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RULES 1 & 2:  Quasi In Rem – (Domagas vs Jensen); e.g.

Action to close real


estate mortgage
Commencement of Civil Action
“On the other hand, a proceeding quasi in rem is one brought against persons seeking to subject the
 When does a civil case commence? property of such persons to the discharge of the claims assailed. In an action quasi in rem, an
o From the filing of the original complaint/By the filing of the initiatory individual is named as defendant and the purpose of the proceeding is to subject his interests therein
pleading to the obligation or loan burdening the property. Actions quasi in rem deal with the status, ownership
o Complaint – An initiatory pleading which contains the plaintiff’s cause/s of or liability of a particular property but
action and includes the names of the plaintiff/s as well as the defendant
and their respective addresses which are intended to operate on these questions only as between the particular parties to the
o Importance of knowing when a civil action commences or the date of its proceedings and not to ascertain or cut off the rights or interests of all possible claimants. The
filing – for purposes of prescription judgments therein are binding only upon the parties who joined in the action.”
o For impleading or including a new defendant not included in the original
complaint – as far as said defendant is concerned, case commenced only
from the date of filing of the later pleading/amended complaint o Is payment of the docket fee important/indispensable for the court to
- maybe be done any time before answer, as a matter of right entertain the case? (Manchester Doctrine)
o When filing a complaint what should be included aside from causes of  Payment may still be made after filing of the complaint as long as
action? (addendum) made within a reasonable period (Balatan Case)
 Verification and Certification of Non Forum Shopping o Difference if complaint is filed with govt courier and private courier?
 MCLE Compliance of the Lawyer  If filed with govt courier, complaint is deemed filed the moment it
 What is a cause of action? is sent by mail
o An act or omission committed by the defendant against the plaintiff  If thru private courier only considered filed upon receipt of the
 What is right of action? court itself
o Refers to right to sue by the plaintiff in connection with the act committed o Rule regarding a cause of action in a complaint
or omitted by the defendant  No splitting of causes of action allowed – remedy; dismissal of
 Essential Elements of a Cause of Action case based on litis pendetia or res judicata
o Legal Right of the Plaintiff o Requisites for joinder of cause/s of action
o Correlative Obligation of the Defendant  Party joining the causes of action should comply with rule
o The Act or Omission of the Defendant in violation of the legal right regarding joinder of cases (Sec 6 Rule 3)
 Classifications of Actions (From Case)  Joinder of parties allowed when arose out of the same
o As to Nature transaction or series of transactions and there must be a
 Ordinary common cause of action among them (Sec 6 Rule 3)
 Special Civil Action  The joinder shall not include special civil actions; they are
o Object governed by special rules of procedure
 Action In rem (Important!) - Real Action /Directed towards the  Where the causes of action are between the same parties
plaintiff itself e.g. Recovery of Ownership but pertain to different venues or jurisdictions, the
 In personam – Personal Action /Directed towards the person itself joinder may be allowed in the RTC provided one of the
e.g. Collection of sum of money causes of action falls within jurisdiction of said court and
venue lies therein
 Where the claims in all the causes of action are personality separate and distinct from the stock holders. They can still sue and be sued but
principally for recovery of money the aggregate amount you include those corporators or stockholders or incorporators or members thereof.
claimed shall be the test of jurisdiction
o Remedy for Misjoinder of Parties and Causes of Action – may be severed Q: What about an estate of a deceased person, can you file a case against an estate of a
(J.S. prefers dropped) in any stage of the proceedings deceased person? In fact there’s one case where the SC ruled that an estate of a deceased
person can be considered a juridical person and therefore can be a plaintiff or defendant of a
Rule 2 cont’d. particular civil case.
A: To be safe, don’t do that, because in some cases an estate of a deceased person cannot
Jessa: In the case of Ballatan vs. CA, (payment of filing fees) the Supreme Court ruled that the GR:
be considered a juridical person. Rather sue them as Heirs of that particular deceased
filing of the complaint must be accompanied by the payment of the required docket fees.
person.
Ballatan case also allowed payment of the filing fees after the filing of the complaint within reasonable
1. Q: What is the first rule when you file a civil case in the reference to the party of that case?
time, as long as there is NO deliberate intention on the part of the plaintiff not to pay the filing fees.
A: It must be filed and prosecuted in the name of the real party in interest. (SECTION 2)
Usually happens when the filing is made through mail either registered or by means of private courier.
Q: Who is considered as a real part in interest under this particular rule?
In the case of real actions, the docket and filing fees are based on the value of the property and the A: A party that may be benefited or injured as a consequence of the filing of that particular
amount of damages claimed. case.

If the complaint is filed but the fees are not paid at the time of filing, the court still acquires Q: If you are a counsel of the defendant and the case is not filed in the name of the real
jurisdiction upon full payment of the fees within a reasonable time as the court may grant and barring party in interest as against the rule, what is your remedy?
prescription. A: Motion to dismiss anchored on the ground of lack of cause of action.

SC relaxed the ruling in the case of Manchester. 2. Classify the parties to a civil case. (MEMO)
a. Indispensable parties.
Recap on rule 2:
One without whom no final adjudication can be had, and without whom no final
judgment.
1. One is not allowed to file more than one suit from one cause of action. (SPLITTING of action
is not allowed.)
Q: Juan obtained a loan with BDO, Tacloban, in the loan they used an absolute
2. Elements of cause of action.
community of property as collateral. In the loan the wife signed “with my marital
3. Definition of cause of action.
consent”. While the loan was still existent, husband died and the wife was not able to
RULE 3: PARTIES TO A CIVIL ACTION pay the loan. The bank foreclosed the loan. The children filed for the annulment of the
foreclosure on the ground of the death of the husband, their father but failed to allege
A. Parties to a civil action whether plaintiff or defendant should only be Natural and Juridical the wife as a party. Is it proper?
persons. A: No. The wife is an indispensable party. Therefore excluding the wife would be a
problem there since she even signed “with my marital consent”.
Q: If a corporation is not duly registered with the SEC, do you consider it a juridical person
and therefore can sue and be sued? Q: If an indispensable party is not included in the complaint, can that be a ground for a
A: Cannot sue as a Corporation itself, but may be for those who allege to be incorporated to motion to dismiss?
such as members. Because a Corporation which is not duly registered will not have the A: No. If an indispensable party is not included in the complaint, the proper remedy
would be to file a motion to amend the complaint to include an indispensable party. Non-
joinder of parties cannot be a ground for a motion to dismiss, instead it may be added or Example: husband and wife when they sue based on a right on absolute community of
may be dropped in any stage of the proceedings. property.

b. Necessary parties. e. Quasi party


One who is not indispensable but is enjoined for the judgment to be complete. Without
whom no complete judgment can be had. 3. An unwilling co plaintiff shall be sued or joined as a defendant.
4. In case of several defendant but you are not sure in what capacity will you file the case
c. Representative party. (SECTION 3) against them, sue them as alternative defendants.
Those who are in fiduciary capacity like trustees or guardians. 5. Joinder of Parties (Section 6)

Q: What is the rule if you are filing a complaint in a representative capacity? What will Q: Is this mandatory?
the caption of the complaint be? A: It depends upon the party.
A: If it is an indispensable party, it is mandatory.
GR: Juan Dela Cruz If not. The law allows permissive joinder of parties. As long as the following
Represented by Pedro elements are present.
One is allowed to file a case in a representative capacity. You should indicate in the 1. the right arouse from the same transaction or series of transaction
complaint that you are suing in a representative capacity and also include the name of 2. there is a common cause of action.
the person you represent. Not limited to those in a fiduciary relationship. Anybody can 3. joinders are not proscribed (prohibited) by the rule on jurisdiction and venue (the
file a case in a representative capacity as long as you are duly oath of a special power of court must acquire jurisdiction of the person of all the defendants and venue shall
attorney which specifically allowed you to sue and be sued for and in behalf of this also be considered as the place where the case should be filed)
person and allowed to sign the verification and certification of non-forum shopping.
6. RULE in case of death. (presupposes that the case survives even upon death)
Q: Can an agent file a case in his own behalf without including the principal?
Q: If one of the parties (either plaintiff or defendant) to a case dies, while the case is
A: Yes. Suing for and in behalf of the principal.
pending trial, what will happen?
XPN: (principal should be included) If it involves things belonging to the principal.
If the claim is not yet extinguished. (Even if one of the parties dies, the action survives.)
Q: Differentiate a representative party and a class suit.
Instances: MEMO
A: Common cause action.
Class suit requires: 1. Recovery of real and personal property.
1. So numerous that it is impractical to bring all to court (representative pwede usa la) 2. Enforcement of client on such property.
2. Subject matter in the case involves one of common or general interest. 3. Recover from any injury to personal property due to tort or debit committed by the
3. Party bringing the suit is numerous and the representative of the class can fully deceased.
protect the interest of the others.
4. The representative sues for the benefit of all. Q: If the case does not survive upon the death of one of the parties, will that mean that
Example: Tax Payer’s suit. the court shall dismiss the case?
A: File your claim against the estate of the deceased.
d. Pro-forma party.
Parties who should be joined for the formalities of the case. Q: If the action survives and one of the parties dies while the case is going on, what will
happen?
A: It is the duty of the counsel to inform the court upon the death of the party through - If there is no proper substitution because there was no notice of death: EFFECT: Sarsaba
filing a Notice of Death which shall include the names of the Heirs of the deceased case
together with their respective addresses. Should be done within 30 days upon recipt of
The validity of the judgment according to the Supreme Court in that case actually
notice of death unless it would be a ground for disciplinary action.
binds the successors and heirs in interest of the deceased party. Reason: this is an
action which survives even after the death of the parties; hence, it will not affect the
Q: Why is the name and address of heirs being included?
validity of the judgment. The requirement that there be proper substitution is only
A: Because they are to substitute the deceased. Within receipt of the Notice of Death,
to afford the heirs the required due process. It will never affect the validity of the
the court shall issue an order, notice to the heirs and requiring from them their
judgment, the judgment will bind the heirs and successors in interest precisely
willingness to substitute for the deceased party to the case.
because this section will only apply if the claim is not extinguished.

Q: What if Heirs are not willing? They appear but not willing or interested to substitute? Three cases that will survive even if party dies: (1) right to recover real or personal
A: The court will order the opposing party to procure the appointment of an actions, (2) right to cover liens thereon, (3) right to recover damages arising from
administrator for the estate of the deceased within a certain period of time; cost shall be torts.
borne by the counsel or party himself.
Action based on money claims – which arouse out of a contract whether express or implied
Q: Must there be an amendment if you want to substitute the heirs of the deceased and then plaintiff dies before entry of final judgment: Case is not dismissed. It will continue,
party?? however, winning party shall claim that against estate of deceased pursuant to rule 86 of the
A: No amendment of the complaint. No summons shall be summoned. What is sufficient revised rules of court.
is that they be notified.
Case involving public officer, while it was going on, dies, resigns or is dismissed, what will
Assignment: What is the effect if there is no substitution because the counsel failed to happen to the case? It shall continue against the successor of that particular office, provided that
inform the court about the death of the party? Will it render the entire proceedings Null and there is a need to continue the case. Requirements: 1. In relation to the performance of the
Void? official duty of that particular officer 2. Successor must always be notified

Defendant is unknown: may be sued as the unknown owner, heir, devisee, or by such other
RULE 3 Sec. 16 Death of party; duty of counsel designation as the case may require. If his identity is discovered, pleading must be amended
accordingly.
- It is the obligation or duty of the counsel to inform the court of the death within the period of
30 days. Together with the notice of death will be the names of the heirs of the One of the parties becomes incapacitated: Case will continue but he will be assisted by a
deceased and their respective addresses so that the court will issue an order to inform guardian
the said heirs if they are willing to substitute said parties within a period of 30 days from
receipt of the notice. If they fail to appear, then the other party has the obligation to procure
the appointment of an administrator for executing. Expenses which are incurred shall be to
the account of the opposing party. RULE 4 VENUE OF ACTIONS
- If the counsel of one of the parties failed to inform the court of the death of the party, what
is the effect of the same if no substitution was made? Take note there is no need to amend Distinction between venue and jurisdiction
the complaint and no need to issue summons/summonses to the heirs of the
deceased party. What is required is the court will notify them if they are willing to appear Jurisdiction cannot be subjected to an agreement of the parties because it is conferred by
under substitute of the deceased party in a civil case. law. Venue may be, as long as there is a valid written agreement between the parties and
that agreement was made prior to the filing of the action.
Sweet lines versus Teves: the Supreme Court nullified a stipulation on venue because it was written in
very fine letters.
RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS
Contracts of adhesion : the terms and conditions of which are only prepared by one party. Common
in insurance. VALID. But if in case there is a problem, it shall be construed liberally in favour of the First and Second level courts – uniform procedure in the application for disposition of cases EXCEPT in
one who did not participate in the formulation of the terms and conditions as against the one who cases governed by rules on summary procedure and when the law itself expressly provides so.
formulated.
If the case is under the first level court, you have to know whether the case is governed by the
Venue in real actions : actions which involve title or possession regular rules or the rules on summary procedure.
*San Pedro case : >20,000 - RTC <20,000 - MTC
Metro Manila : 50,000 RTC – always governed by regular rules.
- Filed in the court where the property is situated or any portion thereof is situated
- How would you assess so you will know if it is a personal or real action? If the case involves What are cases which are covered by rules on summary procedure?
recovery of ownership, partition of property, recovery of possession; if that is not your
prayer, that is not a real action. It becomes a personal action. 1. Forcible entry and unlawful detainer irrespective of claim of damages and unpaid rentals
- The guide there is determine whether the allegations including prayer is actually one which (REAL ACTION)
involves title or possession 2. If the claim exclusive of interest and costs is 100,000 and less – first level but covered by
summary procedure. In Metro Manila, it is 200,000 and less. More than 100k and 200k, apply
Venue in personal actions: in the place where plaintiff resides or any of the plaintiffs reside or regular rules.
where any of the defendants reside, or in case of non-resident defendant, in the place where he may
be found at the election of the plaintiff. In the SC Circular 12-8-8, there must be filing of judicial affidavits in all civil cases whether first
level or second level courts, which will constitute as a direct testimony of the witnesses.
What about if the transaction involves several real properties? If one transaction includes several
parcels of land located in different places, file in any of the places where one is situated. Basis: if it What is peculiar in the rules of summary procedure? (Differences between regular rules and summary
arose out of the same transaction, it may be filed in any of the places. However if it arose out of rules)
different transactions, there will be as many cases as there are, depending on where the property is
Under regular rules, defendant has 15 days to file responsive pleading upon receipt of
located.
summons which can even be extended. In summary procedure, it is only 10 days and the
If you file a case for surrender of title, because the title is in the possession of one who is not the rule doesn’t allow extension of time.
owner: REAL ACTION. File in the place where property covered by the title is located.
In regular rules, upon receipt of last pleading (reply), issues are joined and set for pre-trial
Petitions for the issuance of new owner’s copy: PERSONAL ACTION. File where plaintiff or conference. In summary procedure, it is not a trial but a preliminary conference.
petitioner resides.
Testimonies of witnesses:
Residence: ACTUAL residence. Not synonymous to domicile.
summary procedure: there must be affidavit of witnesses based on their personal
Domicile: place where you’d like to return wherever you are. knowledge, because the affidavit of witnesses will serve as their direct testimony.
The problem now is which will be applied? 12-8-8 or the affidavit required on SP. In
Non-resident defendant: it is not necessary that the court acquires jurisdiction over his person. 12-8-8, there are certain strict requirements. Here, the affidavit may not be in q and
What is important is the court acquires jurisdiction over the res. We allow summons by publication, a form. In 12-8-8, the affidavit must be in Q and A. When there is no affidavit, you
but not for the purposes of acquiring jurisdiction over the person, but only for compliance of due cannot present said witness.
process.
In Summary Procedure, there are pleadings which are prohibited. One of them is, motion But it was submitted in the SC?
for extension of time to file answer. Motion to dismiss? It depends. Not allowed,
except if anchored on the grounds of lack of jurisdiction, failure to comply with condition Yes sir because it was impossible for him to file the CNFS because that person was from Virginia.
precedent, like referral to lupon. What else are prohibited? Motion for Bill of particulars, new
You would notice the decision that there could be a liberal interpretation of the application of the CNFS
trial, petition for relief, memorandums. Motion for reconsideration? Not allowed. depending on whether the party concerned can give a reasonable ground. I think it was the ruling
actually in the case of Anderson Kho that sana the SC can give a liberal interpretation on the late
There must be submission of position papers, which must attach affidavit of witnesses. It is submission of the CNFS, in some instances the court may allow the late submission depending on the
only when court requires some clarificatory questioning will witnesses be presented in court. grounds relied upon. So that is supposed to be the ruling of the SC.
(Summary Procedure)
On manner of the allegations in the complaint, what is the rule?
Days to decide? 30 days upon submission of the case for decision (Summary Procedure) *Every pleading shall contain in a methodical and logical form, a plain, concise and direct
statements of ultimate facts and omitting statements of mere evidentiary facts.

So what is the meaning of the word ‘ultimate facts’?


RULE 8 Manner of Making Allegations in the Pleading *Ultimate facts refers to facts which directly forms a basis as to the rights to be enforced,
these are supposed to be the substance itself, which will form part of the cause of action which is
I have assigned to you the case of Anderson vs___? What was the decision of the Supreme Court in relied upon by the plaintiff.
this case? In this particular case the complaint failed to allege the certification of non forum shopping *Evidentiary facts are those facts which are necessary to prove the ultimate facts.
but it was belatedly submitted by the counsel, and what was the ruling of the SC in connection with
that belated filing of the certification of non forum shopping? Evidentiary facts are in connection with the ultimate facts, but these are what we call, evidences if you
want to prove the ultimate facts. And under our rules, it need not be alleged in the complaint, what is
Since Mrs Anderson has an unreasonable ground for being late in the submission of the certificate of important is that the allegations in the complaint must contain the ultimate facts and these are the
non forum shopping, she was not allowed by the court to submit it. facts which would actually constitute the cause of action of the plaintiff.

So what happened to this case? The case was dismissed? As far as answer is concerned, what is the rule?
*the same
Yes, because of the non compliance of the certificate of non forum shopping which was signed by her
counsel and not by herself and not attaching a special power of attorney. The same rule with complaint, in answer, it must contain ultimate facts not evidentiary facts. However,
in connection with another rule for answer, if the answer is anchored on a law, then what should be
What about the filing what was the ruling of the SC? alleged there?
*Cite the provision of the law as well as its applicability.
The SC ruled that she has failed to comply the same and due to the laxity and that her reason was
not, because in this case she has compared it to another case, the case of Donato. If the answer is anchored on a particular law, you must cite the provision of that particular law and its
applicability. In connection with what should be contained in an answer, ultimate facts only, omitting
So in this particular case there was no liberal interpretation? evidentiary facts. In connection with answer as another rule, in cases where the answer is anchored
on a particular law, it is required in the second paragraph of sec.1 of rule 8 that you must also cite the
Yes sir. law and its applicability. So if you anchor for example your defense on sec.1 of art.2 of the Civil Code
of the Philippines, you must also state what that particular section and its applicability in so far as your
So the SC did not allow the late submission of the certilfication of non forum shopping. You said that answer is concerned. Precisely, even in your pre-trial, as you will learn later, you must already specify
she compared it with the case of Donato. Well what happened in the case of Donato? the applicable laws and jurisprudence in support of your respective causes of action if you are for the
plaintiff and your defenses if you are for the defendant.
In the case of Donato, it was the same case that Donato has failed to submit the CNFS…
What about in terms of the capacity of the parties?
*It shall be specifically alleged..
If it is anchored on an official document, or act, then it is sufficient to aver that the document was
Alleged likewise. Will it be correct to say that in one paragraph you will say that plaintiff and defendant issued or done in compliance with law.
have the capacity to sue and be sued? Is it complied already? Like first second and third paragraph, in
your third paragraph of your complaint, you mentioned that plaintiff and defendant have the capacity In connection with an actionable document, what is the rule?
to sue and be sued, is that already in compliance of the requirement that capacity to sue of the
plaintiff or even in so far as the defendant is concerned must also be alleged in the complaint, what do If you anchor your complaint in an actionable document, you have to: (2 ways to allege)
you think? 1. State the substance of that particular actionable document, or
*Yes. 2. State the contents of the document in toto

Yes, however if you are acting in a representative capacity, what is supposed to be the rule? If these are based on condition precedents, what is the rule?
*You must also specify in what kind of capacity are you representing a party, but in its actual -The averment that it has been performed is sufficient.
application, see to it that in your complaint you must always put an allegation that the plaintiff and the
defendant have the capacity to sue and be sued. If that is already part and parcel of the complaint, If it is a judgment of a court, of a tribunal, of a quasi-judicial agency, then what is the rule?
then that is already in compliance with the requirements of this particular rule. However, if you are -The averment that the judgment was issued by the court, tribunal or quasi-judicial agency
representing in a representative capacity, you must see to it that it must appear in the allegations in acting/acted with jurisdiction is sufficient.
your complaint that you are representing in a representative capacity.
What is the general rule when you make allegations in the answer?
What about if your allegation is anchored on fraud or mistake, for example, you file a case for 2 ways, either:
annulment of contract or annulment of deed of sale and then your ground there is anchored on the -make specific denial, or
fact of fraud or mistake, what is the requirement of law? -raise affirmative defense
*It should be stated with particularity.
The defendant has no knowledge or information sufficient to form a belief as to the truth or falsity of
When the law says ‘in cases where your complaint is anchored on fraud or mistake’ you said it must the allegation therein is a sufficient denial.
be ‘stated with particularity’, what do you mean by that?
*it must be specific Negative Pregnant Rule
-mere repetitions of the allegations in the complaint (not sufficient denial)
When you say ‘it must be specific’, it must be described with particularity, how do you do that?
*The fraudulent act should be stated. How do you make specific denial?
-by specifically denying the material facts which constitutes the cause of action
You have to specify the ground itself like what constitutes the fraud that you’re relying or what
constitutes the mistake that you’re relying. So if you’ll only say that defendant by means of fraud, If the answer would say defendant denies all the allegations in paragraphs 3, 4, and 5 of the
compelled the plaintiff to enter into a contract with them, that is not sufficient because you must complaint, is it sufficient denial?
specify the fraud or what constituted the fraud or mistake. -No. It is considered as an admission. A general denial is considered as an admission, the
same effect as the negative pregnant rule. When the law says specifically deny, you must really set
However if this has reference to knowledge, to intent for example or malice, then the requirement of forth the reason or the ground why you are denying that particular paragraph. If you will only say the
the law is? defendants specifically deny the allegations in paragraph 2-3 of the complaint, then that is not specific
*It may be generally averred. denial, in effect, it is considered as an admission. You must set forth the ground why you are
specifically denying the same.
What could have been the rationale, how come that if you’re anchoring your cause of action on
knowledge, or intent or malice, or any act of similar nature, unlike fraud and mistake that it must be If you are answering based on an actionable document, it must be denied under oath otherwise, the
stated with particularity, here, it can be averred generally. What do you think is the rationale of the genuineness and due execution of that particular document is deemed admitted.
rule here?
*Because it is difficult to prove knowledge and intent. What do you mean by ‘genuineness’ and ‘due execution’?
-you cannot raise now that your signature was a forgery, because by failing to deny the -litis pendentia (there is a pending action involving the same cause of action)
allegation, you admit the genuineness of that particular document and what is due execution? It is -res judicata
done voluntarily without force, coercion or intimidation. -prescription
(ALL OTHER GROUNDS except the foregoing, IF NOT RAISED IN THE M.D OR IN THE
Very Important: if it is an actionable document, you must deny that under oath otherwise if that is not ANSWER ARE DEEMED WAIVED)
denied under oath, the due execution and genuineness of that document is deemed admitted.
Exceptions: -if that defendant is not a party to that document; and Defendant has 15 days to file his responsive pleading to the complaint from receipt of summons
-when an order was issued by the court for the inspection of the document and issued by the court; or within 15 day period, file a motion for extension of time to file answer.
the inspection was refused by the plaintiff (mode of discovery)
Motion for extension of time to file answer is prohibited in cases covered by the rules on summary
If you will not make a specific denial, allegations deemed admitted. procedure.
3 instances when it is not considered admitted: In summary procedure, only 10 days to file answer, no extension allowed; upon failure of the
-unliquidated damages defendant to file a responsive pleading within 10 days, plaintiff can file motion to render
-conclusions of fact and law judgment.
-non material allegations in the complaint In the regular rules, no responsive pleading filed by the defendant w/in 15 days, plaintiff can file a
motion to declare the defendant in default.
Example of an actionable document: deed of sale, promissory note, any document which forms part of
the basis of the cause of action of the complaint When the records of the case was seen by the presiding judge, he noticed that the defendant did not
file any responsive pleading, he immediately issued an order to declare the defendant in default for
If you feel that the complaint contains allegations which are impertinent, immaterial, or scandalous, failure to file his responsive pleading. Is the court correct?
you can file a motion to strike that particular allegation in the pleading, and that can be done even if *No. the court is not correct. The court cannot declare a defendant in default motu proprio.
no answer is yet filed. (rarely resorted to in reality) There must be a motion to that effect, filed by the plaintiff, with notice to the defendant.

If the defendant is declared in default, the law allows the presentation of evidences of the plaintiff ex
RULE 9 Effect of Failure to Plead parte; can be delegated to the branch clerk of court.

If you have a good ground for the dismissal of the complaint, what should you do? Court granted the motion and declared the defendant in default, if you are the counsel of the
Either: defendant, what will you do?
-file a motion to dismiss-based on such ground *The remedy of the defendant is to file a motion to lift or set aside the order of default
Motion for a Bill of Particulars- if the allegations in the complaint are not before the court renders judgement (after judgment, motion to lift not allowed)
specifically mentioned
In a motion to set aside the order of default, your motion should contain an affidavit of merits. You
-file an answer with affirmative defenses (raise the ground for dismissal as have to specify that you have a valid and meritorious defense, that it is based on FAME.
affirmative defense)
How would a court treat motions to lift or set aside an order of default, strictly or liberally?
*Liberally, and more often than not, the court always grants it specially so in cases when the
Agreement between the Supreme Court and the Integrated Bar of the Philippines answer was filed before the court issued an order. Courts most often than not grant it because cases
-lawyers must observe restraint in filing motions to dismiss, what you will do instead is to file must be decided based on the merits of the case not just on mere technicalities.
an answer and raise your ground to dismiss the case as an affirmative defense. During trial,
affirmative defenses be treated first, as if you filed a timely motion to dismiss. Court issued an order declaring the defendant in default. Like what I have told you, we can delegate
the reception of evidence of the plaintiff ex parte before the branch clerk of court. The branch clerk of
In your answer/motion to dismiss, you must raise your defenses, otherwise deemed waived. court scheduled the hearing on a particular date, but he failed to notify the defendant of the
Exceptions: (even if you failed to raise/allege these defenses in the answer/motion, not scheduled hearing, and proceeded with the hearing of the case. Is the clerk of court correct?
deemed waived and will still be treated by the court) *No. A party declared in default might not actively participate in the proceedings of the case,
-lack of jurisdiction over the subject matter of the action however, he’s entitled to notice of all proceedings. He must always be notified.
However, in cases when personal service is not possible the law allow the service via registered
Defenses not raised in a motion to dismiss or in the answer are deemed waived, except lack of mail.
jurisdiction, litis pendentia, res judicata, and prescription.
JS: but what is one requirement that you must comply with if service is by registered mail?.
Under our rules, defendant is given 15 days to file his answer upon receipt of the summons. However Ans: there must be an explanation why you resorted to service by registered mail.
in reality you are allowed to file a motion for extension of time to file answer, except on cases covered
by the rules on summary procedure where motions for extension of time to file answer is a prohibited JS: pursuant to what section is that?
pleading. Ans: pursuant to rule 13 section 11, in fact you must state that in your explanation.
This answer is served by registered mail, due to lack of messengers, otherwise it might be
excused from the record of the case.

RULE 12 BILL OF PARTICULARS JS: are you allowed to serve it by ordinary mail?
Ans: yes. If there are no available offices that will allow service by registered mail, service by ordinary
One of the remedies, within 15 days or 30 days for non-resident 3 options, is to file an answer, motion mail will be sufficient.
to dismiss, file a motion for a bill of particulars, although I told you before, that although the filing of
motion to dismiss is actually discouraged, what you will do is to file an answer and use your grounds JS: what is the difference between registered mail and ordinary mail?
for a motion to dismiss as affirmative defenses. Ans: registered mail is deemed filed upon being posted at the post office but if it is sent via ordinary
mail, it is not deemed filed upon posting, it is only deemed filed upon the receipt of the mail by the
JS: Motion of bill of particulars, what is this, and when do you resort to this? court, that is the same rule in the cases when services made through a private courier, to a service
Ans: if the allegations in the complaint are actually general averments, or the allegation in the made before the Philippine postal corporation in the post office.
complaint are not specifically alleged or not particularly allege, and you find it difficult to file your
answer, what you do before answering is actually file a motion for a bill of particulars. JS: what is substituted service?
Ans: if the office and place of residence of the party or his counsel is unknown, service may be made
JS: what would happen upon receipt of the bill of particulars? by delivering the copy to the clerk of court, with proof of failure of both personal service and service
Ans: the clerk of court will immediately bring the attention to the court, after that the court will either by mail, the service is complete at the time of such delivery.
deny or approve such.

JS: if the court grants it what is the effect? JS: if the party is represented by a counsel, to whom will it be served?
Ans: if the court grants the motion the plaintiff will and must comply with the order within 10 days. Ans: It must be served to the counsel, if it is served to the party the effect is that there was no service
was made, the only time you can serve it to a party is when the party is not represented by a counsel.
JS: what is the effect if the plaintiff will not comply with the order of the court?
Ans: 2 remedies: JS: if there are several Counsels?
1. The court can strike the pleading as if it was not filed in court or Ans: you need not serve each of the counsel, because a service to one is already considered
2. Strike out the allegations or part of the allegations which are actually general averments. sufficient.

JS: how many days should the defendant file an answer? JS: how do you serve final judgment?
Ans: the law does not make any, as long as it should not be less than 5 days. Ans: three modes
1. by personal service.
2. by registered mail.
3. by publication.
RULE 13 SERVICE OF PLEADINGS ETC. JS: when is publication available?
Ans: there can only be service of a final order by means of publication, if the summons also was by
JS: what is the manner of filing or the preferred mode? means of publication.
Ans: personal service be it to the court or be it to the adverse party.
JS: completeness of service?
Ans: personal service - by delivery. defendant. Just to check Mrs. Jimenez, together with what other ground where the court likewise
Registered mail- upon receipt. acquires jurisdiction over the person of the defendant? Diba there are two means? One is by service of
Aside from the explanation, there must be an affidavit of service and in that affidavit you must specify summons, in accordance with the provisions of this law. And the other one is by his voluntary
the instruction to the postmaster to return the mail within 10 days if not served.
appearance to the court. For example, if his counsel files a motion to dismiss the case, except if the
End of transcription. God bless to us guys! ground is only to question the jurisdiction of the court over his person then that tantamounts to a
voluntary appearance in court, then the court acquires jurisdictionover his person. I repeat ha? Except
lang if his ground is only to question on the court’s jurisdiction over his person. But if it includes other
RULE 14 grounds, other than that ground. I repeat ha? That tantamounts to the voluntary appearance and
therefore the court now acquires jurisdiction over this person. Okay? Clear na? And that is also
It is one which involves title holder. So what you do in the property so that the adverse party will not mentioned, Mrs. Jimenez, in the last section of this particular rule. Just a check today, Mrs. Jimenez
sell the same to another and that very person can not claim that he is an innocent purchaser for before we take up each of this sections one-by-one. Mrs. Jimenez, in case there is an amended
value? What we do is file a notice of lis pendens before the office of the Registry of Deeds of the city complaint, ‘no? Meaning to say, an original complaint was filed and it was amended as a matter of
or province where the property is located. right. Question? Is there a need to again serve a summon.

We just of course mentioned the caption, the name of the parties, then the nature of the case, and of Student: It depends, if there is a new cause of action.
course the case number. Those are all required, or you always have to attach in your letter to the
Registry of Deeds of the city or province where the property is located the copy of the reports. That’s It depends, if it raises diba? New causes of action. I repeat because like what I said before, if it is an
what you do there. amendment which is a matter of right diba? There is no need for that. It can be amendments as to
form. It can be amendments as to substance. It can add other causes of action. According to Mrs.
But this one can not just be done by all cases. Dapat the case involved is one diba affecting title or Jimenez, in cases when the amended complaint will contain, I repeat, new causes of action which
possession of a property. In fact, this notice of lis pendens according to the provision of the law, can were not included in the original complaint, summons have to be served on the defendant, including
not be cancelled, ‘no? Except upon motion which will be heard by the court, giving notice to the party an amended complaint which remember? Impleads another defendant. Because as far as the newly
who caused the annotation of lis pendens and he has to prove that the lis pendens is actually not just impleaded defendant is concerned, then there has to be summons to be served on him. Very
to molest the other party because if that is proven that the lis pendens is actually to molest the important din. There is another one, in cases where the original complaint daw was filed, then the
adverse party, that will be a ground for the court to actually cancel the notice of lis pendens. And defendants were not able to file their answer and they were declared in default. Then the original
there is one decision of the Supereme Court wherein the court just cancelled the notice of lis pendens complaint was amended, and the amendment was granted. Must there be summons to the issue on
by a mere motion without setting the motion for hearing but was not considered as a right act of the the...
court because in a motion for cancellation of lis pendens, dapat the one who caused the annotation
must always given an opportunity to prove whether indeed the annotation shall be cancelled or not. Student: No, sir.
One of the grounds to cancel is that the annotation is only caused to molest the other party. Usually
this is the most common one and as far as whether or not the purchaser of the properties concerned I repeat. There is a case, where the original complaint was filed ha? But the defendants were declared
can be considered as purchaser for value in good faith it is only at the time when the annotation was in default, then the original complaint was amended by the students, and the amendment was granted
done because once the annotation of lis pendens was properly made parang it is a notice to the whole by the court. The question now is, is there a need for the court to issue summons?
world that as far as this property is concerned, there is a pending litigation. That’s the most common
Student: Yes, sir.
for lawyers to do, so that the other party will not be able to sell the property while the litigation is
going on.
Yes. Kasi diba remember, once an amended complaint is amended by the court, diba it supersedes the
original complaint. In point of view of the law, it is considered withdrawn. But it forms part pa din of
Okay, Jimenez? Like what I said, we will focus and then exhaustively discuss on summons ha? Like
the records of the case. So in this particular instance, there is a need for the court to issue summons
what I told you last meeting. And to start with as an opening statement, very important in the sense
that summons diba is one of the means by which the court acquires jurisdiction over the person of the
on the defendant. Because, I repeat, since the original complaint superseded the original complaint, it Yeah. Propert court officer, in the absence of a sheriff. Or, in special cases lang ito, any person who is
is considered withdrawn and then therefore there has to be issuance of summmons. authorized by court to serve summons. The last one would actually only happen in few instances. But
in actual application, it should be the sheriff or the deputy sheriff or any person authorized by the
When the court issues summons, what should we include as attachments thereto? court to serve the summons ha? Who are allowed by the court to serve summons. So if summons are
served by persons not one of those enumerated by Mrs. Jimene earlier, the service of summons is
Student: The complaint, sir.
defective and therefore the court did not acquire jurisdiction over the person of the defendant. And
then after... What is the preferred mode... I’m sorry... for service of summons? The preferred mode.
The complaint, tapos the complaint includes also daw the appointment of guardian ad litem or ad
litem (different pronunciation), ‘no? This must be likewise be attached to the summon. There is a case
Student: Personal.
there which apparently, I did not agree, ‘no? That the summons daw which was served to the
defendant without the complaint was still considered as a valid summon. But just like what I said, how Yeah. It’s personal service. In fact summons can not be sent by registered mail or by mail whatsoever,
can the defendant file the answer to the summon if the complainant did not attach the complaint? unless... There is a little qualification there. Unless? I repeat ha? Summons should only be
Because in reality, the summons must always be attanced to the complaint because there is a served by persons enumerated in the rule by personal service, as a preferred mode. As a rule, service
directive to the defendant to file a responsive pleading within fifteen (15) days from receipt of the of summons by registered mail is not valid. Except?
summons. So please take note of that. There must always be an attached copy of the complaint. And
if it involves, for example, a minor plaintiff, it must also include aside from the complaint, the Student: If there is an explanation.
appointment ‘no of the guardian ad litem of that plaintiff who is actually suing in representation of the
minor. Kasi this one presupposes, that it is the minor who is filing the complaint but since he is a In summons by publication. Kasi in summons by publication, aside from publishing the summons and
minor diba? He should be represented by somebody maybe there was an appointment appointing that the complaint itself, you must also send the copy of the summons together with the complaint at the
person as guardian ad litem, I think you have taken this up in your Family Code of the Philippines, but last known address of the defendant. These two, i repeat, must go together in cases where the court
must also be incorporated together with the copy of the complaint with the summons, my dear allows service of summons by publication. I repeat for the last time, in cases where the court allows
students, or summonses were served to the defendant. Okay, so clear na tayo on that aspect, ‘no? service of summons by publication which we will discuss later ‘no? You must not only publish the
Well as to what the contents are, take note nalang. I think that is at Secion 2 of this particualr rule. complaint. The publication must also publish the summons together with the order granting, my dear
students, summons by publication plus send the summons together with the complaint by registered
Next question, Jimenez. Who can serve the summons? That is the first question ha? Because you the mail to the last known address of the defendant. Apart from that, in service of summons by mail is
court can not and will not acquire jusrisdiction over the person of the defendant if it was served by a considered null and void. And when service of summons is done by sheriff, in reality it’s the sheriff,
person not enumerated in the provisions of this law. And the law states the summons can be served what is he required to do?
only by the following, number one:
Student: He is required to...
Student: Sheriff.
To make a what of the summons?
Sheriff. It’s always the sheriff who will serve the summons in actual application. Number two:
Student: A return.
Student: Deputy Sheriff.
A return. And the return must be made within how many days?
The Deputy Sheriff. Because in courts like Tacloban, mga multi-sala courts, aside from the sheriffs,
there is a deputy sheriff. Who else? Student: Five (5) days.

Student: Propert court officers. Five (5) days from service of the summons. What is the reason why is it... in fact when he makes a
return, he should? What is the requirement of the rule? In his return of the service of the summons
within five (5) days, is he required to serve a copy of his return to the detective?
Student: Yes.

That is the one. He should serve a copy of his return to the detective. What is the reason why is it that Thank you, Mrs. Jimenez. Okay, so take note ha? Substituted service of summons. Where is Mr.
he should make a return withing five (5) days and serve a copy of his return to the plaintiff? What is Veradio, Ryan? Were almost going to the second round. Abud? Did you take note of that case that I
the reason, Mrs. Jimenez? This is a very important rule. I have a very nice discussion here ‘no? I move assigned? Where the Supreme Court laid down the requisites for substituted service of summons. If
really slowly, my dear students. What is the reason? I’m not mistaken, I am referring to the case of San Pedro vs Ong. I repeat, San Pedro vs Ong, et.al.
October 17, 2008.
Student: So that the plaintiff will be informed...
Okay you can take your seat for the meantime. I will call another student for the second round.
So that the plaintiff will be informed, and then? If the summons is served, he can file the appropriate Palomino? Again... You did not? Okay. When I assign to you cases, those are very important. Marticio,
motion or declare the defendant in default, diba? If no responsive pleading is filed. Or if it is unserved, Marie Tonette? Not ready? Valdivia, Joan Christine? Varona, Granny. San Pedro vs Ong. Mrs. Jimenez
what can we do? Unserved man siya. File a motion for the issuance of what? did you study that case? I will give it to you for the second round. Okay. I will give you another grade
for the second round. Mrs. Jimenez? I just need you to give your classmates the requisites for a valid
Student: Alias summons.
substituted service of summons. San Pedro vs Ong. Number One! I repeat, this is only a mere
exception because the rule is, summons must only be served by personal service. However, as long as
Alias summons. That is the reason. Okay, very easy. The return of the sheriff must be filed within five
the following requisites are all present, substituted service of summons by the persons correctly
(5) days from service, he must furnish the plaintiff of a copy, so that the plaintiff can do any of the
enumerated to the residence and office... diba there are two (2) modes? Take note of it. Number one,
following remedies: (1) if no responsive pleading has been filed within fifteen (15) days, we can file a
Mrs. Jimenez?
motion to declare the defendant in default, (2) or if it is returned unserved because the defendant
cannot be located, the plaintiff, my dear students, can now file a motion for the issuance of an alias
Student: (1) Impossibility of the personal service of summons within a reasonable time;
summons. So, at the end of the day, an alias summons is a summons issued once the original
(2) Specify the efforts exerted to locate the defendant;
summons is returned and served by the sheriff. Okay, so take note of that. That is the justification to
(3) State that the summons was served upon a person of sufficient age and
the rule why the sheriff must serve the plaintiff a copy of the summons. Okay? Last for you.
discretion
who is residing in his address of who is in charge of the defendant’s office or
However, in certain instances, when personal summons can not be done by sheriff, then what is the
regular
next alternative?
place of business; and
Student: Substituted service. (4) Pertinent facts proving these circumstances be stated in the proof of service or
in the
Okay. You do substituted service of summons. Mrs. Jimenez, so that substituted service of summons officer’s return.
can be resorted, I assigned to you one (1) case last night. Can you read to me that particular case?
That case my dear students, gave you the requisites for substituted service of summons. Okay? First
muna, what will be the mode substituted service of summons before the case, Mrs. Jimenez? And what is the effect of that?

Student: (1) By leaving copies of summons at the defendant’s residence with some Student: The failure to comply strictly with all the foregoing requirements shall render the
person substituted service of summons ineffective.
of suitable age and discretion then residing therein, or
Okay. That is the recent decision of the Supreme Court. Thank you, Mrs. Jimenez. That’s it in
(2) By leaving the copies at defendant’s office or regular placeof business
connection with substituted service of summons. I repeat, it must comply with the said requisites.
with
Otherwise, if it is shown that the requisites were not faithfully complied with, then the substituted
some competent person incharge thereof.]
service of summons as ruled by the Supreme Court in the caseof San Pedro vs Ong becomes
(Rule 14, Section 7)
ineffective. Clear? Diba I said the mode? For the last time, I already see plenty of questions in... in RULE 15 & 16:
Remedial Law examnination in connection with the modes of services of summons. So, for the last
time ha? The preferred mode actually is personal service. No services by mail except to the extend of a motion is not a pleading
what I said on service of summons by publication. And then, there is also, substituted service of
all motions must always be in writing and must comply with sections 4, 5 and 6. otherwise, the rule is
summons but it must strictly and faithfully comply with the requisites enumerated by Mrs. Jimenez
that it is considered as a mere scrap of paper
earlier. You can always quote the case of San Pedro vs Ong. You can say, “The Supreme Court, with
the famous case of San Pedro vs Ong, ruled that for substituted service of summons to be effective,
except for motions which can be treated immediately like ex parte motions, urgent motions, motions
the following requisites must all be present: one, two, three, and four.” That will be the law. You’ll
agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties, and
have a very good answer. Okay? Clear na? Okay, Abud?
motions for summary judgement because it has to be filed at least 10 days before it is scheduled, a
motion must always be set or scheduled for hearing at least 3 days before the said scheduled hearing.
No problem if the defendant is a natural person, diba? Kasi you must serve the summons personally or
you must always copy furnish the opposing counsel of the said motion.
resort to substituted service of summons, diba? What about... the question now is a juridical person.
How would you answer that? How will service of summons be made if the defendant is a juridical
that's why a motion can only be established by the clerk of court. like when the clerk of court RTC xxx
person? How will you do that? I know you are a veeery very good student. Always topnotcher in my
please xxx the foregoing motion for the court's consideration immediately upon receipt thereof did not
class, ‘no? Even in UP pa rin. How will you do that if you see a question like that in the bar
comply with the provision
examinations in Remedial Law?
because the motion must always state the date when it should be heard and the other counsel must
Student: Sir, juridical person?
always be furnished a copy as to when the particular motion will be heard.
Yeah, juridical person.
if your xxx motion is addressed to the clerk of court and the motion is worded this way:
Student: If it is a juridical person but without personality, summons may be made at all or
"please submit the foregoing motion for the consideration of the court immediately upon receipt
any of the defendants. If it is with personality....
thereof"
I love it! You have to make a decision whether... well it is good ‘no because it is... if a juridical person
this said motion did not comply with the provision of this particular law and therefore is to be
was able to acquire a personality separate or distinct from its members or if it already has a juridical
considered as a mere scrap of paper.
personality. Because if it does not have a juridical personality, then?
the motion must include this:
Student: The service of summons shall be made on any or all of the following: the resident,
managing partner, corporation secretary, treasury, and in-house secretary. "to the clerk of court please submit the foregoing motion for the consideration of the honorable court
on (a particular date) lets say december 12, 2014 at 8:30 in the morning xxx (4:02) to the opposing
Correct! Do you know by what we mean by law on juridical person with no personality? Let’s say for
counsel atty juan de la cruz xxx (4:07) please be informed that the foregoing motion will be submitted
example a corporation, you are taking up...? Not yet, ‘no? The corporation daw was able to get a
for consideration of the honorable court on december 12, 2014 at 8:30 in the morning xxx (4:23)
certificate of registration from the SEC but they lack the minimum requirement, so that corporation
was not able to acquire a personality separate and distinct from its members but it seem to act as if it in fact what the rule says, at least 3 days before the motion is heard. it is not correct, according to
is a corporation. So if that is the case, since the corporation has no personality because it failed to settled jurisprudence that the motion must be sent lang by registered mail 3 days before it is heard.
comply with certain requisites. Then, the law says on service of summons daw can be made on that is wrong. it must stipulate that the motion sent to the other counsel must be received at least 3
anyone or all of them, as required. So meaning to say, days in time for that scheduled hearing. so meaning to say if the hearing is december 12, 2014, tapos
you sent that by registered mail on december 8 or 9, 2014, it did not comply with the requirement of
the rule. because the rule is very clear that it must be received by the opposing counsel at least 3 days
before the scheduled hearing of the motion so that the opposing party will be given the opportunity of lack of jurisdiction over the person of the defendant, which if you can recall, if one files a motion to
course to file his comments in the said motion. so i repeat sections 4, 5 and 6, if these are not dismiss on the ground that the court did not acquire jurisdiction over the person of the defendant, and
complied with the motion is considered as a mere scrap of paper and therefore it should not be acted that is the only ground, it will not be considered as xxx (11:49) of the defendant in court, but if it has
by the court. another ground, other than that, the defendant there has already submitted himself to the jurisdiction
of the court. i repeat, because of the existing view, if you question the jurisdiction of the court over
ok there is a concept there of omnibus motion, it is defined to be a motion attacking a pleading. and the person of the defendant, dapat that should only be the ground. because, if you also include
the importance of this particular rule because from then on you will be hearing the concept of omnibus another ground, other than that, then definitely your motion will be denied because it is as if you have
motion. when you become lawyers, you will be filing an omnibus motion, it is simply a motion submitted yourself to the jurisdiction of the court when your motion allege not only lack of jurisdiction
attacking a pleading. within the rule stated all objection or grounds which are not included in an over your person but you also alleged of course other grounds for a motion to dismiss. but if your only
omnibus motionare deemed waived subject of course to the exceptions as provided for in the next rule ground is the fact that the court did not acquire jurisdiction over your person, then that should not be
of rule 16. please take note. ok no more questions. i repeat, take note ha, 4, 5 and 6 those are the considered as submitting yourself to the jurisdiction of the court. of course you know already when the
more important sections in connection with the concept of motions. although there are motions which court acquires jurisdiction over the person of the defendant, the jurisdiction of the subject matter of
need not comply with these sections like non litigated motions, ex parte motions, motions agreed the case and
upon by the parties to be heard on shorter notice and motions for summary judgement which should
be scheduled at least 10 days. so those are the only exceptions so far. so all other motions which improper venue. but the law says this can be waived. and in cases where there is improper venue and
should be in writing must comply with sections 4, 5 and 6. i repeat omnibus motion is a motion the court for example denies it. what is your remedy? diba the ground is improper venue, you knew
attacking a pleading. so meaning to say, omnibus motion in reality is a motion that contains more than that it is filed in an improper venue but the court nevertheless denies your motion tapos the question
one ground. meaning to say xxx (4:50) you lump up all the other grounds together in just one motion is what should be your remedy? to prevent the court from further proceeding with the hearing of the
that's what we call omnibus motion. it contains more than one relief. its defined to be a motion case, you can file the special civil action of prohibition under rule 65. prohibition para the court is
attacking a pleading. that's why it says that all objections or oppositions which are not included in an prohibited from actually further hearing on your case if you raise of course improper venue as a
omnibus motion are deemed waived except those which are enumerated in rule 16. ground.

rule 16 is a very important rule. palomino rheand.very important rule ito ha and like what i said these there is a case pending before another court. litis pendentia.
are more substantive more than procedural. ok you can take your seat for the meantime mr.
palomino. i told you before that the motion to dismiss should be filed within the period for filing a in cases of litis pendentia, diba there are two cases na, one pending against the other. which should
responsive pleading that is within 15 days from the receipt of the summons xxx (9:18 - 28) counsels be given priority? - the first one should be given priority.
must observe restraint in filing a motion to dismiss. what should be done instead is, again in one of
res judicata (in civil procedure). in criminal procedure its double jeopardy. simply put, there is res
the sections you raise that as an affirmative defense in your answer then if you want to you can file a
judicata if there is a final judgement on the case involving the same parties and the same cause of
motion before the court to hear these affirmative defenses before trial on the main issue of the case. i
action or the same subject matter.
think that's very practical because if the motion to dismiss is denied, you have to file your answer.
rather than raise it as an affirmative defense, tapos even if your affirmative defense is not considered
when the cause of action is barred by prescription. in connection my dear students with prescription,
by the court, you have already filed the answer. that will basically save time, energy and effort not
actually, if the ground is prescription, it is limited on the allegations of the complaint. in fact xxx, if it
only by the court but also the movant my dear students. the one that i've told you, that this can be
appears from the allegations of the complaint that indeed the cause of action has already prescribed,
raised as an affirmative defense is stated in one of the sections, under rule 16. but like what i said, the
even without waiting for a motion to dismiss to be filed by the defendant, the court can motu propio
agreement does not mean that the lawyer is negligent from filing a motion to dismiss because the
dismiss the case.
administrative circular only says my dear students, observe restraint daw. ok so please take note.
lack of cause of action. what is the rule if the ground is lack of cause of action? in fact in this particular
grounds:
ground, the court daw must observe extreme care and caution in taking or in grantin a motion to
dismiss based on the fact that there is lack of cause of action. so what will the court do? or whether or
not the complaint states a cause of action depends again on the allegations of the complaint. -contract is unenforceable because it is covered by the statute of limitation. but that can be part of the
remember on your criminal procedure that it is also limited to the allegations in the information. here, so called exception where it is not deemed waived. or it is one of the exceptions, by the filing of the
if it is lack if cause of action, it is also based on the allegations on the complaint. so if upon the motion would not be a ground when you file the case. that would be included as a part and parcel of
perusal of the allegations of the complaint, indeed there is no cause of action, then the court of course the exceptions.
may dismiss the case.
presuming you have filed a motion to dismiss on the tenth day after you received the summons and
unenforceable under the conditions of statute of frauds. there are some contracts which have to be the motion to dismiss was denied by the court, will it mean to say that you have only five days more
reduced in writing otherwise it cannot be enforced by any civil action. and one of which is the sale of a to file your answer?
real property. although, if i have to give you an additional information in the context of the statute of
frauds which should have rendered a contract unenforceable, dapat daw the contract is yet executory. -no.
because if the contract is already partially executed, it is no longer covered by the statute of frauds.
fresh period rule. (case of napes vs ca 469 scra 633) you are given a fresh period 15 days from the
xxx statue of frauds covers only executory contracts not partially executed contracts.
receipt of the denial of the motion to file in court your answer. that is what we call the famous fresh
lack of personality to sue or it is not filed in the name of the real party in interest. period rule. diba there is a provision of the rule 16 if the motion to dismiss is denied then the
defendant has only the remaining days within which to file his answer that is now rendered moot and
failure to comply with a condition precedent. academic by the decision of the supreme court in napes vs ca. this is the same also for filing an
appeal. diba you file a motion for reconsideration of the decision of the court on the eleventh day, the
example: failure to comply with the referal to the lupon. it must be specified in the complaint motion for recon is denied by the court. how many days more do you have to file an appeal? 4 days or
otherwise it can be dismissed on the ground of failure to comply with a condition precedent. 5 days? no. you are given with the fresh period of 15 days within which to file an appeal.

grounds for a motion to dismiss must be raised. maybe either in a motion to dismiss or in an answer the court can order amendment of the complaint if it does not contain a cause of action.
as an affirmative defense. otherwise, these are deemed waived. diba i told you, an omnibus motion is
a motion attacking a pleading all objections must be included in the motion otherwise if these are not it is correct ba? if you file daw a motion to dismiss, you hypothetically admit the allegations in the
included then these are deemed waived. that is in accordance with a motion to dismiss. except? (not complaint?
deemed waived). in fact you can file the motion in any stage of the proceeding. because the rule is,
dapat it should be filed within the period for filing an answer. but like what i said, the better way is to -yes. but are there some exceptions? except allegations which are not material to the case. like
raise this as an affirmative defense. if these are not raised in a motion to dismiss or by way of inferences and legal conclusions are not deemed admitted. or those which are not material to the
affirmative defenses, these grounds are actually deemed waived except? case.

-litis pendentia diba before scc 1922, all pleadings must always contain the mcle compliance number of lawyer
otherwise the court will not accept it or it is a ground for dismissal of the complaint. it is no longer
-res judicata now. that has been changed by the supreme court. now it is no longer ground to dismiss the
complaint instead the lawyer may be fined by the court. first offense: 2000, second: 3000, third: 5000
-prescription (barred by statute of limitation) and may subject the lawyer to some disciplinary action.

-lack of jurisdiction over the subject matter of the case because lack of jurisdiction can also be raised
even for the first time on appeal

-obligation has been extinguished


RULE 17 Motion to Dismiss it is not only the remaining period is given to you but the entire period to appeal in
the neypes case. Now, I told you that a denial of motion to Dismiss is not appealable because it is
interlocutory order what should be done is if it is denied you file your answer once judgment is
rendered against you then you can appeal now the decision by the lower court as assigned as error of
Judge Sabarre: We have finished rule 15 and 16 except the cases I assigned to you 2 important
your motion to dismiss or raised in your affirmative defense in your answer because it is settled that if
decision of the SC in connection with elements of res judicata and elements of litis pendentia.
you raised affirmative defense as if you are able to file a timely motion to dismiss.
Judge S: You know that Res Judicata and Litis Pendentia are among the grounds which if the motion
Judge S: Question, can we daw file a petition for certiorari under rule 65. For me. Yes you can. If you
to dismiss is granted cannot be refiled anymore and also 2 of the grounds were it can be filed in any
feel that the denial of Motion to dismiss is with Grave Abuse of Discretion Amounting to Excess or Lack
stage of the proceedings because you know last night the grounds of Motion to Dismiss must be filed
of Jurisdiction but take note that it is only an extraordinary………(what?)
within 15 days from receipt of summon because Motion to Dismiss should be filed within a period for
responding a pleading and those grounds which are not raised are deemed waived except litis
Next rule: Alvero. we are now on rule 17. Dismissal of action.
pendentia and res judicata. Amarille give me the case of optima in connection with litis pendentia.
Judge S: We subdivide dismissal into 3 to make it short and interesting.
Amarille: According to the optima case, For litis pendentia to be present….
1. Dismissal by mere filing of notice of dismissal
2. Dismissal which requires filing of motion because the dismissal requires an order
Judge S: Okay you take note for litis pendentia a a ground for Motion to Dismiss the following
of the court
elements must be present.
3. Other grounds which warrant Dismissal which enumerated in one of the rules in
rule 17.
Amarille: 1. Identity of parties
2. Identity of rights asserted and relief sought
Judge S: alvero you are not ready? so pick one, Infante.
3. Identity with respect to the 2 preceding particulars in the 2 cases such that any
judgement will lead you rendered the pending case regardless of any parties successful will amount to
Judge S: Notice of dismissal ha not motion. Infante, When will this occur?
res judicata in the other case.
Infante: By notice at any time before the answer is served.
Judge S: You noticed noh that this is more exhausted that the grounds enumerated by regalado in
his book. How about the other case?
Judge S. How will you do that in a simple or understandable manner? I have a question, you listen
ha. The answer was already filed in the court but the plaintiff did not yet receive the answer. Can it be
Amarille: 1. Judgment must be final
dismissed by mere filing of notice of dismissal? I repeat the defendant was able to file his answer but
2. Judgment should be based on the merits of the case
the plaintiff did not receive the answer so he file a notice of notice of dismissal to the court. Would
3. It must be rendered by the court having a competent jurisdiction
that still be proper under the circumstances?
4. There must be identity between the 1st and 2nd actions based on subject matter
and cause of action
Infante: Yes.
Judge S: res judicata is synonymous with conclusive of judgment so if you see the concept of
Judge S. Yes. The more appropriate term is when can a notice of dismissal be proper? It is not the
conclusive of judgment you have to equate it with res judicata. Sometimes some will not use Res
filing of answer to the court of the defendant rather it is the service and receipt of answer by plaintiff
Judicata but use the word conclusive of judgment. I repeat the judgment in the 1st case must be final
that would determined whether or not the plaintiff can still file a notice of dismissal because under the
and based on the merits of the case if in case you filed a case before and the case was dismiss
context of our law it is actually a matter of right. So the more appropriate is the notice of dismissal
because of failure to appear during the pre trial he will be non-suited so it will be dismiss if you equate
should be before the service of answer or service of motion for summary judgment. If you want to
that there is no res judicata because the judgment must be based on the merits of the case. So please
dismiss the case you can do that by notice of dismissal. What will the court do upon receipt of notice
take note of this 2 cases. Thank you miss amarille:
of dismissal?
Judge S: I forgot to tell you that a denial of motion to dismiss is not appealable because it is only
Infante: Upon receipt of notice of dismissal under the provision of rule 17 the court will issue an
interlocutory but a grant to a motion to dismiss is appealable. Last night I told you about the fresh
order confirming the dismissal.
period rule in the case of neypes vs CA that after denial for Motion for Reconsideration or denial of
Judge Sabarre: Is a notice of dismissal which is confirmed by the court will it be with prejudice or Joan: Not all the time.
without prejudice. (with prejudice it will bar the case for refilling if without prejudice it will not bar the
case for refi Judge S: I love the answer “not all the time” why? what is the basis of consideration of the court will
ling tha same case). what is the rule. it grant of the motion or denied it. So when will that instance that it will be granted or denied by the
court? You go to the counterclaim that is your clue.
Infante: The dismissal is without prejudice.
Joan: if the counterclaim can be included/adjudicated in separate action then the court can grant the
Judge S: Correct! So if it is only a mere notice of dismissal and confirmed without prejudice you can motion to dismiss
still refile the case. But there are exception. This instance is already with prejudice.
Infante: Exceptions Judge S: However if the counterclaim cannot be adjudicated in because it is dependent in the
1. Where the plaintiff has previously dismiss the same case in a court of competent jurisdiction (Two- complaint the court cannot grant it. I’m talking about compulsory counterclaim. If there is compulsory
dismissal rule). counterclaim like moral, exemplary and litigation expenses and attorneys fees this are dependent on
2. When it is notice of dismissal is confirmed by court with prejudice. the complaint so the court cannot grant it but if this are permissive counterclaim which can be filed
separately they can grant it.
Judge S: The effect in two-dismissal rule is the plaintiff already filed a notice of dismissal and it was
previously dismiss so you are not allowed to file a notice of dismissal that will make the dismissal with Judge S: If the Motion to dismiss is filed by plaintiff what should be done by the defendant? again
prejudice. why? it operates as adjudication to the merits of the case. your clue is counterclaim.
So, clear na tayo?
Joan: He should manifest before the court within 15 days upon receipt of the motion to dismiss filed
ALL: CLEEEEEEEAR! by the plaintiff

Judge S: Thank you Infante! Joan! dismissal by filing a motion. So miss Joan it presuppose Judge S: whether????. what is that manifestation or what is supposed to be adjudicated?
that…..that…. how come that in this particular instance is not enough you must file a motion to
dismiss because filing of motion to dismiss is made after…. Joan: if he wants his counterclaim in his answer to be adjudicated in the same complaint.

Joan: The filing of the answer or filing of motion for summary judgment. Judge S: There are instances where it cannot be adjudicated so the court will not grant it like
compulsory counterclaim because it is dependent from the complaint.
Judge S: I repeat the 2nd aspect of dismissal of action is dismissal by filing of motion because the
answer is already filed in court or one covered by summary judgment or the motion for summary Judge S: What is the effect of Motion to Dismiss if granted by the court is it with prejudice or without
judgment was already filed in court. Question. If an answer has been filed or a motion for summary prejudice?
judgment has been filed. Can the plaintiff just dismiss the case anytime?
Joan: it is without prejudice.
Joan: No, it is a matter if discretion by the court.
Judge S: is there an exception?
Judge S: what could have been the rationale? What is the rationale that dismissal will always need
approval of the court? Joan: Yes. Exceptions
1. If stated to be with prejudice
Joan: To protect the interest of the defendant because you have to take into account the compulsory 2. If stated with prejudiced by order of the court
or permissive counterclaim. it doesn’t matter if compulsory or permissive counterclaim.
Judge S: Thank you. Clear na tayo.
Judge S: Question. Can the court always grant the Motion to dismiss and dismiss the case in the light
of this factual setting? Judge S: We move on to the third. Parenasan! The third ground are also grounds of motion to
dismiss.
Judge S: Will the court grant it?
Parenasan: 1. When plaintiff fails to appear for no justifiable cause on the date of the presentation of
his evidence in chief on the complaint Parenasan: ADR (Sec. A and B LOOOOOOL(hahahahahahhaha)!)

Judge S: This one requires a motion and approval of the court. number 2? Judge S: Okay. Parenasan the most common term is “Mediation”. All cases will be referred by the
court for preliminary conference to the Philippine Mediation Center for purposes of Mediation because
Parenasan: 2. When the plaintiff fails to prosecute his action for an unreasonable length of time. mediation is part of pre-trial. Just one last I gave you a good grade. What is that rule or Republic act
number that mandate mediation. I also forgot honestly anyway that will be a part now of attorney
Judge S: How will you determine if he fails to prosecute for unreasonable length of time? How is this Tutaan lecture na ha!. Rationale for Mediation: Clogging of courts. Even if the parties did not want to
concept of unreasonable length of time? what is reasonable or unreasonable is dependent on the go to mediation it is not allowed it still mandatory to refer the matter to the Philippine mediation
discretion of the court. number 3? center. IF the mediation will not be successful it will be return to the court and conduct a judicial
dispute resolution. In samar it is not JDR but Leyte is now JDR. If JDR will not be successful then the
Parenasan: 3. When the plaintiff fails to comply with these rules or any order of the court. case will be raffled again to another judge because you are biased.

Judge S: Yan I always anchor my dismissal there. Example you are told by the court to file an
amended pleading but you did not so I can dismiss it or you are told by the court to file a
memorandum but you did not so I can dismiss it. We always anchor our dismissal for failure to to Rule 21 SUBPEONA
comply with lawful order by the court.
In connection with intervention— effect if the original complaint is dismissed will
Judge S: I repeat other grounds for filing of motion to dismiss. What is the effect here is it with it also carry with it the dismissal of intervention?
prejudice or without prejudice? Ans. the cases of Matictic and Metropolitan Bank
Parenasan: with prejudice.
 Matictic case (1987) – if the original/principal complaint is dismissed, it will also
Judge S: With prejudice yan not unless it specified in the order of the court that it is without carry with it the dismissal of intervention – rationale – kasi an intervention daw is
prejudice. The first 2 kasi it without prejudice but in the case it is with prejudice not unless specified in only an ancillary action, dependent on the existence of the principal. – It is merely
the order that it is without prejudice. Clear? a collateral action ancillary to the action and is not an independent procedure.
 Metropolitan Bank vs. Presiding Judge (1990) – the supreme court allowed the
Judge S: You know of course of this pre trial conference nohhhh! When is there a pre-trial intervention to proceed inspite of the compromise agreement entered into by the
conference? parties – rationale –
 The two cases are still good decision, you just have to look at the facts of the
Parenasan: When the last pleading has been filed. case in applying which jurisprudence is applicable, if it is similar to that of bgry.
Matictic case then you apply the ruling in matictic case then if it is similar to that
Judge Sabarre: What is the effect of that? letter “I”. The ISSUES are already joint. Once the issues
of Metropolitan bank, then apply the ruling in that case. - - the facts of the case
are already joint the case is now ripe for pre-trial conference. Mr. Parenasan. Before the pre-trial
vary from each case.
conference can there be another kind of conference? are you familiar with preliminary conference?
Before a preliminary conference what can be done by the court? aaaah. Before the preliminary
conference what should be issued? your taking a subject on that now. Can there be an intervention on appeal?
GR: no, it must be filed before rendition of judgment
Parenasan: Amicable settlement.  Exceptions: there can be as an exception- - Mago vs. CA 303 scra 600 - - in this
case the supreme court allowed intervention while the case was on appeal, the SC
Judge Sabarre: Before a prelimary conference what order shall be issued? relied on the principle of “Substantial Justice “ -
 In case where the parties already entered into a compromise agreement, and the
Parenasan: Alternative dispute resolution. compromise agreement was already approved by the court, remember when the
Judge S: what is the most common term for that?
court approved the compromise agreement, it becomes the final decision of the Yes, the Viatory right of a witness is only applicable in civil cases.
case.
Whether the case is criminal or civil and the witness refused to testify in court,
Can there be an intervention in cases where the court already approved the what should be done by the court?
compromise agreement entered into by the parties? (1)The court will issue an arrest warrant to the witness for his arrest or (2) the
Yes, it happens when the intervenor is an indispensable party. (Alfelor et.al vs. court will declare him in indirect contempt. He can either be fined or imprisoned
Halasan et.al, March 31, 2006) depending on the court order.

Who serves the subpoena?


Sherriff, deputy sheriff, officer of the court or any person who is authorized by the
SUBPEONA AD TESTIFICANDUM- is a process directed to a person requiring him to attend
court.
and to testify at the hearing or the trial of an action, or at any investigation conducted by
competent authority, or for the taking of his disposition.
Can a police issue a subpoena?
SUBPEONA DUCES TECUM- the requiring of the witness to bring with him any books, Yes, he is considered any officer authorized by the court.
documents, or other things under his control.
 Manner of service – personal or substituted service of summons.
 Who issue Subpeona?
a. The court before whom the witness is required to attend; What if the person to whom the subpoena is to be served was concealed? What
b. The court of the place where the deposition is to be taken; should be done?
c. The officer or body authorized by law to do so in connection with Aside from the subpoena, the court allows the officer who serve the subpoena to
investigations conducted by said officer or body; or break open and enter the building where the witness is concealed.
d. Any justice of the Supreme Court or of the Court of Appeals in any case or
investigation pending within the Philippines.  Fresh period Rule—Neypes vs CA case.
Can it be quashed?
Yes. It can be quashed it depends if the subpoena is subpeona ad testificandum or
subpoena duces tecum.
Rule 23
 If subpoena duces tecum – (a) upon motion promptly made; (b) before the time
Note: Please review in the recording the words in red. Thank you. Goodluck!
specified therein of it is unreasonable and oppressive; or (C) the relevancy of the
books, documents or things does not appear; or (d) if the person in whose behalf
JS: … discovery. Because if we were looking at the expiration of the finale. This is actually one which
the subpoena is issued fails to advance the reasonable cost of production thereof.
will assess in the trial of the case. In fact, this mode of discovery will actually help facilitate the
 If subpoena ad testificandum – when the witness is not bound thereby.
case. … in actual application of the case, when the court issues a summon, we are supposed to issue
also a model (1:11) in acquiring from the parties, specifically the plaintiff, of the modes of discovery.
When can be a witness considered not bound thereby?
And you notice that this is justified because one of the sections will talk about an instance whether,
if the witness resides more than 100 kilometres from his residence to the place
like a deposition, requires leave of court or without leave of court (1:40) that order is justified.
where he is to testify by the ordinary course of travel, or to a detention prisoner if
no permission of the court in which his case is pending was obtained.
If in case there is an order issued by the court inquiring from the parties whether they would
like to avail of any of the modes of discovery and no response was submitted by either parties, one of
Here is a criminal case for where a person who resides more than 100km from the
the effects there either in Rule 29, the other party is not allowed to present the other party as an
court was subpoenaed, he was arrested by the court, is the court correct?
adverse witness. That is one. There are times when you can present the other parties as hostile or JS: The most difficult part of these rules is rule 23, deposition pending action. The other name for that
adverse witness. That is one of the consequences if the court issues an order to the parties inquiring if is what? Deposition viten est (7:37). Take note of that. Okay. And this one is used for a pending
they would like to avail of the odes of discovery but they choose not to respond to it. So while trial is action. And if you are to make comparison of this to rule 24, deposition before action or pending
going on, if the other party feels that they have to present the other party as hostile or adverse appeal, where has the deposition are being distributed (08:06) in rule 23 and rule 24?
witness, they could not do so because of failure to respond to the court for them to avail of the rule of
discovery. One of the consequences of Rule 29. J: In a deposition for payment or for use of payment (08:24)

But in reality, this is rarely used by lawyers, except in Rule 23, deposition. That is the most JS: Yeah, this is to perpetuate the testimony of the witness for use for future. It will be the
common, particularly when the witness is sick, infirmed, disabled, and cannot hear a word, your proceedings. As we sought before the case is filed in court or on appeal. And if rule 23 is deposition
witness is living outside the Philippines and you do not know when he will return and his testimony is ******* (8:55), rule 24 is ?
dispensable or the instances where the witness resides in more than 100 kilometers from the place of
J: ------
the court where the trial is supposed to be dealt. More often than not, in reality, you can avail of the
first mode of discovery which is deposition pending action.
JS: okay, the 23 applies to deposition pending action while 24, this refers to deposition wherein one
perpetuate the testimony of a client for use for future proceedings as when you want the sala match
(Jalucilha called)
them later (9:38), or for purposes of appeal. That’s why its called rain in making (9:47).
JS: Can you explain what are these modes of discovery?
Now, we got o rule 23. If you want to avail of deposition pending action under rule 23, is
J: The different modes of discovery are deposition before a trial… there a need for leave of court (10:20)?

JS: Is it deposition before trial or pending action? There is a great difference to using the words before J: There is a …
trial and pending action. Next, under rule 24?
JS: I repeat. If you want to avail of a deposition of a witness and there is a pending case, will you
J: deposition before action or pending appeal. have to file a motion in court to allow the taking of a testimony of a witness by way of deposition?

JS: Next? J: It depends.

J: Preempt derogatoris (05:49) or admission by adverse parties. JS: What it depends?

JS: next. J: It is necessary for service of answer, before the service of answer

J: Production or inspection of documents. JS: So leave of court, if this is made before service of answer was served by the defendant to the
plaintiff, and therefore?
JS: Usually there are instances when a lawyer would not actually present all his evidences. The test
there is to file a motion for production of these documents para you would know what these J: It is necessary if
documents are. For example, you are for the defendant, and you would like to protect the interest of
JS: Again, making it simpler , according to rule 23, leave of court is given (11:47), if you want to make
your client because some of these documents are actually withheld by the other party, you would do
a deposition of a witness before service of the answer by the defendant. Which means to say, if
so. And the last? This one is not so common.
service of the answer of the defendant is already made, then the making of the deposition of the
J: Physical and mental examination of a witness. witness is without merit. Is that what you mean?

J: Yes sir.
JS: Correct. Okay. So it is now clear already. So leave of court is given if answer has been served but J: It refer on the courts…
leave of court is needed before a service of an answer but after the court acquires jurisdiction over the
person. I repeat. Leave of court is not required after an answer has been served, so that if an answer JS: In connection yan with our discussion with ***** (17:02)
has been served already , if not yet served then leave of court is necessary.
[Kim’s voice: acquired jurisdiction]
What is the rationale behind this so? Why is it leave of court is not required if answer is
JS: If one is judged by an offence punishable by death, reclusion perpetua , reclusion , life
already served while leave of court is required if the answer is not yet served by defendant to the
imprisonment, and is a detention prisioner, it cannot be removed unless there is an order by the
plaintiff as long as the court will acquire jurisdiction of the defendant? Do you know the rationale why
Supreme Court. Did we take that up yesterday? Parang I did not noh? That is very important because
is this so?
that is the reason why is it there has to be leave of court because a witness cannot just testify and
J: Plaintiff must avail during the … issues obey at the witness stand unless it is authorized by the court and the court is authorized by the
supreme court. And that is another justification for one, not obey a subpoena, one, if he resides more
JS: Did we give a rationale why is this so? If the leave of court is required if no service of answer but than 100 kilometers from the court when the trial is supposed to be dealt, and in cases of detention
not required if answer was already served? prisoner because a detention prisoner cannot be brought out to testify in court if the same is
authorized by the supreme court. That is the reason why is it that there has always to be a reason for
J: … issues leave of court if you want to take the deposition of a prisoner. Very clear in one of the sections of this
particular rule.
JS: Would t mean that the rationale why is it that there has to be leave of court the fact that the
defendant did not file his answer yet? So we are now clear. Now, before whom should a deposition be made?

J: Yes. It is the service of the answer which is … J: If a deposition is …

JS: I repeat. How come that the rationale [we could not leave this], what is the reason why is it that JS: You have to make a qualification whether a deposition will be taken in the Philippines or the
leave of court is not required after an answer has been served but required if the answer is not yet deposition is supposed to be taken outside of the Philippines. So if the deposition is supposed to be
served as long as the court has already acquired jurisdiction over the person of the defendant? So taken outside or even in the Philippines, then before whom should it be made?
meaning to say there must be a motion, did the author give you the rationale why is that so?
J: It can be made before judge.
J: I did not…
JS: Yeah, although it is not required to be made before a judge but nevertheless, it can be made
JS: I will not give you an explanation so sorry to tell if I had to tell you to read ore reano more than before a judge. Second?
regalado. Dapat pa la you more have to read regalado more than reano. Okay. So we will deal on that
tomorrow. J: Notary public.

Now, what about if the deposition is for a reasoning? What is it? JS: Notary public.

J: If to file … J: Any person.

JS: If you want to take the deposition of a prisoner, what does it mean? JS: Any person who is authorized to administer oath. But there is a qualification there. What is the
qualification?
J: It would mean that plaintiff is in prison. (16:41)
J: Stipulated by the parties.
JS: what is the reason also why is it that making of a deposition of a prisoner is with limit?
JS: Yeah, as long as the same is actually stipulated by the parties. And these taking of deposition is V: There is a reasonable notice in writing of the parties before the action.
outside of the Philippines, it can be made before?
JS: and what is the purpose of that? There must be a notice to be sent to every party in the action
J: Secretary of the embassy, general or consul, any person authorized and what should be the content of that? Parang subpoena ano.

JS: legation, consul, general, vice consul, consular agent of the republic of the Philippines, any person V: Name and time.
authorized by Commission or letter rogatori (21:12), any person authorized to administer oath as long
as stipulation of the parties in writing. JS: yeah, stating the name and time of deposition is supposed to be made. And after, let’s say, the
notice is served, will the court issue an approval?
Okay, last question. What is a commission and what is letter rogatori?
V: Yes sir, upon motion of the defendant (27:06)
J: Comission is for administration of court of justice or other similar taking of deposition. Letters of
rogatori are instrument sent in the name of the judge or court to another requesting the judge of the JS: yes, and that would be for the protection of the parties and the proponents. It always goes along
latter to be examined upon interpose (22:36) with the order issued by the court after notice was already served and a copy for every party of the
action, the court will make an order for the protection of the parties and of the proponents. Because
JS: The most important is letter rogatori and what is important is that you know how to make this. actually, in reality, para talagang you are presenting a witness before that particular person to whom
This is supposed to be part of your legal forms or legal writing and conveyancing. the deposition is made. Therefore, there must be notice because the other party must be present
because they will also conduct their own cross examination. If not, according to law, if the witness
And that is the difference between a commission and letter rogatori. And if a person is given refuses, what will the court do?
a commission or letter rogatori then the taking of the deposition of a witness outside of the Philippines
can be made before it. Little similarity of in and outside of the Philippine, we put emphasis, if we refer V: sign the ….
to the third person make authorized to administer oath there is necessity , that it must always be
stipulated in writing by the parties whether it be in the Philippines or outside the Philippines. JS: The court will issue a subpoena to compel attendance of these particular witnesses. Okay, the oral
examination was already being made on the time and place stipulated in the notice. While the
We are clear on that point now. So, one by one. We take note of the difference between rule deposition of the witnesses is being undertaken, particularly on direct examination, the other party
23 and rule 24. We took note, in reference to rule 23, leave of court is required. And third, before oath objected to such questions, can the person to whom the deposition can take rule (29:03).
to a judge and whether it is to be taken outside or in the Philippines.
V: No sir.
(Villalon called)
JS: Take note of that when you become lawyers, the person to whom deposition is being taken is not
JS: what is the form when there is a making of a deposition? allowed to rule on whatever objections raised by the other party. That will just be second to rule out
by the court during trial of the case. So the entirety of the deposition must be presented in court. You
V: It can be written or oral. are not allowed to rule on any objection. So it is free flowing testimony on direct examination and in
cross examination, redirect and be crossed if that is done by way of an oral examination. What about
JS: Correct. It can be upon oral examination or it can be in writing in the form of questions and
if this is a deposition in writing made in questions and answers form, what should be the rule?
answers. But most often than not, in reality, we resort to oral examination because it is as if you are
just presenting a witness while a witness while away is testifying in court. That is usually what V: The party proposing the inquisition shall serve notice to the party who will answer stating the
happens. It is not before a judge, it can be before a judge or it can be of any person enumerated by name and addresses of the parties.
the law. But in connection with either oral or written examination in the form of questions and
answers, particularly upon oral examination, dapat how is this supposed to be done before an oral JS: is it necessary that the other party is given notice in advance a copy of the deposition in the form
examination of a deposition is supposed to be made? of question and answer? Is that necessary? Because earlier, what we were discussing was oral
examination. We should now to what we call as written because that can be another rule. He is That is what we mean by written in derogatori. As we have been told earlier, there must be a service
correct. There must also be a notice stating the time and the place where the deposition is to be attached to the other party because it has to submit also cross in derogatoris. Within how many days?
made. My question is, must be the other parties be given a copy of that particular deposition in the
form in writing in question and answer form. Parang you are making actually a judicial affidavit. C: 10 days

V: yes sir JS: 10 days from receipt of the written in derogatori. Tapos upon receipt of the cross in derogatoris,
the other party who submitted written in derogatori is given how many days?
JS: Yes. Because he has also make a written cross examination based on the answers in the written
deposition. So that is necessary. He must be served for him to be also be prepared in writing his C: 5 days
cross-examination. After all of this deposition is completed, can this used? To whom can this be used?
JS: which to?
V: any party present in the making of deposition and the parties to be notified in the making of the
C: to file a re …
deposition
JS: so para talagang representing a witness. Re? redirect? Derogatoris, how many again? 5? And the
JS: or, the one who was given notice of the deposition. It can be used against any parties who was
other party again upon receipt of the redirect has also 3 days within which to submit recross in
present or represented in the making of the deposition, against one who had due notice of the
derogatoris. Kasi, when you present a witness, you conduct a direct examination. The other counsel
deposition. And one last question, deposition can be used in the following instances, memorize that.
will conduct a cross examination. Now the cross examination in the court will ask “any direct
V: if they are reaching (33:54) for a proponent as a witness. examination?” now of there us a direct examination, definitely there has to be a recross examination.

JS: Correct. No. 2? At the end of the day, you can now picture that para ding you are actually presenting a
witness in court.
V: for any purpose of the adverse party, if the proponent is a defendant.
Can this deposition be made by a way of an excuse for a witness to testify? Can a deposition
JS: Correct. be made as an excuse ba to present a witness? Its not in the book of reano

V: for any purpose, if the court finds the following: first, the witness is dead, two, if its exercised C: the deposition can be used at trial …
beyond the regular place of the trial, no.3 if the witness is unable to testify due to sickness,
intermitage or represented (33:39), no. 4 the person proposing the deposition was not able to secure JS: some would say that “I will file a motion for a deposition of a witness because my witness does not
the attendance of witness by subpoena. No. 5, other exceptional circumstances of the witnesses. want to appear in court. Is that valid?

JS: Thank you. Earlier, as you were listening to the answer Ms. Capoquian of Mr. Villalon when I asked C: No sir.
him whether the written in derogatoris, this is simply
JS: No. at the outset of the making of a deposition, should not be guarded as an excuse for a witness
(cellphone rings) to testify in court. Because at the end of the day, the preferred mode is still for a witness to testify in
court. Precisely, as mentioned by Mr. Villalon Riel who memorized all the provisions. There may only
JS: if you don’t mind the cellphone. In my court, 1 ring is 200 pesos. But I will not impose it as it is be instances where this may be resorted to, the witness is dead, the witness is a firm, is sick, the
not sanctioned at all. Okay witness is might be living outside of the Philippines because these are actually exception
circumstances. So it is not a resort to a witness who doesn’t want to testify in court. Because the
The other party must be given a copy of written in derogatori. Actually para lang syang preferred mode actually is for the witness to testify in court. Why? Because under the rules of
sworn statement in the form of question. Para lang syang actually a judicial affidavit, question-answer. evidence. The judge has to observe the gesture, the demeanor of a witness, and the trial court is at
the best position to actually observe the gesture, the demeanor of a person who is actually testifying
in court. We have this because there are instances where the witnesses cannot appear in court, the Rule 26 Admission by the Adverse Party
court allows the taking of a deposition upon written or oral examination or upon written in derogatoris.
Admission by the Adverse Party – it is a written request by one party to another party for the
admission of the genuineness of material and relevant documents or facts.

What is the effect if you elicit the admission of the other party of the relevant facts?
Rule 25- Interrogatories to Parties
Ans. It expedites the trial. Because this will no longer be disputed in the court if it is already admitted.
You want something from the adverse party, what is that you want from the adverse party?
Limitations in so far as to the admission:
Ans. You want to elicit relevant and material facts from the adverse party.
1. Privileged communication
- Lawyer-client relationship
Just like rule 23&24 is there a leave of court for Written Interrogatories?
- Doctor-patient relationship
Ans. It depends. If answer was already filed and if no answer was filed. If an answer has not yet been
filed, there is a need for leave of court, but if an answer has already been filed, leave of court is not
 Your admission should not be the admission already set forth/admitted in the pleading kasi
necessary/ required.
sometimes when you file an answer there is already some admission. This would usually
include evidentiary matters. This is also to expedite the proceedings of the case.
 This is your written interrogatories and you have to serve the same to the adverse party.

What is supposed to be the duty of the adverse party upon the receipt of your written interrogatories?
Admission on due execution and genuineness of the documents. When do you do this?
Ans. It is their duty to answer the written interrogatories. In fact of it is one for the juridical person it
Ans. At any time after the issues are settled. when the issues are already joined
must be filed by the officer directed of that particular juridical entity.
 Unlike in rule 25 on written interrogatories it depends if the answer is already filed or not,
Now if the adverse party has objections to their Written Interrogatories what should he do under the
here, it is when the issues are already joined. This is filed wen the last pleading has already
rule?
been filed because it is where the issues are already been joined.
Ans. He must present hi objections within 10 days from receipt thereof to the court and the court
must rule on this objection. If the objection is overruled he must submit his objection 15 days from
What is the effect if the request for admission is already filed and this was not answered and the
the receipt of the set of WI as provided for by the rules.
request was not acted upon?
Ans. Each of the matters admitted shall be deemed admitted if the request is not acted upon by the
What is the effect of the adverse party when he received the WI but he did not file his answer within
adverse party.
15 days from the receipt of the WI?
Ans. Declare in default
Can this request be used for future proceeding?
Ans. No. this can only be used on that particular proceeding or for that particular case.
Can one file more than 1 set of written interrogatories?
Ans. Yes, if there is leave of court. The rules says, No one is allowed without leave of court to file
more than 1 written interrogatories.
Rule 27 Motion for the production and inspection of Documents or things
If a party is not served of the set of written interrogatories, what is the effect of that?
What is this?
Ans. He may not be compelled by the adverse party to testify or take deposition pending appeal.
Ans. An order seeking from the court in which the action is pending to do the following: refer to (a)
and (b) in the provision.
 In written interrogatories it is not serve to the counsel but to the adverse party himself. If the
WI was serve to the counsel and not to the adverse party, it is as if there was no serving of
How will the court should act to it? What is the test or basis whether the court will grant or deny a
the WI. Because unlike deposition where it can be served to the counsel, but in WI it must be
particular motion? you usually do it before pre trial conference.
serve to the adverse party himself.
Ans. The documents, books things and documents that you want to produce in court must be facts and these are all admitted by the defendant so in that particular case the court may allow to
specifically mentioned in the motion. The basis is whether or not the document sought for is relevant render judgment based on the previous submitted by the parties. That’s the exception to the rule. Just
or reasonable. like what I have said earlier, very clear in sec. 1 that you must file a motion, if you feel that the
answer failed to render an issue or merely admitted the allegations in plaintiff’s complaint, except I
Rule 28 Motion for Physical and Mental Examination of persons
repeat, during pre-trial, there were admissions made by the defendant, then the court may render
When is this applicable? judgment on pleadings.
Ans. When the physical and mental condition of a party is in controversy. You can file this mode of
discovery and some of this cases would be petition for guardianship because the person concerned is You notice that when the plaintiff files a motion for judgment on pleadings, parang he admits the
insane. Annulment of contract on the account of insanity. Damages arising out of vehicular accident. material and relevant facts in the answer of the defendant, can there be an exception to that?
Because when you file a motion for judgment on pleadings, incontestably it’s as if you admitted also,
How do you do this? the relevant facts in the answer of the defendant. That will be the ___ found in the motion for
Ans. by filing a motion. There must be good cause and serve a copy to the adverse party.
judgment on pleadings. Is there an exception? Except on the amount of damages, because as far as
damages are concerned, this might require a rule (?). Or those facts which are irrelevant, those are
JAN. 7, 2015 not deemed admitted.

If you have read that particular case, the case is about demurrer to evidence and the effect if in case What are the exceptions to the rule that there could be no judgment on the pleadings?
the demurrer is granted and the effect if it is denied. I told you that if the demurrer is granted,
1. Annulment of marriage
according to our rules, that is final and executory. The remedy there is to appeal, although it refers
that the day he loses (00:53) his right to present evidences by the appellate court, you can recall, 2. Legal separation cases
should not be … mannered (01:04) the case instead the appellate court should render the decision
based on presented by the plaintiff. Of course if it is denied it is not appealable because it is 3. Declaration of nullity of marriage
interlocutory. As I was saying last night that unlike in new (01:23) evidence, if the ___ is denied, the…
These are subjected to compromise agreement … except in the aspect of annulment of marriage,
RULE 34: JUDGMENT ON PLEADINGS prays for the dissolution of the absolute community properties or support which might be subjected to
the compromise agreement but as far as the petition itself is concerned, it’s not allowed. They say
When will you file a motion for judgment on pleadings? likewise in this rule, no judgment on pleadings on annulment of marriage, declaration of nullity of
marriage, and legal separation.
Richmond: when there is no …
What is the reason why these are not subject to judgment on pleadings? So these 3 are exceptions,
Can you take out the word genuine? Because we are talking about judgment on the pleadings, I think
not only in judgment of pleadings but likewise in summary judgment. Do you know the reason why?
the word genuine is used on summary judgment. If you notice, that is the difference between
Because there can be no declaration of default in a nullity of marriage. The respondent can always file
judgment on the pleadings, it does not use the word genuine. But summary judgment uses it.
his answer antime, in any stage of the proceedings and can be admitted by the court – that is the
If answer filed by defendant fails to tender an issue or otherwise there is an admission of material effect diba?
allegations in the complaint of the plaintiff, you can file judgment on pleadings.
How is it differentiated from summary judgment?
So from sec. 1 of this particular rule, we can deduce that a judgment on the pleadings requires the
JUDGMENT ON PLEADINGS SUMMARY JUDGMENT
filing of the motion. It has to comply with the 3-day notice rule. However there is an exception. The
pre-trial conference where there were admissions, diba I told you one of the matters to be taken up PROPER when it appears that there is NO genuine PROPER even If there is an issue as to damages
during PTC would be stipulation of facts diba, remember that? Tapos the plaintiff stipulated material issue between the parties recoverable
BASED EXCLUSIVELY upon pleadings w/o BASED on pleadings + affidavits, depositions and
introduction of evidence admissions of the parties showing that, except as YES. It is the plaintiff who will file the motion for judgment of pleadings. Usually, it is the plaintiff
to the amount of damages, there is no genuine likewise, who files the motion for summary judgment. This is because of Sec. 2. I repeat, it is the
issue plaintiff who will file the motion of judgment of pleadings upon receipt of the answer. Likewise, it is
AVAILABLE in any action AVAILABLE in actions to recover a debt, or the plaintiff who will file the motion of summary judgment. But apparently, sec. 2 will give us the
XPNs: declaration of nullity, annulment of liquidated sum of money, or declaratory relief
conclusion that a motion for summary judgment can also be filed by the defendant.
marriage, legal separation
Subject only to the 3-day notice rule and where Required PRIOR 10-day notice
What do you mean by genuine issue?
all the material averments of the complaint are
admitted, such motion may even be made ex
parte Diba because summary judgment says “it did not enter genuine issue based on the pleadings,
depositions, affidavits and admissions, then other party can file for summary judgment...” Because in
if based upon these particular documents, there is a genuine issue, then definitely the court has to
You notice, that on the judgment on the pleadings, of course it is solely based on the pleadings deny your motion for summary judgment. What is the concept?
submitted by both parties. However, in summary judgment aside from the pleadings submitted by the
parties, they are also required to submit three: 1. Affidavits, 2. Depositions and 3. Admissions. Next, Genuine issue – is an issue of fact which calls for the presentation of evidence, as distinguished from
judgment on the pleadings is available in all actions except for the 3 mentioned earlier, but summary an issue which is fictitious or contrived so as not to constitute a genuine issue for trial. From the
judgment is only available in 3 instances: 1. Recovery of debt, 2. Recovery of liquidated sum of allegations in the pleadings, in the depositions, affidavits, and admissions that there are facts which
money, 3. Special civil action of declaratory relief. Those are the only 3 cases upon which the law actually require the presentation of evidence, then the court has no other choice but to deny the
allows for the filing of summary judgment. Unlike the judgment on the pleadings which is available in motion, because summary judgment is only allowed in cases where it did not tender genuine issue. I
all the cases except for the 3. think that is justified because how can the court rule if the issue requires a presentation of evidence?
That is very clear my dear students.
(DE DIOS)
And like what I said the same also with judgment on the pleadings. Annulment ha, but anyway,
What is the next distinction? There’s another one pa there. In judgment on the pleadings, it has to automatic yan because it is limited naman to 3 cases of recover a debt, or liquidated sum of money, or
comply with the 3-day notice rule. What about in summary judgment? 10 days. If you can recall we declaratory relief.
discussed on motions, diba you should always comply with the 3-day notice rule but there is an
exception: in cases of motions for summary judgment, it has to be filed within the 10-day rule. Can you give me the case of Christina Deillo (?) Because you can appreciate what we are talking
Meaning to say, when you file a motion for summary judgment, see to it that date should be 10 days about. I think the ____ is a perfect place for judgment on the pleadings.
before otherwise that will ___ by court in connection with the rule, unlike with the judgment on
Christina case:
pleadings, it has to comply with the 10-day rule.
This is involving an annulment of an extrajudicial partition, which were actually executed by the heirs
of San Jose, however the extrajudicial partition excluded some heirs – so definitely the heirs filed an
RULE 35: SUMMARY JUDGMENT action to annul – that is the consequence. A compulsory heir cannot be pre-deleted. So definitely since
the extrajudicial partition excluded some compulsory heirs, the latter filed an action to annul the
(16:50) In summary judgment, if it did not raise genuine issue … but in judgment of pleadings, it talks extrajudicial partition.
about issue and admission of the material allegations, and based on the pleadings of depositions and
admissions if he can raise the genuine issue then he can file a for a motion on summary judgment – Upon filing the complaint, Mr. Maccabeo, what was the answer of the defendants here?
meaning to say, it is the plaintiff who files it just like in the motion for judgment on the pleadings.
The answer was that they denied that the extrajudicial partition was not a forgery but they admitted
Can a defendant file a motion for summary judgment? that the plaintiffs in this case were actually compulsory heirs. They admitted. They denied that it was
a forgery. But they admitted that the plaintiffs, the one who filed the annulment were compulsory
heirs. So with that, they filed with motion for judgment on the pleadings. It reached up to the 3. It must contain a dispositive portion and should be signed by the judge and filed with the
Supreme Court and how did the Supreme Court rule on that? Was it proper? YES. It was proper. clerk of court
Because the fact that they admitted that the plaintiffs are compulsory heirs then therefore, it did not
tender an issue. What else would they prove in court when the defendants there have already What is the other term for dispositive portion? Falio (?). How do you call the body of the decision?
admitted that the plaintiffs are actually compulsory heirs of the person subject of the extrajudicial Ratio decidendi (the point in a case which determines the judgment) What is obiter dictum? These are
partition. So we that, the plaintiffs filed for motion for judgment on the pleadings. It was granted, all called opinions which stem from the decision.
the way questioned in the Supreme Court, the Supreme Court said, the judgment on the pleadings
There are times that there is a conflict between the ratio decidendi and the falio. Which will prevail?
was proper because the answer actually failed to tender an issue and that the defendants actually
admitted that the plaintiffs are compulsory heirs. So, that’s perfect example.
Falio will prevail over the ratio decidendi. Is there an exception? What is that? And the rule is: the falio
will prevail in case there is conflict between the decision and the body of the decision because my dear
Can there be a partial summary judgment? When will this happen?
students, what will be executed is not the body of the decision but the dispositive portion. Bagan
In cases where summary judgment was made, the court will then ascertain the facts which are wherefore ba, premises considered.
material and uncontroverted. Yah pwede yan. Actually during pre-trial conference, you can determine
What is the exception?
facts which are uncontroverted. Meaning to say, facts which are admitted already, then facts which
are controverted. So as far as uncontroverted facts are concerned why do you have to present pa
YES. If there is a little ambiguity in the dispositive portion, resort to the body of the decision. If you
evidence there? You can file a motion for summary judgment and therefore the presentation of
are the counsel of the winning party and you noticed that the dispositive portion is ambiguous, even if
evidence will only be limited now to facts which are actually controverted.
you go to the body of the decision, you find that it is also ambiguous, what will you do? CRY. And file
a motion for clarificatory judgment.
What will happen, Mr. De Dios, Christian Eduard, if the court now grants the motion for summary
judgment and court renders a decision based on that? What will happen to that particular decision?
There are several kinds of judgment. There is a judgment based on compromise. What is it?
You will have to wait for the presentation of the evidence and the finality of the case of the other parts
It is in fact one of the grounds upon which trial of the case can be postponed if there is a possibility
which concerns the controverted facts. You know what is stayed? It means SUSPENDED. To await
for the parties to enter into a compromise agreement. If is a possibility that one party may enter into a
finality as far as the other parts are concerned – that is the effect. But the law incontestably allows
compromise agreement, the court will always grant it and the case will be rescheduled. That is a valid
partial summary judgment.
ground to reschedule the hearing of that case.
*Distinguish summary judgment and judgment on the pleadings, bangin gumawas ha
What is the effect if the parties enter into a compromise agreement, and judges are also praying for
midterms.*
that. That’s why we have ADR of 2004, where all civil cases are only subject to ____ pursuant to the
act of 2004. In fact, aside from the ADR, we also have the JDR (Judicial Dispute Resolution). If there
is failure of the mediation, then it is submitted to the court and the court, before conducting a pre-trial
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF conference, may conduct a JDR. Do you know that in the conduct of a JDR, the court can tell a
plaintiff if they’ll lose in a case, so they better into a compromise. For a JDR that’s not successful, the
(PETILLA) judge conducting it will not be the one to hear it, it will be raffled to another. That’s the effect. You
can actually purge the party into entering into a settlement.
Judgment is synonymous to decision, yes? For a judgment to be valid it has to require the following
requisites: Is a judgment based on a compromise agreement final and executory? Can you appeal?

1. It must be in writing, personally & directly prepared by the judge What you do is final a motion to set aside the compromise agreement within the 15-day period from
2. Must clearly state clearly and distinctly the facts and the law on which it is based receipt of that judgment. And you anchor your motion on what ground? Fraud, mistake, force,
intimidation. Unfortunately, even if you are able to prove to the court the compromise agreement, you When there are several defendants and the court renders judgment against one or more of them,
are only compelled by force or intimidation to sign the compromise agreement, the court denied your leaving the action to proceed against the others.
compromise agreement.
What is a special judgment?
What is your remedy?
When the judgment requires the ___ of certain acts of ___ or the delivery of personal property
APPEAL. A judgment on a compromise agreement is not appealable because it is final and executory. (47:00)
What you can do is file a motion to set aside the compromise agreement, if that is denied, that denial
can now be the subject of appeal. What is a separate judgment?

What is Judgment Non Pro Tunc? English term? What is the purpose? When there are different claims and you can render separate judgment based on each particular
claim.
It is a judgment intended to enter into the records a judgment which was made before but not
entered into the records of a cases. This is to make judgment final. What is a judgment upon confession? Do you think this is allowed?

How can a judgment become final when it was not yet entered into the Book of Entries of judgment? When the defendant appears in court or files a pleading expressly agreeing to the plaintiff’s demand.
In criminal and civil cases, if you want to determine the finality of the decision, you base it on the date Not allowed. The law allows compromise agreement but never judgment upon confession. Kasi in
of entry of that particular judgment made by the clerk of court. Kasi diba after we render a decision, confession you do away with trial and that is not allowed.
we give it to the clerk of court and we call it RENDITION OF JUDGMENT – it is the filing of the
What is immutability of judgment?
decision with the clerk of court and the clerk of court is duty-bound to enter the same into the records
of the book of judgment kasi that is the reckoning point as to when to consider the decision as final
There has to be an end of a judgment. That is the general rule. There are certain exceptions where
and executory. Diba mga motions for executions, those are very important, you have to base it on the
judgment may not be executed and that will be lectured more in rule 39.
date from when will it start.
We take up the case for summary judgment. About the collection for sum of money – DENIED. There
(JOSOL)
are some facts which will require presentation of evidence.
Can you enumerate the other kinds of judgment?
JAN. 8, 2015
1. Judgment by default
RULE 37: NEW TRIAL OR RECONSIDERATION
2. Judgment on the pleadings
3. Summary judgment (DIOLOLA)
4. Several judgment
5. Separate judgment This rule actually contains 2 motions and these will be motions for new trial or reconsideration.
6. Judgment for specific acts
7. Special judgment When will second motion for new trial happen?
8. Judgment upon confession
The ground did not yet exist at the time when the first motion for new trial was filed.
9. Judgment upon compromise / consent / agreement
10. Clarificatory judgment
When is the filing of the second motion for new trial?
11. Judgment nunc pro tunc
Should be within the 15-day period for taking an appeal.
What is a several judgment?
What about motion for reconsideration? Are you allowed to file a second motion? Exceptions? Must it contain an affidavit? There is one case sited by Regalado that a motion for reconsideration
need not contain an affidavit of merit.
NO. Except lang before the Supreme Court. Only the Supreme Court may allow, but you have to file a
motion for leave for the filing of second motion for reconsideration. FRAUD:

When to file motion for new trial or reconsideration? What kind of fraud?

Within 15 days from taking an appeal – usually reckoned from the day you receive the decision. Not intrinsic. It should be extrinsic or collateral fraud. What do you mean by that? These are instances
Regalado mentioned 15 or 30 days from taking an appeal because as a general rule, appeal period is which prevented one party from fairly presenting his case in court. Like for example his lawyer was
15 days, but there are cases where appeal period is 30 days – in cases where the law requires the thinking all along that compromise agreement was supposed to be entered into but there was none
filing of a record of appeal. Example: expropriation proceedings, settlement of estate. And the pala.
requirement there will not only be filing a notice of appeal but also a record of appeal.
ACCIDENT:
Ground for new trial: (FAMEN)
An event that takes place without one’s foresight or expectation.
1. Fraud
2. Accident MISTAKE:
3. Mistake
What kind of mistake?
4. Excusable Negligence
5. Newly discovered evidence - with reasonable diligence, have discovered and produced at the trial
GR: mistake of fact
& which if presented would probably alter the result
Why is mistake of law not a ground? Because ignorance of the law excuses no one from compliance
Grounds for Reconsideration:
therewith. But there are exceptions.
1. Award of damages is excessive
XPN: (for mistake of law to be a ground – to prevent manifest injustice)
2. Facts & evidences are insufficient to justify decision or final order
3. Decision is contrary to law When one of the parties is of limited intelligence that he cannot understand the ___ (17:06) of the
application of the law
Requirements for New Trial:
Mistake of fact is made by the party himself. What about mistakes of the counsel? In legal ethics, the
1. Should be in writing
rule is: mistake of counsel is mistake of client. Can there be an exception to that where the client is
2. Affidavit of merit of existence of FAME – must comply with rule of motions
not bound to the mistake of the lawyer? Notice to client is notice to counsel, but notice to an
3. Must comply with the 3-day notice rule
irresponsible counsel is not notice to client.
4. In case of newly discovered evidence – a. affidavit of new witnesses b. duly authenticated
documents to be introduced EXCUSABLE NEGLIGENCE:

Requirements for Reconsideration: Depends upon the circumstances of the case

1. Should be in writing NEWLY DISCOVERED EVIDENCE (also known as forgotten evidence):


2. Must point out specifically the conclusion of judgment
3. Express reference to testimonial or documentary evidence or to provisions of law Requisites:
1. Discovered after trial What should be in that affidavit of merit?
2. Could not have been discovered and produced at trial despite the exercise of reasonable diligence
3. If presented, could probably alter the result of the action 1. It should contain the act constituting the ground i.e. extrinsic fraud – must be specified
2. It should contain the statement that you have a good and meritorious defense
(TING)
XPN: When the petition itself already contained the grounds that you already set forth in your petition.
Earlier, we were talking about the requisites for the filing of motion of new trial. It has to be in writing, The grounds of your motion for new trial specifically – its as if there is already an affidavit of merit so
has to obtain an affidavit of merit – filing is considered complied or conformed to the requirements of to speak.
the rules. Why? Give me an instance that it has complied with the rules for motions.
What should the court do in connection with the motion for new trial?
It might be a ground to dismiss the motion right away but more than that, what is the effect? It
makes the motion pro-forma. 1. If it is denied – no problem
2. If granted – set aside / vacate judgment or final order and order new trial however, if there are
What is pro-forma motion? already evidences which were presented which served as basis for the decision subject of the
motion for new trial, can that still be adapted by the court? YES. Evidences already appreciated by
Doesn’t comply with Rule 15 & 37 – doesn’t point out specifically the findings or conclusions of the the court can still be adapted in new trial.
judgment as are contrary to law, making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be contrary to such findings or conclusions, and is What about for the motion for reconsideration?
merely intended to delay the proceedings or if there is no affidavit of merit.
1. If granted - the decision is amended accordingly.
What is the effect if motion for new trial or reconsideration is pro-forma?

This only applies in civil cases and other cases, but not criminal.
RULE 38: PETITION FOR RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS
It will not toll (suspend) the right of the reglementary period for the appeal. After 30 days the decision
is rendered, you can no longer appeal because the appeal there is never tolled. (CAPOQUIAN)

What are the instances when the motion becomes pro-forma particularly if you are referring to a What is this petition for relief from judgment, orders or other proceedings and when is this availed?
motion for reconsideration? Patay ka ha.
1. This can be availed of if the judgment or final order was rendered based on FAME.
2. Judgment is rendered and party has been prevented by FAME from taking an appeal.
1. Motion for new trial is pro-forma where it uses the same ground. You only repeat the grounds
Diba you were not able to appeal? There is still one remedy but it should be based on FAME because
which were already alleged when trial was going on. remember this is an extraordinary remedy. This will not be granted by court if the appropriate remedy
2. The same arguments were used as in the arguments when you were told to submit your is actually appealed or in a certiorari so to speak. FAME should be interpreted to be the same as in the
respective memorandum after the case has been submitted for decision. interpretation in Rule 37 (grounds on motions for new trial).
3. Sufficiency of evidence
4. Lack of __ based on fraud, accident, mistake, excusable negligence – and you were not able to Negligence of lawyer where it was also considered the negligence of client but if the negligence is to
the extent that it affects the client’s interest as to suffer injustice, the law still allows the filing of relief
prove it – because if you raise these, they must be specifically set forth in your motion. A general
from judgment. If you fail to file an appeal, the remedy is to file a petition of relief from judgment.
allegation is not sufficient. You must express specifically the acts the constituting FAME.
What are those including in other proceedings?
One of the requisites for filing of new trial is that it must contain an affidavit of merit.
If court grants an order of writ of execution – you can file to the court for leave of judgment
When should that be filed?

1. 60 days from the time the petitioner learns of the judgment, decision or other proceedings and
2. Within 6 months from entry into the book of judgment by the clerk of court

In a petition for relief from judgment, it concerns judgments and decisions. Will the filing of the
petition for relief from judgment suspend the execution? Will it stay the execution? We are talking
about a judgment rendered by the court. You failed to appeal, opted to file petition for relief from
judgment. Will it stay a decision which is final and executory? NO.

What will you do so that the decision will be stayed?

Your petition for relief from judgment must have a prayer for the issuance a writ of preliminary
injunction or temporary restraining order – this is the only way by which you can prevent the
execution of a judgment or decision subject for petition for relief from judgment. If a court does not
issue a writ of preliminary injunction to be honest with you, your petition is nothing, because the other
party can still file a motion for execution for that particular decision.

But however, if you are granted with a preliminary injunction, you are required by the court to what?

Put up a bond to answer for whatever damages the other party may incur if it turns out later that you
are not entitled to the petition for the relief from judgment you prayed for. A bond will answer for
those damages.

What is required when you file a petition for relief from judgment?

1. It must be verified
2. It must have an affidavit of merit
3. And must contain the grounds for petition

After receipt of petition, what will the court do?

It will require the respondent to file an answer within 15 days after which it will be set for trial.

What is the effect?

If granted – a new decision is made by court.

Where should you file a petition for relief from judgment?

From the court where the decision was read. If it’s MTC, you file it with MTC, if it’s RTC, you file it with
RTC.