shall be required EXCEPT in special proceedings and appeal in due time.
other cases of multiple or separate appeals where the 2. RECORD ON APPEALupon the approval of the
law or the Rules of Court so require. record on appeal filed in due time, with respect to the
2. In a case where multiple appeals are allowed, a party subject matter thereof.
may appeal only a particular incident in the case and
not all of the matters involved in the same case. The Note: The notice of appeal does not require the approval of the
others which are not made the subject of the appeal court. Its function is merely to notify the trial court that the
remain to be resolved by the trial court. The RECORD appellant was availing of the right to appeal, and not to seek
ON APPEAL is required so the appellate court may the court's permission that he be allowed to pose an appeal.
have a record of the proceedings to resolve a
separate and distinct issue raised in the appeal, and Duty of clerk of court
since the original records remain with the trial court it
still can resolve the other issues of the case not made Upon the receipt of the complete record or record on appeal,
subject of the appeal. the clerk of court of the Regional Trial Court shall NOTIFY the
3. Multiple appeals are allowed in special proceedings, parties of such fact.
in actions for recovery of property with accounting, in
actions for partition of property with accounting, in Within 15 days from such notice, it shall be the duty of the
the special civil actions of eminent domain and appellant to submit a memorandum (briefly discussing the
foreclosure of mortgage. Note: If however, the trial errors imputed to the lower court), copy of which shall be
court has fully and finally resolved all the issues in the furnished the appellee. For the appellant, the filing of a
complaint for expropriation, there is no need to file a memorandum is vital to his appeal. Failure to so file shall be a
record on appeal even in an expropriation case. ground for the dismissal of the appeal.

A. Appeal from Municipal Trial Courts to the Regional The appellee may, if he so desires, file his memorandum within
Trial Courts (Rule 40) 15 days from receipt of the appellant's memorandum.

Where to appeal from a judgment or final order of a When case is deemed submitted for decisionupon the filing
Municipal Trial Court of the memorandum of the appellee, or the expiration of the
period to do so.
Such appeal may be taken to the Regional Trial Court exercising
jurisdiction over the area to which the former pertains. the Regional Trial Court shall decide the case on the basis of the
entire record of the proceedings had in the court of origin and
When to appeal such memoranda as are filed.
1. An appeal may be taken within 15 days after notice to
the appellant of the judgment or final order appealed Appeal from an order dismissing a case for lack of jurisdiction
from. 1. A case may be dismissed in the Municipal Trial Court
2. Where a record on appeal is required (in special without trial on the merits. This occurs when a
proceedings and in cases of multiple or separate motion to dismiss is filed and granted in accordance
appeals), the appellant shall file a notice of appeal with Rule 16 of the Rules of Court. If an appeal is
and a record on appeal within 30 days after notice of taken from the dismissal by the lower court, the
the judgment or final order. Regional Trial Court may affirm or reverse it.
a) If the order of dismissal is REVERSED, the
How to appeal case shall be remanded to the lower court
1. The appeal is taken: for further proceedings.
a) By filing a notice of appeal with the court b) If the order is AFFIRMED, then it is a
that rendered the judgment or final order declaration of the merits of the dismissal.
appealed from; and However, if the dismissal is made on the ground of
b) By serving a copy of the notice to the lack of jurisdiction over the subject matter, and the
adverse party. Regional Trial Court affirms the dismissal, the action
2. Within the period for taking an appeal, the appellant of the latter court shall not be confined to a mere
shall pay to the clerk of the court which rendered the affirmation of the dismissal. Instead, the rule
judgment or final order appealed from the full obligates the Regional Trial Court to try the case on
amount of the appellate court docket and other the merits as if the case was originally filed with it.
lawful fees. (Proof of payment shall be transmitted to 2. The same rule prevails if the case was tried on the
the appellate court) merits in the lower court without jurisdiction over the
3. Within 15 days from the perfection of the appeal, the subject matter and was subsequently dismissed on
clerk of court of the lower court shall transmit the such ground. On appeal, the Regional Trial Court, if it
original record or the record on appeal, together with has original jurisdiction shall not dismiss the case, but
transcripts and exhibits, which he shall certify as shall decide the case in the same manner as a case
complete, to the proper Regional Trial Court. dismissed by the lower court without trial on the
merits. Note: The Regional Trial Court may allow
Perfection of the appeal amendment of the pleadings and may receive
additional evidence in the interest of justice.
A party's appeal is deemed perfected as to him by:
50 | P L A T O N
3. When a case is dismissed for lack of jurisdiction, the 2. Within the period for taking an appeal, the appellant
order of dismissal is one without prejudice because shall pay to the clerk of the court which rendered the
the plaintiff may simply refile the complaint in the judgment or final order appealed from, the full
court with the proper jurisdiction. amount of the appellate court docket fee. (See Rule
40 on Perfection of the appeal)
Note: Sec. 1(g) of Rule 41 as amended provides that 3. Within 30 days after perfection of all the appeals, the
the order dismissing an action without prejudice is clerk of court shall verify the correctness and
NOT APPEALABLE. Sec. 8 of Rule 40, on the other completeness of the records and if incomplete, to
hand, allows an appeal from an order of the MTC take such measures to complete such records, certify
dismissing a case for lack of jurisdiction. to the correctness of the records, to transmit the
same to the appellate court, and to furnish the
Sec. 8 of Rule 40 hence, should be considered as an exception parties with copies of his letter of transmittal of the
to Sec. 1 of Rule 41. records to the appellate court.
4. Upon receiving the original record on appeal and the
B. Appeal from the Regional Trial Courts to the Court of accompanying documents transmitted by the lower
Appeals (Rule 41) court, as well as the proof of payment of the docket
and other lawful fees, the clerk of court of the Court
Modes of appeal from the decision of the Regional Trial of Appeals shall docket the case and notify the
Court parties.
PETITION FOR 5. Within 45 days from receipt of the notice of the clerk
PETITION FOR of court, the appellant shall file a brief with proof of
REVIEW service upon the appellee.
Appeal by
Appeal by writ of Within 45 days from the receipt of the appellant's
- certiorari to the
error brief, the appellee shall file his own brief with proof
Supreme Court
Where judgment Where judgment Where judgment of service to the appellant.
was rendered by was rendered by was rendered by
the court in the the court in the the court in the Within 20 days from receipt of the appellee's brief,
exercise of its exercise of its exercise of its the appellant may file a reply brief answering points
original jurisdiction appellate original jurisdiction in the appellee's brief not covered in his main brief.
Governed by Rule Covered by Rule 42 Sec. 2 of Rule 41 Note: Extension of time for the filing of briefs will not
41 be allowed, except for good and sufficient cause and
only if the motion for extension is filed before the
Brought to the
Taken to the Court of Appeals expiration of the time sought to be extended.
Supreme Court
Questions of fact or mixed questions of ONLY questions of
Questions that may be raised on appeal
fact and law law
The appellant may include in his assignment of errors any
Application of Rule 41"ordinary appeal"appeals from the
question of law or fact that has been raised in the court below
judgment or final order of the Regional Trial Court in the
and is within the issues framed by the parties.
Residual jurisdiction
On the other hand, if a litigant loses in the MTC and on appeal
1. The authority of a trial court:
loses in the RTC, the mode of appeal to the Court of Appeals is
a. To issue orders for the protection and
by way of Rule 42. This is because the decision of the RTC is in
preservation of the rights of the parties
the exercise of its APPELLATE jurisdiction.
which do not involve any matter litigated by
the appeal,
When to appeal
b. Approve compromises,
c. Permit appeals of indigent litigants,
Within 15 days from notice of the judgment or final order
d. Order execution pending appeal in
appealed from. Where a record on appeal is required, the
accordance with Sec. 2 of Rule 39, and
appellant shall file a notice of appeal and a record on appeal
e. Allow withdrawal of the appeal
within 30 days from notice of judgment of final order.
provided these are done prior to the transmittal of
the original record or the record on appeal even if the
How to appeal
appeals have already been perfected or despite the
1. Taken by (a) filing a notice of appeal with the court
approval of the record on appeal or in case of a
which rendered the judgment or final order appealed
petition for review under Rule 42, before the Court of
from, and (b) serving a copy thereof upon the adverse
Appeals gives due course to the petition.
party. A record on appeal shall be required in special
2. Available at a stage in which the court is normally
proceedings and other cases of multiple or separate
deemed to have lost jurisdiction over the case or the
appeals when so required by law or the Rules. Note:
subject matter involved in the appeal. Note: There is
Where both parties are appellants, they may file a
no residual jurisdiction to speak of where no appeal
joint record on appeal.
or petition has ever been filed.

51 | P L A T O N
C. Petition for Review from the Regional Trial Courts to petition, it may require the respondent to file a
the Court of Appeals (Rule 42) comment on the petition within 10 days from notice.
The respondent shall file a comment, not a motion to
Application of Rule 42"petition for review"appeals from dismiss.
judgment or final order of the Regional Trial Court to the Court 4. If the Court of Appeals finds prima facie that the
of Appeals in cases decided by the former in the exercise of its lower court has committed an error of fact or law
APPELLATE JURISDICTION. that will warrant a reversal or modification of the
appealed decision, it may accordingly give due course
When to appeal to the petition.

Within 15 days from notice of the decision sought to be If the petition is given due course, the Court of
reviewed or of the denial of petitioner's motion for new trial or Appeals may set the case for oral argument OR
reconsideration filed in due time after judgment. require the parties to submit memoranda within a
period of 15 days from the filing of the last pleading
The court may grant an additional period of 15 days only or memorandum required.
PROVIDED the extension is sought:
a) Upon proper motion, and Dismissal of the appealdiscretionary
b) There is payment of the full amount of the docket
and other lawful fees and the deposit for costs before An appeal MAY be dismissed by the Court of Appeals, on its
the expiration of the reglementary period. own motion or on that of the appellee, on the following
Note: No other extension shall be granted except for the most a) Failure of the record on appeal to show on its face
compelling reason and in no case to exceed 15 days. that the appeal was taken within the period fixed by
these Rules;
How to appeal b) Failure to file the notice of appeal or the record on
1. Made by filing a VERIFIED petition for review with the appeal within the period prescribed by these Rules;
Court of Appeals, paying at the same time to the clerk c) Failure of the appellant to pay the docket and other
of said court the corresponding docket and other lawful fees as provided in section 4 of Rule 41;
lawful fees, depositing the amount of P500.00 for d) Unauthorized alterations, omissions or additions in
costs, and furnishing the Regional Trial Court and the the approved record on appeal as provided in section
adverse party with a copy of the petition. Note: The 4 of Rule 44;
appeal as to the petitioner upon the timely filing of a e) Failure of the appellant to serve and file the required
petition for review and the payment of the number of copies of his brief or memorandum within
corresponding docket and other lawful fees. the time provided by these Rules;
2. Filed in the proper form required in Sec. 2 of Rule 42 f) Absence of specific assignment of errors in the
stating among others: appellants brief, or of page references to the record
a) A concise statement of the matters as required in section 13, paragraphs (a), (c), (d) and
involved; (f) of Rule 44;
b) The Issues raised; g) Failure of the appellant to take the necessary steps
c) The specification of errors of law or fact, or for the correction or completion of the record within
both, allegedly committed by the trial court; the time limited by the court in its order;
and h) Failure of the appellant to appear at the preliminary
d) The reasons or arguments relied upon for conference under Rule 48 or to comply with orders,
the allowance of the appeal. circulars, or directives of the court without justifiable
cause; and
e) Indicate the specific material dates showing i) The fact that the order or judgment appealed from is
that the petition was filed on time (material not appealable.
date rule );
f) Certification against forum shopping. Residual jurisdiction

Note: Failure to comply with any of the requirements in Sec. 2 The doctrine also applies to Rule 42. The Regional Trial Court
of Rule 42 regarding the payment of the docket and other loses jurisdiction over the case upon the perfection of the
lawful fees, the deposit for costs, proof of service of the appeals filed in due time and the expiration of the time to
petition, and the contents of and the documents which should appeal of the other parties (See Sec. 8, Rule 42). Recall that in
accompany the petition shall be sufficient ground for the an ordinary appeal the residual jurisdiction of the Regional Trial
DISMISSAL of the petition. Court may be exercised prior to the transmittal of the original
record or the record on appeal.
3. The Court of Appeals may dismiss the petition motu
proprio if it finds the same to be patently without Stay of judgment
merit, prosecuted merely for delay, or that the
questions raised are too unsubstantial to require GR: The appeal shall stay the judgment or final order.
consideration. Note: If the court does not dismiss the
XPN: Unless the Court of Appeals, the law or the rules shall
provide otherwise:
Applies also to Rule 42, not only to a petition for certiorari under Rule
52 | P L A T O N
1. Civil cases decided under the Rules on Summary b) when the court below decided a matter of
Procedure; substance in a way that is not accord with
2. Small Claims Cases; law or with applicable decisions of the
3. In ejectment cases Supreme Court;
c) when the court below has departed from
D. Appeal by Certiorari to the Supreme Court (Rule 45) the accepted and usual course of judicial
proceedings, or so far sanctioned such
Application of Rule 45"petition for review on certiorari" departure by a lower court, as to call for the
1. Appeal from a judgment or final order of the Regional exercise of the power of supervision of the
Trial Court in cases where ONLY QUESTIONS OF LAW Supreme Court.
are raised or are involved and the case is one decided 3. XPN: Where the penalty of death or reclusion
by said court in the exercise of its original jurisdiction. perpetua, an appeal is a matter of right leaving the
court without any discretion.
Note: A decision rendered by the RTC in the exercise
of its appellate jurisdiction should be elevated to the Questions of law
CA under Rule 42 instead of appealing directly before 1. The rule is that before the Supreme Court, only legal
the SC under Rule 45 EVEN IF IT RAISES A PURE issues may be raised in a petition for review on
QUESTION OF LAW. certiorari.
2. The Supreme Court is not a trier of facts, and is not to
2. Appeal from the judgment, final order, or resolutions review or calibrate the evidence on record.
of the Court of Appeals where the petition shall raise 3. Moreover, the findings of facts of the trial court, as
only questions of law distinctly set forth. affirmed on appeal by the Court of Appeals, are
3. Appeal from the judgment, final order, or resolutions conclusive on the Court.
of the Sandiganbayan where the petition shall raise 4. Indeed, the general rule is that findings of facts of the trial
only questions of law distinctly set forth. court will not ordinarily be disturbed by an appellate court
absent any clear showing that the trial court has overlooked,
4. Appeal from the decision or ruling of the Court of Tax
misunderstood or misapplied some facts or circumstances of
Appeals en banc. weight or substance which could very well affect the
5. Appeals from a judgment or final order in a petition outcome of the case. It is the trial court that had the
for a writ of amparo to the Supreme Court. opportunity to observe the witnesses manner of testifying,
their furtive glances, calmness, sighs or their scant or full
Note: Here the question raised need not only be realization of their oaths. Nevertheless, the higher court is
questions of law but also questions of fact or of both not entirely precluded from reviewing and reversing these
law and fact. findings if it is not convinced that they conform to the
evidence of record and to its own impressions of the
credibility of the witnesses.
6. Appeals from a judgment or final order in a petition
for a writ of Habeas Data.
Exceptions to the ruleQuestions of fact may be raised in an
appeal under Rule 45 provided the petition shows any, some or
Note: The appeal may raise questions of fact or law
all of the following:
or both.
1. The conclusion of the Court of Appeals is grounded
entirely on speculations, surmises and conjectures;
The MODE OF APPEAL prescribed under Rule 45 shall be
2. The inference made is manifestly mistaken, absurd or
applicable to both civil and criminal cases, except in criminal
cases where the penalty imposed is death, reclusion perpetua
3. There is a grave abuse of discretion;
or life imprisonment.
4. The judgment is based on misapprehension of facts;
5. The findings of facts are conflicting;
Provisional remedies
6. The Court of Appeals, in making its findings went
beyond the issues of the case and the same is
The petition for review on certiorari under Rule 45 may include
contrary to the admissions of both appellant and
an application for a writ of preliminary injunction or other
provisional remedies. The petitioner may seek the same
7. The findings are contrary to those of the trial court;
provisional remedies by verified motion filed in the same action
8. The findings of fact are conclusions without citation
or proceeding at any time during its pendency.
of specific evidence on which they are based;
9. The facts set forth in the petition as well as in the
Not a matter of right
petitioner's main and reply briefs are not disputed by
1. A matter of sound discretion and will be granted only
the respondents; or
when special and important reasons could justify the
10. The findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and
2. Examples of reasons which the court may consider in
contradicted by the evidence on record.
allowing the petition:
11. In an appeal from a judgment or final order of the
a) when the court below decided a question of
court in a petition for a writ of amparo or habeas
substance not yet determined by the
data, questions of fact may be raised.
Supreme Court;
Appeals from Judgment in a Petition for a Writ of Amparo Or
Writ of Habeas Data
Discretionary (MTC) if RTC affirms the decision
53 | P L A T O N
different remedies and have distinct applications. Otherwise,
Certiorari under Rule 45 is not the certiorari under Rule 65 his petition may be dismissed outright.

Certiorari under Rule 45 Certiorari under Rule 65 XPN: The court may set aside technicality for justifiable reasons
Mode of appeal Special civil action that is an as when the petition before the court is clearly meritorious and
original action filed on time both under Rules 45 and 65. The court may treat
A continuation of the Not a part of the appellate the petition as having been filed under Rule 45.
appellate process over the process but an INDEPENDENT
original case action When to appeal
A petition for review An original special civil action 1. In the form of a VERIFIED petition, filed within 15
for certiorari days from notice of the judgment, final order or
Seeks to review final Directed against an resolution appealed from, or within 15 days from
judgments or final orders interlocutory order or matters notice of the denial of the petitioner's motion for new
where no appeal may be trial or motion for reconsideration filed in due time.
taken from 2. The Supreme Court may, for justifiable reasons, grant
Raises questions of law Raises questions of an extension of 30 days only within which to file the
jurisdiction because a petition PROVIDED:
tribunal, board or officer a) There is a motion for extension of time duly
exercising judicial or quasi- filed and served;
judicial functions has acted b) There is full payment of the docket and
without jurisdiction or in other lawful fees and the deposit for costs;
excess of jurisdiction or with and
grave abuse of discretion c) The motion is filed and served and the
amounting to lack of payment is made before the expiration of
jurisdiction the reglementary period.
Filed within 15 days from Filed not later than 60 days
notice of judgment or final from notice of judgment, How to appeal
order appealed from order or resolution sought to 1. File a VERIFIED petition with the Supreme Court
be assailed and in case a within the reglementary period raising therein ONLY
motion for reconsideration or questions of law.
new trial is timely filed. 2. Pay to the clerk of court of the Supreme Court the
whether such motion is docket and other lawful fees as well as the deposit in
required or not, the 60 day the amount of P500.00 for costs. Proof of service of a
period shall be counted from copy of the petition on the lower court concerned
notice of denial of said motion and the adverse party shall be submitted together
Does not require a prior As a general rule, a prior with the petition.
motion for reconsideration motion for reconsideration is
required The petition shall contain all the matters mentioned
in Sec. 4 of Rule 45 including compliance with the
Stays the judgment appealed Does not stay the judgment or
from order subject of the petition material data rule which requires the petitioner to
indicate the materail dates showing when notice of
unless enjoined or restrained
the judgment, final order or resolution subject of the
The parties are the original The tribunal, board, officer
petition was received and when a motion for new
parties with the appealing exercising judicial or quasi-
trial or motion for reconsideration, if any, was filed
p[arty as the petitioner and judicial functions is impleaded
and when notice of the denial was received. Among
the adverse party as as respondent.
others, the petition must also be accompanied by a
respondent WITHOUT
certification against forum shopping as provided for
impleading the lower court or
in Sec. 2 of Rule 42.
its judge
The petitioner and The parties are the aggrieved
Note: Failure to comply with any of the foregoing requirements
respondent are also the party against the lower court
regarding the payment of the docket and other lawful fees,
original parties to the action or quasi-judicial agency and
deposit for costs, proof of service of the petition, and the
in the lower court the prevailing parties, who
contents of and the documents which should accompany the
thereby respectively become
petition shall be sufficient ground for its DISMISSAL.
the petitioner and
3. The Supreme Court, may on its own initiative, deny
Filed with the Supreme Court Filed with the RTC (Sec. 21, BP
the petition on the ground that:
129 as amended), the CA (Sec.
a) the appeal is without merit;
9, BP 129 as amended) or with
b) is prosecuted manifestly for delay; or
the SC (Sec. 5[1], Art. VIII,
c) that the questions raised therein are too
unsubstantial to require consideration.
GR: A party cannot file a petition both under Rules 45 and 65 of For purposes of determining whether the petition should be
the Rules of Court because said procedural rules pertain to
denied or given due course, the Supreme Court may require the

54 | P L A T O N
filing of such pleadings, briefs, memoranda or the submission of 2. In criminal cases, the ruling of the Ombudsman shall
documents it may deem necessary. be elevated to the Supreme Court by way of Rule 65.

If the petition is given due course, the Supreme Court may Note: The Supreme Court is not authorized to correct every
require the elevation of the complete record of the case or error or mistake of the Office of the Ombudsman other than
specified parts thereof within 15 days from notice. grave abuse of discretion. The remedy is not a petition for
review on certiorari under Rule 45 but a petition for certiorari
Provisional Remedies in a Rule 45 Petition under Rule 65.

Appeals from quasi-judicial agencies Appeals from judgments of the Court of Tax Appeals
1. Appeals from judgments and final orders of quasi- 1. Under Sec. 11 of R.A. 9282, no civil proceeding
judicial bodies/agencies enumerated in Rule 43 are involving matters arising under the National Internal
now required to be brought to the Court of Appeals Revenue Code, the Tariff and Customs Code or the
under the requirements and conditions set forth in Local Government Code shall be maintained, except
Rule 43. This rule was adopted precisely to provide a as herein provided, until and unless an appeal has
uniform rule of appellate procedure from quasi- been previously filed with the Court of Tax Appeals
judicial bodies. and disposed of in accordance with the provisions of
2. The appeal may be taken to the Court of Appeals this Act.
whether the appeal involves a question of fact, a
question of law, or mixed questions of fact and law. A party adversely affected by a resolution of a
The appeal shall be taken by filing a VERIFIED petition Division of the CTA on a motion for reconsideration or
for review with the Court of Appeals. new trial, may file a petition for review with the CTA
3. The appeal shall NOT stay the award, judgment, final EN BANC.
order or resolution sought to be review unless:
a. A TRO is applied for by the adverse party; or 2. Sec. 11 of the same Act further provides that a party
b. When the Court of Appeals shall direct adversely affected by a decision or ruling of the CTA
otherwise upon such terms as it may deem en banc may file with the SUPREME COURT a verified
just. petition for review on certiorari pursuant to RULE 45.

Review of decisions of the NLRC Review of judgments of the Commission on Electionsto the
Supreme Court on certiorari under Rule 65 by filing the petition
The remedy of a party aggrieved by the decision of the National within 30 days from notice.
Labor Relations Commission is to promptly move for
reconsideration of the decision and if denied to timely file a Review of judgments of the Commission on Auditto the
special civil action of certiorari under Rule 65 within 60 days Supreme Court on certiorari under Rule 65 by filing the petition
from notice of the decision. In observance of the doctrine of within 30 days from notice.
hierarchy of courts, the petition for certiorari should be filed in
the COURT OF APPEALS . Appeals from judgments of the Civil Service Commissionto
the Court of Appeals under Rule 43. Note the difference
Appeals from the Sandiganbayan between the mode of appeal from a judgment of the CSC and
1. Appealable to the Supreme Court by way of certiorari the mode of appeal from the judgments of other constitutional
under Rule 45 raising pure questions of law. Certiorari commissions.
under Rule 65 is NOT THE REMEDY.
2. The above rule applies when the penalty is less than Appeals from judgments of the Office of the Presidentto the
reclusion perpertua, life imprisonment or death. (Sec. Court of Appeals.
7 of PD 1606 as amended by R.A. 7975 and R.A. 8249)
II. Remedies After a Judgment Becomes Final and
Review of the rulings of the Ombudsman Executory
1. In administrative disciplinary cases, the ruling of the
Office of the Ombudsman are appealable to the A. Petition for Relief or Relief from Judgments, Orders or
Other Proceedings (Rule 38)
a) The Court of Appeals cannot, therefore,
review the orders, directives or decisions in
Nature of the petition
criminal or non-administrative cases.
1. It is a LEGAL REMEDY whereby a party seeks to set
b) Nevertheless, in cases in which it is alleged
aside a judgment rendered against him by a court
that the Ombudsman has acted with grave
whenever he was unjustly deprived of a hearing or
abuse of discretion amounting to lack or
was prevented from taking an appeal because of
excess of jurisdiction, a special civil action of
fraud, accident, mistake or excusable neglect.
certiorari under Rule 65 may be filed with
2. An equitable remedy that is allowed only in
the Supreme Court to set aside the
EXCEPTIONAL CASES when there is no other available
Ombudsman's order or resolution.
or adequate remedy. Note: A party who has filed a
motion for new trial but which was denied, cannot
file a petition for relief. These two remedies are said
See St. Martin Funeral Homes v. NLRC, G.R. No. 130866, September to be EXCLUSIVE of each other. The remedy is to
16, 1998. appeal from the judgment.
55 | P L A T O N
3. Not an independent action but a CONTINUATION of Hearing of the petition
the old case. It is filed with the same court which
decided the case. After the filing of the answer or the expiration of the period to
file the answer, the court shall hear the petition.
Grounds for a petition for relief; proper court
1. When a judgment or final order is entered into, or Action of the court
any other proceeding is thereafter taken against the 1. After the hearing and the court finds that the
petitioner in any court through FAME. allegations therein are not true, it shall DISMISS the
The petition shall be filed in such court and in the petition.
same case (not in another or higher court) praying 2. If the court finds the allegations to be true, it shall SET
that the judgment, order or proceeding be SET ASIDE. ASIDE the judgment, final order or other proceeding
2. When the petitioner has been prevented from taking complained of.
an appeal by FAME. a. The case then shall stand as if such
The petition shall likewise be filed in such court and in judgment, final order or proceeding had
the same case (not in another or higher court) but the never been rendered, issued or taken. The
prayer this time is that the appeal be given DUE court shall then proceed to hear and
COURSE. determine the case as if a timely motion for
a new trial or reconsideration had been
Petition is available ONLY to the parties granted by it.
b. Where the prayer is to give due course to
A petition for relief from judgment together with a motion for his appeal, the court shall set aside the
new trial and a motion for reconsideration are remedies previous denial of the appeal and shall give
available ONLY to parties in the proceedings where the assailed due course to the said appeal. It shall then
judgment is rendered. elevate the records of the appealed case as
if a timely and proper appeal had been
Petition is available to proceedings after the judgment made.

A petition for relief is available: Preliminary injunction pending the petition for relief
a) Not only against a judgment or final order, but also
b) When any other proceeding is thereafter taken The court in which the petition is filed, may grant such
against the petitioner in any court through FAME. preliminary injunction to preserve the rights of the parties upon
(i.e., a proceeding taken after the entry of judgment the filing of a bond in favor of the adverse party. Note: The
or final order such as an order of execution) bond is conditioned upon the payment to the adverse party of
all damages and costs that may be awarded to such adverse
When to file party by reasons of the issuance of the injunction or other
proceedings following the petition.
The petition shall be filed within 60 days AFTER the petitioner
learns of the judgment, final order or proceeding and NOT No petition for relief in the Supreme Court and Court of
MORE THAN 6 months after such judgment or final order was Appeals
entered, or such proceeding was taken. Note: These two
periods must concur. Both periods are also not extendible and Reasons:
never interrupted. 1. A petition for relief from judgment is not included in
the list of Rule 56 cases originally cognizable by the
A petition for relief is actually the last chance given by law to Supreme Court.
litigants to question a final judgment or order. An failure to 2. While Rule 38 uses the phrase any court, it refers
avail of such last chance within the grace period fixed by the only to Municipal/Metropolitan and Regional Trial
Rules is FATAL. Courts.
3. The procedure in the CA and the Supreme Court are
Form of the petition; affidavit of merit governed by separate provisions of the Rules of
The petition: 4. The Supreme Court is not a trier of facts.
1. Must be VERIFIED;
2. Must be accompanied with AFFIDAVITS showing B. Annulment of Judgments or Final Orders or
FAME relied upon; and Resolutions (Rule 47)
3. The facts constituting the petitioners good and
substantial cause of action or defense, as the case Nature of the action
may be. 1. A remedy in law independent of the case (not a mode
of appeal) where the judgment sought to be annulled
Order to answer was rendered.
2. Purpose: To have the final and executory judgment
If the petition is sufficient in form and substance, to justify set aside so that there will be a renewal of litigation.
relief, the court in which it is filed, shall issue an order requiring 3. It is resorted to in cases where the ordinary remedies
the adverse parties to answer the same within 15 days from the of new trial, appeal, petition for relief from judgment,
receipt thereof. or other appropriate remedies are no longer available

56 | P L A T O N
through no fault of the petitioner, and is based on 1. A petition for annulment of judgment filed in the
only two grounds. Court of Appeals shall observe the procedure in
4. The remedy may no longer be invoked where the ordinary civil cases. Should it find a trial necessary,
party has availed himself of the remedy of new trial, the reception of evidence may be referred to a
appeal, petition for relief or other appropriate member of the court or to a judge of a Regional Trial
remedy and lost or where he has failed to avail Court. A petition filed in the Regional Trial Court shall
himself of those remedies through his fault or also be treated as an ordinary civil action.
negligence. 2. Except under Sec. 4 of the 1991 Rules on Summary
5. The action is commenced by the filing of a VERIFIED Procedure where the court is clearly authorized to
petition with the proper court. dismiss a complaint outright even before summons is
a) If it is the judgment or final order of a RTC, served, an outright dismissal is not the usual
the action shall be filed in the CA. procedure in ordinary civil actions .
Basis: It has exclusive original 3. An action for annulment of a judgment, although
jurisdiction. treated as an ordinary civil action, departs from the
The CA may dismiss the case usual norm because the court, upon the filing of the
outright; it has the discretion on petition may make an outright dismissal of the
whether or not to entertain the petition as long as it has specific reasons for its
petition. dismissal. This dismissal may be made even before
b) If it is that of a MTC, it shall be filed in the summons is served. It is only when the court finds a
RTC having jurisdiction over the former. prima facie merit in the petition shall summons be
Basis: It is a court of general served on the respondent.
The RTC is required to consider it Effect of a judgment of annulment
as an ordinary civil action. (no 1. Based on lack of jurisdictionshall SET ASIDE the
discretion) questioned judgment or final order and will render
the same NULL AND VOID; without prejudice to the
Grounds for annulment refiling of the original action in the proper court.
1. Extrinsic fraud; and 2. Based on extrinsic fraudshall SET ASIDE and ANNUL
2. Lack of jurisdiction. the questioned judgment or final order; the court,
upon motion, may order the trial court to try the case
Note: A petition for annulment of judgment is an as if a motion for new trial was granted.
Note: The prescriptive period for the refiling of the original
Extrinsic fraud (collateral in character) action shall be deemed suspended from the filing of such
1. Fraud which prevents a party from having a trial or original action until the finality of the judgment of annulment.
from presenting his entire case to the court, or where This prescriptive period shall not however, be suspended where
it operates upon matters pertaining not to the the extrinsic fraud is attributable to the plaintiff in the original
judgment itself but to the manner in which it is action.
2. It exists when there is a fraudulent act committed by Aside from the setting aside of the judgment or final order and
the prevailing party outside of the trial of the case, other effects, the judgment of annulment may include the
whereby the defeated party was presented from award of damages, attorney's fees and other relief.
presenting fully his side of the case by deception
practiced on him by the prevailing party. Application of Rule 47; annulment of judgment of the MTC
1. Rule 47 governs the annulment by the Court of
Lack of jurisdiction Appeals of judgments or final orders and resolutions
in civil actions of Regional Trial Courts.
Refers to either lack of jurisdiction over the person of the 2. Sections 2, 3, 4, 7, 8 and 9 or Rule 47 shall likewise
defending party or over the subject matter of the claim. apply to annulment of judgments or final orders of a
Municipal Trial Court by the Regional Trial Court
Period for filing the action having jurisdiction of the former. This action shall be
a) Extrinsic fraud: within 4 years from its discovery; treated as an ordinary civil action.
b) Lack of jurisdiction: before the action is barred by
laches of estoppel. Annulment of judgments of quasi-judicial bodies

Who may file the action The silence of B.P. Blg. 129 on the jurisdiction of the Court of
Appeals to annul judgments or final orders and resolutions of
The petitioner need not be a party to the judgment sought to quasi-judicial bodies indicates its lack of such authority.
be annulled. What is essential is that the petitioner is one who
can prove his allegation that: 4
In ordinary civil actions, the clerk of court first issues the
1. The judgment was obtained by the use of fraud and corresponding summons to the defendant upon the filing of the
collusion; AND complaint and the payment of the requisite legal fees. The defendant
2. He was affected thereby may then file a motion to dismiss pursuant to Rule 16 or the court may
make a motu proprio dismissal on certain grounds as when it finds from
the examination of the complaint that it has no jurisdiction over the
Basic procedure
subject matter.
57 | P L A T O N
3. Such motion shall contain a NOTICE (of hearing of the
Remedy: Petition for review to the Court of Appeals under Rule time and place for the hearing of said motion) to the
43. adverse party. Otherwise, it is a worthless piece of
paper which the clerk of court has no right to receive
C. Certiorari (Rule 65) and which the court has no authority to act upon.

Nature of the Remedy Where the application for execution made

Motion for Reconsideration 1. Execution shall be applied for in the COURT OF
Material Data (Date) Rule ORIGIN.
Certification Against Forum Shopping 2. If an appeal has been duly perfected and finally
Observance of Hierarchy of Courts resolved, the execution may be applied for also in the
Amendments to Rule 65 court of origin on motion of the judgment obligee,
attaching certified true copies of:
D. Collateral Attack of a Judgment a. The judgment of the appellate court, and
b. The entry of judgment
A direct attack of a judgment is made through an action or 3. If for whatever reason execution cannot be had with
proceeding the main object of which is to annul, set aside or the court of origin, he may file a motion with the
enjoin the enforcement of such judgment if not yet carried into appellate court to direct the court of origin, in the
effect; or if the property has been disposed of, the aggrieved interest of justice, to issue the writ of execution.
party may sue for recovery. (E.g., Petition for certiorari under
Rule 65) No appeal from an order of execution

A collateral attack is made when, in another action to obtain A party desiring to assail an order of execution may instead file
different relief, an attack on the judgment is made as an an appropriate special civil action under Rule 65 of the Rules of
incident in said action. This is proper only when the judgment, Court.
on its face, is null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction. (E.g., a Form and contents of writ of execution
motion to dismiss a complaint for collection of a sum of money
filed by a corporation against the defendant on the ground that The writ of execution is:
the plaintiff has no legal capacity to sue. A motion to dismiss is 1. Issued in the name of the Republic of the Philippines;
incidental to the main action for a sum of money.) and
2. Shall state the:
Chapter XI Execution of Judgments a. Name of the court which granted the
Meaning of execution b. Case number;
c. Dispositive portion of the judgment or
Execution is the remedy afforded for the satisfaction of a order subject of the execution; and
judgment. It is the fruit and end of the suit. d. Shall require the sheriff or other proper
officer to whom it is directed to enforce the
Part of the judgment to be executed writ according to its terms.
1. The dispositive portion (also called fallo) of the
judgment is that part which is subject to execution. Writ of execution must conform with judgment
2. Jurisprudence consider this portion of the judgment
asthat which finally invests rights upon the parties, The execution is VOID if it is in excess of and beyond the
sets conditions for the exercise of those rights, and original judgment or award for it is settled general principle
imposes the corresponding duties and obligations. that a writ of execution must conform strictly to every essential
particulars of the judgment promulgated.
When execution shall issue
1. Execution is a matter of right upon the expiration of Lifetime of the writ of execution
the period to appeal and no appeal was perfected 1. The writ shall continue in effect during the period
from a judgment or order that disposes of the action within which the judgment may be enforced by
or proceeding. motion.
2. The issuance of a writ of execution becomes the 2. The writ is enforceable within the FIVE-YEAR period
ministerial duty of the court, thus, compellable by from entry of judgment by motion.
3. Judgments and orders become final and executory by Q: When is an execution a matter of right?
operation of law and not by judicial declaration.
How execution shall issue 1. The judgment has become final and executory;
1. There is a need to file a MOTION for the issuance of a 2. Judgment debtor has renounced or waiver his right to
writ of execution. appeal;
2. Even in judgments which are immediately executory, 3. The period for appeal has lapsed without an appeal
there must be a motion to that effect and a hearing having been filed;
called for the purpose.

58 | P L A T O N
4. Having been filed, the appeal has been resolved and 4. A revived judgment is deemed a NEW JUDGMENT
the records of the case have been returned to the separate and distinct from the original judgment. It is
court of origin. not a continuation of the original judgment.
The 10-year period to revive the revived
When execution will be denied judgment shall commence to run from the
a) When the judgment has already been executed by date of the finality of the revived judgment
the voluntary compliance thereof by the parties; and not from the date of finality of the old,
b) When the judgment has been novated by the parties; original judgment.
c) When a petition for relief is filed and a preliminary 5. After the lapse of 5 years, the judgment is reduced to
injunction is granted; Also when execution of the a mere right of action in favor of the person whom it
judgment is enjoined by a higher court; favors which must be enforced, as are all ordinary
d) When the judgment sought to be executed is actions, by the institution of a complaint in the
conditional or incomplete; regular form.
e) When the facts and circumstances transpire which 6. It is an original action, no a mere incident of the
would render execution inequitable or unjust; primitive suit or a mere auxiliary or supplemental
f) When executions is sought more than 5 years from its remedy.
entry without the judgment having been revived; The purpose of the new action is not to
g) When execution is sought against property exempt reexamine and retry issues already decided
from execution; or and the cause of action of this new action is
h) When refusal to execute the judgment has become the judgment to be revived and no identity
imperative in the higher interest of justice. of causes of action can be said to exist
between the first and the second actions.
Quashal of a writ of execution
a) When the writ of execution varies the judgment; REVIVAL OF JUDGMENT REVIVAL OF JUDGMENT
b) When there has been a change in the situation of the (Sec. 6) (Sec. 34)
parties making execution inequitable or unjust; It is an INDEPENDENT ACTION It is carried out through the
c) When execution is sought to be enforced against filing of a motion in court
property exempt from execution; Assumes that there is no Assumes that a judgment is
d) When it appears that the controversy has never been execution within the first 5 executed within the first 5
submitted to the judgment of the court; years years
e) When the terms of the judgment are not clear The party who files the action The party who files such
enough and there remains room for interpretation is the judgment creditor motion is not the original
thereof; himself, or his assignee, or judgment creditor but he is
f) When it appears that the writ of execution has been successor-in-interest the highest bidder in the
improvidently issued; public auction sale
g) When it appears that the writ of execution is Filed due to lapse of the 5- Filed because the movant is
defective in substance, or is issued against the wrong year period deprived of the property
party, or that the judgment debt has been paid or purchased
otherwise satisfied, or the writ was issued without
authority. Q Where is the proper venue of an action for revival of
Duty of the sheriffpurely ministerial; he is to execute the A The proper venue depends on the determination of
order of the court strictly to the letter. whether the present action for revival of judgment is a real
action or a personal action.
Modes of execution of a judgment 1. Real actionmust be filed with the court of the place
1. Execution by MOTION if the enforcement of the where the real property is located;
judgment is sought within 5 years from the date of its 2. Personal actionmay be filed with the court of the
entry; and place where the plaintiff or defendant resides.
The date of the finality of the judgment or In labor cases, the action for revival of a
final order shall be deemed to be the date judgment must be instituted in the NLRC.
of its entry.
2. Execution by INDEPENDENT ACTION for the revival of When the five-year period is interrupted
the judgment if the 5-year period has elapsed and 1. Delays attributable to the defendant (judgment
before it is barred by the statute of limitations. debtor) have the effect of suspending the running of
the prescriptive period for the enforcement of the
Revival of judgment judgment;
1. A procedural means of securing the execution of a 2. By agreement of the parties for a definite time;
previous judgment which has become dormant after 3. By injunction; or
the passage of 5 years without it being executed upon 4. By the taking of an appeal or writ of error.
motion of the prevailing party.
2. Such action presupposes that the judgment can no When the five and ten-year periods do not apply
longer be enforced by mere motion. a) Special proceedings, such as land registration and
3. The action must be filed WITHIN 10 YEARS from the cadastral cases, wherein the right to ask for a writ of
date the judgment became final. possession does not prescribe;

59 | P L A T O N
b) Judgments for support which do not become dormant 3. When trial court has lost jurisdiction but has not
and which can always be executed by motion despite transmitted records of the case to the appellate
lapse of the 5-year period because the obligation is a court; and
continuing one and the court never loses jurisdiction 4. When trial court has lost jurisdiction and has
to enforce the same. transmitted records (motion for execution pending
appeal with appellate court);
Stay of execution of a judgment; exceptions 5. Execution of several, separate or partial judgment.

GR: An appeal perfected in due time stays the execution of a

judgment. Requisites for discretionary execution
a) There must be a MOTION filed by the prevailing party
XPN: with NOTICE to the adverse party;
1. Those judgments which by express provision of the b) There must be a HEARING of the motion for
rules are immediately executory and are not stayed discretionary execution;
by an appeal; and c) There must be GOOD REASONS to justify the
2. Those judgments that have become the object of discretionary execution; and
discretionary execution. d) The good reasons must be stated in a SPECIAL ORDER.

Judgments NOT STAYED by appeal, thus, immediately Discretionary execution is to be strictly construedbecause it
executory UNLESS otherwise ordered by the court. is an exception to the general rule and is availed of only in
1. Judgment for injunction; extraordinary circumstances.
2. Judgment for receivership;
3. Judgment for accounting; and Good reasons
4. Judgment for support. 1. The good reasons are what confer discretionary
5. Judgment against the defendant in an action for power upon the court to issue a writ of execution
forcible entry and unlawful detainer. pending appeal.
The appellate court in its discretion may 2. Certiorari will lie against an order granting execution
make an order, suspending, modifying, pending appeal where the same is not founded upon
restoring or granting the injunction, good reasons.
receivership, accounting or award of 3. What constitutes a good reason is left to the sound
support. exercise of judicial discretion.
The stay of the execution of the above a. The proven insolvency of the judgment
judgments, if ordered by the trial court, debtor;
shall be upon such terms as to bond or b. The purpose of preventing irreparable
otherwise as may be considered proper for injury;
the security or protection of the rights of c. The fact that the goods subject of the
the adverse party. judgment will perish or deteriorate during
the pendency of the appeal; or
Note: Even if the above judgments are immediately executory, d. The failure in an unlawful detainer case to
there must be a motion to that effect and a hearing called for make the required periodic deposits to
the purpose. cover the amount of rentals due under the
contract or for payment of the reasonable
Q What are the defenses available in an action for value of the use and occupation of the
enforcement? premises, or the failure to post a
A supersedeas bond may be good reasons to
1. Prescription; allow execution pending appeal (Sec. 19,
2. Satisfaction of claim; and Rule 70)
3. Counterclaims.
Frivolous appeal as reason for discretionary executionONLY
Discretionary execution an appellate court can appreciate the dilatory intent of an
1. Constitutes as an exception to the general rule that a appeal as an addition good reason in upholding an order for
judgment cannot be executed before the lapse of the execution pending appeal.
period for appeal or during the pendency of an
appeal. Posting of bond as reason for discretionary executionmere
2. Be it noted that discretionary execution does not filing of a bond by the successful party is NOT in itself a good
require a final and executory judgment but simply a reason for ordering execution pending appeal, because it is the
final judgment or order. combination of circumstances which is the dominating reason
that would justify immediate execution, the bond being only an
Q When is execution discretionary: additional factor.
1. Execution pending appeal; and Financial distress as reason for discretionary appealalso NOT
2. While trial court has jurisdiction over the case and is in itself a good reason to justify execution pending appeal.
in possession of either the original record or record
on appeal; Where to file an application for discretionary execution
1. With the trial court while:

60 | P L A T O N
a. It has jurisdiction over the case; AND service of notice on said garnishee. The lawful fees
b. It is in possession of either the original shall be directly paid to the court.
record or the record on appeal. d) If the amount is insufficient, the garnishee shall make
2. With the appellate court when the trial court has lost a REPORT as to the amount he holds for the judgment
jurisdiction. obligor.

Remedy where the judgment subject to discretionary Execution of a judgment for the performance of a specific act
execution is reversed, totally or partially, or annulled, on 1. What are considered specific acts?
appeal or otherwisethe trial court may, on motion, issue such a. Conveyance, delivery of deeds, or other
orders of restitution or reparation of damages as equity and specific acts vesting title;
justice may warrant under the circumstances. b. Sale of real or personal property;
c. Delivery or restitution of real property;
Execution in case the judgment obligee dieswill not prevent d. Removal of improvements on property
the execution of the judgment. The execution may issue upon subject of execution; and
the application of his executor, administrator or successor in e. Judgment for the delivery of personal
interest. property.
2. If the judgment requires a person to perform a
Execution in case the judgment obligor dies specific act, said act must be performed but if the
party fails to comply within the specified time, the
If the death occurs after execution is actually levied upon any of court may direct the act to be done by someone at
his property, the same may be sold for the satisfaction of the the cost of the disobedient party and the act when so
judgment obligation. If there be any surplus after the sale, the done shall have the effect as if done by the party.
officer making the sale shall account to the corresponding 3. If the judgment directs a conveyance of real or
executor or administrator. personal property, and said property is in the
Philippines, the court in lieu of directing the
How to execute judgments for money (steps) conveyance thereof, may by an order divest the title
1. DEMAND from the judgment obligor the immediate of any party and vest it in others, which shall have the
payment of the full amount stated in the judgment force and effect of a conveyance executed in due
including the lawful fees in cash, certified check form of law.
payable to the judgment oblige or any other form of
payment acceptable to him. Execution for a judgment for the delivery or restitution of real
2. If the judgment obligor cannot pay all or part of the property
obligation, the officer shall LEVY upon the properties 1. In an action for ejectment, the officer shall demand
of the judgment obligor. from the judgment obligor to vacate peaceably within
The judgment obligor shall have the option 3 working days, and restore possession of the
to choose which property or part thereof property to the judgment obligee.
may be levied upon. The three-day notice is required.
If the judgment obligor does not exercise 2. After the lapse of the period given and the judgment
the option, the officer shall first levy on the obligor refuses to vacate, then the sheriff may
personal properties, if any, and then on the enforce the writ by ousting the judgment obligor and
real properties if the personal properties all the persons claiming a right under him, with the
are insufficient to answer for the personal assistance, if necessary, of appropriate peace officers,
judgment but the sheriff shall sell only so and employing such means as may be reasonably
much of the property that is sufficient to necessary to retake possession and place the
satisfy the judgment and lawful fees. judgment obligee in possession of such property.
Garnishmentthe officer may levy on the
debts due the judgment debtor including Contempt is not a remedy
bank deposits, financial interests, royalties,
commissions and other personal property The writ of possession is not directed to the judgment debtor
not capable of manual delivery in the but to the sheriff who is directed to deliver the property to the
possession or control of third parties. prevailing party.

Garnishment of debts and credits What the officer should do is to dispossess him of the property
a) By serving a NOTICE upon the third person having in and if after the dispossession, the judgment debtor should
possession or control of the credits in favor of the execute acts of ownership or possession or in any manner
judgment obligor; disturb the possession of the judgment creditor, then and only
b) The third person or garnishee shall make a WRITTEN then may he be punished for contempt.
REPORT to the court within 5 days from service of the
notice of garnishment stating whether or not the Removal of improvements on the property subject of
judgment obligor has sufficient funds to satisfy the executionmay only be done by the officer upon a special
judgment. order by the court which will be issued upon motion by the
c) If sufficient, the garnishee shall DELIVER the amount judgment obligee and after hearing and only after the
in case or certified check shall be delivered directly to judgment obligor fails to remove them within a reasonable time
the judgment obligee within 10 working days from fixed by the court.

61 | P L A T O N
Q What is a special judgment? foreclosure of a mortgage upon the property, the property is
A It is a judgment that can be complied with only by the NOT EXEMPT from execution.
obligor himself. It requires the performance of any other
act other than payment of money, or the sale or delivery Q What are other properties ESPECIALLY exempt from
of real or personal property. execution?
A See Page 107, Remedial Law, 2011 Golden Notes.
Q What is the effect of failure to comply with special
judgments? Proceedings when property levied upon is claimed by third
A Punishable by contempt under Section 11 of this Rule. persons; terceria
1. A person claiming a property levied upon may
Note: If it is an ordinary judgment and the defendant refuses to execute an AFFIDAVIT of his title or right of
comply, it is not a ground for contempt. possession over the property. Such affidavit must
state the grounds of such right or title. The affidavit
Q How is execution of special judgments executed? shall be served upon the officer making levy and a
A When a judgment requires the performance of any act copy thereof must also be served upon the judgment
other than those mentioned in the two preceding sections obligee.
(Sec. 9 and 10), a certified copy of the judgment shall be The officer served with the affidavit of the
attached to the writ of execution and shall be served by claiming third person shall not be bound to
the officer upon the party against whom the same is keep the property subject of the claim,
rendered, or upon any other person required thereby, or UNLESS the judgment obligee, on demand
by law, to obey the same, and such party or person may be of the officer, files a bond approved by the
punished for contempt if he disobeys such judgment. court to indemnify the claimant in a sum
not less than the value of the property
Property exempt from execution (exclusive) levied upon.
No claim for damages for the taking or
Except as otherwise expressly provided by law, the following property,
keeping of the property may be enforced
and no other, shall be exempt from execution:
against the bond unless the action therefor
a) The judgment obligor's family home as provided by law, or is filed WITHIN 120 DAYS from the date of
the homestead in which he resides, and land necessarily the filing of the bond.
used in connection therewith; The officer shall not be liable to any third-
b) Ordinary tools and implements personally used by him in hs party claimant for damages for the taking or
trade, employment, or livelihood; keeping of the property, if such bond is
c) Three horses, or three cows, or three carabaos, or other filed.
beasts of burden such as the judgment obligor may select
2. In Ching v. Court of Appeals:
necessarily used by him in his ordinary occupation;
d) His necessary clothing and articles for ordinary personal use,
excluding jewelry; the sheriff may attach only those properties of the
e) Household furniture and utensils necessary for defendant against whom a writ of attachment has been
housekeeping, and used for that purpose by the judgment issued by the court. When the sheriff erroneously levies on
obligor and his family, such as the judgment obligor may attachment and seizes the property of a third person in
select, of a value not exceeding one hundred thousand which the said defendant holds no right or interest, the
pesos; superior authority of the court which has authorized the
f) Provisions for individual or family use sufficient for four execution may be invoked by the aggrieved third person in
months; the same case. Upon application of the third person, the
g) The professional libraries and equipment of judges, lawyers, court shall order a summary hearing for the purpose of
physicians, pharmacists, dentists, engineers, surveyors, determining whether the sheriff has acted rightly or wrongly
clergymen, teachers, and other professionals, not exceeding in the performance of his duties in the execution of the writ
three hundred thousand pesos in value; of attachment, more specifically if he has indeed levied on
h) One fishing boat and accessories not exceeding the total attachment and taken hold of property not belonging to the
value of one hundred thousand pesos owned by a fisherman plaintiff. If so, the court may then order the sheriff to
and by the lawful use of which he earns his livelihood; release the property from the erroneous levy and to return
i) So much of the salaries, wages, or earnings of the judgment the same to the third person. In resolving the motion of the
obligor of his personal services within the four months third party, the court does not and cannot pass upon the
preceding the levy as are necessary for the support of his question of the title to the property with any character of
family; finality. It can treat the matter only insofar as may be
j) Lettered gravestones; necessary to decide if the sheriff has acted correctly or not.
k) Monies benefits, privileges, or annuities accruing or in any If the claimants proof does not persuade the court of the
manner growing out of any life insurance; validity of the title, or right of possession thereto, the claim
l) The right to receive legal support, or money or property will be denied by the court. The aggrieved third party may
obtained as such support, or any pension or gratuity from also avail himself of the remedy of "terceria" by executing an
the Government; affidavit of his title or right of possession over the property
m) Properties specially exempt by law. levied on attachment and serving the same to the office
making the levy and the adverse party. Such party may also
file an action to nullify the levy with damages resulting from
When the property mentioned is not exempt from execution the unlawful levy and seizure, which should be a totally
separate and distinct action from the former case. The
If the property is the subject of execution because of a above-mentioned remedies are cumulative and any one of
judgment for the recovery of the price or upon a judgment of them may be resorted to by one third-party claimant
without availing of the other remedies.

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3. Other remedies may also be availed of by the third- must be registered in the registry of deeds of the
party claimant because nothing contained in the place where the property is situated.
Rules shall prevent the claiming third person from 2. The real property sold may be redeemed from the
vindicating his claim to the property in a separate purchaser, at any time WITHIN 1 YEAR from the date
action of the registration of the certificate of sale. If there
are other creditors having a lien on the property, the
Miscellaneous principles to be remembered in execution sales property so redeemed may again be redeemed
1. A NOTICE OF SALE is required before the property is WITHIN 60 DAYS from the last redemption. The
sold on execution. All sales of property under property may again, and as often as a redemptioner is
execution must be made at PUBLIC AUCTION to the so disposed, be redeemed from any previous
highest bidder but the execution sale must be redemptioner WITHIN 60 DAYS after the last
preceded by a valid LEVY which is indispensable for a redemption.
valid execution sale. 3. The property may be redeemed by the judgment
LEVY is the act whereby the sheriff sets obligor, or his successor in interest or by a creditor
apart or appropriates a part of the whole of having a lien by virtue of an attachment, judgment or
the properties of the judgment obligor to mortgage on the property sold, subsequent to the
satisfy the command of the writ. lien under which the property was sold. Such
Levy upon real property is made by the redeeming creditor is called a redemptioner.
officer by performing two specific acts: 4. Note that the right of redemption under the Rules of
a) FILING with the Register of Deeds Court has reference only to REAL, not personal
a copy of attachment; and property
b) LEAVING with the occupant of
the property a copy of the same Effect if no redemption is made
order, description and notice. 1. If no redemption is made within 1 year from the date
Non-compliance with any of the requisites of the registration of the certificate of sale, the
is fatal. PURCHASER is entitled to a conveyance and
possession of the property; or if so redeemed
2. After sufficient property has been sold to satisfy the whenever 60 days have elapsed and no other
execution, no more shall be sold. redemption has been made, and notice thereof given,
3. Any excess property or proceeds of the sale shall be the LAST REDEMPTIONER is entitled to the
delivered to the judgment obligor. conveyance and possession of the property.
4. If the purchaser at the auction refuses to pay the 2. Upon the expiration of the right of redemption, the
amount bid by him, the officer may again sell the purchaser or redemptioner shall be substituted to and
property to the highest bidder and the court may acquire all the rights, title, interest and claim of the
require such purchaser to pay unto the court the judgment obligor to the property as of the time of the
amount of whatever loss, with costs occasioned by levy.
his refusal to pay and if he disobeys the order, may
punish him for contempt. Any subsequent bid by such Rents, income and earnings of the property pending the
purchaser may be refused by the officer conducting redemption
the bidding.
5. The judgment obligee may bid and if said party is the The purchaser or a redemptioner SHALL NOT BE ENTITLED to
purchaser and there is no third party claim, he need receive the rents, earnings and income of the property sold on
not pay the amount of the bid if it does not exceed execution, or the value of the use and occupation thereof when
the amount of his judgment. If it does, he shall only such property is in the possession of a tenant. All rents,
pay the excess. earnings and income derived from the property pending
6. If the purchaser of personal property capable of redemption shall belong to the judgment obligor until the
manual delivery pays the purchase price, the officer expiration of his period of redemption.
making the sale must deliver the property to the
purchaser and, if desired, shall execute a certificate of Remedy when the judgment is unsatisfied
sale. The sale conveys to the purchaser all the rights 1. The judgment obligee is entitle to an order from the
which the judgment obligor had in such property as of court which rendered the judgment, requiring the
the date of the levy on execution or preliminary judgment obligor to appear and be examined
attachment. concerning his property and income before the court
7. When the purchaser of any personal property not or a commissioner appointed by the court. XPN: The
capable of manual delivery pays the price, the officer judgment obligor cannot be required to appeal before
making the sale must execute and deliver to the a court or commissioner outside the province or city
purchaser a certificate of sale. Such certificate in which such obligor resides or is found.
conveys to the purchaser all the rights which the 2. A person, corporation, or other juridical entity
judgment obligor had in such property as of the date indebted to the judgment debtor may also be
of the levy on execution or preliminary attachment. required to appear before the court or a
commissioner appointed by it, at a time and place
Sale and redemption of real property within the province or city where such debtor resides
1. Upon a sale of real property, the officer must give to or is found, and be examined concerning the same.
the purchaser a certificate of sale. Such certificate
Effect of final judgments

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A. Res Judicataalso known as bar by prior judgment or
direct estoppel by judgment.
a. In case of a judgment or final order is on a
specific thing, the same is conclusive upon
the title to the thing; or
b. In case of a judgment or final order is in
respect to the probate of a will, or the
administration of the estate of a deceased
person, the same is conclusive upon the will
or administration but the probate of a will
or granting of letters of administration shall
only be prima facie evidence of the death of
the testator or intestate and not conclusive
presumption of death; or
c. In case of a judgment or final order is in
respect to the personal, political, or legal
condition or status of a particular person or
his relationship to another, the same is
conclusive upon the condition, status or
d. In other cases, if the judgment or final order
with respect to the matter directly
adjudged or as to any other matter that
could have been raised in relation thereto,
the judgment or final order is conclusive
between the parties and their successors in
interest by title subsequent to the
commencement of the action or special
proceeding, litigating for the same thing
and under the same title and in the same
capacity, relationship;
B. Conclusiveness of judgmentalso known as estoppel
by verdict, or estoppel by record, or collateral
estoppel by judgment or preclusion of issue or rule of
auter action pendant.
a. In any other litigation between the same
parties or their successors in interest, that
only is deemed to be adjudged in a former
judgment or final order which appears upon
its face to have been so adjudged, or which
was actually and necessarily included
therein or necessary thereto.

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