REMEDIAL LAW CIVIL PROCEDURE

One party prosecutes The moment said claim is

R ULE 1 another for the filed before a court, the
G ENERAL P RINCIPLES enforcement or protection claim is converted into an
of a right or the prevention action or suit.
or redress of a wrong.
SECTION 1. TITLE OF THE RULES
The Rules of Court do not have retroactive effect Applicability: An action is the legal and formal demand
(Bermejo v. Barrios, G.R. No. L-23614, February 27, of one’s right from another person made and insisted
1970). They can, however, be made applicable to cases upon in a court of justice (Bouvier’s Law Dictionary, vol. 1,
pending at the time of their passage and therefore are 8th ed., p. 128; Words and Phrases, vol. 2, 25).
retroactive in that sense.
Civil Action
The rule-making power of the Supreme Court has the One by which a party sues another for the enforcement or
following limitations: protection of a right or the prevention or redress of a
1. Simplified and inexpensive procedure for the wrong.
speedy disposition of cases;
2. Uniform for all courts of the same grade; and A civil action may either be:
3. Shall not diminish, increase or modify a. Ordinary, or
substantive rights (Sec. 5[5], Art. VIII, 1987 b. Special
Constitution). Both are governed by the rules for ordinary civil actions,
subject to the specific rules prescribed for a special civil
The Supreme Court has the constitutional power to action.
promulgate rules concerning pleading, practice and
procedure (Sec. 5[5], Art. VIII, 1987 Constitution). Criminal Action
One by which the State prosecutes a person for an act or
The Supreme Court has the power to amend, repeal or omission punishable by law.
even establish new rules for a more simplified and
inexpensive process, and the speedy disposition of cases. Special Proceedings
The constitutional power of the SC to promulgate rules of A remedy by which a party seeks to establish a status, a
practice and procedure and to amend or repeal the same right, or a particular fact (SRP).
necessarily carries with it the power to overturn judicial
precedents on points of remedial law through the
amendment of the Rules of Court.

Unlike the 1935 and 1973 Constitutions, which Classification of actions

empowered Congress to repeal, alter or supplement the
A. As to n ature
rules of the Supreme Court concerning pleading, practice
and procedure, the 1987 Constitution removed this power Ordinary Civil Action Special Civil Action
from Congress. Hence, the Supreme Court now has the Governed by ordinary Also governed by ordinary
sole authority to promulgate rules concerning pleading, rules. rules but subject to
practice and procedure in all courts ( In Re: Petition for specific rules prescribed
Recognition of the Exemption of the Government Service (Rules 62 to 71).
Insurance System from Payment of Legal Fees, A.M. No. Formal demand of one’s Special features not found
08-2-01-0, February 11, 2010). legal rights in a court of in ordinary civil actions.
justice in the manner
SECTION 2. IN WHAT COURTS APPLICABLE prescribed by the court or
The Rules shall apply in all the courts, except as by the law.
otherwise provided by the Supreme Court.
B. As to o bject
SECTION 3. CASES GOVERNED Action in Action Quasi in
Action in Rem
Personam Rem
Action Claim Directed against Directed against Directed against
An ordinary suit in a court A right possessed by one the thing itself. specific persons. particular persons.
of justice. against another. The defendant is

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Action in Action Quasi in privity of real privity of

Action in Rem
Personam Rem estate. contract.
sought to be It is local because It is transitory The rules on venue
held liable. its venue because its of real actions shall
depends upon the venue depends govern.
Jurisdiction over Jurisdiction over Jurisdiction over the location of the upon the
the person of the the person of the person of the property in the residence of
defendant is not defendant is defendant is not litigation. the plaintiff or
required. required. required as long as the defendant
jurisdiction over the at the option of
res is acquired. the plaintiff.
A proceeding to An action to A proceeding to e.g. Accion e.g. Action for a e.g. Accion
determine the impose a subject the interest reinvindicatoria sum of money publiciana with a
state or responsibility or of a named claim for damages
condition of a liability upon a defendant over a
thing. person directly. particular property to The distinction is significant in determining the venue of
an obligation or lien an action.
burdening it.
Judgment is Judgment is Judgment is binding Note: An action could be real as to cause and in
binding on the binding only upon upon particular personam as to object (e.g., action to recover a piece of
whole world. parties impleaded persons. land). An action could also be personal as to cause and in
or their successors rem as to object (e.g., action for annulment of marriage).
in interest.
D. As to the place of filing
e.g. Probate e.g. Action for e.g. Action for Local Action Transitory Action
proceeding; specific partition; action to Must be brought in a Dependent on the place
cadastral performance; foreclose real estate particular place where where the party resides
proceeding. action for breach mortgage. the subject property or a regardless of where the
of contract. portion thereof is cause of action arose subject
located, unless there is to Sec. 4, Rule 4.
an agreement to the
The distinction between Actions in rem, in personam and contrary (Sec. 4, Rule
quasi in rem is important in determining the following: 4).
1. Whether or not jurisdiction over the person of the e.g. Action to recover e.g. Action to recover sum of
defendant is required; real property money
2. To determine the type of summons to be employed; and
3. To determine upon whom upon whom judgment is
Note: If the action is founded on privity of contract
binding.
between the parties, then the action, whether debt or
covenant, is transitory. But if there is no privity of contract
C. As to c ause and the action is founded on privity of estate only, such as
Personal a covenant that runs with the land in the hands of the
Real Action Mixed Action
Action remote grantees, then the action is local and must be
Ownership or Personal Both real and brought in the place wherein the land lies (Paper
possession of real property is personal properties Industries Corporation of the Philippines v. Samson, G.R.
property is sought to be are involved. No. L-30175, November 28, 1975).
involved. recovered or
where Actions incapable of pecuniary estimation
damages for An action capable of pecuniary estimation is one wherein
breach of the action is brought primarily for the recovery of a sum of
contract are money; and the amount of the claim shall determine
sought. where the jurisdiction lies.
Founded on Founded on Founded on both.

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An action incapable of pecuniary estimation is one
wherein the basic issue is something other than the right
to recover a sum of money, or where the money claim is
purely incidental to, or a consequence of, the principal
relief sought; and are cognizable exclusively by Regional
Trial Courts (Davao Light and Power Co., Inc. v. Hon.
Judge of the RTC Davao City, BR. 8, G.R. No. 147058,
March 10, 2006).
Examples:
a. Specific Performance;
b. Rescission;
c. Support;
d. Foreclosure of Mortgage;
e. Injunction etc.
SECTION 4. IN WHAT CASES NOT APPLICABLE
Not applicable in: (NICOLE)
1. Naturalization;
2. Insolvency proceedings;
3. Cadastral cases;
4. Other cases not provided in the Rules of Court;
5. Land registration;
6. Election Cases.
Exception : The Rules of Court are applicable to the
above cases by analogy or in a suppletory character and
whenever practicable and convenient.
SECTION 5. COMMENCEMENT OF ACTION
This provision assumes significance especially where
prescription is raised as a defense against the claim of the
plaintiff in the complaint.
A civil action is commenced by:
1. The filing of the complaint (When an additional
defendant is impleaded in a later pleading, the action is
commenced with regard to him on the date of the filing
of such later pleading); and
Note: Civil actions are deemed commenced from the
date of the filing and docketing of the complaint, without
taking into account the issuance and service of
summons (Cabrera v. Tiano, G. R. No. L-17299, July
31, 1963).
2. The payment of docket fees (Determined not only by
the amount of the claim but also by the amount of
damages).
In Sun Insurance Office, Ltd. v. Asuncion (G.R. Nos.
79937-38, February 13, 1989) the Supreme Court laid
down the following rules:
CIVIL PROCEDURE
a.It is not simply the filing of the complaint or appropriate
initiatory pleading but also the payment of the
prescribed docket fee that vests a trial court with
jurisdiction over the subject matter or nature of the
action. Where the filing of the initiatory pleading is not
accompanied by payment of the docket fee, the court
may allow payment of the fee within the reasonable
time but in no case beyond the applicable prescriptive
period.
b. The same rule applies to permissive counterclaims,
third-party claims and similar pleadings which shall not
be considered filed until and unless the filing fee
prescribed therefor is paid.
c. Where the trial court acquires jurisdiction over a claim
by the filing of the appropriate pleading and payment of
the prescribed filing fee, but subsequently, the judgment
awards a claim not specified in the pleading, or if
specified, the same has been left for determination by
the court, the additional filing fee therefor shall
constitute a lien on the judgment.
The amount of damages should be specified not only in
the body of the pleading but also in the prayer.
If the complete amount of the docket fee is not paid, the
prescriptive period continues to run as the complaint is
deemed not filed (Feria, Civil Procedure Annotated, 2001
ed., p. 208).
An action can be commenced by filing the complaint by
registered mail. In which case, it is the date of mailing that
is considered as the date of filing and not the date of the
receipt thereof by the clerk of court.
SECTION 6. CONSTRUCTION
General Rule: Liberal construction.
Exceptions :
1. Reglementary periods
2. Rule on forum shopping
3. Service of summons
The courts have the power to relax or suspend technical
or procedural rules or to except a case from their
operation when compelling reasons so warrant or when
the purpose of justice requires it.
Reasons which would warrant the suspension of the
rules
1. Most persuasive and weighty reasons;
2. To relieve a litigant from an injustice not commensurate
with his failure to comply with the prescribed procedure;
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3. Good faith of the defaulting party by immediately paying
within a reasonable time from the time of the default;
4. The existence of special or compelling circumstances;
5. The merits of the case;
6. A cause not entirely attributable to the fault or
negligence of a party favored by the suspension of
rules;
7. A lack of any showing that the review sought is merely
frivolous and dilatory;
8. The other party will not be unjustly prejudiced thereby;
9. Fraud, accident, mistake or excusable negligence
without appellant’s fault;
10.Peculiar legal and equitable circumstances attendant
to each case;
11.In the name of substantial justice and fair play;
12.Importance of the issues involved; and
13. Exercise of sound discretion by the judge guided
by all the attendant circumstances (Labao v. Flores, et
al., G.R. No. 187984, November 10, 2010).
R ULE 2
C AUSE OF A CTION
SECTION 1. ORDINARY CIVIL ACTIONS, BASIS
OF
Every ordinary civil action must be based on a cause of
action.
proscribed and any attempt to prove extraneous
circumstances not being allowed (Viewmaster
Construction Corp. v. Roxas, G.R. No. 133576, July 13,
2000).
Test of sufficiency of a cause of action: Whether or
not admitting the facts alleged, the court could render a
valid judgment in accordance with the prayer of the
complaint.
Injury
It is the illegal invasion of a legal right.
Damage
It is the loss, hurt, or harm which results from the injury.
Is it necessary that the plaintiff wait for the actual
violation of his right before he can file a complaint in
court? No. Under Sec. 3, Rule 1, “A civil action is one by
which a party sues another for the enforcement or
protection of a right or the prevention or redress of a
wrong.”
Right of Action
It is procedural in character and is the consequence of the
violation of the right of the plaintiff. It is the right of a
person to commence and prosecute an action to obtain
the relief sought.

SECTION 2. CAUSE OF ACTION, DEFINED Requisites:

1. There must be a good cause (The existence of a
Cause of Action cause of action);
It is the act or omission by which a party violates a right of 2. A compliance with all the conditions precedent
another. to the bringing of the action; and
3. The action must be instituted by the proper
Elements of a cause of action: party.
1. The existence of a legal right of the plaintiff;
2. A correlative obligation of the defendant to Cause of Action Right of Action
respect plaintiff’s right; and Delict or wrongful act or Remedial right or right to
3. An act or omission of the defendant in violation of omission committed by the relief granted by law to a
the plaintiff’s legal right. defendant in violation of the party to institute an action
primary rights of the plaintiff. against a person who has
A single act or omission can be violative of various rights committed a delict or wrong
but where there is only one delict or wrong, there is but a against him.
single cause of action regardless of the number of rights
violated. The reason for the action. The remedy or means
afforded or the consequent
The mere existence of a cause of action is not sufficient relief.
for a complaint to prosper. The formal statement of the The remedial right given to a
operative facts that gives person because of the
The sufficiency of the statement of the cause of action rise to remedial right. occurrence of the alleged
must appear on the face of the complaint and its facts.
existence may be determined only by the allegations of A matter of right and A matter of procedure and
the complaint, consideration of other facts being depends on substantive law. depends on the pleadings

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filed by the parties. Note: Litis pendentia and forum shopping have similar
elements, so it is best for the counsel to move for the
Not affected by affirmative Affected by affirmative
dismissal based on forum shopping under Sec. 5, Rule
defenses (fraud, defenses.
7 and show that the party or his counsel willfully and
prescription, estoppel, etc.).
deliberately resorted to forum shopping because the
effect is a dismissal with prejudice in addition to the
Relief Remedy Subject Matter sanction for direct contempt as well as a cause for
administrative sanctions.
The redress, The procedure The thing,
protection, award or appropriate wrongful act, B. An answer alleging either of the aforementioned
or coercive legal form of contract or grounds as affirmative defense (Rule 16, Sec. 6).
measure which relief of action property which is
the plaintiff prays which may be directly involved Rules in determining the singleness of a cause of
the court to availed of by the in the action, action
render in his plaintiff as the concerning which General Rule: A contract embraces only one cause of
favor as means to obtain the wrong has action even if it contains several stipulations (Quiogue, et
consequence of the desired been done and al., v. Bautista, et al., G.R. No. L-13159, February 28,
the delict relief. with respect to 1962).
committed by the which the
defendant. controversy has Exception : A contract to do several things at several
arisen. times is divisible, and judgment for a single breach of a
continuing contract is not a bar to a suit for a subsequent
Difference between an action from a cause of breach (e.g. promissory note payable in several
action: An action is the suit filed in court for the installments so long as there is no acceleration clause)
enforcement or protection of a right, or the prevention or (Blossom & Co., Inc. v. Manila Gas, G.R. No. L-32958,
redress of a wrong. A cause of action is the basis of the November 8, 1930).
action filed (Riano, Civil Procedure, 2009 Edition, p.88).
Except i on to the exception : All obligations which have
SECTION 3. ONE SUIT FOR A SINGLE CAUSE OF matured at the time of the suit must be integrated as one
ACTION cause of action in one complaint, and those not so
A party may not institute more than one suit for a single included would be barred (Larena v. Villanueva, G. R. No.
cause of action. L-29155, November 5, 1928).

SECTION 4. SPLITTING A SINGLE CAUSE OF Doctrine of Anticipatory Breach

ACTION, EFFECT OF
Splitting of single cause of action
It is the act of dividing a single or indivisible cause of
action into several parts or claims and bringing several
actions thereon. It is not allowed.
An unqualified and positive refusal to perform a contract,
though the performance thereof is not yet due, may, if the
renunciation goes into the whole contract, be treated as a
complete breach which will entitle the injured party to
bring his action at once (Blossom & Co. v. Manila Gas
Corp., No. 32958, November 8, 1930).

Purpose of prohibition: The rule against splitting of a cause of action applies only
To avoid the following: where the action is between the same parties (Itogon
1. Multiplicity of suits; Suoc Mines, Inc. v. Sangil-Itogon Worker’s Union, G.R.
2. Conflicting decisions; and No. L-24189, August 30, 1968).
3. Unnecessary vexation and harassment of defendants.
Applies not only to complaints but also to counterclaims SECTION 5. JOINDER OF CAUSES OF ACTION
and cross-claims.
Joinder of Causes of Action
Remedies against splitting a single cause of action It is the assertion of as many causes of action as a party
A. Motion to dismiss on the ground of: may have against another in one pleading alone. It is
1. Litis pendentia (Sec. 1[e], Rule 16); or purely permissive. The plaintiff can always file separate
2. Res judicata (Sec. 1[f], Rule 16). actions for each cause of action.

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Alternative Joinder
It exists when the cause of action is against either one or “Damages of whatever kind” applies to cases where the
the other defendant. One is not seeking relief from both damages are merely incidental to or consequence of the
but from either one. main cause of action (Adm. Circ. No. 09-94, June 14,
1994). Thus, if the main cause of action is the recovery of
Cumulative Joinder damages, the amount of damages should not be excluded
Cumulative joinder exists when one is seeking relief for all in determining the jurisdictional amount (Sante v.
of his causes of action. Claravall, G.R. 173915, February 22, 2010).

Requisites for joinder of causes of action: Note: We will follow the totality rule in BP 129 because it
1. The party joining the causes of action must is elementary in statutory construction that in case of
comply with the rules on joinder of parties. conflict, substantive law prevails over procedural laws.

Note: The following are the elements for a joinder of Splitting of Cause of Joinder of Causes of
parties (Sec. 6, Rule 3): Action Action
a. A right to relief in respect to or arising
out of the same transaction or series of transactions; There is a single cause of Contemplates several
and action. causes of action.
b. A common question of law or fact. Prohibited. Encouraged.
2. The joinder shall not include special civil actions It causes multiplicity of suits It minimizes multiplicity of
or actions governed by special rules; and double vexation on the suits and inconvenience on
3. Where the causes of action are between the part of the defendant. the parties.
same parties but pertain to different venues or
jurisdictions, jurisdiction is with the Regional Trial Court, SECTION 6. MISJOINDER OF CAUSES OF ACTION
provided that: There is a misjoinder when two or more causes of action
a. One of the causes of action falls within were joined in one complaint when they should not be so
the jurisdiction of the RTC; and joined. This is not a ground for dismissal of an action. A
b. The venue lies thereon. misjoined cause of action may be severed and proceeded
4. Where the claims in the causes of action are with separately by filing a motion in relation thereto.
principally for recovery of money, the aggregate amount
claimed shall be the test of jurisdiction (Totality Rule). There is no sanction against non-joinder of separate
causes of action.
Totality Rule
Where there are several claims or causes of actions Non-joinder of causes of action is when such cause/s of
between the same or different parties, embodied in the actions should be joined.
same complaint, the amount of the demand shall be the
totality of the claims in all causes of action, irrespective of
whether the causes of action arose out of the same or
different transaction (Sec. 33, B.P. 129).

Determination of jurisdictional amount in relation to

the totality rule
Under B.P. Blg. 129, as amended, and under R.A. No.
R ULE 3
7691, the jurisdictional amount excludes the following P ARTIES TO C IVIL A CTION
(IDALec):
a. Interest SECTION 1. WHO MAY BE PARTIES; PLAINTIFF
b. Damages of whatever kind AND DEFENDANT
c. Attorney’s fees
d. Litigation expenses and costs Requirements for a person to be a party to a civil
action:
These matters, however, shall be included in determining 1. He must be either:
the filing fees (Riano, p. 179). a. A natural

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b. A juridical person, or minority, insanity,

c. An entity authorized by law incompetence, lack of
2. He must have the legal capacity to sue; juridical personality or any
3. He must be the real party-in-interest. other general
disqualifications of a party.
One need not be a natural or a juridical person to be a
party to a civil action. As long as an entity is authorized by It can be a ground for a It can be used as a ground
law to be a party, such entity may sue, be sued or both motion to dismiss on the for a motion to dismiss
(Riano, p.212). ground of lack of legal based on the fact that the
capacity to sue. complaint, on the face
Note: Entities authorized by law to be parties to a suit thereof, states no cause of
include: action.
1. The estate of a deceased person (Nazareno v.
Court of Appeals, G.R. No. 138842, October 18, 2000); Plaintiff
2. Corporations by estoppel (Sec. 21, B.P. Blg. 68, The party having an interest in the matter of the action or
Corporation Code); in obtaining the relief demanded. The term may refer to
3. Partnership by estoppel; the claiming party, the counter-claimant, the cross-
4. A political party incorporated under Act 1459 claimant, or the third (fourth, etc.)-party plaintiff.
(now B.P. Blg. 68, Corporation Code);
5. A registered labor union (Sec. 243, P.D. No. 442, Defendant
Labor Code), with respect to its property; The party claiming an interest in the controversy or the
6. A partnership having a capital of three thousand subject thereof adverse to the plaintiff. The term may also
pesos (P3,000) or more but which fails to comply with include:
the registration requirements is nevertheless liable as a 1. An unwilling co-plaintiff or one who should be
partnership to third person (Art. 1772, Civil Code of the joined as plaintiff but refuses to give his consent thereto
Philippines); (Sec. 10, Rule 3);
7. As to properties of the Roman Catholic Church, 2. The original plaintiff becoming a defendant to
the Archbishop of the diocese to which they belong may original defendant’s counterclaim; and
be a party (Versoza v. Fernandez, G.R. No. L-25254, 3. One necessary to a complete determination or
November 22, 1926); settlement of the questions involved therein.
8. A dissolved corporation may prosecute and
defend suits by or against it provided that the suits: a) SECTION 2. PARTIES IN INTEREST
occur within 3 years after its dissolution; and b) the suits
are in connection with the settlement and closure of its Real Party-in-Interest
affairs (Sec. 122, Corporation Code). It is the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of
Remedies when a party is not authorized to be a the suit.
party:
1. A motion to dismiss may be filed on the ground that the Note: To be a real party-in-interest, the interest must be
plaintiff has no legal capacity to sue; ‘real’, which is a present substantial interest as
2. Where it is the defendant who is not authorized, the distinguished from a mere expectancy or a future,
complaint may be dismissed on the ground that the contingent subordinate or consequential interest. It is an
pleading states no cause of action or failure to state a interest that is material and direct, as distinguished from a
cause of action; mere incidental interest in the question (Samaniego v.
3.If the plaintiff has capacity to sue but not the real party- Aguila, G.R. No. 125567, June 27, 2000).
in-interest, the ground for dismissal is a failure to state a
cause of action (Riano, p. 213). In Oposa v. Factoran (G.R. No. 101083, July 30, 1993),
minors represented by their parents were held as real
parties in interest to file an action to annul timber licenses
Lack of Legal Capacity Lack of Legal Personality
issued by the state under the following principles:
To Sue To Sue
a. Inter-generational responsibility;
It refers to a plaintiff’s The plaintiff is not the real b. Inter-generational justice;
general disability to sue, party-in-interest. c. The right of the Filipinos to a balanced and healthful
such as on account of ecology; and

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d. Minors represent themselves and the generation to either right so that the court controversy but whose
come. cannot proceed without their interests are so far
presence. separable that a final
The Rules of Court requires that an action must be decree can be made in their
brought in the name but not necessarily by the real party- absence without affecting
in-interest. In fact, the practice is for an attorney-in-fact to them.
bring the action in the name of the plaintiff (Tuason v.
Bolanos, G.R. No. L-25894, January 30, 1971). 3. Representative parties – those acting in fiduciary
capacity such as trustees, guardians, executors, or
Reason: To know the real party-in-interest. administrators. The beneficiary shall be included in the
title of the case and shall be deemed to be the real
General Rule: Only parties to a contract may sue. party in interest.
4. Pro forma parties – those who are required to be
Except ions: joined as co-parties in suits by or against another party
1. A beneficiary of a stipulation pour autrui may demand as may be provided by the applicable substantive law or
its fulfillment (Art. 1311, Civil Code of the Philippines); procedural rule such as in the case of spouses under
2. Those who are not principally or subsidiarily obligated in Sec. 4.
the contract, in which they had no intervention, may 5. Quasi parties – those in whose behalf a class or
show their detriment that could result from it, i.e. a representative suit is brought.
creditor who is not a party to a contract can sue to
rescind the contract to redress the fraud committed SECTION 3. REPRESENTATIVES AS PARTIES
upon him (Art. 1318, Civil Code). A representative may be a trustee of an express trust, a
guardian, an executor or administrator or a party
Locus Standi authorized by law or the Rules of Court.
It is the right of appearance in a court of justice on a given
question. Where the action is allowed to be prosecuted or defended
by a representative or someone acting in a fiduciary
Classification of parties in interest capacity, the beneficiary shall be included in the title of the
1. Indispensable parties – those without whom no case and shall be deemed to be the real party-in-interest.
final determination can be had of an action. A joinder of
an indispensable party is mandatory. An agent may sue or be sued without joining his principal
2. Necessary parties – those who are not except when the contract involves things belonging to the
indispensable but ought to be joined as parties if principal.
complete relief is to be accorded as to those already
parties, or for a complete determination or settlement of SECTION 4. SPOUSES AS PARTIES
the claim subject of the action (may or may not be
joined). General Rule: Husband and wife shall sue or be sued
jointly.
Indispensable Parties Necessary Parties
Must be joined under any Should be joined whenever Except ions (Under the Family Code):
and all conditions, their possible; the action can 1. A spouse without just cause abandons the other or fails
presence being a condition proceed even in their to comply with his or her obligations to the family with
sine qua non for the exercise absence. respect to the marital, parental or property relations.
of judicial power. 2. A spouse of age mortgages, encumbers, alienates or
otherwise disposes of his or her exclusive property.
No valid judgment if The case may be
3. The regime of separation of property governs the
indispensable party is not determined in court but the
property relations of the spouses (Feria, p. 231).
joined. judgment therein will not
resolve the entire
SECTION 5. MINOR OR INCOMPETENT
controversy if a necessary
Under the present rules, a suit may be brought by or
party is not joined.
against a minor or incompetent but with the assistance of
They are those with such an They are those whose his parents or his guardian.
interest that a final decree presence is necessary to
would necessarily affect adjudicate the whole

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A person need not be judicially declared incompetent, it
being sufficient that his incompetency be alleged in the
corresponding pleadings.
SECTION 6. PERMISSIVE JOINDER OF PARTIES
Permissive joinder: The rule on permissive joinder of
parties is that they can be joined in a single complaint or
may themselves maintain or be sued in separate suits.
Normally, joinder of parties is permissive.
Requisites: (CAP)
1. There is a question of law or fact common to all the
plaintiffs or defendants;
2. Right to relief arises out of the same transaction or
series of transactions; and
3. Such joinder is not otherwise proscribed by the
provisions of the Rules on jurisdiction and venue.
Series of Transactions
It pertains to transactions connected with the same
subject matter of the suit.
SECTION 7. COMPULSORY JOINDER OF
INDISPENSABLE PARTIES
The indispensable party must always be included in the
suit. The presence of all indispensable parties is a
condition sine qua non for the exercise of judicial power.
In the absence of such party, the court should order that
the indispensable party be included. It shall not order the
dismissal of the suit outright.
Where the indispensable party is not impleaded or is not
before the court, an outright dismissal is not the remedy.
Rather, the court shall order such party to be impleaded. It
is when the order of the court to implead an indispensable
party goes unheeded may the case be dismissed.
Effect of the failure to join indispensable parties:
The absence of an indispensable party renders all
subsequent actuations of the court null and void for want
of authority to act not only as to the absent parties but
even as to those present.
SECTION 8. NECESSARY PARTY
Also called proper parties, they are those whose presence
is necessary to adjudicate the whole controversy, but
those interests are so far separable that a final decree can
be made in their absence without affecting them
(Quisumbing v. Court of Appeals, G.R. No. 93335,
September 13, 1990).
The non-inclusion of a necessary party does not prevent
the court from proceeding with the action and the
CIVIL PROCEDURE
judgment therein shall be without prejudice to the rights of
such necessary party not impleaded.
Illustrations:
1. A joint debtor is an indispensable party in a suit against
him but a necessary party in a suit against his co-
debtor.
2. In a suit brought by a creditor against one solidary
debtor, the other solidary debtor is neither
indispensable nor a necessary party.
SECTION 9. NON-JOINDER OF NECESSARY
PARTIES TO BE PLEADED
Duty of a pleader whenever a necessary party is not
joined or impleaded:
1. State the name of the necessary party, if known;
and
2. State why said necessary party is omitted in the
pleading.
Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be
obtained by ordering plaintiff to file an amended complaint
impleading the necessary party therein as co-defendant.
Note: The failure to comply with the court’s order to
include or join a necessary party without justifiable cause
shall be deemed a waiver of the claim against such party.
SECTION 10. UNWILLING CO-PLAINTIFF
If the consent of any party who should be joined as
plaintiff cannot be obtained, he may be made a defendant
and the reason therefore shall be stated in the complaint.
SECTION 11. MISJOINDER AND NON-JOINDER OF
PARTIES
A party is misjoined when he is made a party to the action
although he should not be impleaded.
A party is not joined when he is supposed to be joined but
is not impleaded in the action (Riano, p. 229).
Neither misjoinder nor non-joinder of parties is a ground
for dismissal of the action.
Exception : Sec. 7, Rule 3 in relation to the disobedience
to the rules or order of the court for the inclusion of an
indispensable party.
Note: Objections to defects in parties should be made at
the earliest opportunity, i.e., the moment such defect
becomes apparent, by a motion to strike the names of the
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parties impleaded. Objections to misjoinder cannot be
raised for the first time on appeal.
SECTION 12. CLASS SUIT
Class Suit
It is an action where one or more may sue for the benefit
of all, implying that if the parties are numerous and it is
impracticable to bring them to court, one or more may sue
for their benefit.
Note: An action does not become a class suit merely
because it is designated as such in the pleadings.
Whether the suit is or is not a class suit depends upon the
attending facts.
Requisites of a class suit (CNSB)
1. Subject matter of the controversy is one of
common or general interest to many persons;
2. The persons are so numerous that it is
impracticable to join them all as parties;
3. Parties bringing the class suit are sufficient in
number and representative of the class and can fully
protect the interests of all concerned;
4. The representative sues or defends for the
benefit of all.
Note: A taxpayer’s suit or a stockholder’s derivative suit is
in the nature of a class suit, although subject to the other
requisites of the corresponding governing law especially
on the issue of locus standi (Regalado Remedial Law
Compendium, Vol. 1, 2010 ed., p. 97).
Any party in interest shall have the right to intervene to
protect his individual interest (This is an instance when a
person may intervene as a matter of right).
Permissive Joinder of
Class Suit
Parties
There is one single cause There are multiple causes
of action pertaining to of action separately
numerous persons. belonging to several
persons.
SECTION 13. ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain against who of several
persons he is entitled to relief, he may join any or all of
them in the alternative, although a right to relief against
one may be inconsistent with a right to relief against the
other.
Example: Assume Mr. X, a pedestrian was injured in the
collision of two vehicles. He suffered injuries but does not
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know with certainty which vehicle caused the mishap.
What should Mr. X do if he wants to sue?
Answer: He should sue the vehicle drivers or owners in
the alternative (Riano, p. 228).
SECTION 14. UNKNOWN IDENTITY OR NAME OF
DEFENDANT
Requisites:
1. There is a defendant;
2. His identity or name is unknown;
3. Fictitious name may be used because of
ignorance of defendant’s true name and said ignorance
is alleged in the complaint;
4. Identifying description may be used: sued as
unknown owner, heir, devisee, or other designation;
5. Amendment to the pleading when identity or true
name is discovered; and
6. Defendant is the defendant being sued, not a
mere additional defendant.
Service of summons upon a defendant whose identity is
unknown may be made by publication in a newspaper of
general circulation in accordance with Sec. 14 of Rule 14.
SECTION 15. ENTITY WITHOUT JURIDICAL
PERSONALITY AS DEFENDANT
Requisites: (TED)
1. There are two or more persons not organized as
a juridical entity;
2. They enter into a transaction; and
3. A wrong or delict is committed against a third
person in the course of such transaction.
Persons associated in an entity without juridical
personality may be sued under the name by which they
are generally or commonly known, but they cannot sue
under such name. In the answer of such defendant, the
names and addresses of the persons composing said
entity must all be revealed.
The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the
person in charge of the office or place of business
maintained under such name (Sec. 8, Rule 14).
INSTANCES WHERE SUBSTITUTION OF PARTIES
IS PROPER
A. SECTION 16. DEATH OF PARTY; DUTY OF
COUNSEL
Where the claim is not extinguished by the death of the
litigant, it shall be the duty of his counsel to inform the
 REMEDIAL LAW
court of such fact within 30 days from such death and to
give the name and address of the legal representative.
In such case, the heirs may be substituted for the
deceased or if no legal representative is named, the court
will order the opposing party to procure the appointment
of an executor or administrator for the estate of the
deceased. In case of minor heirs, the court may appoint a
guardian ad litem for them.
This provision applies where the claim is not extinguished
as in cases involving property and property rights such as:
1. Recovery of real and personal property against the
estate;
2. Enforcement of liens on such properties; or
3. Recovery for an injury to person or property by
reason of tort or delict committed by the deceased.
In this case, the heirs will be substituted for the deceased
or if no legal representative is named then the court will
order the opposing party to procure the appointment of an
executor or administrator for the estate of the deceased.
In case of minor heirs, the court may appoint a guardian
ad litem for them.
The substitute defendant need not be summoned. The
order of substitution shall be served upon the parties
substituted for the court to acquire jurisdiction over the
substitute party.
If there is notice of death, the court should await
appointment of legal representative; otherwise,
subsequent proceedings are void (Herrera, Remedial Law
Vol.1, p.399).
Note: If the action does not survive (like purely personal
actions of support, annulment of marriage and legal
separation), the court shall simply dismiss the case.
Substitution will not be required (Riano, p. 200).
Rules in cases where the action survives the death
of a party
1. Contractual Money Claim
a. Plaintiff dies
The case will continue and the heirs or legal
representatives will proceed.
b. Defendant dies
i. Before entry of final judgment – the case shall not
be dismissed but shall be allowed to continue until
entry of final judgment (Sec. 20, Rule 3).
ii. After entry of final judgment but before execution
– all claims against the decedent, whether due,
not due, or contingent, must be filed within the
time limited in the notice as a claim against the
CIVIL PROCEDURE
estate (Sec. 5, Rule 86). The plaintiff cannot move
to execute under Rule 39.
iii. After levy or execution but before auction sale –
the property actually levied may be sold for the
satisfaction of the judgment obligation (Sec. 7[c],
Rule 39).
2.Non-Contractual Money Claim – These claims are
those mentioned in Sec. 7, Rule 86 and Sec. 1, Rule
87. - Apply substitution.
B. SECTION 17. DEATH OR SEPARATION OF
A PARTY WHO IS A PUBLIC OFFICER
Requisites:
1. Public officer is a party to an action in his official
capacity;
2. During the pendency of the action, he either dies,
resigns, or otherwise ceases to hold office;
3. It is satisfactorily shown to the court by any party,
within 30 days after the successor takes office, that
there is a substantial need for continuing or maintaining
the action;
4. That the successor adopts or continues or threatens
to adopt or continue the action of his predecessor; and
5. The party or officer affected has been given
reasonable notice of the application therefor and
accorded an opportunity to be heard.
C. SECTION 18. INCOMPETENCY OR
INCAPACITY
In case a party becomes incompetent or incapacitated,
the action survives and may be continued by or against
the incompetent or incapacitated assisted by his legal
guardian or guardian ad litem, who is his legal
representative.
D. SECTION 19. TRANSFER OF INTEREST
The transfer of interest that is referred to in this section is
a transfer that occurs during the pendency of the action.
The transferor would no longer be the real party-in-
interest if the transfer is made before the commencement
of the suit.
General rule: The rule does not consider the transferee
an indispensable party. Hence, the action may proceed
without the need to implead him.
Exception : When the substitution by or joinder of the
transferee is ordered by court.
A transferee pendente lite:
1. Stands in exactly the same position as its predecessor-
in-interest, the original defendant; and
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2. Bound by the proceedings had in the case before the

property was transferred to it, even if not formally The amount of the docket and other lawful fees which the
included as a defendant (Herrera, vol.1 p. 405). indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent,
The case will be dismissed if the interest of plaintiff is unless the court otherwise provides.
transferred to defendant unless there are several
plaintiffs, in which case, the remaining plaintiffs can Note: A certificate of indigency must be attached to the
proceed with their own cause of action. pleadings issued either by the Barangay in which the
party is a resident or the DSWD.
SECTION 20. ACTION ON CONTRACTUAL MONEY
CLAIMS SECTION 22. NOTICE TO THE SOLICITOR
GENERAL
Requisites: (MAD)
1. The action must primarily be for recovery of
money, debt , or interest thereon; R ULE 4
2. The claim, subject of the action, arose from V ENUE OF A CTIONS
contract, express or implied; and
3. Defendant dies before the entry of final judgment
in the court in which the action was pending. Venue
It is the place of trial or geographical location in which an
Note: Under this section, the death of the defendant will action or proceeding should be brought.
not result in the dismissal of the action. The deceased
shall be substituted by his legal representatives in the Venue Jurisdiction
manner provided for in Sec. 16 of Rule 3 and the action Place where the action is Power of the court to hear
continues until the entry of final judgment. instituted. and decide a case.
However, execution shall not issue in favor of the winning May be waived. Jurisdiction over the
party. The final judgment should be filed as a claim subject matter and over the
against the estate of the decedent without need of proving nature of the action is
the claim. conferred by law and
cannot be waived.
SECTION 21. INDIGENT PARTY Procedural Substantive
May be changed by the Cannot be the subject of
Indigent written agreement of the the agreement of the
Refers to one who has no money or property sufficient parties. parties.
and available for food, shelter, and basic necessities.
Not a ground for a motu Ground for a motu proprio
The applicant need not be a pauper; the fact that he is proprio dismissal (except dismissal
able-bodied and may earn the necessary money is no in summary procedure)
answer to his statement that he has not sufficient means
to prosecute the action or to secure the costs (Acar, et al., Requisites for venue agreement to be valid:
v. Rosal, G.R. No. L-21707, March 18, 1967). 1. In writing; and
2. Executed by the parties before the filing of the
While the authority to litigate as an indigent party may be action.
granted upon an ex parte application and hearing, it may 3. There must be exclusivity as to the selection of
be contested by the adverse party at any time before the venue.
judgment is rendered.
The mere stipulation on the venue of an action is not
If one is authorized to litigate as an indigent, such enough to preclude parties from bringing a case in other
authority shall include: venues. In the absence of qualifying or restrictive words,
1. An exemption from the payment of docket fees; such as “exclusively” and “waiving for his purpose any
and other venue,” “shall only” preceding the designation of the
2. An exemption from the payment of transcript of venue, “to the exclusion of the other courts,” or words of
stenographic notes. similar import, the stipulation should be deemed as merely

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an agreement on an additional forum, not as limiting right to recover (i.e. sheriff or trustee holding title to a real
venue to the specified place (Auction in Malinta, Inc., v. property).
Luyaben, G.R. No. 173979, February 12, 2007).
Means of waiving venue:
When the stipulation as to venue in a passenger ticket of 1. Failure to object via motion to dismiss;
a vessel would be contrary to public policy of making 2. Affirmative relief sought in the court where the
courts accessible to all who may have need of their case is filed;
service, the stipulation is void and unenforceable (Sweet 3. Affirmative defense in an answer;
Lines v. Teves, G.R. No. 28324, May19, 1972). 4. Voluntary submission to the court where the case
is filed; or
Note: When the action is no longer based on the 5. Laches.
agreement but on the tortious act of sending collection
telegrams despite the fact that the obligation had already SECTION 3. VENUE OF ORDINARY CIVIL
been paid, venue is no longer based on the written ACTIONS AGAINST NON-RESIDENTS
stipulation but at the election of the plaintiff as fixed by law 1. Non-resident found in the Philippines
(Herrera, Vol. 1, p. 636). a. For personal actions – where the plaintiff resides;
and
SECTION 1. VENUE OF REAL ACTIONS b. For real actions – where the property is located.
A real action is local. The venue is the place where the 2. Non-resident not found in the Philippines
real property or any portion thereof is located. An action may be filed only when the case involves:
a. Personal status of plaintiff – Venue:
If property is located at the boundaries of two places: File Where plaintiff resides; and
case in either place at the option of the plaintiff. b. Any property of said defendant located
in the Philippines – Venue: Where the property or any
When the case involves two properties located in two portion thereof is situated or found.
different places:
1. If the properties are the object of the same The Supreme Court has the power to order a change of
transaction, file it in any of the two places; and venue to prevent a miscarriage of justice.
2. If they are the subjects of two distinct
transactions, separate actions should be filed in each Note: The court may not motu proprio dismiss a
place unless properly joined. complaint on the ground of improper venue (Dacoycoy v.
Intermediate Appellate Court, G.R. No. 74854, April 2,
SECTION 2. VENUE OF PERSONAL ACTIONS 1991).

A personal action is transitory. It is filed:
1. Where the plaintiff or any of the principal
plaintiffs resides;
2. Where the defendant or any of the principal
defendants resides; or
3. In case of a non-resident defendant , the action
may be brought in the place where he may be found.
Note: All at the election of the plaintiff.
Residence should be viewed or understood in its popular
sense, meaning the personal, actual, or physical
habitation of a person, actual residence or place of abode
(Raymond v. Court of Appeals G.R. No.80380 September
28, 1988).
Nominal Party
It is one which is included in a lawsuit because of his
technical connection with the matter of dispute but with no
Exception : Under the Revised Rules on Summary
Procedure, the court may dismiss the case outright on any
of the grounds apparent therefrom for the dismissal of a
civil action.
SECTION 4. WHEN RULE NOT APPLICABLE
The rule on venue is inapplicable in cases:
1. Where a specific rule or law provides otherwise (i.e. an
action for damages arising from libel); or
2. The parties have validly agreed in writing before the
filing of the action on the exclusive venue thereof (Sec.
4).
R ULE 5
U NIFORM P ROCEDURE IN T RIAL
C OURTS

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SECTION 1. UNIFORM PROCEDURE SECTION 2. PLEADINGS ALLOWED

The procedure in the MTC shall be the same as in the 1. Complaint;
RTC, except: 2. Counterclaim;
1. Where a particular provision expressly or impliedly 3. Cross-claim;
applies only to either of said courts; or 4. Third-party Complaint (or fourth, etc);
2. In civil cases governed by the Rule on Summary 5. Complaint-in-intervention;
Procedure (See discussions under Special Laws). 6. Answer;
7. Reply;
8. Counter-counterclaim; and
R ULE 6 9. Counter-Crossclaim.
K INDS OF P LEADINGS
SECTION 3. COMPLAINT
SECTION 1. PLEADINGS DEFINED
Complaint
Pleadings It is an initiatory pleading alleging the plaintiff’s cause or
These are the written statements of the respective claims causes of action. It should contain:
and defenses of the parties submitted to the court for 1. The names and residences of the plaintiff and
appropriate judgment. Under the Rules of Court, defendant;
pleadings cannot be oral because they are clearly 2. A concise statement of the ultimate facts constituting
described as “written” statements. the plaintiff’s cause of action.

Purpose of pleadings: (AID) Ultimate Facts

1. To apprise the Court These refer to the essential facts constituting the plaintiff’s
of the rival claims in a judicial controversy submitted for cause of action, not evidentiary facts or legal conclusions.
trial and decision;
2. To indicate fairly the A fact is essential if it cannot be stricken out without
nature of the claims and defenses of both parties; and leaving the statement of the cause of action insufficient.
3. To present, define
and narrow the issues, to limit the proof to be submitted The jurisdiction of the court and the nature of the action
in the trial and form the foundation of proof to be are determined by the averments in the complaint.
submitted during trial as well as advice a party to what
his adversary would rely on as a cause of action or as Test of sufficiency of the facts alleged in the
defense (Lianga Lumber v. Lianga Timber, G.R. No. complaint: Determine whether upon the averment of
38685, March 31, 1977). facts, a valid judgment may be properly rendered.

Pleadings are necessary to invoke the jurisdiction of the What are not Ultimate facts (LEAD):
court. They determine whether the issue presented to be 1.
tried is of law or of fact (61 Am Jur 2d, Pleading, S1,
1981).
2.
Note: A motion to dismiss is not a pleading. 3.
However, there are motions that actually seek judgment 4.
like a motion for judgment on the pleadings (Rule 34) and
motion for summary judgment (Rule 35).
Legal conclusions, conclusions or inferences of
facts from facts not stated, or incorrect inferences or
conclusions from facts stated;
Evidentiary or immaterial facts;
An allegation that a contract is valid or void is a
mere conclusion of law; and
The details of probative matter or particulars of
evidence, statements of law, inferences and
arguments.

All pleadings shall be liberally construed so as to do
substantial justice (Concrete Aggregate Corporation v.
Court of Appeals, G.R. No. 117574, January 2, 1997). In
cases there are ambiguities in the pleadings, the same
must be construed most strongly against the pleader and
that no presumptions in his favor are to be indulged in (61
Am Jur, Pleading, S57).
Note: A complaint is also called an initiatory pleading
because it is actually the first pleading filed in court. It is
the pleading that initiates the civil action.
It is important to know the initiatory pleadings because
there are certain requirements mandated by law to be
complied with (i.e. certification against forum-shopping
and payment of docket fees).

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SECTION 4. ANSWER
Answer
It is a responsive pleading in which a defending party sets
forth his affirmative or negative defenses. It may or may
not contain a counterclaim.
It may likewise be the response to a counterclaim or a
cross-claim.
SECTION 5. DEFENSES
Two kinds of defenses that may be set forth in the
answer
1. Affirmative Defenses – It is an allegation of a
new matter which, while hypothetically admitting the
material allegations in the pleading of the claimant,
would nevertheless prevent or bar recovery by him. This
is not a denial but is one which, if established, will be a
good defense, i.e. an avoidance of the claim.
Affirmative defenses include fraud, prescription,
release, payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and another
matter by way of confession and avoidance.
2. Negative Defenses – It refers to a specific
denial of the material facts or facts alleged in the
pleading of the claimant essential to his cause of action.
Insufficient denial or denial amounting to
admissions
1. General denial; and
2. Denial in the form of a negative pregnant.
Negative Pregnant
It is a form of denial which at the same time involves an
affirmative implication favorable to the opposing party.
Where a fact is alleged with some qualifying or modifying
language, and the denial is conjunctive, a negative
pregnant exists and only the qualification or modification
is denied while the fact itself is admitted. It is said to be a
denial pregnant with an admission of the substantial facts
in the pleading responded to. It is not a specific denial and
is actually an admission.
SECTION 6. COUNTERCLAIM
Counterclaim
CIVIL PROCEDURE
It is any claim which a defending party may have against
an opposing party.
Nature of a counterclaim: It partakes of a complaint by
the defendant against the plaintiff or a cross-complaint.
Although it may be alleged in the answer, it is not part of
the answer. Upon its filing, the same proceedings are had
as in the original complaint. For this reason, it must be
answered within ten (10) days from service.
Counterclaims may either be:
1. Compulsory; or
2. Permissive.
SECTION 7. COMPULSORY COUNTERCLAIM
Compulsory Counterclaim
It is one which, being cognizable by the regular courts,
arises out of or is connected with the transaction or
occurrence constituting the subject matter of the opposing
party’s claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire
jurisdiction.
Requisites of a compulsory counterclaim
1. It must arise out of, or be necessarily connected
with, the transaction or occurrence that is the subject
matter of the opposing party’s claim;
2. It does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction;
3. It must be within the jurisdiction of the court; and
4. It must be cognizable by the regular courts of
justice.
Rules on compulsory counterclaim: A counterclaim
before the MTC must be within the jurisdiction of said
court, both as to the amount and nature thereof.
In an original action before the RTC, the counterclaim may
be considered compulsory regardless of the amount.
Illustration: In accion publiciana filed with the RTC where
the value of the land is PhP1,000,000 and defendant
claims for reimbursement of PhP50,000, the
reimbursement would be considered as compulsory
because the original action was filed with the RTC.
However, the nature of the action is always material such
that unlawful detainer cannot be set up in the RTC.
If a counterclaim is filed in the MTC in excess of its
jurisdictional amount, the excess is considered waived
(Agustin v. Bacalan, G.R. No. 46000, March 18, 1985).
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141) and a certification of non-forum shopping has to be

In Calo v. Ajax Int’l (G.R. No. 22485, March 16. 1968), the attached (See Sec. 5, Rule 7).
remedy where a counterclaim is beyond the jurisdiction of
the MTC is to set off the claims and file a separate action Permissive Compulsory
to collect the balance. Counterclaim Counterclaim
It does not arise out of One which arises out of
Note: A plaintiff who fails or chooses not to answer a nor is it necessarily or is necessarily
compulsory counterclaim may not be declared in default, connected with the connected with the
principally because the issues raised in the counterclaim subject matter of the transaction or occurrence
are deemed automatically joined by the allegations of the opposing party’s claim. that is the subject matter
complaint (Gojo v. Goyala, G.R. No. 26768, October 30, of the opposing party’s
1970). claim.
It may require for its It does not require for its
The filing of a motion to dismiss and the setting up of a adjudication the adjudication the
compulsory counterclaim are incompatible remedies. In presence of third parties presence of third parties
the event that a defending party has a ground for over whom the court of whom the court cannot
dismissal and a compulsory counterclaim at the same cannot acquire acquire jurisdiction.
time, he must choose only one remedy. If he decides to jurisdiction.
file a motion to dismiss, he will lose his compulsory It is not barred even if It is barred if not set up in
counterclaim. But if he opts to set up his compulsory not set up in the action. the action.
counterclaim, he may still plead his ground for dismissal It is considered an It is not an initiatory
as an affirmative defense in his answer (Financial Building initiatory pleading. pleading.
Corp. v. Forbes Park Association, G.R. No. 133119, It should be It does not require the
August 17, 2000). accompanied by a certificate.
certification against
General Rule: A compulsory counterclaim not set up in forum shopping and
the answer is deemed barred. whenever required by
law, also a certificate to
Exceptions : file action issued by the
a. If it is a counterclaim which either matured or Lupong Tagapamayapa.
was acquired by a party after serving his answer. In this It must be answered by A compulsory
case, it may be pleaded by filing a supplemental answer the party against whom it counterclaim that merely
or pleading before judgment, with the permission of the is interposed otherwise, reiterates special
court (Sec. 9, Rule 11). he may be declared in defenses are deemed
b. When a pleader fails to set-up a counterclaim default as to the controverted even
through oversight, inadvertence, excusable negligence, counterclaim. without a reply. In such a
or when justice requires, he may, by leave of court, set- case, failure to answer
up the counterclaim by amendment of the pleadings may not be a cause for a
before judgment (Sec. 10, Rule 11). declaration of default.
Permissive Counterclaim Effect on the counterclaim when the complaint is
Refers to a counterclaim where any of the elements of a dismissed: The dismissal of the complaint where the
compulsory counterclaim is absent. defendant has previously filed an answer and a
counterclaim, whether compulsory or permissive, shall
It is an initiatory pleading. “A counterclaim is considered a allow the latter to prosecute the counterclaim whether in
complaint, only this time, it is the original defendant who the same or a separate action, notwithstanding such
becomes the plaintiff. It stands on the same footing and is dismissal:
to be tested by the same rules as if it were an 1. If no motion to dismiss has been filed, any of the
independent action” (DBP v. Court of Appeals, G. R. No. grounds for dismissal provided for in this Rule may be
129471, April 28, 2000). pleaded as an affirmative defense in the answer and, in
the discretion of the court, a preliminary hearing may be
In this connection, in filing a counterclaim, docket fee is had thereon as if a motion to dismiss had been filed. If
required to be paid (See Sec. 1 and Sec. 7 and 8, Rule during the hearing on the affirmative defenses, the court
decides to dismiss the complaint, the counterclaim

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pleaded in the answer, compulsory or permissive is not 3 rd-Party

dismissed. Cross Claim Counterclaim
Complaint
2. Where the plaintiff himself files a motion to dismiss his Against a co- Against an Against a person
own complaint after the defendant has filed an answer party. opposing party. not a party to the
with counterclaim, the dismissal shall be without action.
prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within 15 days Must arise out of May arise out of Must be in
from notice of the motion, he manifests his preference the transaction or be necessarily respect of the
to have his counterclaim resolved in the same action. that is the connected with opponent’s
3. Where the complaint is dismissed due to the plaintiff’s subject matter of the transaction (Plaintiff) claim.
fault and at a time when a counterclaim has already the original or the subject
been set up. The dismissal is also without prejudice to action or of a matter of the
the right of the defendant to prosecute his counterclaim counterclaim opposing party’s
in the same or separate action. therein. claim, in which
case, it is called
SECTION 8. CROSS-CLAIM a compulsory
counterclaim, or
Cross Claim it may not, in
It is any claim by one party against a co-party arising out which case it is
of the transaction or occurrence that is the subject matter called a
either of the original action or of a counterclaim therein. permissive
Such cross-claim may include a claim that the party counterclaim.
against whom it is asserted is or may be liable to the No need for a No need for a Leave of court is
cross-claimant for all or part of a claim asserted in the leave of court. leave of court. needed.
action against the cross-claimant. A cross-claim may be
filed against the original cross-claimant. SECTION 9. COUNTER-COUNTERCLAIMS AND
COUNTER-CROSS-CLAIMS
Requirements for a cross- claim:
1. A claim by one party against a co-party; Counter-Counterclaim
2. It must arise out of the subject matter of the It is a claim asserted against an original counterclaimant.
complaint or of the counterclaim; and
3. The cross-claimant is prejudiced by the claim Counter-Crossclaim
against him by the opposing party. It is a claim filed against an original cross-claimant.

Purpose: To settle in a single proceeding all the claims of
the different parties in the case against each other in order
to avoid multiplicity of suits (Republic of the Philippines v.
Paredes, G.R. No. L-12546, May 20. 1960).
General Rule: If it is not set up in the action, it is barred.
Exceptions :
1. When it is outside the jurisdiction of the court; or
2. If the court cannot acquire jurisdiction over third
parties whose presence is necessary for the
adjudication of said cross-claim. In which case, the
cross-claim is considered permissive; or
3. Cross claim that may mature or may be acquired
after service of the answer (Riano, p. 285).
SECTION 10. REPLY
Reply
It is the response of the plaintiff to the defendant’s answer,
the function of which is to deny or allege facts in denial or
in avoidance of new matters alleged by way of defense in
the answer and thereby join or make issue as to such new
matters.
Effect of failure to file a reply
General Rule: Filing a reply is merely optional. New facts
that were alleged in the answer are deemed controverted
should a party fail to reply thereto.

Note: The dismissal of the complaint carries with it the Exceptions : Reply is required:
dismissal of a cross-claim which is purely defensive, but 1. Where the answer is based on an actionable
not a cross-claim seeking an affirmative relief. document (Sec.8, Rule 8); and

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2. To set up affirmative defenses on the Third-Party Complaint Complaint in

counterclaim (Rosario v. Martinez, G.R. No. L- 4473, Intervention
September 30, 1952). Brings into the action a Same.
third person who was not
Note: Only allegations of usury in a complaint to recover originally a party.
usurious interest are deemed admitted if not denied under
oath. Hence, if the allegation of usury is contained in an Initiative is with the person Initiative is with a non-party
answer, it is not necessary for the plaintiff to file a reply already a party to the who seeks to join the
thereto in order to deny that allegation under oath action. action.
(Regalado, Vol. 1, p.146).
SECTION 12. BRINGING NEW PARTIES
SECTION 11. THIRD (FOURTH, ETC.) – PARTY
COMPLAINT Distinguished from a third-party complaint: A third-
party complaint is proper when not one of the third-party
Third – Party Complaint defendants therein is a party to the main action. If one or
It is a claim that a defending party may, with leave of more of the defendants in a counterclaim or cross-claim is
court, file against a person not a party to the action for already a party to the action, then the other necessary
contribution, indemnity, subrogation or any other relief parties may be brought in under this section.
(CISA), in respect of his opponent’s claim. There could
also be a fourth, etc., - party complaint with the same
purpose and function. R ULE 7
P ARTS OF P LEADINGS
Tests to determine whether the third-party complaint
is in respect of plaintiff’s claim PARTS OF A PLEADING
1. Whether it arises out of the same transaction on
which the plaintiff’s claim is based, or although arising SECTION 1. CAPTION
out of another or different transaction, is connected with
the plaintiff’s claim; The Caption contains the following:
2. Whether the third-party defendant would be liable 1. The name of the court;
to the plaintiff or to the defendant for all or part of the 2. The title of the action – indicates the names of
plaintiff’s claim against the original defendant; and the parties; and
3. Whether the third-party defendant may assert 3. The docket number if assigned.
any defenses which the third-party plaintiff has or may
have to the plaintiff’s claim. SECTION 2. THE BODY
The body sets forth:
Leave of court to file a third-party complaint may be 1. Its designation;
obtained by motion under Rule 15. 2. The allegation of the party’s claims and
defenses;
Summons on third, fourth, etc.-party defendant must be 3. The relief prayed for; and
served for the court to obtain jurisdiction over his person, 4. The date of the pleading.
since he is not an original party.
Note: It is not the caption of the pleading but the
Where the trial court has jurisdiction over the main case, it allegations therein which determine the nature of the
also has jurisdiction over the third-party complaint, action and the court shall grant relief warranted by the
regardless of the amount involved as a third-party allegations and proof even if no such relief is prayed for
complaint is merely auxiliary to and is a continuation of (Riano, p. 54).
the main action (Republic of the Philippines v. Central
Surety & Insurance Co., G.R. No. L-27802, October 26, SECTION 3. SIGNATURE AND ADDRESS
1968). Every pleading must be signed by the party or counsel
representing him, stating in either case his address which
A third-party complaint is not proper in an action for must not be a post office box.
declaratory relief (Commissioner of Customs v. Cloribel,
G.R. No. L- 21036, June 30, 1977). Significance of the signature of counsel:His signature
constitutes a certificate by him: (RNB)

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1. That he has read the pleading;
2. That to the best of his knowledge, information or
belief, there is good ground to support it; and
3. It is not interposed for delay.
Note: A signed pleading is one that is signed either by
the party himself or his counsel. An unsigned pleading
produces no legal effect. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall
appear that the same was due to inadvertence and not
intended for delay.
Disciplinary action on counsel in the following
cases:
1. Deliberately filing an unsigned pleading;
2. Deliberately signing a pleading in violation of the
Rules;
3. Alleging scandalous or indecent matter in the
pleading; or
4. Failing to promptly report a change of his
address.
SECTION 4. VERIFICATION
Pleadings need not be verified (under oath) except when
otherwise provided by the law or rules.
How a pleading is verified: By an affidavit that the
affiant:
1. Has read the pleading; and
2. That the allegations therein are true and correct
of his personal knowledge or based on authentic
documents.
The purpose of requiring a verification is to secure an
assurance that the allegations of the petition have been
made in good faith, or are true and correct, not merely
speculative. The absence of a proper verification is cause
to treat the pleading as unsigned and dismissible; hence,
produces no legal effect (Sarmiento v. Zaratan, G.R. No.
167471, February 5, 2007).
List of pleadings that should be verified (not
exclusive)
1. Certification against forum shopping in initiatory
pleadings asserting claims for relief (including
permissive counter-claims). (See Sec. 5, Rule 7, Rules
of Civil Procedure).
2. Statement of Claim for Small Claims Cases, as
well as the Response thereto (See Secs. 5 & 11, Rules
of Procedure for Small Claims Cases).
3. Complaint for injunction (See Sec. 4, Rule 58,
Rules of Civil Procedure).
4. Application for appointment of receiver (See Sec.
1, Rule 59, Rules of Civil Procedure).
CIVIL PROCEDURE
5. Application for support pendente lite (See Sec. 1,
Rule 69, Rules of Civil Procedure).
6. Petition for forcible entry or unlawful detainer, the
answers thereto, and the answers to any compulsory
counter-claim and cross-claim pleaded in the answer
(See Sec. 4, Rule 70, Rules of Civil Procedure).
7. Petition for indirect contempt (See Sec. 4, Rule
71, Rules of Civil Procedure).
8. Petition for relief from judgment or order.
(See Sec. 3, Rule 38, Rules of Civil Procedure).
9. Petition for Review from the RTC to the Supreme
Court (See Sec. 2[c], Rule 41, Rules of Civil
Procedure).
10. Petition for Review from RTC to Court of Appeals
(See Sec. 1, Rule 42, Rules of Civil Procedure).
11. Petition for Review under Rule 43, from CTA and
other quasi-judicial agencies to Court of Appeals
(See Sec. 5, Rule 43, Rules of Civil Procedure).
12. Appeal by Certiorari under Rule 45, from Court of
Appeals to Supreme Court (See Sec. 1, Rule 45,
Rules of Civil Procedure).
13. Petition for Certiorari (special civil action) under
Rule 64 (See Sec. 2, Rule 64, Rules of Civil
Procedure).
14. Petition for Certiorari (special civil action) under
Rule 65 (See Sec. 1, Rule 65, Rules of Civil
Procedure).
15. Petition for Prohibition under Rule 65 (See Sec.
2, Rule 65, Rules of Civil Procedure).
16. Petition for Mandamus under Rule 65 (See Sec.
3, Rule 65, Rules of Civil Procedure).
17. Petition for appointment of guardian (See Sec. 2,
Rule 93, Rules of Court).
18. Petition for leave filed by guardian to sell or
encumber property of an estate (See Sec. 1, Rule 95,
Rules of Court).
19. Petition for declaration of competency of a ward
(See Sec. 1, Rule 97, Rules of Court).
20. Petition for habeas corpus (See Sec. 3, Rule
102, Rules of Court).
21. Petition for change of name (See Sec. 2, Rule
103, Rules of Court).
22. Petition for voluntary judicial dissolution of a
corporation (See Sec. 1, Rule 105, Rules of Court; see
also Sec. 119, Corporation Code).
23. Petition for cancellation or correction of entries in
the civil registry under Rule 108 (See Sec. 1, Rule
108, Rules of Court).
SECTION 5. CERTIFICATION AGAINST FORUM
SHOPPING
Forum Shopping
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It consists of filing multiple suits in different courts, either
simultaneously or successively, involving the same
parties, to ask the courts to rule on the same or related
causes and/or to grant the same or substantially the same
relief.
It is an act of malpractice, as the litigants trifle with the
courts and abuse their processes (Riano, p. 64).
Test to determine the presence of forum shopping:
Whether in the two (or more) cases pending, there is
identity in terms of the following:
1. Parties or identity of interests represented (Cf. First
Phil. International Bank, et al. v. Court of Appeals, G.R.
No. 115849, January 24, 1996);
2. Rights or causes of action; and
3. Relief sought.
The certificate is to be executed by petitioner, and not by
counsel, unless the latter is specifically authorized to do
so.
Ratio: The party himself has actual knowledge or knows
better than anyone else, whether he has initiated similar
actions in other courts agencies or tribunals (Riano, 2007,
p. 56).
Three ways of committing forum shopping:
1. Filing multiple cases based on the same cause of action
and with the same prayer, the previous not having been
resolved yet (litis pendentia);
2. Filing multiple cases based on the same cause of action
and with the same prayer, the previous having been
resolved with finality (res judicata);
3. Filing multiple cases based on the same causes of
action but with different prayers (splitting of cause of
action, where the ground for dismissal is also litis
pendentia or res judicata) (Ao-As v. Court of Appeals, et
al., G.R. No. 128464, June 20, 2006).
Note: The certificate of non-forum shopping is a
mandatory requirement in filing a complaint and other
initiatory pleadings asserting a claim or relief (Sec. 5,
Rule 7, Rules of Court).
These initiatory pleadings include not only the original
complaint but also:
1. Permissive counterclaim;
2. Cross-claim;
3. Third (fourth, etc.) - party complaint;
4. Complaint-in-intervention; and
5. Petition or application wherein the party asserts his
claim for relief.
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The rule does not require a certificate against forum
shopping for a compulsory counterclaim because it cannot
be subject to a separate and independent adjudication. It
is not an initiatory pleading (University of Sto. Tomas v.
Surla, G.R. No. 129718, August 17, 1998).
Effect of failure to comply: Not curable by mere
amendment of the pleading but shall be cause for the
dismissal of the case, without prejudice, unless otherwise
provided, upon motion (not motu proprio) and after
hearing.
Effect of submission of false certification or non-
compliance with the undertakings therein
1. Indirect contempt; and
2. Without prejudice to the filing of administrative
and criminal actions against the counsel.
Note: In relation to the crime of perjury, the material
matter in a Certificate against Forum Shopping is the truth
of the required declarations which is designed to guard
against litigants pursuing simultaneous remedies in
different fora. Willful and deliberate assertion of falsehood
in the certificate of non-forum shopping constitutes perjury
(See Union Bank v. People, G.R. No. 192565, February
28, 2012).
Effect of willful and deliberate forum shopping
1. Shall be ground for summary dismissal of the case with
prejudice; and
2. Direct contempt, as well as a cause for administrative
sanctions.
Distinctions between defect in verification and
certificate of non-forum shopping
1. As to verification, non-compliance therewith or a defect
therein does not necessarily render the pleading fatally
defective. The court may order its submission or
correction or act on the pleading if the attending
circumstances are such that strict compliance with the
Rule may be dispensed with in order that the ends of
justice may be served thereby.
Verification is deemed substantially complied with when
one who has ample knowledge to swear to the truth of
the allegations in the complaint or petition signs the
verification, and when matters alleged in the petition
have been made in good faith or are true and correct.
2. As to certification against forum shopping, non-
compliance therewith or a defect therein, unlike in
verification, is generally not curable by its subsequent
submission or correction thereof, unless there is a need
to relax the Rule on the ground of “substantial
 REMEDIAL LAW
compliance” or presence of “special circumstances or
compelling reasons.”
The certification against forum shopping must be signed
by all the plaintiffs or petitioners in a case; otherwise,
those who did not sign will be dropped as parties to the
case.
Under reasonable or justifiable circumstances, however,
as when all the plaintiffs or petitioners share a common
interest and invoke a common cause of action or
defense, the signature of only one of them in the
certification against forum shopping substantially
complies with the Rule.
The certification against forum shopping must be
executed by the party-pleader, not by his counsel. If,
however, for reasonable or justifiable reasons, the
party-pleader is unable to sign, he must execute a
Special Power of Attorney designating his counsel of
record to sign on his behalf (Altres v. Empleo, G.R. No.
180986, December 10, 2008).
Note: Where the plaintiff or a principal party is a juridical
entity like a corporation it may be executed by a properly
authorized person. This person may be the lawyer of the
corporation. As long as he is duly authorized by the
corporation and has personal knowledge of the facts
required to be disclosed in the certification against forum
shopping, the certification may be signed by the
authorized lawyer (National Steel Corp. v. Court of
Appeals, G.R. No. 134468, August 29, 2002).
R ULE 8
M ANNER OF M AKING A LLEGATIONS
IN P LEADINGS
SECTION 1. IN GENERAL
Every pleading shall contain in a methodical and logical
form a plain, concise and direct statement of the ultimate
facts, omitting the statement of mere evidentiary facts.
Ultimate Facts
These refer to those which directly form the basis of the
right sought to be enforced or the defense relied upon. If
the ultimate facts are not alleged, the cause of action
would be insufficient.
Evidentiary Facts
These refer to those which are necessary to prove the
ultimate fact or which furnish evidence of the existence of
some other facts.
CIVIL PROCEDURE
Test to distinguish conclusion of law from statement
of facts: If from the facts in evidence, the result can be
reached by the process of natural reasoning adopted in
the investigation of truth, it becomes an ultimate fact to be
found as such.
If, on the other hand, resort must be had to artificial
processes of the law in order to reach a final
determination, the result is a conclusion of law (Herrera,
Vol. 1, p. 521).
SECTION 2. ALTERNATIVE CAUSES OF ACTION
OR DEFENSE
A party may state as many claims or defenses as he has
regardless of consistency but each must be consistent in
itself (Herrera, Vol. 1, p. 525).
Facts that may be averred generally: (CCC LeMJO)
1. Conditions precedent (but there must still be an
allegation that the specific condition precedent has
been complied with, otherwise, it will be dismissed for
lack of cause of action (Sec. 3);
2. Capacity to sue or be sued (Sec. 4);
3. Capacity to sue or be sued in a representative
capacity (Sec.4);
4. Legal existence of an organization (Sec. 4);
Note: A party desiring to raise an issue as to the legal
existence or capacity of any party to sue or be sued in a
representative capacity shall do so by specific denial
which shall include supporting particulars within the
pleader’s knowledge.
5. Malice, intent, knowledge, or other condition of
the mind (Sec. 5);
Ratio: It is difficult to state the particulars constituting
these matters.
6. Judgments of domestic or foreign courts,
tribunals, boards, or officers (no need to show
jurisdiction (for it is presumed; Sec. 6); and
7. Official document or act (Sec. 9).
Facts that must be averred particularly: The
circumstances showing fraud or mistake in all averments
of fraud or mistake (Sec. 5).
SECTION 7. ACTION OR DEFENSE BASED ON
DOCUMENT
Actionable Document
It refers to a written instrument upon which the action or
defense is based.
Two permissible ways of pleading an actionable
document
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1. By setting forth the substance of such 3. Want or illegality of consideration;

document in the pleading and attaching said document 4. Mistake;
thereto as an exhibit (contents of the document 5. Payment;
annexed are controlling, in case of variance in the 6. Minority or Imbecility;
substance of the document set forth in the pleading and 7. Duress;
in the document attached); or 8. Statute of Limitations; and
2. By setting forth said document verbatim 9. Compromise.
in the pleading.
But the following defenses are waived:
SECTION 8. HOW TO CONTEST SUCH 1. Forgery in the signature;
DOCUMENT 2. Unauthorized signature, as in the case of an
agent signing for his principal;
How to contest an actionable document 3. The corporation was not authorized under its
1. By specific denial under oath; and charter to sign the instrument;
2. By setting forth what is claimed to be the facts. 4. Want of delivery; or
5. At the time the document was signed, it was not
Where the actionable document is properly alleged, in words and figures exactly as set out in the pleading.
the failure to specifically deny under oath the same
results in: Note: Failure to specifically deny under oath the
1. The admission of the genuineness and due genuineness and due execution of an actionable
execution of said document, except that an oath is not document generally implies an admission of the same by
required: the other party. However, such implied admission is
a. When the adverse party was not a party to the deemed waived if the party asserting the same has
instrument; or allowed the adverse party to present evidence contrary to
b. When compliance with an order for an inspection was the contents of such document without objection (Central
refused. Surety v. Hodges, G.R. No. 12730, August 22, 1960).
2. The document need not be formally offered in
evidence. SECTION 10. SPECIFIC DENIAL

Genuineness Three ways of making a specific denial

It means that the instrument is:
1. Not spurious, counterfeit, or of different import on its
face from the one executed by the party; or
2. That the party whose signature it bears has signed it;
and
3. That at the time it was signed, it was in words and
figures exactly as set out in the pleadings.
Due Execution
It means that the document was:
1. Signed voluntarily and knowingly by the party
whose signature appears thereon;
2. That if signed by somebody else such
representative had the authority to do so; and
3. That it was duly delivered, and that the
formalities were complied with (Hibberd v. Rhode, G.R.
No. 8418, December 9, 1915).
The following defenses, being consistent with the
genuineness and due execution, are not waived
despite failure to specifically deny under oath:
(FEW MPM DSC)
1. Fraud;
2. Estoppel;
1. Specific Absolute Denial – By specifically denying the
averment and, whenever practicable, setting forth the
substance of the matters relied upon for such denial;
2. Partial Specific Denial – Part admission and part
denial; and
3. Disavowal of Knowledge – By an allegation of lack of
knowledge or information sufficient to form a belief as to
the truth or falsity of the averment in the opposing
party’s pleading.
This does not apply where the fact as to which want of
knowledge is asserted is, to the knowledge of the court,
so plain and necessarily within the defendant’s
knowledge that his averment of ignorance must be
palpably untrue.
Negative Pregnant
It is a form of denial which at the same time involves an
affirmative implication favorable to the opposing party. It is
in effect, an admission of the averment to which it is
directed. It is said to be a denial pregnant with an
admission of the substantial facts in the pleading
responded to.

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SECTION 11. ALLEGATION NOT SPECIFICALLY Estoppel by laches may be invoked to bar the issue of
DENIED DEEMED ADMITTED jurisdiction only in cases in which the factual milieu is
analogous to that of Tijam (Riano, p. 157).
General Rule: Allegations not specifically denied are
deemed admitted.

Exceptions : SECTION 2. COMPULSORY COUNTERCLAIM, OR

1. Allegations as to the amount of unliquidated CROSS-CLAIM, NOT SET-UP BARRED
damages;
2. Allegations immaterial to the cause of action; and Amended Answer
3. Conclusion of law. It is proper if the counterclaim or cross-claim already
existed at the time the original answer was filed, but due
Note: Admissions may be withdrawn by amendments. to oversight, inadvertence, or excusable neglect, it was
The original pleadings are superseded by the amended not set up.
pleading (Insular Veneer, Inc. v. Plan, G.R. No. L-40155,
September 10, 1976). Supplemental Answer
It is proper if the counterclaim or cross-claim matures or is
SECTION 12. STRIKING OUT OF PLEADING OR acquired after the answer is filed.
MATTER CONTAINED THEREIN
Allegations of merely evidentiary or immaterial facts may SECTION 3. DEFAULT; DECLARATION
be expunged from the pleading or may be stricken out on OF DEFAULT
motion. It is the failure of the defendant to answer within the
period allowed. It is not his failure to appear, nor failure to
R ULE 9 present evidence.

E FFECT OF F AILURE TO P LEAD Default in Ordinary Procedure

SECTION 1. DEFENSES AND OBJECTIONS NOT After the lapse of
PLEADED time to file an answer,
the plaintiff may move
General Rule: Defenses and objections not raised in a to declare the
motion to dismiss or in the answer are deemed waived. defendant in default.
Motion denied:
Defendant allowed
Defendant answers

Exceptions : (RLPJ)
1. Res judicata;
2. Litis pendentia; Motion granted:
3. Prescription of the action; and Court issues order of
4. Lack of jurisdiction over the subject matter. default and renders
The court shall dismiss the claim if any of foregoing judgment, or require
grounds appears from the pleadings or the evidence on plaintiff to submit
record. evidence ex parte.

General Rule: Lack of jurisdiction may be raised at any Before judgment by default Court maintains order
stage of the proceedings even for the first time on appeal. is rendered, defendant of default.
may:
Exception : Lack of jurisdiction over the subject matter Move to set aside order of
may be barred by laches (Tijam v. Sibonghanoy, G.R. No. default upon showing of: Presentation of
L-21450, April 15, 1968). FAME and that he has a plaintiff’s evidence
meritorious defense; ex-parte
Note: The ruling in Tijam on the matter of jurisdiction is Avail of Rule 65 in proper
however, the exception rather than the rule as cases.
subsequently confirmed in Calimlim v. Ramirez (G. R. No. If plaintiff proves his
L-34362, November 19, 1982) and Pangilinan v. Court of allegations – Court
Appeals (G. R. No. 83588, September 29, 1997). renders judgment by
Court sets aside order of default.
default and defendant is
allowed to file an answer If plaintiff fails to
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 CIVIL PROCEDURE REMEDIAL LAW

6. There must be a hearing to declare the

defendant in default.

Where no defaults are allowed: (AD LeSS)

1. Annulment of marriage;
2. Declaration of nullity of marriage;
3. Legal Separation;
4. Special civil actions of certiorari, prohibition and
Two stages of default: mandamus where comment instead of an answer is
1. Declaration or order of default; and required to be filed;
2. Rendition of judgment by default. 5. Summary Procedure.

Order of Default Judgment by Default Note: Under A.M. No. 02-11-10-SC (Rule on Declaration
Issued by the court, on Rendered by the court of Absolute Nullity of Void Marriages and Annulment of
plaintiff’s motion for failure following a default order or Voidable marriages) which took effect on March 5, 2003, if
of the defendant to file his after it received, ex parte, the defendant-spouse fails to answer the complaint, the
responsive pleading plaintiff’s evidence. court cannot declare him or her in default but instead,
seasonably. should order the prosecuting attorney to determine if
Interlocutory - Not Final – Appealable. collusion exists between the parties (Ancheta v. Ancheta,
appealable. G.R. No. 145370, March 4, 2004).

May a defendant be declared in default while a

Note: Failure of the defendant to attend the pre-trial is a
motion to dismiss or a motion for bill of particulars
cause for the court to order the plaintiff to present his
remains pending and undisposed of? No, because the
evidence ex parte and for the court to render judgment on
filing of a motion to dismiss or motion for bill of particulars
the basis thereof under the Rules. This consequence is
interrupts the running of the period to answer. It will run
not to be called a declaration of default (Sec. 5, Rule 18).
again from the moment defendant receives the order
denying motion to dismiss or for bill of particulars (Feria,
General Rule: Default order and consequently a default
p. 155).
judgment are triggered by the failure of the defending
party to file the required answer (Sec. 3, Rule 9).
Effect of an order of default
1. The court shall proceed to render judgment
Exceptions : A judgment by default may be rendered in
granting the claimant such relief as his pleading may
the following cases despite an answer having been filed:
warrant;
1. If a party refuses to obey an order requiring him to
2. Or in its discretion, shall require the claimant to
comply with the various modes of discovery (Sec. 3[c],
submit evidence;
Rule 29); or
3. Loss of standing in court of the defaulting party
2. If a party or officer or managing agent of a party willfully
(Cavile v. Florendo G.R. No. 73039, October 9, 1987);
fails to appear before the officer who is to take his
and
deposition or a party fails to serve answers to
4. Defendant is still entitled to notices of
interrogatories (Sec. 5, Rule 29) (Riano, p. 359).
subsequent proceedings.
Elements of a valid declaration of default:
Relief from order of default: motion to lift order of
1. The court must have validly acquired jurisdiction
default
over the person of the defendant either by service of
summons or voluntary appearance;
Requisites:
2. The defendant fails to answer within the time
1. Verified motion showing fraud, accident
allowed therefore;
mistake or excusable negligence; and
3. There must be a motion to declare the defendant
2. Meritorious defenses.
in default filed by the claiming party;
4. There must be notice to the defendant by serving
In such a case, the order of default may be set aside on
upon him a copy of such motion;
such terms and conditions as the judge may impose in the
5. There must be proof of such failure to answer;
interest of justice (Sec. 3 [b], Rule 9).
and

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Rights of a party in default:
Entitled to notice of –
1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.
Note: A defendant declared in default cannot take part in
the trial, but he cannot be disqualified from testifying as a
witness in favor of non-defaulting defendants (Cavile v.
Florendo, G.R. No. 73039, October 9, 1987).
If the defendant was declared in default upon an original
complaint, the filing of the amended complaint resulted in
the withdrawal of the original complaint. Hence, the
defendant was entitled to file answer to the amended
complaint as to which he was not in default.
Note: Judges are admonished against issuing precipitate
orders of default as these have the effect of denying a
litigant the chance to be heard and in order to prevent
needless litigations in the appellate courts. While there
are instances when a party may properly be defaulted,
this should be the exception rather than the rule (Tropical
Homes, Inc. v. Villaluz, G.R. No. 40628, February 24,
1989).
Partial default
1. The pleading asserting a claim states a common
cause of action against several defending parties;
2. Some of the defending parties answer and the
others fail to do so; and
3. The answer interposes a common defense.
Effect of partial default: The court will try the case
against all defendants upon the answer of some except
where the defense is personal to the one who answered,
in which case, it will not benefit those who did not answer.
The extent of relief to be awarded in a judgment by
default shall not:
1. Exceed the amount prayed for; nor
2. Be different in kind from that prayed for; nor
3. Award unliquidated damages.
Remedies from judgment by default
In Crisologo v. Globe Telecom Inc. (G.R. No. 167631,
December 16, 2005), the Court laid down the remedies
available to a party declared in default:
1. The defendant in default may, at any
time after discovery thereof and before judgment, file a
motion under oath to set aside he order of default on
the ground that his failure to answer was due to fraud,
CIVIL PROCEDURE
accident, mistake or excusable negligence, and that he
has a meritorious defense (Sec. 3[b], Rule 9);
2. If the judgment has already been
rendered when the defendant discovered the default,
but before the same has become final and executory,
he may file a motion for new trial under Sec. 1(a), Rule
37;
3. If the defendant discovered the default
after the judgment has become final and executory, he
may file a petition for relief under Sec 1, Rule 38.
4. He may also appeal from the judgment
rendered against him as contrary to evidence or to the
law, even if no petition to set aside the order of default
has been presented by him (Sec. 2, Rule 41); and
A petition for certiorari to declare the nullity of a judgment
by default if the trial court improperly declared a party in
default, or even if the trial court properly declared a party
in default, if grave abuse of discretion attended such
declaration.
R ULE 10
A MENDED AND S UPPLEMENTAL
P LEADINGS
SECTION 1. AMENDMENTS IN GENERAL
Pleadings may be amended by:
1. Adding an allegation of a party;
2. Adding the name or substitution of a party;
3. Striking out an allegation of a party;
4. Striking out the name of a party;
5. Correcting a mistake in the name of a party; and
6. Correcting a mistake or inadequate allegation or
description in any other respect.
Types of amendments:
1. Amendment as a matter of right – the party
has the unconditional right to amend his pleading. The
court has no right to prevent him from amending. The
opposite party has no right to oppose the amendment
(If the court refused to admit the amended pleading as
a matter of right, it is correctible by mandamus).
2. Amendment as a matter of judicial
discretion – the court may or may not allow the
amendment. The other party has the right to oppose
(Amendment by Leave of Court).
SECTION 2. AMENDMENTS AS A MATTER OF
RIGHT
Amendment is a matter of right before a responsive
pleading is served, or in case of a Reply, within 10 days
after it was served.
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Such right can only be exercised once. Subsequent
amendments should be made only by leave of court even
if the other party has not yet served a responsive
pleading.
Instances when amendment is a matter of right:
1. Amendment of complaint before an answer is
filed;
2. Amendment of answer before a reply is filed or
before the period for filing a reply expires;
3. Amendment of reply any time within 10 days
after it is served; and
4. Formal amendment.
Note: A motion to dismiss is not a responsive pleading.
As such, an amendment after the denial of a motion to
dismiss is still considered as a matter of right. Hence, it
may be done without leave of court.
If new causes of action are alleged in the amended
complaint filed before the defendant has appeared in
court, another summons must be served on the defendant
with the amended complaint (Gumabay v. Baralin, G.R.
No. 30683, May 31, 1977).
Will the order of the court declaring the defendant in
default be affected by the amendment of the
complaint? Yes, because the amended complaint
supersedes the original complaint. In other words, the
order of default is set aside.
Supposing the complaint was amended as a matter
of right. Is there a requirement to send summons
anew? No. Based on the following reasons: (Sec. 3, Rule
11) First, “answer to amended complaint filed as a matter
of right of right shall be made within 15 days after being
served a copy of the amended complaint. Secondly, “an
answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed.”
SECTION 3. AMENDMENTS BY LEAVE OF COURT
Leave of court is required:
1. If the amendment is substantial; and
2. A responsive pleading had already been served.
Note: Even if the amendment is substantial, no leave of
court is required if made as a matter of right (Sec. 3, 1 st
sentence says: “except as provided in the next preceding
section”). In other words, the consideration should always
be whether the responsive pleading has already been
filed or not. If yes, then it is no longer a matter of right.
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Requisites:
1. There must be a motion filed in court;
2. Notice to the adverse party; and
3. Opportunity to be heard afforded to the adverse
party.
Instances when amendment by leave of court may
not be allowed:
1. When the cause of action, defense or theory of
the case is changed;
2. Amendment is intended to confer jurisdiction to
the court;
3. Amendment to cure a premature or non-existing
cause of action; and
4. Amendment for purposes of delay.
SECTION 4. FORMAL AMENDMENT
A defect in the designation of the parties and other clearly
clerical or typographical errors may be summarily
corrected by the court at any stage of the action, at its
initiative or on motion, provided no prejudice is caused to
the adverse party.
SECTION 5. AMENDMENT TO CONFORM TO OR
AUTHORIZE PRESENTATION OF EVIDENCE (This
is significant especially in relation to Evidence.)
When issues not raised in the pleadings are tried with the
express or implied consent of parties:
1. They shall be treated as if raised in the
pleadings;
2. Pleadings may be amended to conform to the
evidence; and
3. Failure to amend does not affect the result of the
trial of these issues.
Note: In Mercader v. Development Bank of the Phils.
(Cebu Branch), the Court explained that the foregoing
provision envisions two scenarios -- first, when evidence
is introduced on an issue not alleged in the pleadings and
no objection was interjected and second, when evidence
is offered on an issue not alleged in the pleadings but this
time an objection was interpolated. In cases where an
objection is made, the court may nevertheless admit the
evidence where the adverse party fails to satisfy the court
that the admission of the evidence would prejudice him in
maintaining his defense upon the merits, and the court
may grant him a continuance to enable him to meet the
new situation created by the evidence (Azolla Farms v.
Court of Appeals, G.R. No. 138085, November 11, 2004).
Note: At the time of the filing of the complaint, the cause
of action must actually exist. If cause of action accrues
after the filing then a party cannot avail of this remedy.
 REMEDIAL LAW CIVIL PROCEDURE

Legal basis: (“Nihil de re accrescit ei qui nihil in re

quando jus accresceat habet”) That which has no cause SECTION 8. EFFECT OF AMENDED PLEADING
of action cannot by amendment or supplemental pleading
be converted in a cause of action. Effect of amended pleading
1. An amended pleading supersedes the pleading
Illustration: that it amends;
The plaintiff sues the defendant before the maturity of the 2. Admissions in the superseded pleading can still
loan. Clearly, there is no cause of action when the be received in evidence against the pleader but as an
complaint was filed. Thus, if the loan matures after the extrajudicial admission which must be formally offered
filing of the complaint, there is nothing that will conform to in evidence and proved;
evidence since there is no cause of action in the first 3. Claims or defenses alleged therein but not
place. incorporated or reiterated in the amended pleading are
deemed waived.
SECTION 6. SUPPLEMENTAL PLEADINGS

Supplemental Pleadings R ULE 11

Those which aver facts occurring after the filing of the W HEN TO F ILE R ESPONSIVE
original pleadings and which are material to the matured P LEADINGS
claims and/or defenses therein alleged (Herrera, Vol.1, p.
603).
SECTION 1. ANSWER TO THE COMPLAINT
The cause of action stated in the supplemental complaint
must be the same as that stated in the original complaint. SECTION 2. ANSWER OF A DEFENDANT
Otherwise, the court should not admit the supplemental FOREIGN PRIVATE JURIDICAL ENTITY
complaint (Asset Privatization Trust v. Court of Appeals,
G.R. No. 121171, December 29, 1998). Answer to a complaint
1. Within 15 days after service of summons, unless a
Amended Pleading Supplemental different period is fixed by the Court;
Pleading 2. In case the defendant is a foreign private juridical entity:
Refers to facts existing at Refers to facts arising a. If it has a resident agent – Within 15
the time of the after the filing of the days after service of summons to him;
commencement of the original pleading. b. If it has no resident agent, but it has an
action. agent or officer in the Philippines – Within 15 days
after service of summons to said agent or officer;
Takes the place of the Taken together with the c. If it has no resident agent nor agent nor
original pleading. original pleading. officer – in which case service of summons is to be
Can be made as a matter of Always with leave of made on the proper government office (now the SEC)
right as when no responsive court. which will then send a copy thereof by registered mail
pleading has yet been filed. within 10 days to the home office of the foreign
When an amended pleading A supplemental pleading private corporation – within 30 days after receipt of
is filed, a new copy of the does not require the filing summons by the home office of the foreign private
entire pleading must be filed, of a new copy of the entity.
incorporating the entire pleading. 3. In case of service of summons by publication –
amendments, which shall be Within the time specified in the order granting leave to
indicated by appropriate serve summons by publication, which shall not be less
marks. than 60 days after notice (Sec. 15, Rule 14); and
4. In case of a non-resident defendant on whom
extraterritorial service of summons is made, the period
SECTION 7. FILING OF AMENDED PLEADINGS
to answer should be at least 60 days.
An amendment which merely supplements and amplifies
facts originally alleged in the complaint relates back to the
The court may extend the time to file the pleadings but
date of the commencement of the action and is not barred
may not shorten them (Except : in Quo Warranto
by the Statute of Limitations which expired after service of
proceedings).
the original complaint (Verzosa v. Court of Appeals, G.R.
No 119511-13, November 24, 1998).

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SECTION 3. ANSWER TO AMENDED COMPLAINT

1. If the filing of an amended complaint is a matter Requisites:
of right – Within 15 days from service of the amended 1. There must be a motion;
complaint. 2. With service of such motion to other party; and
2. If the filing of the amended complaint is not a 3. On such terms as may be just.
matter of right – Within 10 days counted from notice of
the court order admitting the same. This is so because
the responding party was already served with a copy of
R ULE 12
the proposed amended complaint. B ILL OF P ARTICULARS

The Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third
(fourth, etc.-party complaint, and amended complaint-
in-intervention).
If no new answer is filed, answer to original pleading
shall be deemed as answer to the amended pleading.
SECTION 4. ANSWER TO COUNTERCLAIM OR
CROSS-CLAIM
A counterclaim or cross-claim must be answered within 10
days from service.
SECTION 5. ANSWER TO THIRD (FOURTH, ETC.)-
PARTY COMPLAINT
The third-party defendant is served with summons just like
the original defendant. Hence, he also has 15, 30, or 60
days from service of summons, as the case may be, to file
his answer.
SECTION 1. WHEN APPLIED FOR; PURPOSE
Bill of Particulars
It is a more definite statement of any matter which is not
averred with sufficient definiteness or particularity.
Purpose: To aid in the preparation of a responsive
pleading.
An action cannot be dismissed on the ground that the
complaint is vague or indefinite. The remedy of the
defendant is to move for a bill of particulars or avail of the
proper mode of discovery (Galeon v. Galeon, G.R. No. L-
30380, February 28, 1973).
The motion for bill of particulars shall be filed before
responding to a pleading. Hence, it must be filed within
the period granted by the Rules (Rule 11) for the filing of a
responsive pleading.

SECTION 6. REPLY The Motion shall point out:

A reply may be filed within 10 days from service of the 1. The defects complained of;
pleading responded to. 2. The paragraphs wherein they are contained; and
3. The details desired.
SECTION 7. ANSWER TO SUPPLEMENTAL
COMPLAINT The motion must comply with the requirements for
Answer to a supplemental complaint must be filed within motions under Sec. 4, 5 and 6 of Rule 15. Otherwise the
10 days from notice of the order admitting the same motion will not suspend the period to answer (Filipino
unless a different period is fixed by the court. Fabricator v. Magsino, G.R. No. 47574, January 29,
1988).
SECTION 8. EXISTING COUNTERCLAIM OR
CROSS-CLAIM Note: A motion for bill of particulars is not directed only to
a complaint. It is a motion that applies to any pleading
SECTION 9. COUNTERCLAIM OR CROSS-CLAIM which in the perception of the movant contains ambiguous
ARISING AFTER ANSWER allegations (Riano, p. 306).

SECTION 10. OMITTED COUNTERCLAIM OR SECTION 2. ACTION BY COURT

CROSS-CLAIM
Counterclaims or cross-claims omitted through oversight, The court may either:
inadvertence, or excusable neglect or when justice 1. Deny;
requires may be set up by amendment before judgment. 2. Grant it outright; or
Leave of court is necessary. 3. Allow the parties the opportunity to be heard.

SECTION 11. EXTENSION OF TIME TO PLEAD

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Supposing the motion for a bill of particulars is

denied. Is there any remedy left for the party asking
for a bill of particulars? Yes. A party may resort to
discovery (See Rule 23).

SECTION 3. COMPLIANCE WITH ORDER

SECTION 1. COVERAGE
Period to comply with order granting the motion: Ten
(10) days from notice of order unless a different period is SECTION 2. FILING AND SERVICE, DEFINED
fixed by the court. Notice given to a party who is duly represented by
counsel is a nullity, unless service thereof on the party
The Bill of Particulars may be filed either in a separate or himself was ordered by the court or the technical defect
in an amended pleading, serving a copy thereof on the was waived.
adverse party.
Where party is represented by more than one counsel of
record, service of notice on any of the latter is sufficient.
SECTION 4. EFFECT OF NON-COMPLIANCE
If there are 5 defendants in the same case and there is
Effect of non-compliance: only one lawyer for all, is the lawyer entitled to 5 copies?
1. If the Order is not obeyed or in case of No. Where one counsel appears for several parties, he
insufficient compliance therewith, the court: shall only be entitled to one copy of any paper served
a. May order the striking out of the upon him by the opposite side (Sec.2, Rule 13 Last
pleading or the portion thereof to which the order is paragraph).
directed; or
b. Make such order as it may deem just. Filing
2. If the plaintiff fails to obey, his complaint may be This refers to the act of presenting the pleading or other
dismissed with prejudice unless otherwise ordered by papers to the clerk of court.
the court (Sec. 4, Rule 12; Sec. 3, Rule 17);
3. If defendant fails to obey, his answer will be SECTION 3. MANNER OF FILING
stricken off and his counterclaim dismissed, and he will 1. Personal service by presenting the original
be declared in default upon motion of the plaintiff (Rule copies thereof, plainly indicated as such, to the clerk of
12, Section 4; Rule 17, Section 4; Rule 9, Section 3). court; or
2. Registered mail.
SECTION 5. STAY OF PERIOD TO FILE
RESPONSIVE PLEADING Filing by mail should be through the registry service which
is made by deposit of the pleading in the post office, and
Effects of Motion not through other means of transmission.
1. If the motion is granted, in whole or in part, the
movant can wait until the bill of particulars is served on If a private carrier is availed of by the party, the date of
him by the opposing party and then he will have the actual receipt by the court of such pleading and not the
balance of the reglementary period within which to file date of delivery to the private carrier, is deemed to be the
his responsive pleading; and date of the filing of that pleading (Benguet Electric
2. If his motion is denied, he will still have such Cooperative, Inc. v. NLRC, G.R. No. 89070 May 18,
balance of the reglementary period to file his responsive 1992).
pleading, counted from service of the order denying his
motion. SECTION 4. PAPERS REQUIRED TO BE FILED
AND SERVED: (PAMNOJ-DORS)
Note: In either case, he shall have not less than 5 days 1. Pleading subsequent to the complaint;
to file his responsive pleading. 2. Appearance;
3. Written motion;
SECTION 6. BILL A PART OF PLEADING 4. Notice;
A Bill of Particular becomes part of the pleading for which 5. Order;
it is intended 6. Judgment;
7. Demand;
R ULE 13
F ILING AND S ERVICE OF
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8. Offer of Judgment; the date he received the first notice of the postmaster,
9. Resolution; or whichever is earlier.
10. Similar papers. c. Service by ordinary mail – is deemed complete upon the
expiration of 10 days after mailing unless the court
SECTION 5. MODES OF SERVICE otherwise provides.
1. Personal Service (Section 6) d. Substituted service – is complete at the time of the delivery
a. Delivering personally a copy to the party, who is of the copy to the clerk of court.
not represented by a counsel, or to his counsel; or
b. Leaving a copy in counsel’s office with his clerk SECTION 11. PRIORITIES IN MODES OF SERVICE
or with a person having charge thereof; or AND FILING
c. Leaving the copy between 8 a.m. and 6 p.m. at Personal service and filing: This is the general rule,
the party’s or counsel’s residence, if known, with a and resort to other modes of service and filing is the
person of sufficient age and discretion then residing exception.
therein - If no person is found in his office, or if his
office is unknown, or if he has no office. Except papers emanating from the court, a resort to
modes other than by personal service must be
accompanied by a written explanation why the service or
2. Service By Mail (Section 7) filing was not done personally.
a. Registered mail - Service by registered mail shall be SECTION 12. PROOF OF FILING
made: The filing of a pleading or paper is proved by its existence in
i. By depositing the copy in the post office, the record. If it is not in the record,
ii. In a sealed envelope, a. If filed personally : Proved by the written or stamped
iii. Plainly addressed to the party or his counsel at his acknowledgment of its filing by the clerk of court on a copy
office, if known, of the same; or
iv. Otherwise at his residence, if known, b. If filed by registered mail : Proved by the registry receipt
v. With postage fully pre-paid, and and the affidavit of the person who did the mailing with a full
vi. With instructions to the postmaster to return the mail statement of:
to the sender after 10 days if undelivered. i. The date and place of depositing the mail in the post
office in a sealed envelope addressed to the court;
b. Ordinary mail – If no register service is available in the ii. With postage fully prepaid; and
locality of either the sender or the addressee, service may iii. With instructions to the postmaster to return the mail to
be done by ordinary mail. the sender after 10 days if undelivered.
3. Substituted Service (Section 8) – By
delivery of the copy to the clerk of court with proof of SECTION 13. PROOF OF SERVICE
failure of both personal and service by mail. a. Proof of personal service – shall consist of:
i.The written admission of the party served; or
SECTION 9. SERVICE OF JUDGMENT, FINAL ii.The official return of the server; or
ORDERS, OR RESOLUTIONS iii. The affidavit of the party serving containing full
1. By personal service; information of the date, place and manner of the service.
2. By registered mail; or b. Proof of service by registered mail – shall be shown by the
3. By publication, if party is summoned by affidavit of the mailer showing compliance with Sec. 7 of
publication and has failed to appear in the action. Rule 13 and the registry receipt issued by the mailing office.
The registry return card shall be filed immediately upon its
Note: No substituted service. receipt by the sender, or in lieu thereof of the unclaimed
lettter together with the certified or sworn copy of the notice
Service given by the postmaster to the addressee.
It is the act of providing a party with a copy of the pleading c. Proof of service by ordinary mail – service shall be proved
or paper concerned. by the affidavit of the mailer showing compliance with Sec. 7
of Rule 13.
SECTION 10. COMPLETENESS OF SERVICE
a. Personal Service – is deemed complete upon actual SECTION 14. NOTICE OF LIS PENDENS
delivery.
b.Service by way of registered mail – is deemed complete Lis Pendens
upon actual receipt by the addressee or after 5 days from

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It refers to a notice of a pendency of the action between
the parties involving title to or right of possession over real
property.
Requisites:
1. Action affects the title or the right of possession
of the real property;
2. Affirmative relief is claimed;
3. Notice shall contain the name of the parties and
the object of the action or defense and a description of
the property affected thereby; and
4. Action in rem (AFP Mutual Benefit Association,
Inc. v. Court of Appeals, G.R. No.104769, March 3,
2000).
This serves as a warning to all persons that a particular
real property is in litigation, and that one who acquires an
interest over said property does so at his own risk, or that
he gambles on the result of the litigation over said
property (Lee Tek Sheng v. Court of Appeals, G.R. No.
115402, July 15, 1998).
The defendant may also record a notice of lis pendens
when he claims an affirmative relief in his answer.
Note: Section 76 of P.D. No. 1529 provides that no action
to recover possession of real estate, or to quiet title
thereto, or to remove clouds upon the title thereof, or for
partition, or other proceedings of any kind in court directly
affecting the title to land or the use or occupation thereof
or the buildings thereon, and no judgment, and no
proceeding to vacate or reverse any judgment, shall have
any effect upon registered land as against persons other
than the parties thereto, unless a memorandum or notice
stating the institution of such action or proceeding and the
court wherein the same is pending, as well as the date of
the institution thereof, together with a reference to the
number of the certificate of title, and an adequate
description of the land affected and the registered owner
thereof, shall have been filed and registered.
Notice of lis pendens cannot be cancelled on an ex parte
motion or upon the mere filing of a bond by the party on
whose title the notice is annotated, as Section 14 provides
that such cancellation may be authorized only upon order
of court, after proper showing that:
1. The notice is for the purpose of molesting the
adverse party; or
2. It is not necessary to protect the rights of the
party who caused it to be recorded.
Note: File for cancellation of the notice of lis pendens only
during the pendency of the case and not if it is already
final and executory pursuant to PD No. 1529 Section 77.
CIVIL PROCEDURE
R ULE 14
S UMMONS
Jurisdiction over the person of the defendant in a civil
case is acquired either by his voluntary appearance or
service of summons upon him (Minucher v. Court of
Appeals, G.R. No.142963, February 11, 2003).
Summons
It is the writ by which the defendant is notified of the
action brought against him (Cano-Gutierrez v. Gutierrez,
G.R. No. 138584, October 2, 2000).
The issuance of summons is not discretionary on the part
of the court or clerk of court but is a mandatory
requirement.
Purpose of summons
A.Actions in Personam:
1. To acquire jurisdiction over the person of the
defendant in a civil case; and
2. To give notice to the defendant that an action has
been commenced against him (Right to Due
Process).
B. Actions in Rem and Quasi in Rem : Not to
acquire jurisdiction over the defendant but mainly to
satisfy the constitutional requirement of due process.
Jurisdiction over the defendant is not required and the
court acquires jurisdiction over an action as long as it
acquires jurisdiction over the res (Riano, p.273).
Effect of non-service: Unless the defendant voluntarily
submits to the jurisdiction of the court, non-service or
irregular service of summons renders null and void all
subsequent proceedings and issuances in the action from
the order of default up to and including the judgment by
default and the order of execution.
The non-service or invalidity of service of summons may
be a ground for dismissal, for lack of jurisdiction over the
person of the defending party.
Note: Where the defendant has already been served
with summons on the original complaint, no further
summons is required on the amended complaint if it does
not introduce new causes of action (Ong Peng v.
Custodio, G.R. No. 14911, March 25, 1961).
But where the defendant was declared in default on the
original complaint and the plaintiff subsequently filed an
amended complaint, new summons must be served on
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the defendant on the amended complaint, as the original
complaint was deemed withdrawn upon such
amendment (Atkins v. Domingo, G.R. No. L-19565, March
24, 1923).
General Rule: When an additional defendant is joined,
summons must be served upon him.
Exceptions :
1. When the administrator of a deceased party
defendant substitutes the deceased;
2. Where upon the death of the original defendant
his infant heirs are made parties; and
3. In cases of substitution of the deceased under
Sec. 16 of Rule 3.
Note: In these instances, the service of the Order of
Substitution is sufficient.
1. By leaving copies of the summons at the defendant’s
residence with some person of suitable age and
discretion residing therein; or
2. By leaving the copies at defendant’s office or regular
place of business with some competent person in
charge thereof.
For substituted service of summons to be valid, it is
necessary to establish the following:
1. The impossibility of the personal service of
summons within a reasonable time;
Note: Reasonable time is defined as “so much time as
is necessary under the circumstances for a reasonably
prudent and diligent man to do, conveniently, what the
contract or duty requires that should be done, having
regard for the rights and possibility of loss, if any, to the
other party.”

SECTION 1. CLERK TO ISSUE SUMMONS To the sheriff, “reasonable time” means 15 to 30 days
Summons to be issued: because at the end of the month, it is a practice for the
1. Upon the filing of the complaint; and branch clerk of court to require the sheriff to submit a
2. Payment of the requisite legal fees. return of the summons assigned to the sheriff for
service. The Sheriff’s Return provides data to the Clerk
SECTION 2. CONTENTS of Court, which the clerk uses in the Monthly Report of
Cases to be submitted to the Office of the Court
SECTION 3. BY WHOM SERVED Administrator within the first ten (10) days of the
Summons may be served by: succeeding month. Thus, one month from the issuance
1. Sheriff; of summons can be considered “reasonable time with
2. Sheriff’s deputy; or regard to personal service on the defendant (Collado-
3. Other proper court officers; or Lacorte v. Rabena, A.M. No. P-09-2665, August 4,
4. For justifiable reasons, by any suitable person 2009).
authorized by the court issuing the summons. 2. The efforts exerted to locate the person to be
served; and
Note: The enumeration is exclusive. 3. Service upon a person of sufficient age and
discretion residing in the same place as defendant or
SECTION 4. RETURN some competent person in charge of his office or
regular place of business.
SECTION 5. ISSUANCE OF ALIAS SUMMONS
In substituted service, the sheriff’s return must show
Alias Summons that an effort or attempt was exerted to personally serve
It is one issued when the original has not produced its the summons on the defendant and that the same had
effect because of a defect in form or in the manner of failed (Spouses Venturanza v. Court of Appeals, G.R.
service, and when issued, supersedes the first writ. No. 77760, December 11, 1987).

Modes of service summons For substituted service of summons to be available,

A. Service in person on defendant (Sec. 6)
1. By handing a copy of summons to him; or
2. By tendering it to him if he refuses to receive it.
B. Substituted Service (Sec. 7)
Only when service in person cannot be made promptly
and after all efforts to do so are exerted, may
substituted service be resorted to.
there must be several attempts by the sheriff to
personally serve the summons within a reasonable
period [of one month] which eventually resulted in
failure to prove impossibility of prompt service.
“Several attempts” means at least three (3) tries,
preferably on at least two different dates (Collado-

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Lacorte v. Rabena, A.M. No. P-09-2665, August 4,
2009).
C. Publication (Section 14)
Requisites:
1. Defendant’s identity or whereabouts are
unknown and cannot be ascertained by diligent
inquiry (but he is in the Philippines); and
2. There must be leave of court.
Summons by way of publication may with leave of court
be availed of where a defendant involved in any action ( in
rem, quasi in rem and in personam) is designated as an
unknown owner or whenever his whereabouts are
unknown and cannot be ascertained. The summons shall
be effected through publication in a newspaper of general
circulation and in such places and for such time as the
court sets.
In Santos v. PNOC (G.R. No. 170943, September 23,
2008), the Supreme Court held that the in rem/in
personam distinction was significant under the old rule
because it was silent as to the kind of action to which the
rule was applicable. Because of this silence, the court
limited the application of the old rule to in rem actions
only. This has been changed. The present rule expressly
states that it applied to any action where the defendant is
designated as unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be ascertained
by diligent inquiry. Thus, it now applies to any action,
whether in personam, in rem or quasi-in rem.
If property is attached and later the defendant appears
(and voluntarily submits to the jurisdiction of the court),
the case becomes mainly a suit in personam (Villareal v.
Court of Appeals, G.R. No. 107314, September. 17,
1998).
Note: Summons is validly served if it is left with some
person of suitable age and discretion then residing in the
defendant’s residence, even if defendant was abroad at
that time. The fact that the defendant did not actually
receive the summons did not invalidate the service of
such summons (Montalban v. Maximo, G.R. No. 22997,
March 15, 1968).
Service of summons on different e ntities
Defendant Service of Summons
Entity w/o Upon any or all the defendants being
juridical sued under common name; or person
personality in charge of the office.
(Sec. 8)
Minors and In Case Of Minors: By serving upon the
CIVIL PROCEDURE
Defendant Service of Summons
Incompetents minor, regardless of age, and upon his
(Sec. 10) legal guardian, or also upon either of
his parents.
In Case Of Incompetents: By serving
on him personally and upon his legal
guardian, but not upon his parents,
unless they are his legal guardians.
In any event, if the minor or
incompetent has no legal guardian, the
plaintiff must obtain the appointment of
a guardian ad litem for him.
Prisoner Serve on officer having management of
(Sec. 9) the jail or prison (warden).
Domestic To the president, managing partner,
private general manager, corporate secretary,
juridical entity treasurer, or in-house counsel.
(Sec. 11)
Note: Service upon a person other
than those mentioned is invalid and
does not bind the corporation.
The enumeration is exclusive.
Foreign If registered in the Philippines, serve
private on the resident agent; or if none; on the
juridical entity government official designated by law;
(Section 12 or on any officer or agent of the
as amended corporation within the Philippines.
by A.M. No. If the foreign private juridical entity is
11-3-6-SC, not registered in the Philippines or has
March 15, no resident agent, service may, with
2011 ) leave of court, be effected out of the
Philippines through any of the following
means:
a. By personal service coursed through
the appropriate court in the foreign
country with the assistance of the
Department of Foreign Affairs;
b. By publication once in a newspaper
of general circulation in the country
where the defendant may be found
and by serving a copy of the
summons and the court order by
registered mail at the last known
address of the defendant;
c. By facsimile or any recognized
electronic means that could generate
proof of service; or
d. By such other means as the court
may in its discretion direct.
Public In case the defendant is the Republic
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Defendant Service of Summons Service of

Defendant Action
corporations of the Philippines – By serving upon Summons
(Section 13) the Solicitor General d.Property of
defendant has
In case of a province, city or been attached sufficient.
municipality, or like public corporations in the
– by serving on its executive head or Philippines.
on such other officer or officers as the Substituted service
law or the court may direct. or with leave of
court, personal
SECTION 14. SERVICE UPON DEFENDANT service out of the
WHOSE IDENTITY OR WHEREABOUTS ARE Phil. as under
UNKNOWN extraterritorial
service
SECTION 15. EXTRATERRITORIAL SERVICE
Note: In all these
cases, it should be
Resident noted that,
Any action (in
SECTION 16. RESIDENTS TEMPORARILY OUT OF THE temporarily out defendant must be
rem, in personam
of the a resident of the
PHILIPPINES or quasi- in rem)
Philippines Philippines.
Service of
Defendant Action (Sec. 16) Otherwise, an
Summons
action in personam
cannot be brought
Resident but With leave of court, because jurisdiction
identity or Any action (in by publication in a over his person is
whereabouts rem, in personam newspaper of essential to make a
unknown (Sec. or quasi in rem) general circulation. binding decision
14) (Belen v. Chavez,
In rem or quasi in Extraterritorial G.R. No. 175334,
Not a resident rem. It either: Service: March 28, 2008).
and is not [AREA] a. With leave
found in the a. Affects the of court serve Can service of summons be effected by means of
Philippines personal status outside the Phil. fax (facsimile) transmission or e-mail? Yes. Sec.
(Sec. 15) of plaintiff; by service in 12(c), Rule 14, allows it provided that there is means that
b.Relates to or person; or could generate proof of service.
the subject of b. With leave
which is of court serve by Note: This applies only to foreign private juridical entities
property within publication in a that are not registered in the Philippines or has no
the Philippines newspaper of resident agent.
in which general
defendant has circulation, in SECTION 17. LEAVE OF COURT
a lien or which case copy
interest; of the summons SECTION 18. PROOF OF SERVICE
c. Demands a and order of The proof of service shall be made in writing by the server
relief which court must also and shall state the manner, place and date of service,
consists wholly be sent by specify any accompanying papers and the name of the
or in part in registered mail person who received the summons. It shall be sworn to if
excluding the to the last known made by a person other than a sheriff or his deputy.
defendant from address of
any interest in defendant; or SECTION 19. PROOF OF SEVICE BY
any property c. Any other PUBLICATION
within the Phil; manner the
or court deem

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A.Affidavit of the printer, his foreman or principal clerk, or
of the editor, business or advertising manager, to which
affidavit a copy of the publication shall be attached; and
B.Affidavit showing the deposit of a copy of the summons
and order for publication in the post office, postage
prepaid directed to the defendant by registered mail to
his last known address.
SECTION 20. VOLUNTARY APPEARANCE
Where the defendant makes a voluntary appearance in
the action it shall be the equivalent to service of summons
and jurisdiction is acquired over him. Submission to the
court’s jurisdiction takes the form of an appearance that
seeks affirmative relief, except when the relief sought is
for the purpose of objecting to the jurisdiction of the court
over the person of the defendant even if other grounds
are included in a motion to dismiss. This is also known as
special appearance.
R ULE 15
M OTIONS
SECTION 1. MOTION, DEFINED.
Motion
This refers to an application for relief other than by a
pleading. A motion is not a pleading.
Pleading Motion
Purpose: To submit a claim Purpose: To apply for an
or defense for appropriate order not included in the
judgment. judgment.
Cannot be initiatory as they
May be initiatory. are always made in a case
already filed in court.
Always filed before May be filed even after
judgment. judgment.
Only 9 kinds of pleading Any application for relief not
are allowed by the Rules. by a pleading is a motion
May be oral when made in
Must be written. open court or in the course
of a hearing or trial.
Kinds of Motions
1. Motion ex parte - is made without the presence or a
notification to the other party because the question
generally presented is not debatable (i.e. Motion for
extension of time to file pleadings).
CIVIL PROCEDURE
2. Motion of course - is where the movant is entitled to the
relief or remedy sought as a matter of discretion on the
part of the court.
3. Litigated Motion - is the one made with notice to the
adverse party to give an opportunity to oppose (i.e.
Motion to dismiss).
4. Special Motion - is a motion addressed to the discretion
of the court.
General Rule: A motion cannot pray for judgment.
Exceptions :
1. Motion for judgment on the pleadings;
2. Motion for summary judgment; and
3. Motion to dismiss (judgment of dismissal).
SECTION 2. MOTION MUST BE IN WRITING
General Rule: Motions must be in writing.
Exceptions : Those made in open court or in the course
of hearing or trial.
SECTION 3. CONTENTS
Contents of the Motion:
1. The relief sought to be obtained;
2. The ground upon which it is based; and
3. If required by the Rules or necessary to prove
facts alleged therein, shall be accompanied by
supporting affidavits and other papers.
Requisites of a Motion (not made in open court or in the
course of a hearing or trial):
1. It must be in writing;
2. Hearing of motion set by the applicant;
Except for motions which the court may act upon
without prejudice to the rights of the adverse party ( ex
parte motions), every written motion shall be set for
hearing by the applicant.
3. Notice of hearing shall be addressed to all
parties concerned. Date of hearing must not be later
than 10 days from the filing of the motion (Sec. 5);
4. Motion and notice of hearing must be served at
least 3 days before the date of hearing (Three Day
Notice Rule);
Exceptions to the three day notice rule:
a. Ex-Parte Motions – one which does not require that the
parties be heard and which the court may act upon
without prejudicing the rights of the other party.
b. Urgent motions;
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c. Motions agreed upon by the parties to be heard on 4. Lack of jurisdiction over the subject matter (Sec.1, Rule
shorter notice or jointly submitted by the parties; and 9).
d. Motions for summary judgment which must be served at
least 10 days before its hearing (Regalado, Vol. 1, p. General Rule: A court may not motu proprio dismiss a
264). case unless a motion to that effect is filed by a party
thereto.
5. Proof of service (Sec. 6).
Exceptions :
Note: Any motion that does not comply with Sections 1. Those cases where the court may dismiss a case
4, 5 and 6 of this Rule (Requirements 4 and 5) is a mere motu proprio (Sec. 1, Rule 9);
scrap of paper. 2. Sec. 3, Rule 17 (Failure to prosecute); and
3. Rule on Summary Procedure (Section 4, 1991,
It does not interrupt the reglementary period for the filing Revised Rule on Summary Procedure).
of the requisite pleading.
Motion to Dismiss
SECTION 7. MOTION DAY Motion to Dismiss Under
Under Rule 33
Except motions requiring immediate action, all motions Rule 16
(Demurrer To Evidence)
shall be scheduled for hearing on Friday afternoons, or if Grounded on preliminary Based on insufficiency of
Friday is a nonworking day, in the afternoon of the next objections. evidence.
working day.
May be filed by any May be filed only by the
Note: No motion day in the Supreme Court. defending party against defendant against the
whom a claim is asserted complaint of the plaintiff.
SECTION 8. OMNIBUS MOTION in the action.
Should be filed within the May be filed only after the
Omnibus Motion Rule time for but prior to the plaintiff has completed the
A motion attacking a pleading, order, judgment, or filing of the answer of the presentation of his
proceeding shall include all objections then available. defending party to the evidence.
Objections not included shall be deemed waived except pleading asserting the
the defenses referred in Sec. 1, Rule 9 (See Rule 16 on claim against him.
Motion to Dismiss). If denied, defendant must If denied, defendant may
file an answer, or else he present evidence.
SECTION 9. MOTION FOR LEAVE may be declared in default. If granted, plaintiff appeals
If granted, plaintiff may and the Order of the
SECTION 10. FORM appeal or if subsequent dismissal is reversed, the
case is not barred, he may defendant loses his right to
re-file the case. present evidence.
R ULE 16
M OTION TO D ISMISS Types of dismissal of action
1. Motion to dismiss before answer under Rule 16;
2. Motion to dismiss under Rule 17;
Motion to Dismiss
a. Upon notice by plaintiff;
It is not a responsive pleading. It is not a pleading at all.
b. Upon motion by plaintiff; or
c. Due to fault of plaintiff.
It is subject to the omnibus motion rule since it is a motion
3. Motion to dismiss called a demurrer to evidence
that attacks a pleading. Hence, it must raise all objections
after plaintiff has completed the presentation of his
available at the time of the filing thereof.
evidence under Rule 33; and
4. Dismissal of an appeal.
However, the following grounds are not deemed waived
(RLPJ):
SECTION 1. GROUNDS (D-SILL-RPF-CUN)
1. R es judicata;
1. No jurisdiction over the person of the defending
2. L itis pendentia;
party;
3. Prescription; and
2. No jurisdiction over the subject matter of the
claim;

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3. Improper venue; 4. There must be identity of parties, of subject

4. No legal capacity to sue; matter, and of cause of action between the first and
5. Litis pendentia; second actions.
6. Res judicata;
7. Prescription; Note: There could be res judicata without a trial, such as
8. Failure to state a cause of action; in a judgment on the pleadings (Rule 34); a summary
9. Claim or demand has been paid, waived, judgment (Rule 35); or an order of dismissal under
abandoned, or otherwise extinguished; Section 3 of Rule 17.
10. Claim is unenforceable under the Statute of
Frauds; and Prescription: A motion to dismiss on the ground of
11. Non-compliance with a condition precedent for prescription will be given due course only if the complaint
filing claim. shows on its face that the action has already prescribed.

The language of the rule, particularly on the relation of the Prescription Laches
words “abandoned” and “otherwise extinguished” to the It is concerned with the It is concerned with the
phrase “claim or demand deemed set forth in the plaintiff’s fact of delay. effect of delay.
pleading” is broad enough to include within its ambit the
defense of bar by laches (Pineda v. Heirs of Eliseo It is a matter of time. It is a matter of equity.
Guevarra, G.R. No. 168557, February 19, 2007). Statutory. Non-statutory.
Applies at law. Applies in equity.
Note: A motion to dismiss hypothetically admits the
Based on fixed time. Not based on fixed time.
truth of the facts alleged in the complaint. Such
admission, however, is limited only to material and
relevant facts which are well pleaded in the complaint Complaint states no cause of action: When the
(Regalado, p. 271). ground for dismissal is that the complaint states no cause
of action, such fact can be determined only from the facts
Requisites of Litis Pendentia alleged in the complaint (Mindanao Realty Corp. v.
1. Identity of parties or at least such Kintanar, et al., L-17152, November 30, 1962).
parties representing the same interests in both actions;
2. There is substantial identity in the cause Failure to state a cause of action and not lack or
of action and relief sought, the relief being founded on absence of cause of action is the ground for a motion
the same facts; and to dismiss. The former means there is insufficiency in the
3. The identity in the two cases should be allegations in the pleading while the latter refers to the
such that any judgment that may be rendered in one, failure to prove or to establish by evidence one’s stated
regardless of which party is successful, would amount cause of action (Riano, p. 89).
to res judicata in the other case.
Effects of Action on
Remedy
Note: It is applicable between the same parties only when Motion to Dismiss
the judgment to be rendered in the action first instituted Order granting motion to Re-file the complaint.
will be such that, regardless of which party is successful, it dismiss is a final order
will amount to res judicata against the second action (without prejudice).
(HSBC v. Aldecoa & Co., G.R. No. L-8437, March 23, Order granting motion to Appeal.
1915). dismiss (with Prejudice).
A motion to dismiss may be filed in either suit, not Order denying the motion File answer and proceed
necessarily in the one instituted first (Magsaysay v. to dismiss is interlocutory. with the trial, if decision is
Magsaysay, et al., L-49847, July, 17, 1980). adverse, appeal therefrom
and raise as error the denial
Requisites of res judicata of the motion to dismiss. If
1. Previous final judgment or order; there is grave abuse of
2. Jurisdiction over the subject matter and the discretion amounting to lack
parties by the court rendering it; or excess of jurisdiction,
3. Judgment upon the merits; and Certiorari or Prohibition may
lie under Rule 65.

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dismiss as affirmative defenses in his answer with a

Non-Compliance with a condition precedent: Non-
compliance with P.D. No. 1508 (Katarungang
Pambarangay Law) may result in dismissal of the case on
the ground of non-compliance with a condition precedent.
SECTION 2. HEARING OF MOTION
SECTION 3. RESOLUTION OF MOTION
The court may:
1. Dismiss the action;
2. Deny the motion; or
3. Order the amendment of the pleading
Note: In resolving motion to dismiss, the court is
required to give reasons for its resolution.
SECTION 4. TIME TO PLEAD
Defendant is granted only the balance of the reglementary
period to which he was entitled at the time he filed his
motion to dismiss, counted from his receipt of the denial
order, but not less than 5 days in any event.
If the pleading is ordered to be amended, the defendant
shall file his answer within the period prescribed by Rule
11 from service of amended pleading unless the court
provides a longer period.
SECTION 5. EFFECT OF DISMISSAL
General Rule: The action or claim may be re-filed.
Exception : The action cannot be re-filed if it was
dismissed on any of these grounds: (PURE)
1. Prescription;
2. Unenforceability under the Statute of
Frauds
3. Res judicata; and
4. Extinguishment of the claim or
demand;
In these instances, the remedy of the plaintiff is appeal.
SECTION 6. PLEADING GROUNDS AS
AFFIRMATIVE DEFENSES
If no motion to dismiss had been filed, any of the grounds
for dismissal provided for in Rule 16, including improper
venue, may be pleaded as affirmative defenses in the
answer and a preliminary hearing may be had thereon in
the discretion of the court.
Note: If the defendant would want to file a
counterclaim, he should not file a motion to dismiss.
Instead, he should allege the grounds of a motion to
counterclaim. A preliminary hearing may be had thereon,
and in the event the complaint is dismissed, the defendant
can prosecute his counterclaim.
The 2nd paragraph of Section 6 clearly provides that the
dismissal of the complaint is without prejudice to the
prosecution of the counterclaim.
R ULE 17
D ISMISSAL OF A CTIONS
SECTION 1. DISMISSAL UPON NOTICE BY
PLAINTIFF
Dismissal is effected not by motion but by mere notice of
dismissal which is a matter of right before the service of:
1. The answer; or
2. A motion for summary judgment.
Note: The dismissal as a matter of right ceases when
an answer or a motion for summary judgment is served on
the plaintiff and not when the answer or the motion is filed
with the court. Thus, if a notice of dismissal is filed by the
plaintiff even after an answer has been filed in court but
before the responsive pleading has been served on the
plaintiff, the notice of dismissal is still a matter of right
(Riano, 2007, p. 224).
Upon filing of the notice of dismissal by the plaintiff, the
motion to dismiss filed by respondents became moot and
academic and the trial court should have dismissed the
case without prejudice based on the notice of dismissal
filed by the petitioner (Dael v. Beltran, G.R. No. 156470,
April 30, 2008).
The rule requires a court order confirming the dismissal.
Such dismissal is without prejudice.
Except :
1. Where the notice of dismissal so
provides; or
2. Where the plaintiff has previously
dismissed the same case in a court of competent
jurisdiction (Two-Dismissal Rule).
Two-dismissal rule applies when the plaintiff has a) twice
dismissed actions, b) based on or including the same
claim, c) in a court of competent jurisdiction. The second
notice of dismissal will bar the refilling of the action
because it will operate as an adjudication of the claim
upon the merits (Riano, p. 265).

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If the plaintiff files a notice of dismissal providing therein a
reason that prevents the refilling of the complaint, the
dismissal must be deemed one with prejudice. This
happens when the notice provides that the plaintiff
recognizes the fact of prescription or extinguishment of
the obligation of the defendant or for reasons stated in
Sec. 5 of Rule 16 (Riano, 2007, p. 225).
SECTION 2. DISMISSAL UPON MOTION OF
PLAINTIFF
Under this section, the dismissal of the complaint is
subject to the discretion of the court and upon such terms
and conditions as may be just.
If a counterclaim has been pleaded by the defendant prior
to the service upon him of the plaintiff’s motion for
dismissal, the dismissal shall be limited to the complaint.
Such dismissal shall be without prejudice to the right of
the defendant to either:
1. Prosecute his counterclaim in a
separate action; or
2. To have the same resolved in the
same action. In this case, defendant must manifest
such preference to the trial court within 15 days from
notice to him of plaintiff’s motion to dismiss.
These alternative remedies of the defendant are available
to him regardless of whether his counterclaim is
compulsory or permissive.
Dismissal under this Rule is without prejudice, i.e.
the complaint can be re-filed, except :
1. When otherwise stated in the motion to
dismiss; or
2. When stated to be with prejudice in the order
of the court.
The approval of the court is necessary in the dismissal or
compromise of a class suit.
SECTION 3. DISMISSAL DUE TO FAULT OF
PLAINTIFF
Causes for dismissal
1. Plaintiff fails to appear for no justifiable cause on
the date of the presentation of his evidence in chief on
the complaint;
2. Plaintiff fails to prosecute his action for an
unreasonable length of time (Nolle Prosequi); and
3. Plaintiff fails to comply with these Rules or any
order of the court.
CIVIL PROCEDURE
The plaintiff’s failure to appear at the trial after he has
presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure
to prosecute. It is merely a waiver of his right to cross-
examine and to object to the admissibility of evidence
(Jalover v. Ytoriaga, G.R. No. L-35989, October 28,
1977).
Complaint may be dismissed:
1. Upon motion of the defendant; or
2. Upon the court’s own initiative.
Dismissal shall have the effect of an adjudication upon the
merits (res judicata), unless otherwise declared by the
court or if the court has not yet acquired jurisdiction over
the person of the defendant (Herrera, vol. 1 p. 798).
SECTION 4. DISMISSAL OF COUNTERCLAIM,
CROSS-CLAIM, OF THIRD-PARTY COMPLAINT
A dismissal or discontinuance of an action operates to
annul orders, rulings or judgments previously made in the
case, as well as all proceedings had in connection
therewith and renders all pleadings ineffective
(Servicewide Specialist, Inc. v. Court of Appeals, G.R. No.
110597, May 8, 1996).
R ULE 18
P RE -T RIAL
Pre-Trial
It refers to a mandatory conference and personal
confrontation before the judge between the parties and
their respective counsel.
SECTION 1. WHEN CONDUCTED
After the last pleading has been served and filed, it shall
be the duty of the plaintiff to promptly move ex-parte that
the case be set for pre-trial.
Specifically, the motion is to be filed within 5 days after the
last pleading joining the issue has been served and filed
(Administrative Circular No. 3-99 January 15, 1999). If the
plaintiff fails to file said motion within the given period, the
branch clerk of court shall issue a notice of pre- trial (A.M.
No. 03-109-SC, July 13, 2004).
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Note: The “last pleading” need not be literally construed
as the actual filing of the last pleading. For purposes of
the pre-trial, the expiration of the period for filing the last
pleading is sufficient (Sarmiento v. Juan, G.R. No.56605,
January 28, 1983).
SECTION 2. NATURE AND PURPOSE
The Court shall consider:
1. The possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution;
2. The simplification of issues;
3. The necessity or desirability of amendments to
the pleadings;
4. The possibility of obtaining stipulations or
admissions of facts and documents to avoid
unnecessary proof;
Note: The process of securing admissions, whether of
facts or evidence, is essentially voluntary. When the
parties are unable to arrive at a stipulation of agreed
facts, the court must close the pre-trial and proceed
with the trial of the case (Filoil Marketing Corp. v. Dy
Pac & Co., G.R. No.29636, September 30, 1982).
5. The limitation of the number of witnesses;
6. The advisability of a preliminary reference of
issues to a commissioner;
7. The propriety of rendering judgment on the
pleadings, or summary judgment, or of dismissing the
action should a valid ground therefor be found to exist;
8. The advisability or necessity of suspending the
proceedings; and
9. Such other matters as may aid in the prompt
disposition of the case.
SECTION 3. NOTICE OF PRE-TRIAL
The notice of pre-trial shall be served on counsel, or on
the party who has no counsel. The counsel served with
such notice is charged with the duty of notifying the party
represented by him.
SECTION 4. APPEARANCE OF PARTIES
Both the parties and their counsel must appear at the pre-
trial.
When non-appearance of a party may be excused:
1. If a valid cause is shown therefor; and
2. If a representative shall appear in his behalf fully
authorized in writing to:
a. Enter into an amicable settlement;
b. Submit to alternative modes of dispute
resolution; and
c. Enter into stipulations or admissions of
facts and of documents.
Written authority must be in the form of Special Power of
Attorney (Riano, 2007, p. 306). If the party is a
corporation, the SPA must be supported by a board
resolution.
Note: The mere presentation of such written authority is
not sufficient, but must be complemented by a showing of
valid cause for the non-appearance of the party himself.
SECTION 5. EFFECT OF FAILURE TO APPEAR
Effect of non-appearance of plaintiff: Cause for the
dismissal of the action. This dismissal shall be with
prejudice except when the court orders otherwise. The
dismissal shall have the effect of an adjudication on the
merits and is thus final. The remedy of the plaintiff is to
appeal the order of dismissal.
Effect of non-appearance of defendant: Cause the
plaintiff to present evidence ex parte and for the court to
render judgment on the basis thereof. The order to
present evidence ex parte is interlocutory and thus not
appealable. The defendant may ask for reconsideration
and if the denial is with grave abuse of discretion he may
file a petition for certiorari.
Note: The non-appearance of the defendant in the pre-
trial is not a ground to declare him in default.
SECTION 6. PRE-TRIAL BRIEF
The parties shall file with the court and serve on the
adverse party, in such manner as shall ensure their
receipt thereof at least three (3) days before the date of
the pre-trial.
Contents of the pre-trial brief
1. A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution,
indicating the desired terms thereof;
2. A summary of admitted facts and proposed stipulations
of facts;
3. The issues to be tried or resolved;
4. The documents or exhibits to be presented stating the
purpose thereof;
5. A manifestation of their having availed or their intention
to avail themselves of discovery procedures or referral
to commissioners; and
6. The number and names of the witnesses, and the
substance of their respective testimonies.
Note: Failure to file pre-trial brief has the same effect
as failure to appear at the pre-trial.

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Principles involved in compromise agreements: The

authority to compromise a litigation is not mandatorily
required to be in writing. The vital thing is that the
authority was made expressly. The authority to
compromise if not in writing may be established by
evidence.

Compromise agreement entered without authority is not

void, but unenforceable and may be ratified (Lim Pin v.
Liao Tan, G.R. No. L-47740, July 20, 1982). Pre-Trial in Civil Cases Pre-Trial in Criminal
Cases
SECTION 7. RECORD OF PRE-TRIAL CONTENTS
OF PRE-TRIAL ORDER Set when the plaintiff Ordered by the court and no
1. A statement of the nature of the case; moves ex parte to set the motion to set the case for
2. The stipulations or admissions of the parties, including case for pre-trial. pre-trial is required from
testimonial and documentary evidence; either the prosecution or the
3. The issues involved: factual and legal; defense.
4. Number of witnesses; and The motion to set the case The pre-trial is ordered by
5. The dates of trial. for pre-trial is made after the court after arraignment
the last pleading has been and within 30 days from the
The proceedings in the pre-trial shall be recorded. served and filed. date the court acquires
jurisdiction over the person
The contents of the pre-trial order shall control the of the accused.
subsequent course of the action, unless: Considers the possibility Does not include the
1. Modified before trial to prevent manifest injustice of an amicable settlement considering of the possibility
(Rule 18, Sec.7); as an important objective. of amicable settlement as
2. Issues impliedly included therein or may be one of its purposes.
inferable therefrom by necessary implication (Velasco v. The proceedings are to be All agreements or
Apostol, G.R. No. 44588, May 9, 1989); and recorded in the minutes to admissions made or
3. Amendment to conform to evidence (Rule 10, be signed by either the entered during the pre-trial
Sec. 5). party or his counsel. conference shall be reduced
in writing and signed by
A party is deemed to have waived the right to invoke both the accused and
stipulations in the pre-trial order if he failed to object to the counsel, otherwise, they
introduction of evidence outside of the pre-trial order, as cannot be used against the
well as in cross-examining the witness in regard to said
Pre-Trial accused.
evidence. The sanctions for non- The sanctions in a criminal
appearance in a pre-trial case are imposed upon the
are imposed upon the counsel for the accused or
No Amicable Failure to plaintiff and the defendant. the prosecutor.
settlement settlement appear The presence of the The accused is merely
defendant is required, required to sign the written
unless he is duly agreement arrived at in the
Agreements If plaintiff is represented at the pre-trial pre-trial conference, if he is
made by parties; absent, when so conference by his counsel in conformity therewith.
Amendments to required to with the requisite authority Unless otherwise required
pleading; attend, the court to enter into a compromise by the court, his presence
Schedule of trial. may dismiss the agreement, failing in either therefore is not
case. of which the case shall indispensable.
proceed as if the
defendant has been Note: This is aside from the
If defendant declared in default. consideration that the
Trial is absent, court accused may waive his
may hear presence at all stages of the
evidence of
plaintiff ex parte.

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 CIVIL PROCEDURE
criminal action, except at
the arraignment,
promulgation of judgment or
when required to appear for
identification.
The presence of the The presence of the private
plaintiff is required at the offended party is not
pre-trial unless excused required at the pre-trial.
therefrom for valid cause Instead, he is required to
or if he is represented appear at the arraignment
therein by a person fully of the accused for purposes
authorized in writing to of plea bargaining,
perform the acts specified determination of civil liability,
in Sec 4, Rule 18. and other matters requiring
his presence.
Absent such justification, Should he fail to appear
the case may be therein, and the accused
dismissed with or without offers to plead guilty to a
prejudice. lesser offense necessarily
included in the offense
charged, he may be allowed
to do so with the conformity
of the trial prosecutor alone.
A pre-trial brief is required The Rules do not require
with the particulars and the filing of a pre-trial brief in
the sanctions provided by criminal cases but only
Sec. 6, Rule 18. require attendance at a pre-
trial conference to consider
the matters stated in Sec.2,
Rule 118 (Regalado,
pp.519-520).
R ULE 19
I NTERVENTION
Intervention
It is a legal proceeding by which a person not a party to
the action is permitted by the court to become a party by
intervening in a pending action after meeting the
conditions and requirement set by the Rules of Court.
This third person who intervenes is one who is not
originally impleaded in the action (First Philippine
Holdings Corp. v. Sandiganbayan, G.R. No. 88345,
February 1, 1996; Rule 19, Rules of Court).
Requisites for intervention:
1. There must be a motion for intervention filed before
rendition of judgment by the trial court,
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2. The movant must show that he has a legal interest in
the matter in litigation, the success of either party or
against the both of them.
3. That the movant will be adversely affected by a
distribution or other disposition of property in the
custody of the court or an officer thereof.
4. The intervention must not unduly delay or prejudice the
adjudication of the rights of the original parties,
5. The intervenor’s rights may not be fully protected in a
separate proceeding.
6. A copy of the pleading-in-intervention shall be attached
to the motion and served on the original parties.
It is never an independent proceeding but is ancillary and
supplemental to an existing litigation.
Purpose: To enable a stranger to an action to become a
party to protect his interest (Santiago Land Development
Corporation v. Court of Appeals, G.R. No. 106194,
January 28, 1997).
It cannot alter the nature of the action and the issues
already joined (Castro v. David, G.R. No. L-8508,
November 29, 1956).
It is neither compulsory nor mandatory but only optional
and permissive (Mabayo Farms, Inc. v. Court of Appeals,
G.R. No. 140058, August 1, 2002).
SECTION 1. WHO MAY INTERVENE (MEBA)
There must be a motion for intervention filed before
rendition of judgment by the trial court, because leave of
court is required before a person may be allowed to
intervene, by:
1. One who has a legal interest in the matter in
litigation;
2. One who has a legal interest in the success of
either of the parties;
3. One who has an interest against both parties; or
4. One who is so situated as to be adversely
affected by a distribution or other disposition of property
in the custody of the court or of an officer thereof.
General Rule: The final dismissal of the principal action
results in the denial of a pending motion for intervention.
Exception : When intervention has been allowed and the
complaint in intervention has already been filed before
plaintiff’s action had been expressly dismissed (Metro
Bank v. RTC-Manila, Br. 39, G.R. No. 89909, September
21, 1990).
Note: Denial of motion to intervene does not constitute
res judicata. Remedy of intervenor is to file a separate
 REMEDIAL LAW CIVIL PROCEDURE

action (Asuncion v. Pineda, G.R. No. L-47924, July 31, the right of the movant. The remedy of the movant is to file
1989). a separate action.

Factors to be considered by the court Exceptions :

1. Whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the
original parties; and
2. Whether or not the intervenor’s rights may
be fully protected in a separate proceeding (Mabayo
Farms, Inc. v. Court of Appeals, supra).
Interest in the Subject
It means a direct interest in the cause of action as
pleaded and which would put the intervenor in a legal
position to litigate a fact alleged in the complaint, without
the establishment of which plaintiff could not recover
(Magsaysay Labrador v. Court of Appeals., G.R. No.
58168, Dec. 19, 1989).
Legal interest: It must be one that is actual and material,
direct and of an intermediate character, not merely
contingent or expectant so that the intervenor will either
gain or lose by the direct legal operation of the judgment
(Riano, p.346).
1. With respect to indispensable parties,
intervention may be allowed even on appeal
(Falcasantos v. Falcasantos, G.R. No. L-4627, May 13,
1952).
2. When the intervenor is the Republic
(Lim v. Pacquing, G.R. No. 115044, Jan. 27, 1995).
3. Intervention may be allowed after
judgment where necessary to protect some interest
which cannot otherwise be protected, and for the
purpose of preserving the intervenor’s right to appeal
(Herrera vol.1 p. 847).
SECTION 3. PLEADINGS-IN-INTERVENTION
The intervenor shall file a motion for intervention attaching
thereto his pleading-in-intervention.
1. Complaint-in-intervention – If the intervenor
asserts a claim against either or all of the original
parties.
2. Answer-in-intervention – If the intervenor unites
with the defendant in resisting a claim against the latter.

Intervention Interpleader The motion and pleading shall be served upon the original
parties.
An ancillary action. An original action.
Proper in any of the four
Presupposes that the plaintiff SECTION 4. ANSWER TO A COMPLAINT-IN-
situations mentioned in has no interest in the subject INTERVENTION
this Rule. matter of the action or has an Within 15 days from notice of the order admitting the
interest therein, which in same, unless a different period is fixed by the courts.
whole or in part, is not
disputed by the other parties Remedies for the denial of intervention:
to the action. 1. Appeal; or
The action is against Defendants are being sued 2. Mandamus, if there is grave abuse of discretion.
either or both the precisely to implead them.
original parties to the If there is improper granting of intervention, the remedy of
pending suit. the party is certiorari.

General Rule: Intervention is a matter of discretion on Note: Motion for intervention is prohibited in summary
the part of the court. procedure.

Exception : In civil cases, there is one instance where

intervention is a matter of right and that is in class suit . R ULE 20
Every member who is involved in a class suit has the right C ALENDAR OF C ASES
to intervene.
SECTION 1. CALENDAR OF CASES
SECTION 2. TIME TO INTERVENE
The motion to intervene must be filed at any time before Preference shall be given to:
rendition of judgment by the trial court. 1. Habeas corpus cases;
2. Election cases;
General Rule: After rendition of judgment, a motion to 3. Special civil actions;
intervene is barred, even if the judgment itself recognizes 4. Habeas data;

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5. Writ of Amparo; and death, reclusion perpetua or life imprisonment and is

6. Those so required by law. confined in prison – must be authorized by the SC.

SECTION 2. ASSIGNMENT OF CASES SECTION 3. FORM AND CONTENTS

Note: Assignment of cases is required to be done
exclusively by raffle. A. Subpoena :
1. Shall state the name of the court and the title of the
action or investigation;
R ULE 21 2. It shall be directed to the person whose attendance is
S UBPOENA required; and
3. In the case of a subpoena duces tecum, it shall contain
Subpoena and Summons; Distinguished a reasonable description of the books, documents or
Subpoena Summons things demanded which must appear to the court to be
An order to appear and An order to answer prima facie relevant.
testify or to produce books complaint.
and documents. SECTION 4. QUASHING A SUBPOENA
A. Subpoena Duces Tecum may be quashed upon:
May be served to a non- Served on the defendant. (MPuraw)
party. 1. Motion promptly made; and
Needs tender of Does not need tender of 2. Proof that:
kilometrage, attendance kilometrage and other fees. a. It is unreasonable and oppressive;
fee and reasonable cost of b. The articles sought to be produced do not
production fee. appear prima facie to be relevant to the issues; or
c. The person asking for the subpoena does
SECTION 1. SUBPOENA AND SUBPOENA DUCES not advance the cost for the production of the
TECUM articles desired.
d. The witness fees and kilometrage allowed
Subpoena Ad Testificandum by the Rules were not tendered when the
It is a process directed to a person requiring him to attend subpoena was served.
and to testify at the hearing or the trial of an action, or at B. Subpoena Ad Testificandum may be quashed:
any investigation conducted by competent authority, or for a. If the witness is not bound thereby; and
the taking of his deposition. b. The witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was
Subpoena Duces Tecum served.
It is a process directed to a person requiring him to bring
with him books, documents, or other things under his SECTION 5. SUBPOENA FOR DEPOSITIONS
control.
SECTION 6. SERVICE
SECTION 2. BY WHOM ISSUED Service of subpoena shall be made in the same manner
as service in person or substituted service of summons.
Who may issue: 1. The original shall be exhibited and a copy thereof
1. Court before whom the witness is required to be delivered to the person on whom it is served;
attend; 2. Tendering to him the fees for one day’s
2. Court of the place where the deposition is to be attendance or kilometrage allowed by the Rules; except
taken; that, when a subpoena is issued by or on behalf of the
3. Officer or body authorized by law to do so in Republic of the Philippines or an officer or agency
connection with investigations conducted by said officer thereof, the tender need not be made;
or body; or 3. The service must be made so as to allow the
4. Any Justice of the SC or of the CA in any case or witness a reasonable time for preparation and travel to
investigation pending within the Philippines. the place of attendance; and
4. If the subpoena is duces tecum, the reasonable
Subpoena to a prisoner: It must be for a valid purpose. cost of producing the books, documents, or things
If prisoner required to appear in court is sentenced to demanded shall also be tendered.

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SECTION 7. PERSONAL APPEARANCE IN COURT
General Rule:
1. The court which issued the subpoena may issue
a warrant for the arrest of the witness and make him
pay the cost of such warrant and seizure, if the court
should determine that his disobedience was willful and
without just cause (Sec. 8).
2. The refusal to obey a subpoena without
adequate cause shall be deemed contempt of the court
issuing it (Sec. 9).
SECTION 10. EXCEPTIONS
Provisions regarding the compelling of attendance (Sec.
8) and contempt (Sec. 9) do not apply where:
1. Witness resides more than 100 kilometers
from his residence to the place where he is to testify by
the ordinary course of travel (Viatory Right); and
Note: This refers only to civil and not to criminal cases
(Genorga v. Quitain, G.R. No. 891 July 21, 1977).
2. Permission of the court in which the
detention prisoner’s case is pending was not obtained.
R ULE 22
C OMPUTATION OF T IME
SECTION 1. HOW TO COMPUTE TIME
The Rules have adopted the New Civil Code principle in
computation of time: exclude the first and include the last.
SECTION 2. EFFECT OF INTERRUPTION
Any extension of time to file the required pleading should
be counted from the expiration of the period regardless of
the fact that the said due date is a Saturday, Sunday, or
legal holiday (A.M. No. 00-2-14-SC, as explained in Luz v.
National Amnesty Commission, G.R. No. 1597028,
September 24, 2004).
Rules of Discovery
Discovery
A device employed by a party to obtain information about
relevant matters on the case from the adverse party in the
preparation for trial. This may be used by all the parties to
the case. (Riano, p. 375).
Basic purposes of the rules of discovery:
1. To serve as an additional device aside from pre trial; to
narrow and clarify the basic issues between the parties;
to ascertain the facts relative to the issues;
2. To enable a party to obtain knowledge of material facts
within the knowledge of the adverse party or of third
parties through depositions;
CIVIL PROCEDURE
3. To obtain knowledge of material facts or admissions
from the adverse party through written interrogatories;
4. To obtain admissions from the adverse party regarding
the genuineness of relevant documents or relevant
matters of fact through requests for admissions;
5. To inspect relevant documents or objects, and lands or
other property in the possession and control of the
adverse party; and
6. To determine the physical or mental condition of a party
when such is in controversy (Koh v. Intermediate
Appellate Court, G.R. No. 71388, September 23, 1986).
In sum: To enable the parties to obtain the fullest
possible knowledge of the issues and evidence long
before the trial to prevent such trial from being carried on
in the dark.
Importance: To shorten the period of litigation and speed
up adjudication. This mutual discovery enables a party to
discover the evidence of the adverse party and thus
facilitates an amicable settlement or expedites the trial of
the case. All parties are required to lay their cards on the
table so that justice can be rendered on the merits of the
case (Justice Magdangal De Leon, 2011 Modes of
Discovery Outline).
Discovery still applies even if motion for bill of
particulars denied: That the matters on which discovery
is desired are the same matters subject of a prior motion
for bill of particulars denied for lack of merit is beside the
point. Indeed xxx a bill of particulars may elicit only
ultimate facts, not so called evidentiary facts. The latter
are without a doubt proper subject of discovery (Republic
of the Philippines v. Sandiganbayan, G.R. No. 90478,
November 21, 1991).
Modes of discovery under the Rules of Court (D-
DIAPP)
1. Depositions pending action (Rule 23);
2. Depositions before action or pending appeal
(Rule 24);
3. Interrogatories to parties (Rule 25);
4. Admission by adverse party (Rule 26);
5. Production or inspection of documents, or things
(Rule 27); and
6. Physical and mental examination of persons
(Rule 28).
Modes of discovery are intended to be cumulative, and
not alternative nor mutually exclusive (Fortune Corp. v.
CA, G.R. No. 108119, January 19, 1994).
Note: Discovery is not mandatory but failure to avail
carries sanctions in Rules 25 and 26.
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R ULE 23
D EPOSITIONS P ENDING A CTIONS
Deposition
A written testimony of a witness given in the course of a
judicial proceeding in advance of the trial or hearing upon
oral examination or in response to written interrogatories
and where an opportunity is given for cross-examination.
Depositions are different from affidavits since the latter are
ex parte statements without formal interrogation and
opportunity for cross-examination.
Affidavits are not admissible in evidence except in cases
governed by the Rule on Summary Procedure or in
ordinary cases subject to cross-examination.
Depositions are intended as a means to compel
disclosure of facts resting in the knowledge of a party or
other person, which are relevant in a suit/ proceeding.
Dual function of deposition
a. As a method of discovery – provided that the subject of
deposition is relevant and not privileged.
b. As an alternative to testimony – If the purpose is only
for use as testimony, the ground therefor is not solely
relevancy but there must be a showing of necessity or
unavailability of the deponent to appear and testify in
court.
Classification of depositions
1. Depositions on oral examination and
Depositions upon written interrogatories;
2. Depositions de bene esse – Those taken
for purposes of a pending action (Rule 23); and
3. Depositions in perpetuam rei memoriam –
Those taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case on
appeal (Rule 24).
SECTION 1. DEPOSITION PENDING ACTION,
WHEN MAY BE TAKEN
When taken:
A.With leave of court
1. After jurisdiction has been obtained over any
defendant or over the property which is the subject of
the action but before an answer has been filed.
Ratio : Leave of court is necessary because the
issues are not yet joined and the disputed facts are
not yet clear.
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Note: This contemplates a situation where the
complaint has already been filed and the summons
(personal or otherwise) has been served. That is why
before using this discovery tool, the rule says “After
jurisdiction has been obtained…”
2. Deposition of a person confined in prison. This is to
be taken only with leave of court and upon such
terms as the court may prescribe
B. Without Leave of Court:
After answer and deponent is not confined in prison.
An answer ex abudanti cautela ("out of abundant
caution" or "to be on the safe side) does not make an
answer less of an answer. Thus, when an answer ex
abudanti cuatela is filed, deposition may be made
WITHOUT leave of court (Rosette v. Lim, G.R. No.
136051, June 8, 2006).
Who may take deposition and how: Any party to an
action may take the deposition of another by oral
examination or written interrogatories (Rule 23, Sec.1).
SECTION 2. SCOPE OF EXAMINATION
Scope of examination in depositions
1. Matter which is relevant to the subject of the
pending action;
2. Not privileged; and
3. Not restricted by a protective order (Sections 16
and 18).
SECTION 3. EXAMINATION AND CROSS-
EXAMINATION
The deponent may be examined or cross examined
following the procedures for witnesses in a trial. He has
the same rights as a witness and may be impeached like
a court witness because Secs. 3 to 18 of the Rule 132
apply to a deponent (Riano, 2009 ed. p. 379)
SECTION 4. USE OF DEPOSITIONS
Where the witness is available to testify and the situation
is not one of those excepted under Section 4, his
deposition is inadmissible in evidence and he should be
made to testify.
Deponent Use
Any person. By any party for
contradicting or
impeaching the testimony
of deponent as witness.
 REMEDIAL LAW CIVIL PROCEDURE

A party or anyone who at By an adverse party for The substitution of parties does not affect the right to use
the time of the deposition any purpose. depositions previously taken.
was an officer, director,
or managing agent of a SECTION 6. OBJECTIONS TO ADMISSIBILITY
public or private corp., Subject to Sec. 29, objection may be made at the trial or
partnership, or association hearing for any reason which would require exclusion of
which is a party. evidence if the witness were then present and testifying.
Witness, whether or not a By any party for any
party. purpose if the court finds SECTION 7. EFFECT OF TAKING DEPOSITIONS
the 5 instances occurring. A party shall not be deemed to make a person his own
witness for any purpose by taking his deposition because
depositions are taken for discovery and not for use as
Five instances where deposition of any witness may evidence.
be used for any purpose ( DR. USE)
1. The witness is dead; Exception : If a party offers the deposition in evidence,
2. The witness resides more than 100 kilometers then he is deemed to have made the deponent his
from the place of trial or hearing, or is out of the witness (Sec.8).
Philippines. Unless it appears that his absence was
procured by the party offering the deposition; Exception to the exception : Unless the deposition is
3. The witness is unable to testify because of age, that of an opposing party or the deposition is used to
sickness, infirmity, or imprisonment; impeach or contradict the deponent (Sec. 8).
4. The party offering the deposition has been SECTION 9. REBUTTING DEPOSITION
unable to procure the attendance of the witness by
subpoena; OR SECTION 10 AND 11. PERSONS BEFORE WHOM
5. Upon application and notice, that such DEPOSITIONS MAY BE TAKEN
exceptional circumstances exist as to make it desirable
in the interest of justice. Within the Philippines:
1. Judge;
Section 4 of Rule 23 on the use of deposition is clearly 2. Notary public; or
indicative of the use of deposition as an alternative mode 3. Any person authorized to administer oaths, as
of testimony in view of distance, death or disability of the stipulated by the parties in writing (Sec.14).
deponent.
Outside the Philippines: [SeCS]
Note: Certiorari will not lie against an order admitting or 1. On notice before a secretary of embassy or
rejecting a deposition in evidence. The remedy is an legation, consul general, consul, vice-consul, or
appeal from the final judgment assigning as error the consular agent of the Phil.;
admission or rejection of a deposition. 2. Before such person or officer as may be
appointed by commission or under letters rogatory; or
Ratio: Because it is merely an error of law not grave 3. Any person authorized to administer oaths, as
abuse of discretion. stipulated by the parties in writing.

Where depositions may be used:

1. At the trial;
2. At the hearing of a motion;
3. At the hearing of an interlocutory proceeding (Albano,
Remedial Law Reviewer, 2010 ed., p.366). SECTION 12. COMMISSION OR LETTERS
ROGATORY
Against whom may be used:
1. Party present at the time of its taking; Commission
2. Party represented at the time of its taking; An instrument issued by a court of justice, or other
3. Party notified of its taking (Albano, p.366-367). competent tribunal, to authorize a person to take
depositions or do any other act by authority of such court
SECTION 5. EFFECT OF SUBSTITUTION OF or tribunal.
PARTIES

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Letters Rogatory 5. That the scope of examination shall be held with no

An instrument sent in the name and by the authority of a one present except the parties to the action and their
judge or court to another, requesting the latter to cause to officers or counsel;
be examined, upon interrogatories filed in a case pending 6. That after being sealed the deposition shall be
before the former, a witness who is within the jurisdiction opened only by order of the court;
of the judge or court to whom such letters are addressed 7. That secret processes, developments, or research
(Feria, p. 518). need not be disclosed;
8. That the parties shall simultaneously file specified
Commission Letters Rogatory documents or information enclosed in sealed envelopes
Issued to a non-judicial Issued to the appropriate to be opened as directed by the court;
foreign officer who will judicial officer of the foreign 9. Any other order which justice requires to protect the
directly take the testimony. country who will direct party or witness from annoyance, embarrassment, or
somebody in said foreign oppression.
country to take down
testimony. SECTION 17. RECORD OF EXAMINATION; OATH;
OBJECTIONS
Applicable rules of Applicable rules of
procedure are those of the procedure are those of the SECTION 18. MOTION TO TERMINATE OR LIMIT
requesting court. foreign court requested to EXAMINATION
act.
Resorted to if permission Resorted to if the execution May be filed:
of the foreign country is of the commission is 1. Any time during the taking of the deposition;
given. refused in the foreign 2. On motion or petition of any party or of the
country. deponent; and
Leave of court is not Leave of court is 3. Upon showing that the examination is conducted
necessary. necessary. in:
a. Bad faith;
b. In such manner as unreasonably to
SECTION 13. DISQUALIFICATION BY INTEREST
annoy, embarrass, or oppress the deponent or party;
No deposition shall be taken before a person who is:
or
1. A relative within the 6th degree of affinity or
c. When the inquiry touches upon the
consanguinity;
irrelevant or encroaches upon the recognized
2. An employee or counsel of any of the parties;
domains of privilege (Hyatt Industrial v. Ley
3. A relative within the same degree, or employee
Construction, G.R. No. 147143, March 10, 2006)
of such counsel; and
4. Financially interested in the action.
When the constitutional privilege against self-incrimination
is invoked by the deponent or his counsel, the trial court
SECTION 14. STIPULATIONS REGARDING
may stop the examination (Isabela Sugar Co. v.
TAKING OF DEPOSITONS
Macadaeg, G.R. No. L-5924, October 28, 1953).
Within the Philippines, a deposition may be taken before
any person authorized to administer oaths if the parties so
stipulate in writing. Motion To Terminate Or
Protection Order
Limit Examination
(Section 16)
SECTION 15. DEPOSITION UPON ORAL (Section 18)
EXAMINATION; NOTICE; TIME AND PLACE Provides protection to the Provides such protection
party or witness before the during the taking of
SECTION 16. ORDERS FOR THE PROTECTION taking of deposition. deposition.
OF PARTIES AND DEPONENTS
Motion is filed with the Motion or petition is filed in
After notice is served and upon motion seasonably made
court in which the action is the court in which the
and for good cause shown, the court may make an order:
pending. action is pending or the
1. That the deposition shall not be taken;
RTC of the place where the
2. That it may be taken only at some designated place
deposition is being taken.
other than that stated in the notice;
3. That it may be taken only on written interrogatories;
4. That certain matters shall not be inquired into;

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Note: Generally, depositions are not meant as a 5. As to form of written interrogatories –

substitute for the actual testimony in open court of a party Waived unless served in writing upon the party
or witness. It may be opposed and excluded on the propounding them within the time allowed.
ground of hearsay (Sales v. Sabino, G.R. No. 133154, 6. As to manner of preparation – Waived unless
December 9, 2005). a motion to suppress the deposition or some part
thereof is made with reasonable promptness after such
SECTION 19. SUBMISSION TO WITNESS; defect is, or with due diligence might have been,
CHANGES; SIGNING ascertained.

SECTION 20. CERTIFICATION AND FILING BY

OFFICER
SECTION 21. NOTICE OF FILING
SECTION 22. FURNISHING COPIES
SECTIONS 23 & 24. FAILURE TO ATTEND OF
PARTY GIVING NOTICE; FAILURE OF PARTY
GIVING NOTICE TO SERVE SUBPOENA
The court may order the party giving the notice to pay
such other party the amount of reasonable expenses
incurred by him and his counsel in so attending, including
reasonable attorney’s fees.
R ULE 24
D EPOSITIONS BEFORE A CTION
OR P ENDING A PPEALS
A deposition before action and a deposition pending
appeal are referred to as perpetuation of testimony or
perpetuam rei memoriam because their objective is to
perpetuate the testimony of a witness for future use.
Depositions under this Rule are also taken conditionally,
to be used at the trial only in case the deponent is not
available.

SECTION 25. DEPOSITION UPON WRITTEN
INTERROGATORIES; SERVICE OF NOTICE AND
OF INTERROGATORIES
SECTION 26. OFFICERS TO TAKE AND PREPARE
RECORD
Depositions under this Rule do not prove the existence of
any right and the testimony perpetuated is not in itself
conclusive proof, either of the existence of any right or
even of the facts to which they relate, as it can be
controverted at the trial in the same manner as though no
perpetuation of testimony was ever had.

SECTION 27. NOTICE OF FILING AND
FURNISHING OF COPIES
SECTION 28. ORDERS FOR THE PROTECTION
OF PARTIES AND DEPONENTS
SECTION 29. EFFECT OF ERROR AND
IRREGULARITIES IN DEPOSITIONS
1. As to notice – Waived unless written objection
is promptly served upon the party giving the notice.
2. As to disqualification of officer – Waived
unless made before the taking of the deposition begins
or as soon thereafter as the disqualification becomes
known.
3. As to competency and relevancy of
evidence – Not waived by failure to make them before
or during the taking of the deposition unless the ground
of the objection is one which might have been obviated
or removed if presented at that time.
4. As to oral examination – Waived unless
reasonable objections thereto is made at the taking of
the deposition.
However, in the absence of any objection to its taking, and
even if the deponent did not testify at the hearing, the
perpetuated testimony constitutes prima facie proof of
facts referred to in the deposition.
SECTION 1. DEPOSITION BEFORE ACTION;
PETITION
A verified petition may be filed by any person:
1. Who wants to perpetuate his own testimony; or
2. Who wants to perpetuate the testimony of
another person.
Note: This may be availed of only in civil cases and
not in criminal cases.
For example, the petitioner has a cause of action which
has not yet accrued. In such a case, inasmuch as he
cannot bring the action until the cause of action accrues,
he may perpetuate his testimony or that of another person
(Feria, p. 534).
SECTION 2. CONTENTS OF PETITION

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The petition shall be verified and shall be filed in the place A party may properly seek A party may properly seek
of residence of any expected adverse party. It shall disclosure of matters of disclosure only of matters
contain the matters set forth in Sec. 2 of Rule 24. proof which may later be which define the issues and
made a part of the records become a part of the
SECTION 3. NOTICE AND SERVICE as evidence. pleadings.
1. The petitioner shall serve a notice upon each Seeks to disclose all Designed to clarify
person named in the petition as an expected adverse material and relevant facts ambiguities in a pleading or
party, together with a copy of the petition, stating that from a party. to state with sufficient
the petitioner will apply to the court, at the time and definiteness allegations in a
place stated therein; and pleading
2. At least 20 days before the date of hearing, the
court shall cause notice thereof to be served on the Not directed to a particular Directed to a pleading.
parties and prospective deponents in the manner pleading.
provided for in the service of summons.
Depositions upon
SECTION 4. ORDER AND EXAMINATION Interrogatories to
Written Interrogatories to
Parties
Parties
SECTION 5. REFERENCE TO COURT ( Rule 25)
(Rule 23)
SECTION 6. USE OF DEPOSITION As to Deponent
If deposition is taken under this Rule, it may be used in Party or ordinary witness. Party only.
any action involving the same subject matter As to Procedure
subsequently brought.
With intervention of the No intervention. Written
officer authorized by the interrogatories are
SECTION 7. DEPOSITIONS PENDING APPEAL
court to take deposition. directed to the party
Depositions are taken pending appeal with the view of
Not served upon the himself.
being used in the event of further proceedings in the
adverse party directly,
court of origin or appellate court.
instead, delivered to the
officer before whom the
For example, a party may perpetuate the testimony of a
deposition is to be taken
witness which was objected by the adverse party and
ruled out by the court. If the appellate court should As to Scope
reverse the decision/order of the lower court, it could Direct, cross, redirect, re- Only one set of
admit the deposition as additional evidence or remand cross. interrogatories.
the case back to the lower court for such ADMISSION in Interrogatories
accordance with Sections 4 and 5 of Rule 23 (Feria, p.
537). No fixed time. 15 days to answer unless
extended or reduced by
the court.
R ULE 25
I NTERROGATORIES TO P ARTIES SECTION 1. INTERROGATION TO PARTIES;
SERVICE THEREOF
A party may serve written interrogatories:
Purpose of written interrogatories: To elicit material 1. Without Leave of Court – After answer has
and relevant facts from any adverse party (answers may been served, for the first set of interrogatories.
also be used as admissions of the adverse party). 2. With Leave of Court – Before answer has been
served.
Written interrogatories and the answers thereto must both
be filed and served. Hence, the answers may constitute Reason: At that time, the issues are not yet joined and
as judicial admissions (Sec. 4 Rule 129). the disputed facts are not yet clear.

Interrogatories Bill of Particulars

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SECTION 2. ANSWER TO INTERROGATORIES

The interrogatories shall be answered fully in writing and
shall be signed and sworn to by the person making R ULE 26
them. A DMISSION BY A DVERSE P ARTY
Answers cannot be made by an agent or attorney; SECTION 1. REQUEST FOR ADMISSION
answers not made by the parties are nullities ( Herrera,
Vol. 2, p. 44). Purpose of written request for admission:
1. To allow one party to
A judgment by default may be rendered against a party request the adverse party in writing to admit certain
who fails to answer written interrogatories. material and relevant matters which most likely will not
be disputed during the trial;
SECTION 3. OBJECTIONS TO INTERROGATORIES 2. To avoid unnecessary
Objections to any interrogatories may be presented to the inconvenience to the parties in going through the rigors
court within 10 days after service thereof, with notice as in of proof, before a trial (Riano, 2010 ed. p. 383;
the case of motion. 3. To expedite trial and
relieve the parties of the costs of proving facts which
Answers shall be deferred until objections are resolved, will not be disputed on trial and the truth of which can
which shall be at the earliest possible time. be ascertained by reasonable inquiry.

SECTION 4. NUMBER OF INTERROGATORIES When request may be made: At any time after the
Only one set of interrogatories by the same party is issues have been joined (after the responsive pleading
allowed. Leave of court is necessary for succeeding sets has been served).
of interrogatories.
What request may include:
SECTION 5. SCOPE AND USE OF 1. Admission of the genuineness of any material
INTERROGATORIES and relevant document described in and exhibited with
The SCOPE of interrogatories shall be the matters the request;
mentioned in Sec. 2 Rule 23. The answers may be used 2. Admission of the truth of any material and
for the same purpose provided in Sec. 4 of the same relevant matter of fact set forth in the request; or
Rule. 3. Under this rule, a matter of fact not related to any
documents may be presented to the other party for
Since answers to interrogatories may be used for the admission or denial.
same purposes as depositions, they may also be the
basis of a summary judgment under Rule 35. Note: Request for admission may be served only after the
issues are joined because the questions of fact involved in
SECTION 6. EFFECT OF FAILURE TO SERVE a case are inquired into only when it reaches the stage of
WRITTEN INTERROGATORIES proof (Uy Chao v. De la Rama Steamship Co., Inc., G.R.
Unless a party had been served with written No. L-14495, September 29, 1962).
interrogatories, he may not be compelled by the adverse
party:
1. To give testimony in open court; or Request for Admission Actionable Document
2. Give a deposition pending appeal. Proper when the Must be attached to the
genuineness of an complaint or copied therein.
The only exception is when the court allows it for good evidentiary document is Its genuineness and due
cause shown and to prevent a failure of justice. sought to be admitted. If execution is deemed
not denied under oath, its impliedly admitted unless
Note: The sanction adopted by the Rules is not one of genuineness is deemed specifically denied under
compulsion in the sense that the party is being compelled impliedly admitted. oath by the adverse party.
to avail of the discovery mechanics, but one of negation Essentially
by depriving him of evidentiary sources which would a mode of discovery.
otherwise have been accessible to him.
SECTION 2. IMPLIED ADMISSION

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Each of the matters of which an admission is requested The Rules is limited to the It may be directed to a
shall be deemed admitted unless the party to whom the parties to the action. person whether a party or
request is directed files and serves upon the party not.
requesting the admission a sworn statement either
The order under this Rule It may be issued upon an
denying specifically the matters of which an admission is
is issued only upon motion ex parte application.
requested or setting forth the reasons why he cannot
with notice to the adverse
either admit or deny those matters.
party.
The remedy of the party, in this case, is to file a motion to
be relieved of the consequences of the implied SECTION 1. MOTION FOR PRODUCTION OR
admission. The amendment of the complaint per se INSPECTION; ORDER
cannot set aside the legal effects of the request for Production of documents affords more opportunity for
admission since its materiality has not been affected by discovery than a subpoena duces tecum. However, the
the amendment. rule is not intended for use as a dragnet or any fishing
expedition.
Note: A motion for summary judgment may be filed by
party if there is no statement of denial or reason why the Requisites: (MS.GENP)
other party cannot admit or deny because there are no 1. A motion must be filed by a party
questions of facts in issue (Allied Agri-Business Co. v. showing good cause therefor;
Court of Appeals, G.R. No. 118438, December 4, 1998) 2. The motion must sufficiently describe
the document or thing sought to be produced or
SECTION 3. EFFECT OF ADMISSION inspected;
3. The motion must be given to all the
Use: An admission under this Section is for the purpose other parties;
of the pending action only and cannot be used in other 4. The document or thing sought to be
proceedings. produced or inspected must constitute or contain
evidence material to any matter involved in the action;
SECTION 4. WITHDRAWAL 5. The document or thing sought to be
The party making an admission under this Rule, may be produced or inspected must not be privileged; and
allowed by the court to withdraw or amend it upon such 6. The document or thing sought to be
terms as may be just. produced or inspected must be in the possession of the
adverse party or, at least under his control.
SECTION 5. EFFECT OF FAILURE TO FILE AND
SERVE REQUEST FOR ADMISSION In a petition for the production of papers and documents,
The party who fails or refuses to request the admission of they must be sufficiently described and identified.
facts in question is prevented from thereafter presenting Otherwise, the petition cannot prosper.
evidence thereon unless otherwise allowed by the court.
This mode of discovery does not authorize the opposing
Note: It is intended to compel requests for admission party or the clerk or other functionaries of the court to
(Albano, p.387). distrain the articles or deprive the person who produced
the same of their possession, even temporarily (Tanda v.
Aldaya, G.R. No. L-13423, November 23, 1959).
R ULE 27
P RODUCTION OR I NSPECTION OF
D OCUMENT OR T HINGS R ULE 28
P HYSICAL AND M ENTAL
This Rule applies only to a pending action and the
documents or things subject of the motion must be only E XAMINATION OF P ERSONS
those within the possession, control, or custody of a party. SECTION 1. WHEN EXAMINATION MAY BE
ORDERED
Production or Inspection This mode of discovery is available in an action in which
Subpoena Duces Tecum
of Documents or Things the mental or physical condition of a party is in
Essentially a mode of A means of compelling controversy.
discovery production of evidence

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Examples of this action would be: Where the party examined requests and obtains a report
a. An action for annulment of a contract where the ground on the results of the examination, the consequences are:
relied upon is insanity or dementia; 1. He has to furnish the other party a copy of the
b. A petition for guardianship of a person alleged to be report of any previous or subsequent examination of the
insane; same physical and mental condition; and
c. An action to recover damages for personal injury where 2. He waives any privilege he may have in that
the issue is the extent of the injuries of the plaintiff action or any other involving the same controversy
(Riano, p. 389). regarding the testimony of any other person who has so
examined him or may thereafter examine him.
The mental condition of a party is in controversy in
proceedings for guardianship over an imbecile or insane
person, while the physical condition of the party is R ULE 29
generally involved in physical injuries cases. R EFUSAL TO C OMPLY WITH THE
Since the results of the examination are intended to be M ODE OF D ISCOVERY
made public, the same are not covered by the physician-
patient privilege (Sec. 24 [b], Rule 130). If a party refuses to answer the whole written
interrogatories, Section 5 of Rule 29 applies. Where a
SECTION 2. ORDER FOR EXAMINATION party refuses to answer a particular question, in the set of
written interrogatories and despite an order compelling
Requisites to obtain an order for examination: him to answer, still refuses to obey the order, Section 3(c)
1. A motion must be filed for the physical and mental will apply (Zepeda v. China Banking Corporation, G.R.
examination; No. 172175, October 9, 2006).
2. The motion must show good cause for the
examination; Expenses and attorney’s fees are not to be imposed upon
3. The mental or physical condition of a party is in the Republic of the Philippines under this rule.
controversy;
4. Notice to the party to be examined and to all other Refusal To
parties; and Comply With
5. The motion shall specify the time, place, manner, Sanctions
Modes Of
conditions, and scope of the examination and the Discovery
person or persons by whom it is made. Refusal to answer 1. The court, may, upon proper
any question application, compel a refusing
SECTION 3. REPORT OF FINDINGS deponent to answer (Sec.1).
a. If granted and refusal to
Rules: answer is without
1. The person examined substantial justification,
shall, upon request, be entitled to a copy of a detailed court may require the
written report of the examining physician setting out his refusing party to pay the
findings and conclusions. proponent the amount of
2. After such request and the reasonable expenses
delivery, the party causing the examination to be made incurred in obtaining the
shall be entitled upon request to receive from the party order, including attorney's
examined, a like report of any examination previously or fees.
thereafter made, of the same physical or mental b. If denied and filed without
condition. substantial justification,
3. If the party examined court may require the
refuses to deliver such report, the court on motion and proponent to pay the
notice may make an order requiring delivery. refusing party the amount
4. If a physician fails or of the reasonable
refuses to make such report, the court may exclude his expenses incurred in
testimony if offered at the trial. obtaining the order,
including attorney's fees.
SECTION 4. WAIVER OF PRIVILEGE

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Refusal To Trial
Comply With The judicial process of investigating and determining the
Sanctions
Modes Of legal controversies, starting with the production of
Discovery evidence by the plaintiff and ending with his closing
2. A refusal to answer after being arguments (Acosta v. People of the Philippines, G.R. No.
directed by the court to do so L-17427, July 31, 1962). It is an examination before a
may be considered as contempt competent tribunal of the facts or law put in issue in a
of court (Sec. 2) case, for the purpose of determining such issue.
Refusal to be Cite the disobedient deponent in
General Rule: When an issue exists, trial is necessary.
Sworn (Sec. 2) Contempt of court
Decision should not be made without trial.
The court may make the following
orders: Exceptions : A civil case may be adjudicated upon
1. Prohibit the disobedient party to without the need for trial in any of the following cases:
introduce evidence of physical 1. Judgment by default if the court does not require
or mental condition the claimant to submit evidence;
Refusal to answer 2. Refuse to allow the disobedient 2. Judgment on the Pleading (Rule 34);
designated party to support or oppose 3. Summary Judgment (Rule 35);
questions or claims or defenses 4. Judgment on Compromise;
refusal to 3. Strike out pleadings or parts 5. Judgment by Confession;
produce thereof 6. Dismissal with Prejudice (Rule 17);
documents or to 4. Stay further proceedings 7. Judgment under Rule on Summary Procedure;
submit to physical 5. Dismiss the action or and
or mental proceeding or any part thereof 8. Stipulation of fact.
examination 6. Render a judgment by default
(Sec. 3) against disobedient party SECTION 1. NOTICE OF TRIAL
Upon entry of the case in the trial calendar, the clerk of
7. Direct the arrest of any party or court shall notify the parties of the date of trial in such
agent of a party disobeying any
manner as to ensure its receipt at least five (5) days
of such orders except an order before such date.
to submit to a physical or
mental examination
Trial Hearing
The court, upon proper application, Not confined to trial and
Refusal to Admit issue an order requiring the other Reception of evidence and presentation of evidence
under Rule 26 party to pay him reasonable other processes: the period because it embraces
(Sec. 4) expenses incurred, including for the introduction of several stages in litigation,
attorney's fees. evidence by both parties. including the pre-trial and
The court, on motion and notice, the determination of
may: granting or denying a
1. Strike out all or any part of any motion.
Failure of Party to pleading of disobedient party; Does not necessarily imply
attend or serve presentation of evidence in
2. Dismiss the action or
answers to open court but the parties
proceeding or any part thereof;
written are afforded the opportunity
interrogatories 3. Enter a judgment by default
against disobedient party; to be heard.
(Sec. 5)
4. Order payment of reasonable
expenses incurred by the other SECTION 2. ADJOURNMENTS AND
including attorney's fees. POSTPONEMENTS
A court may adjourn a trial from day to day, and to any
stated time, as the expeditious and convenient transaction
of business may require.
R ULE 30
T RIAL However, the court has no power to adjourn a trial for:

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1. A period longer than one month for each

adjournment; or Note: Subject to Section 2 of Rule 31 and unless the
2. More than 3 months in all, except when court for special reasons, otherwise directs, the trial shall
authorized in writing by the court administrator, be limited to the issues stated in the pre-trial order.
Supreme Court.
Reverse order of trial: In this situation, the defendant
presents evidence ahead of the plaintiff.

SECTION 3. REQUISITES OF MOTION TO When proper: If the defendant in his answer relies upon
POSTPONE TRIAL FOR ABSENCE OF EVIDENCE an affirmative defense, a reverse order of trial is proper.

Requisites: Ratio: Plaintiff need not have to present evidence since

1. A motion for postponement stating the ground judicial admissions do not require proof (Sec. 2, Rule
relied upon must be filed; and 129).
2. The motion must be supported by an affidavit
showing: Note: Evidence offered in rebuttal is not automatically
a. The materiality and relevancy of such excluded just because it would have been more properly
evidence; and admitted in the case in chief (Regalado, Remedial Law
b. That due diligence has been used to Compendium, Volume 1, 9th Ed., p. 378).
procure it.
Plaintiff presents evidence
If the adverse party admits the facts to be given in
evidence, the trial will not be postponed even if he objects
or reserves the right to object to their admissibility (Feria,
Defendant Defendant files
p. 565).
presents evidence demurrer to
to support his evidence
Note: This section does not apply to criminal cases as
defense/
the rule on postponements in criminal cases is governed
counterclaim/
by Sec. 2, Rule 119.
crossclaim/ If court grants
Third-party motion:
SECTION 4. REQUISITES OF MOTION TO
complaint Renders dismissal
POSTPONE TRIAL FOR ILLNESS OF PARTY OR
COUNSEL
Third-party If court denies
Requisites: defendant presents motion:
1. A motion for postponement stating the ground evidence, if any Continues with
relied upon must be filed; and
hearing
2. The motion must be supported by an affidavit or
sworn certification showing:
Parties against
a. The presence of such party or counsel
whom a
at the trial is indispensable; and
counterclaim or
b. That the character of his illness is such
cross-claim is
as to render his non-attendance excusable.
pleaded presents
evidence in their
Postponements are addressed to the sound discretion of
defense
the court. In the absence of grave abuse of discretion, it
cannot be controlled by mandamus (Olsen v. Fressel &
Co., G.R. No. 12955, November 8 1917). Rebuttal evidence
by parties
SECTION 5. ORDER OF TRIAL After presentation
Trial is required only if there are triable issues. of evidence:
Oral arguments
If there is no triable issue, the court will render a Submission of
judgment. Decision memoranda

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SECTION 6. AGREED STATEMENTS OF FACT
This is known as Stipulation of Facts and is among the
purposes of a pre-trial. Under the Rules, it must be in
writing. But it may also be verbally made in open court.
Stipulation of facts verbally made is binding, i.e., those
facts given during pre-trial conference.
However, stipulation of facts in criminal cases must at all
times be in writing.
Note: If no evidence is presented and the case is
submitted for decision on an agreement of the parties, the
court should render judgment in accordance with said
agreement. The court cannot impose upon the parties a
judgment different from their compromise agreement.
However, the compromise agreement must not be
contrary to law, morals, good customs, public order and
public policy (Philippine Bank of Communications v.
Echiverri, G.R. No. L-41795, August 29, 1980).
Stipulations of Facts (SOF) are not permitted in actions
for annulment of marriage and for legal separation.
SOF in Civil Cases SOF in Criminal Cases
May be signed by the
Must be signed both by the
counsel alone who has a
counsel and the accused.
special power of attorney.
May be made verbally or in Strict; It must always be in
writing. writing.
SECTION 7. STATEMENT OF JUDGE
SECTION 8. SUSPENSION OF ACTIONS
Under, Article 2030 of the Civil Code: Every civil action or
proceeding shall be suspended:
1. If willingness to discuss a possible compromise
is expressed by one or both parties; or
2. If it appears that one of the parties, before the
commencement of the action or proceeding, offered to
discuss a possible compromise but the other party
refused the offer.
SECTION 9. JUDGE TO RECEIVE EVIDENCE;
DELEGATION TO CLERK OF COURT.
General Rule: The judge shall personally receive and
resolve the evidence to be adduced by the parties.
However, the reception of such evidence may be
delegated under the following conditions:
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1. The delegation may be made only in defaults or
ex-parte hearings, and in any case where the parties
agree in writing;
2. The reception of evidence shall be made only by
the clerk of that court who is a member of the bar;
3. Said clerk shall have no power to rule on
objections to any question or to admission of evidence
or exhibits; and
4. He shall submit his report and transcripts of the
proceedings, together with the objections to be resolved
by the court, within 10 days from the termination of the
hearing.
R ULE 31
C ONSOLIDATION OF S EVERANCE
Consolidation
Involves several actions having a common question of law
or fact which may be jointly tried.
Severance
Contemplates a single action having a number of claims,
counterclaims, cross-claims, third-party complaints, or
issues which may be separately tried.
SECTION 1. CONSOLIDATION
General Rule: Consolidation is discretionary upon the
court.
Exceptions : Consolidation becomes a matter of duty
when the cases are:
1. Pending before the same judge; or
2. Filed with different branches of the same RTC
and one of such cases has not been partially tried.
Purpose: To avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear congested
dockets, simplify the work of the trial court and save
unnecessary costs and expenses.
Requisites for consolidation:
1. Actions which involve a common question of law
or fact; and
2. There must be at least 2 actions pending before
the same court.
If filed with different courts, an authorization from the
Supreme Court is necessary.
Three (3) ways of consolidating cases
1. By recasting the cases already instituted - Reshaping of
the cases by amending the pleading and dismissing
 REMEDIAL LAW CIVIL PROCEDURE

some cases and retaining only one case. There must 2. Taking of an account is necessary;
be joinder of causes of action and of parties; 3. Carrying a judgment or order into effect; or
2. By consolidation proper or by consolidating the existing 4. Question of fact, other than upon the pleading
cases – It is a joint trial with joint decision, the cases arises.
retaining their original docket numbers; and
3. By test-case method - by hearing only the principal SECTION 3. ORDER OF REFERENCE; POWERS
case and suspending the hearing on the other cases OF THE COMMISSIONER
until judgment has been rendered in the principal case.
The cases retain their original docket numbers. Requisites of the order of reference:
1. It must state the purpose;
Consolidation of cases on appeal and assigned to 2. It must be in writing; and
different divisions of the SC and the CA is also authorized. 3. It may specify or limit the power of the commissioner.

Note: The consolidation of civil with criminal cases is Powers of Commissioner (RASIR)
allowed. This is now sanctioned under Section 2(a), Rule 1. Exercise power to regulate the proceedings
111 of the Rules of Criminal Procedure (Canos v. Peralta, before him;
G.R. No. L-38352, Aug. 19, 1982). 2. Do all acts and take all measures necessary or
proper for the efficient performance of his duties;
SECTION 2. SEPARATE TRIALS 3. Swear witnesses;
4. Issue subpoenas and subpoenas duces tecum;
5. Unless otherwise provided in the order of
R ULE 32 reference, rule upon the admissibility of evidence.
T RIAL BY C OMMISSIONER
Note: Requirement of hearing cannot be dispensed
SECTION 1. REFERENCE BY CONSENT with as this is the essence of due process.

Commissioner SECTION 4. OATH OF COMMISSIONER

A person to whom a case pending in court is referred, for
him to take testimony, hear the parties and report thereon SECTION 5. PROCEEDINGS BEFORE THE
to the court, and upon whose report, if confirmed, COMMISSIONER
judgment is rendered (2 Martin, p. 142).
SECTION 6. FAILURE OF PARTIES TO APPEAR
Reference to a commissioner may be had by the written BEFORE COMMISSIONER
consent of both parties. Where the order was merely to examine the accounts
involved in the counterclaim without any direction to hold
General Rule: Trial by commissioner depends largely hearings, the commissioner do not need the presence of
upon the discretion of the court; but the following are the parties (Froilan v. Pan Oriental Shipping, G.R. No. L-
instances when such appointment is mandatory: 6060, September 30, 1954).
1. Expropriation (Rule 67);
2. Partition (Rule 69); SECTION 7. REFUSAL OF WITNESS
3. Settlement of Estate of a Deceased Disobedience to a subpoena issued by the commissioner
Person in case of contested claims; and is deemed a contempt of the court which appointed the
4. Submission of accounting by executors latter.
or administrators.
SECTION 8. COMMISSIONER SHALL AVOID
Note: An irregularity in the appointment of a DELAYS
commissioner must be seasonably raised in the trial court
where the defect could still be remedied. It can be waived SECTION 9. REPORT OF COMMISSIONER
by consent of the parties, express or implied.

SECTION 2. REFERENCE ORDERED ON MOTION

Situations when reference to a Commissioner may be
made on motion: (ETC-Q)
1. Examination of a long account;

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Purpose: To discourage prolonged litigations. It is an aid

Delegation to Clerk of Trial by Commissioner
or instrument for the expeditious termination of an action
Court
similar to a motion to dismiss which the court or tribunal
Clerk of court must be a Commissioner need not be may either grant or deny (Nepomuceno v. Comelec, G.R.
lawyer. a lawyer. No. L-60601, December 29, 1983).
Clerk of court cannot rule on Commissioner can rule on
objections or on the objections or on Demurrer To Evidence Motion To Dismiss
admissibility of evidence. admissibility of evidence. (Under Rule 16)
Delegation is made during Commissioner can be It is presented after the Presented before a
trial. appointed even after the plaintiff has rested his case. responsive pleading
case has become final and (answer) is made by the
executory. defendant.
SECTION 10. NOTICE TO THE PARTIES OF THE The ground is based on It may be based on any of
FILING OF REPORT insufficiency of evidence. those enumerated in Rule
16.
Upon the filing of the report of the commissioner: If the motion is denied, the If the motion to dismiss is
1. The parties shall be notified by the clerk; and defendant may present his denied, the defendant may
2. The parties shall be allowed 10 days within which evidence. file his responsive pleading.
to object to the findings of the report.
If the motion is granted, the If the motion to dismiss is
Note: Objections to the report based upon grounds complaint is dismissed. The granted, the complaint is
which were available to the parties during the proceedings remedy of the plaintiff is dismissed and depending
before the commissioner shall not be considered by the appeal. on the ground, the
court, unless they were made before the commissioner. complaint may be re-filed.

SECTION 11. HEARING UPON REPORT Two Scenarios

Motion Granted But
SECTION 12. STIPULATIONS AS TO FINDINGS Motion Denied
Reversed On Appeal
When the parties stipulate that a commissioner’s finding
shall be final, only questions of law shall thereafter be Movant is deemed to have
considered. waived his right to present
evidence. The decision of
SECTION 13. COMPENSATION OF the appellate court will be
COMMISSIONER Movant shall have the right based only on the
to present his evidence. evidence of the plaintiff as
the defendant loses his
R ULE 33 right to have the case
D EMURRER TO E VIDENCE remanded for reception of
his evidence.
SECTION 1. DEMURRER TO EVIDENCE Order of the court is an
Denial is interlocutory. adjudication on the
Demurrer to Evidence Sec. 1, Rule 36 (That merits . Hence, the
A motion to dismiss based on the ground of insufficiency judgment should state requirement in Sec. 1,
of evidence and is presented after the plaintiff rests his clearly and distinctly the Rule 36 should be
case. facts and the law on which complied with.
it is based), will not apply.
When can we say that the plaintiff already rested his The denial is not
case? After the completion of the presentation of his appealable.
evidence (Riano, p. 517).

Nature: There is only a one-sided trial, i.e., it is only the Civil Cases Criminal Cases
plaintiff who has presented evidence. Defendant need not ask for May be filed with or without

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Civil Cases Criminal Cases The granting of judgment on demurrer to evidence is

leave of court. The leave of court. Leave of correctible by a writ of error (appeal); certiorari will not lie
defendant does not waive court is necessary so that unless there is grave abuse of discretion.
his right to offer evidence in the accused could present
the event his motion is his evidence if the The evidence contemplated by the rule on demurrer is
denied (Albano, p.402). demurrer is denied. that pertains to the merits of the case, excluding technical
If the court finds plaintiff’s If the court finds the aspects such as capacity to sue (Celino v. Heirs of Alejo
evidence insufficient, it will prosecution’s evidence and Teresa Santiago, G.R. No. 161817, July 30, 2004).
grant the demurrer by insufficient, it will grant the
dismissing the complaint. demurrer by rendering The “facts” referred to in resolving the motion should
judgment acquitting the include all the means sanctioned by Rules of Court in
accused. Judgment of ascertaining matters in judicial proceedings such as
acquittal is not appealable; judicial admissions, matters of judicial notice, stipulations
double jeopardy sets-in. made during the pre-trial and trial, admissions, and
The judgment of dismissal Judgment of acquittal is presumptions, the only exclusion being the defendant’s
is appealable. If plaintiff not appealable; double evidence (Casent Realty and Dev. Corp. v. Phil. Banking
appeals and judgment is jeopardy sets-in. Corp. G.R. No. 150731, September 14, 2007).
reversed by the appellate
court, it will decide the case
on the basis of the plaintiff’s R ULE 34
evidence with the J UDGMENT ON THE P LEADINGS
consequence that the
defendant already loses his Judgment on the Pleadings
right to present evidence; A judgment rendered by the court if the answer fails to
There is no res judicata in tender an issue, or otherwise admits the material
dismissal due to demurrer. allegations of the adverse party’s pleading. It will not
If court denies the demurrer, If court denies the apply when no answer is filed. It is rendered without a
defendant will present his demurrer: trial, or even without a pre-trial.
evidence.
If demurrer was with An answer fails to tender an issue when the material
leave, accused may allegations of the other party are admitted or not
present his evidence. specifically denied by the pleader

If demurrer was without
leave, accused can no
longer present his
evidence and submits the
case for decision based on
the prosecution’s evidence.
Judgment on demurrer to evidence is a judgment
rendered by the court dismissing a case upon motion of
the defendant, made after plaintiff has rested his case, on
the ground that upon the facts presented and the law on
the matter, plaintiff has not shown any right to relief.
Note: The requirement under this Rule would apply if
the demurrer is granted, for in this event, there would in
fact be adjudication upon the merits of the case, leaving
nothing more to be done (Nepomuceno v. COMELEC,
G.R. No. L-60601, December 29, 1983).
The judgment is based exclusively upon the allegations
appearing in the pleadings of the parties and the annexes
thereto, if any, without consideration of any evidence
aliunde.
SECTION 1. JUDGMENT ON THE PLEADINGS
A judgment on the pleadings must be on motion of the
claimant. However, if at the pre-trial the court finds that a
judgment on the pleadings is proper, it may render such
judgment motu proprio (Sec. 2g, Rule 18).
One who prays for judgment on the pleadings without
offering proof as to the truth of his own allegations and
without giving the opposing party an opportunity to
introduce evidence, must be understood to admit all
material and relevant allegations of the opposing party
and to rest his motion for judgment on those allegations
taken together with such of his own as are admitted in the
pleadings (Falcasantos v. How Suy Ching G.R. No. L-
4229, May 29, 1952).

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Allegations not deemed admitted by filing of any material fact, except as to the amount of damages. It
judgment on the pleadings: is also called accelerated judgment
1. Irrelevant allegations;
2. Immaterial allegations; and Genuine Issue
3. Allegations of damages in the complaint. An issue of fact which calls for the presentation of
evidence as distinguished from an issue which is a sham,
Grounds for judgment on the pleadings fictitious, contrived, and patently unsubstantial so as not
1. The answer fails to tender an issue because of: to constitute a genuine issue for trial.
a. General denial of the material allegations of the
complaint; An action for annulment of marriage cannot be decided by
b. Insufficient denial of the material allegations of the summary judgment proceeding (Roque v. Encarnacion,
complaint; or G.R. No. L-6505, August 23, 1954).
2. The answer admits material allegations of the adverse
party’s pleading. However, summary judgments are made specifically
applicable to a special civil action for declaratory relief
Note: By moving for judgment on the pleadings, plaintiff (Rule 63).
waives his claim for unliquidated damages. Claim for such
damages must be alleged and proved. SECTIONS 1 & 2. SUMMARY JUDGMENT FOR
CLAIMANT; SUMMARY JUDGMENT FOR
No judgment on the pleadings in actions for: DEFENDING PARTY
1. Declaration of Nullity of Marriage;
2. Annulment of marriage; and Who can file:
3. Legal Separation. 1. Plaintiff (includes a claimant in a counterclaim
4. When the issue is the amount of unliquidated or cross-claim or obtaining declaratory relief):
damages (Abubakar Tan v. Tian Ho, G.R. No. L-18820, May file the motion at any time after the answer has
December 29, 1962, Delfin v. CAR, G.R. No. L-23348, been served, and therefore, must wait until the issues
March 24, 1967). have been joined.
5. When only conclusions of law are being alleged. 2. Defendant (includes a defendant in a
counterclaim, cross-claim or in a declaratory
Motion to Dismiss Motion for judgment on relief): He can move for summary judgment at any
the pleadings time.

Filed by a defendant to a Filed by the plaintiff if the
complaint, counterclaim, answer fails to tender an
cross-claim or 3rd-party issue
complaint.
Note: If the complaint states no cause of action, a
motion to dismiss should be filed and not a motion for
judgment on the pleadings.
A Motion for Judgment on the Pleadings is one that is
considered ex parte because upon particular facts thus
presented, the plaintiff is entitled to judgment, or motu
proprio under Rule 18 (2g) (Dino v. Valencia, G.R. No. L-
43886, July 19, 1989).
R ULE 35
S UMMARY J UDGMENTS
Summary Judgment
A judgment rendered by a court without trial if it is clear
that there exist no genuine issue or controversy as to
Test: Whether or not the pleadings, affidavits and exhibits
in support of the motion are sufficient to overcome the
opposing papers and to justify the finding that, as a matter
of law, there is no defense to the action or claim is clearly
meritorious (Estrada v. Consolacion, et al., G.R. No. L-
40948, June 29, 1976).
SECTION 3. MOTION AND PROCEEDINGS
THEREON
The motion must also satisfy the requirements under Rule
15.
After hearing, the judgment shall be rendered if the
pleadings, supporting affidavits, depositions, and
admissions on file, show that except as to the amount of
damages, there is no genuine issue.
SECTION 4. CASE NOT FULLY ADJUDICATED ON
MOTION
This authorizes rendition of partial summary judgment but
such is interlocutory in nature and is not a final and

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appealable judgment (Guevarra v. Court of Appeals, G.R. Available to both Generally Available to
No. L-49017, August 30, 1983). plaintiff and available only to plaintiff.
defendant. the plaintiff,
SECTION 5. FORM OF AFFIDAVITS AND unless the
SUPPORTING PAPERS defendant
presents a
Requisites of affidavits: counterclaim.
1. Based on personal knowledge;
There is The answer fails No issue as no
2. Set forth facts as would be admissible in evidence;
no genuine to tender an answer is filed
3. Show affirmatively that affiant is competent to testify on
issue between issue or there is by the defending
matters stated therein; and
the parties, i.e. an admission of party.
4. Certified copies of all papers must be attached thereto
there may be material
and served on the opposing party.
issues but these allegations.
are irrelevant.
10-day notice 3-day notice 3-day notice rule
SECTION 6. AFFIDAVITS IN BAD FAITH required. required. applies.
May be On the merits. On the merits.
Sanctions: interlocutory or
1. Pay to the other party the amount of the reasonable on the merits.
expenses including attorney’s fees; and If filed by There is already There is no
2. After hearing, adjudge the offending party or counsel plaintiff, it must an answer filed. answer filed.
guilty of contempt. be filed at any
Note: It is in the nature of indirect contempt. time after an
answer is
Bases of summary judgment served;
1. Affidavits made on personal knowledge If filed by
2. Depositions of the adverse party or a third party defendant, may
under Rule 23 be filed at any
3. Admissions of the adverse party under Rule 26; time even before
and there is an
4. Answers to interrogatories under Rule 25. All answer.
intended to show that:
a. There is no genuine issue as to any
material fact, except damages which must always be
proved; and R ULE 36
b. The movant is entitled to a judgment J UDGMENTS , F INAL O RDERS , AND
as a matter of law. E NTRY THEREOF
Even if the answer does tender an issue, and therefore a
Judgment
judgment on the pleadings is not proper, a summary
The final consideration and determination by a court of
judgment may still be rendered if the issues tendered are
competent jurisdiction regarding the rights or other
not genuine, are sham, fictitious, contrived, set-up in bad
matters submitted to it in an action or proceeding.
faith, and patently unsubstantial (Vergara v. Suelto, G.R.
No. L-74766, December 21, 1987).
Parts of a judgment
1. The opinion of the court – Contains the findings of facts
Summary Judgment on Judgment by and conclusions of law;
Judgment the Pleadings Default 2. The disposition of the case – The final and actual
(Rule 9) disposition of the rights litigated (the dispositive part);
Based on the Based solely on Based on the and
pleadings, the pleadings. complaint and 3. Signature of the judge (Herrera, p. 145).
depositions, evidence, if
admissions and presentation is SECTION 1. RENDITION OF JUDGMENTS AND
affidavits. required. FINAL ORDERS

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Requisites of a valid judgment:

1. The court or tribunal must be clothed with Judgment upon a compromise cannot be entered into
authority to hear and determine the matter before it; by counsel without the knowledge and special authority
2. The court must have jurisdiction over the parties of the client. It is immediately executory upon the
and the subject matter; signing of the compromise agreement in the absence of
3. The parties must have been given an opportunity a motion to set aside on the ground of fraud, mistake,
to be heard; etc. Hence, it has the effect of res judicata (World
4. The evidence must have been considered by the Machine Enterprises v. Intermediate Appellate Court,
tribunal in deciding the case; G.R. No. 72019, December 20, 1990).
Formal Requisites:
5. It should be in writing, personally and directly The judgment is based upon the compromise
prepared by the judge; agreement of the parties so long as the agreement is
6. It must state clearly and distinctly the facts and not contrary to law.
the law on which it is based; and
7. It should contain a dispositive part and should be The parties may submit to a compromise agreement at
signed by the judge and filed with the clerk of court. any stage of the case, even if judgment has already
become final and executory, even without approval of
General Rule: Where there is conflict between the the court.
dispositive portion or the fallo and the body of the
decision, the fallo controls. This rule rests on the theory It cannot be annulled unless it is vitiated with error,
that the fallo is the final order. However, when the deceit, violence or forgery of documents (Morales v.
conclusion from the body of the decision is clear as to Fontanos, G.R. No. 43299, January 29, 1937; Article
show that there was a mistake in the dispositive portion, 2038, Civil Code).
the body of the decision will prevail.
A compromise has the effect of res judicata upon the
Kinds of Judgments parties. Substantive law does not require a court
1. Judgment upon compromise; approval for the res judicata effect of a compromise
2. Judgment upon confession; agreement to attach.
3. Judgment upon the merits;
4. Clarificatory judgment; Advantage of approval of court: The court could
5. Judgment non pro tunc (Now for then); render a judgment based upon a compromise and in
6. Judgment sin perjuicio; case of breach of any of the conditions, the party may
7. Judgment by default (Sec. 3, Rule 9); ask the court for Execution of Judgment under Rule 39.
8. Judgment on the pleadings (Rule 34);
9. Summary judgment (Rule 35); B. Judgment by confession – It is one rendered by
10. Several judgment (Sec. 4, Rule 36); the court when a party expressly agrees to the other
11. Separate judgment (Sec. 5, Rule 36); party’s claim or acknowledges the validity of the claim
against him (Natividad v. Natividad, G.R. No. 28296,
12. Special judgment (Sec.11, Rule 39);
March 2, 1928).
13. Judgment for specific acts (Sec. 10, Rule 39);
14. Judgment on demurrer to evidence (Rule 33); Two kinds of judgment by confession
15. Conditional judgment; 1. Judgment by cognovit actionem – The defendant
16. Final judgment; after service instead of entering a plea,
17. Amended judgment; and acknowledged and confessed that the plaintiff’s
18. Supplemental judgment cause of action was just and rightful.
2. Judgment by confession relicta verificatione –
A. Judgment upon a compromise – It is one After pleading and before trial, the defendant both
rendered by the court on the basis of a compromise confessed the plaintiff’s cause of action and withdrew
agreement entered into between the parties (Diamond or abandoned his plea or other allegations,
Builders Conglomeration v. Country Bankers Corp., whereupon judgment was entered against him
G.R. No. 171820, December 13, 2007). without proceeding to trial.
It is covered by Articles 2028 to 2046 of the New Civil Note: Remedy against judgment by consent,
Code. confession or compromise is to first file a Motion to

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set it aside, then if denied file the appropriate petition H. Separate judgment (See Section 5)
under Rule 65 (Sec.1 Rule 41).
I. Conditional judgment – one wherein the
C. Judgment upon the merits – one that is rendered effectivity of which depends upon the occurrence or
after consideration of the evidence submitted by the non-occurrence of an event. As a general rule,
parties during the trial of the case. judgments of such kind, conditioned upon a
contingency, are held to be null and void (Cu Unjieng
Note: There can be a judgment on the merits even if y Hijos v. Mabalacat Sugar Co., G.R. No. 45351, June
there is no trial. A ruling based on a motion to dismiss, 29, 1940).
without any trial or formal presentation of evidence, can
still be a judgment on the merits (Riano, p. 418) J. Incomplete judgment – one which leaves certain
matters to be settled in a subsequent proceeding
D. Clarificatory judgment – one rendered to clarify (Ignacio v. Hilario, G.R. No. L-175, April 30, 1946).
an ambiguous judgment or one difficult to comply with. There is a decision but there are still other matters to be
incorporated later in such decision.
Where the judgment is difficult to execute because of
ambiguity in its terms, the remedy is to file a motion for
clarificatory judgment and not to assail the judgment as Judgment upon Judgment by
void (Riano, p. 405). Compromise Confession
The provisions and terms An affirmative and
Amended or Clarified Supplemental Decision
are settled and agreed voluntary act of the
Judgment
upon by the parties to the defendant himself. The
It is an entirely new decision It does not supersede the action, and which is court exercises a certain
and supersedes the original original decision. entered in the record by amount of supervision
judgment. the consent of the court. over the entry of
judgment.
Court makes a thorough Serves to bolster or add to
study of the original the original judgment. The parties bargain and It is unilateral which
judgment and renders the agree on the terms and comes from the
amended and clarified conditions of their defendant himself who
judgment only after agreement. There is a admits liability and
considering all the factual mutual or reciprocal accepts the judgment to
and legal issues. concession. be rendered against him.

E. Judgment nunc pro tunc (literally, “now for then”) Promulgation

– a judgment intended to enter into the record the acts Promulgation refers to the process by which a decision is
which had already been done, but which do not appear published, officially announced, made known to the public
in the records (Lichauco v. Tan Pho, G.R. No. 19512, or delivered to the clerk of court for filing, coupled with
November 21, 1923). Its purpose is not to supply an notice to the parties or their counsel.
omitted action by the court but to enter into the record
an action previously done but which was not reflected in Memorandum Decision
the record by reason of inadvertence or mistake. A decision of the appellateAccepts
Court renders court which adopts If notheappeal
findingsis
and the conclusion
decision of the trial court.
decision B.P. Blg. 129 provides
taken or did not
F. Judgment sin perjuicio – may refer to a dismissal that “Every decision or final withresolution of the court
avail of in
Losing party
appealed cases shall clearly and distinctly
of a case without prejudice to its being re-filed. It is one further remedies,the
state
which contains only the dispositive portion of the findings of fact and the conclusions
contest of law on which it is
judgment
decision and reserves the making of findings of fact and based, which may be contained in the decision becomes or final
final
conclusions of law in a subsequent judgment. It does resolution itself,
File an appealor adopted from those set forth in
and executory. the
not state the facts and the law upon which it is based. It decision,within
order,15/30
or resolution appealed from.”
is a void judgment. days from If granted, the court:
Promulgation
noticeofofJudgment 1. Modifies decision;
G. Several judgment (See Section 4) judgment. or
2. Grants new trial
File a motion for
reconsideration or If denied, losing party
motion for new trial may appeal within a
within 15/30Sdays
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 CIVIL PROCEDURE REMEDIAL LAW

1. Lack of jurisdiction; and

2. Irregularity of its entry apparent from the face of
the record.

A judge permanently transferred to another court of

equal jurisdiction (coordinate court) can render a
decision on a case in his former court which was totally
heard by him and submitted for decision, with the parties
having argued the case (Valentin v. Sta. Maria, G.R. No.
L-30158, January 17, 1974).

Minute resolutions of the Supreme Court denying petition

to review the decision of the Court of Appeals are not
decisions within the requirement of Sec. 1, Rule 36
(Commercial Union Assn. Co., Ltd. v. Lepanto
Consolidated Mining Co., G.R. No. L-43342, October 30,
1978).
The power to amend a judgment is inherent in the court
before judgment becomes final and executory.

When judgment becomes final SECTION 2. ENTRY OF JUDGMENTS AND FINAL

1. When the period for perfecting an ORDERS
appeal has lapsed; The date of finality of the judgment or final order shall be
2. When the sentence is partially or totally deemed to be the date of its entry.
satisfied or served;
3. When the accused expressly waives in Illustration:
writing his right to appeal; and When the lower court rendered judgment, the parties did
4. When the accused applies for not appeal nor file a motion for new trial or
probation. reconsideration. Thus, the judgment became final and
executory. Let us say that it became final and executory
Effects of finality of judgment on February 14, 2012. The clerk of court entered the
1. The prevailing party is entitled to execution as a matter of same in the Book of Entries of Judgments only on
right; February 29, 2012. Based on the above rule, the date of
2. Immutability of judgment; entry (February 29) retroacts to February 14.
3. Res Judicata.
Note: Entry of judgment or final order assumes
General Rule: After judgment has become final and importance in reckoning some reglementary periods, such
executory, it becomes immutable and unalterable , that as the 5-year period for execution by motion (Sec. 6, Rule
is, it can no longer be modified. 39) or the 6-month period for a petition for relief (Sec. 3,
Rule 38) (Regalado, p. 413).
Exceptions :
1. To make corrections of clerical errors, not SECTION 3. JUDGMENT FOR OR AGAINST ONE
substantial amendments, as by an amendment non pro OR MORE OF SEVERAL PARTIES
tunc;
2. To clarify an ambiguity which is borne out by and SECTION 4. SEVERAL JUDGMENTS
justifiable in the context of the decision;
3. Where the judgment is void; or Several Judgment
4. In judgments for support which can always be One rendered by a court against one or more defendants
amended from time to time. and not against all of them leaving the action to proceed
against the others.
Rule: The validity of a judgment or order of a court cannot
be collaterally attacked. Several judgment is proper where the liability of each part
is clearly separable and distinct from his co-parties such
Exceptions : that the claims against each of them could have been the

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subject of separate suits, and the judgment for or against
one of them will not necessarily affect the other. A several
judgment is not proper in action against solidary debtors
(Fernandez v. Sta. Maria, G.R. No. 160730, December
10, 2004).
SECTION 5. SEPARATE JUDGMENTS
Note: Rule 9 Sec 3(b) on the rules from order of default
and Rule 37 on motion for new trial has the same grounds
– FAME. Rule 37 could also be a remedy in case the
defendant who is declared in default failed to avail of the
remedy in Rule 9 Sec 3(b) and as a result, a judgment
has already been rendered. This is because Rule 37 is
broader.

Separate Judgment One remedy available to a party declared in default is, If

One rendered by a court disposing of a claim, among
several others, presented in a case after determination of
the issues material to a particular claim and all
counterclaims arising out of transaction or occurrence,
which is the subject matter of said claim.
the judgment has already been rendered when the
defendant discovered the default, but before the same
has become final and executory, he may file a Motion for
New Trial under Section 1 (a) of Rule 37 (Cerezo v.
Tuazon, G.R. No. 141538, March 23, 2004).

It is proper when more than one claim for relief is Rule 9 Section 3(b) v. Rule 37
presented in an action and a determination as to the Rule 9, Section 3 (b) – after notice of the order of
issues material to the claim has been made. The action default but before judgment
shall proceed as to the remaining claims.
Rule 37 – if there is already a judgment but not yet final
Remedies against judgments or final orders and executory. During the period of filing an appeal.
A.Before finality of judgment or final order:
1. A motion for reconsideration; Reconsideration
2. A motion for new trial; or The motion for reconsideration under this Rule is one that
3. An appeal. is directed against a judgment or final order, not of an
B.After the finality of the judgment or final order: interlocutory order which for instance, precedes a petition
1. Relief from judgment or final order; for certiorari (Riano, p. 427).
2. An annulment of judgment;
3. A petition for certiorari; and Note: A motion for reconsideration of a judgment or new
4. Collateral attack of a judgment. trial is a prohibited motion in a case that falls under
Summary Procedure (Sec. 19[c], IV Rules on Summary
Procedure; Bar 1989, 1990). It is also prohibited under
R ULE 37 The Rule of Procedure for Small Claims (Sec.14(c), A.M.
N EW T RIAL OR No. 08-8-7 SC, September 9, 2008).
R ECONSIDERATION
SECTION 1. GROUNDS OF AND PERIOD FOR When and where to file a motion for a new trial or
FILING MOTION FOR NEW TRIAL OR reconsideration
RECONSIDERATION
When to file: Within the period for taking an appeal
Formal requisites of a motion for new trial or (within 15 or 30 days from notice of the judgment). No
reconsideration motion for extension of time to file a motion shall be
1. Must be in writing; allowed.
2. A written notice must be served on the adverse party;
and Where to file: With the trial court which rendered the
3. Must state the ground/s therefore. questioned judgment.

New Trial Motion For A Motion For

The rehearing of a case already decided by the court but New Trial
before the judgment rendered thereon becomes final and
executory, whereby errors of law or irregularities are Grounds: fraud, accident,
expunged from the record or new evidence is introduced, mistake or excusable
or both steps are taken. negligence or newly
discovered evidence
which could not, with
Reconsideration
Grounds: damages
awarded are excessive,
that the evidence is
insufficient to justify the
decision or final order, or

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Motion For A Motion For

New Trial Reconsideration Excusable Negligence
What constitutes excusable negligence depends upon the
reasonable diligence, have that the decision or final circumstances of each case.
been discovered and order is contrary to law.
produced at the trial, and Rule: Negligence of counsel is binding on the client.
which if presented would
probably alter the result. Exception : Such negligence of counsel may be a ground
Second motion may be Second motion from the for new trial if it was so great that the party was prejudiced
allowed so long as based same party is prohibited. and prevented from fairly presenting his case. Specifically:
on grounds not existing or (The prohibition applies 1. Where the gross negligence of the counsel deprives
available at the time the 1st only to final orders or the client of due process of law;
motion was made. judgments; hence, it is 2. When the application of the rule will result in the
allowed in interlocutory outright deprivation of client’s liberty or property; or
orders.) 3. Where the interests of justice so require.
If a new trial is granted, If the court finds that
the original judgment or excessive damages have Requisites of newly-discovered evidence (Berry
final order is vacated. The been awarded or that the Rule)
case stands for trial de judgment or final order is 1. It must have been discovered after the trial;
novo and will be tried contrary to the evidence or 2. It could not have been discovered and produced
anew. law, it may amend such at the trial even with the exercise of reasonable
judgment or final order diligence; and
accordingly. 3. The evidence is of such weight that if admitted,
would probably alter the result of the action; and
Available even on appeal Available against the 4. It must be material and not merely collateral,
but only on the ground of judgments or final orders cumulative or corroborative.
newly discovered of both the trial and
evidence. appellate courts. These standards, also known as the “Berry” rule, trace
Both are prohibited motions under their origin to the 1851 case of Berry v. State of Georgia.
Summary Procedure.
Newly discovered evidence need not be newly created
Fraud: Fraud as a ground for new trial must be extrinsic. evidence. It may and does commonly refer to evidence
already in existence prior or during trial but which could
Extrinsic Fraud not have been secured and presented during the trial
Connotes any fraudulent scheme executed by the despite reasonable diligence on the part of the litigant
prevailing party outside of the trial against the losing party (Tumang v. Court of Appeals, G.R. Nos.82346-47, April
who because of such fraud is prevented from presenting 17, 1989).
his side of the case (ex. prevent witness from testifying).
Newly Discovered
Forgotten Evidence
Intrinsic Fraud Evidence
Refers to acts of a party during the trial which does not Evidence was not available Evidence was already
affect the presentation of the case (ex. presentation of a to a party during the trial, available to a party and was
forged promissory note). and was discovered only not able to present it
thereafter. through inadvertence or
Accident negligence of counsel; not
An event that takes place without one’s foresight or a ground for new trial.
expectation (ex. a party, after being hit with a car, fails to
attend the trial). Note: New trial should be distinguished from the exercise
of the discretionary power of the court to REOPEN a trial
Mistake for the introduction of additional evidence, to clarify its
Generally refers to mistakes of fact or law where, in good doubts on material points. This discretionary power is
faith, the defendant was misled in a case (ex. a party, subject to no rule other than the paramount interest of
relying upon a compromise, fails to answer and was justice and will not be reviewed on appeal unless the
declared in default).

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exercise thereof is abused (Arce v. Arce, G.R. No. L- stating the movant’s good and substantial cause of action
13035, November 28, 1959). or defense and the evidence he intends to present if the
motion is granted, which evidence should be such as to
New Trial Reopening of Trial warrant reasonable belief that the result of the case would
Proper only after May properly be presented probably be otherwise (Paz v. Inandan, G.R. No. 59,
promulgation of only after either or both the December 20, 1945; Manila Surety v. Del Rosario, G.R.
judgment. parties have formally offered No. L-10056, April 30, 1957).
and closed their evidence
before judgment. Note: A motion for new trial or reconsideration
Based on the FAME or This is based on the interest suspends or tolls the running of the reglementary period
Newly Discovered of justice and upon the court’s for appeal except when the same is pro-forma.
Evidence. discretion.
This is always on motion This may be done on the Note: A pro forma motion is one which does not satisfy
of the party. court’s initiative. the requirements of the rules and one which will be
Specifically mentioned Not mentioned in the treated as a motion intended to delay the proceedings
in the Rules. Rules but is nevertheless (Marikina Development Corp. v. Flojo, G.R.
a recognized procedural No. 110801, December 8, 1995).
recourse deriving validity
and acceptance from long Pro-Form a Motion for New Trial
established usage. One where the movant fails to make reference to the
testimonial and documentary evidence on record or the
Note: It is actually provisions of law alleged to be contrary to the trial court’s
mentioned in the Rules of conclusion as well as the reasons thereof, or if there is no
Criminal Procedure (Rule affidavit of merit. The period to appeal is NOT interrupted
119,Sec. 24) and as a by the filing of such motion for new trial.
prohibited pleading in the
1991 Revised Rules on Two (2) types of pro forma motion for new trial
Summary Procedure under Rule 37 :
(Sec. 19c). 1.
A motion for new trial which is not supported by affidavits
SECTION 2. CONTENTS OF MOTION FOR NEW of merits – one which does not comply in substance or
TRIAL OR RECONSIDERATION AND NOTICE in form with Section 2; and
THEREOF 2.
A second motion for new trial on a ground available to the
A Motion for New Trial: party when the first motion was filed (Section 5).
1. Based on FAME and must include an affidavit of
merit, which states: Indications of a Pro-Forma Motion For New Trial
a. The nature or character of FAME; 1. It is based on the same ground as that raised in
b. The facts constituting the movant’s good and a denied motion under Rule 37;
substantial defense or valid cause of action; and 2. It contains the same arguments in the
c. The evidence which he intends to present if his opposition to a granted motion to dismiss
motion is granted. 3. The new ground alleged in the second motion
2. A motion for new trial, based on newly discovered for new trial already existed, was available and could
evidence , must contain affidavits of witnesses or duly have been alleged in the first motion for new trial which
authenticated documents. was denied;
4. It is based on the ground of insufficiency of
A motion for reconsideration must point out the findings evidence or that the judgment is contrary to law but
or conclusions not supported by the evidence or contrary does not specify the supposed defects in the judgment;
to law, making express reference to the testimonial or 5. It is based on FAME but does not specify the
documentary evidence or to the provisions of law alleged facts constituting these grounds and/or is not
to be contrary to such findings or conclusions. accompanied by an affidavit of merit; and
6. Non-compliance with the requirements of Rule
An Affidavit of Merits is one which recites the nature 15.
and character of FAME on which the motion is based and

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Note: A motion for reconsideration, if based on the
same grounds as that of a new trial, is considered a
motion for new trial and has the same effect (Rodriguez v.
Rovira, G.R. No. 45252, September 24, 1936).
Pro Forma Motion for Reconsideration
A motion for reconsideration is deemed pro forma if the
same does not specify the findings or conclusions in the
judgment which are not supported by the evidence or
contrary to law, making express reference to the pertinent
evidence or legal provisions.
Motions for Reconsideration held Pro Forma:
1. It was a second motion for reconsideration;
2. It did not comply with the rule that the motion must
specify specific matters;
3. It failed to substantiate the alleged errors;
4. It merely alleged that the decision in question was
contrary to law;
5. The adverse party was not given notice thereof.
SECTION 3. ACTION UPON MOTION FOR NEW
TRIAL OR RECONSIDERATION
SECTION 4. RESOLUTION OF MOTION
SECTION 5. SECOND MOTION FOR NEW TRIAL
“Single motion” Rule
A party shall not be allowed to file a second motion for
reconsideration of judgment or a final order (Riano, 2009)
While a second motion for reconsideration is not allowed,
a second motion for new trial is authorized by the rules. A
motion for new trial shall include all grounds then
available otherwise they are deemed waived. A second
motion for new trial, based on a ground not existing, nor
available when the first motion was made within the
period allowed but excluding the time during which the
first motion had been pending.
SECTION 6. EFFECT OF GRANTING OF MOTION
FOR NEW TRIAL
When motion is granted, the original judgment is thereby
vacated and the action stands for trial de novo, but the
recorded evidence taken upon the former trial so far as
the same is material and competent to establish the
issues, shall be used at the new trial taking the same.
Note: If the order granting a new trial is set aside, the
original judgment is deemed repromulgated (Pineda v.
Court of Appeals, G.R. No. L-38196, July 22, 1975).
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SECTION 7. PARTIAL NEW TRIAL OR
RECONSIDERATION
SECTION 8. EFFECT OF ORDER FOR PARTIAL
NEW TRIAL
SECTION 9. REMEDY AGAINST ORDER DENYING
A MOTION FOR NEW TRIAL OR
RECONSIDERATION
Not certiorari under Rule 65 nor appeal from the denial of
the motion but appeal from the judgment or final
order.
Denial of the motion; the “fresh period” rule – if the motion
is denied, the movant has a fresh period of fifteen (15)
days from receipt or notice of the order denying or
dismissing the motion for reconsideration or for new trial
within which to file a notice of appeal. This “fresh period”
rule applies not only to Rule 41, but also to Rule 40, Rule
42, Rule 43 and Rule 45 (Neypes v. Court of Appeals,
G.R. No. 141524, September 14, 2005).
An order denying the motion for new trial
2nd motion for new trial based on grounds not existing or
available when the 1st motion was filed
Appeal from the judgment or final order and assign as
one of the errors the denial of the motion for new trial
Fresh Period Rule: The aggrieved party has a “fresh
period” of 15 days within which to file his appeal. This
applies to Rules 40, 41, 42, 43 and 45 (Neypes v. CA,
G.R. No. 141524, September 14, 2005) and to an appeal
in a criminal case.
The fresh period of 15 days becomes significant only
when a party opts to file a motion for new trial or
reconsideration (Riano, Civil Procedure, 2007 Edition, p.
358).
The fresh period rule does not refer to the period within
which to appeal from the order denying the motion for
reconsideration but to the period within which to appeal
from the judgment itself because an order denying a
motion for reconsideration is not appealable (Riano, p.
433).
Note: Taking its cue from the earlier case of Neypes, the
Court in one case set aside the denial of a notice of
appeal which was purportedly filed five days late. With the
fresh period rule, the 15-day period within which to file the
notice of appeal was counted from the notice of the denial
 REMEDIAL LAW CIVIL PROCEDURE

of the motion for reconsideration (Sumaway v. Urban
Bank, Inc., G.R. No. 142534, June 27, 2006).
Effective December 27, 2007 it is submitted that an order
denying a motion for reconsideration is no longer
assailable by certiorari because of the amendment to
Rule 41 by A.M. No 07-7-12 SC. The amendment
obviously seeks to prevent the filing of a petition for
certiorari under Rule 65 based on an order denying a
motion for new trial or a motion for reconsideration. The
remedy available therefore, would be that prescribed
under Sec. 9 of Rule 37, i.e. to appeal from the judgment
or final order.
when “any other proceeding is thereafter taken against
the petitioner in any court through fraud, accident, mistake
or excusable negligence”. Thus it was held that a petition
for relief is also applicable to a proceeding taken after the
entry of judgment or final order such as an order of
execution (Cayetano v. Ceguerra, G.R. No. L-18831,
January 30, 1965), or an order denying an appeal.
SECTION 2. PETITION FOR RELIEF FROM DENIAL
OF AN APPEAL
The petition is, in effect, a second opportunity for an
aggrieved party to ask for a new trial. Hence, the grounds
mentioned have the same concepts that they have in
motion for new trial.

R ULE 38 Rule 37 Rule 38

R ELIEF FROM J UDGMENTS , Available before Available after judgment has
O RDERS OR O THER judgment becomes final become final and executory.
Note: This is not applicable to the Supreme Court and executory.
because it is not a trier of facts . Applies to judgments or Applies to judgments, final
final orders only. orders and other proceeding:
A petition for relief from judgment together with a motion Land Registration;
for new trial and a motion for reconsideration are Special Proceedings;
remedies available only to parties in the proceedings Order of Execution.
where the assailed judgment is rendered. In fact, it has Grounds: Grounds:
been held that a person who was never a party to the a. FAME; and a. FAME
case, or even summoned to appear therein, cannot avail b. Newly discovered
of a petition for relief from judgment (Alaban v. Court of evidence.
Appeals, G.R. No. 156201, September 23, 2005.
Filed within the time to Filed within 60 days from
SECTION 1. PETITION FOR RELIEF FROM appeal. knowledge of the judgment and
JUDGMENT, ORDER OR OTHER PROCEEDING within 6 months from entry of
This remedy presupposes that judgment has already judgment.
become final and executory. If denied, the order of If denied, the order denying a
denial is not appealable , petition for relief is not
Nature: Not an independent action but a continuation of hence remedy is appeal appealable ; the remedy is
the old case. It is filed with the same court which decided from the judgment. appropriate civil action under
the case. Rule 65.

Grounds: Legal remedy. Equitable remedy.

1. When judgment or final order is entered or any other
proceeding is thereafter taken against the petitioner
through FAME.
2. When petitioner has been prevented from taking an
appeal by FAME.
Note: A petition for relief has been held to be applicable
to all kinds of special proceedings, such as land
registration, intestate settlement, and guardianship
proceedings (Regalado, p. 432).
A petition for relief is available not only against a judgment
or final order. Under Sec. 1 of Rule 38, it is also available
Motion need not be Petition must be verified.
verified.
A party who has filed a timely motion for new trial and/or
reconsideration cannot file a petition for relief after his
motion has been denied. These remedies are exclusive
of each other. It is only in appropriate cases where a
party aggrieved by the judgment has not been able to file
a motion for new trial and/or reconsideration that a petition
for relief can be filed (Francisco v. Puno, G.R. No. L-
55694, October 23, 1981).

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SECTION 3. TIME FOR FILING PETITION;

CONTENTS AND VERIFICATION (60-6 RULE)
Sixty (60) days after knowledge of the judgment AND not
more than six (6) months after entry of such judgment.
The date of entry of judgment is the date of finality of
judgment or final order.
The two periods for the filing of a petition for relief are not
extendible and never interrupted (i.e. filing of petition for
certiorari). Both periods must be complied with (Phil.
Rabbit Bus Lines, Inc. v. Arciaga, G.R. No. 29701, March
16, 1987).
Form and contents of the petition
1. The petition for relief must be verified;
2. The petition must be accompanied by an affidavit
showing the FAME relied upon; and
3. The affidavit of merit accompanying the petition
must also show the facts constituting the petitioner’s
good and substantial cause of action or defense as the
case may be.
Affidavit of Merit
One which recites the nature and character of fraud,
accident, mistake or excusable Negligence (FAME) on
which the motion is based.
It serves as the jurisdictional basis for the court to
entertain a petition for relief. However, it is not a fatal
defect to warrant denial of the petition so long as the facts
required to be set out also appear in the verified petition.
Instances when an affidavit of merit is not
necessary
1. Where there is no jurisdiction over the defendant;
2. Where there is no jurisdiction over the subject
matter;
3. Where judgment was taken by default;
4. Where judgment was entered by mistake or was
obtained by fraud; or
5. Other similar cases.
SECTION 4. ORDER TO FILE AN ANSWER
This remedy precludes the issuance of summons upon its
filing. If the petition is sufficient in form and in substance,
the court shall issue an order requiring the adverse parties
to answer within 15 days from receipt thereof. The order
shall be served in such manner as the court may direct,
together with copies of the petition and the accompanying
affidavits.
Failure to file answer does not warrant declaration of
default.
SECTION 5. PRELIMINARY INJUNCTION PENDING
PROCEEDINGS
Rule: Execution of judgment is not stayed unless a writ
of preliminary injunction is issued by the court.
Upon filing of the petition:
1. The court in which the petition is filed may grant
such Preliminary Injunction as may be necessary for
the preservation of the right of the parties, upon the
filing by the petitioner of a bond in favor of the adverse
party.
2. Such injunction shall not discharge any lien
which the adverse party may have acquired upon the
property of the petitioner.
SECTION 6. PROCEEDINGS AFTER ANSWER IS
FILED
Two hearings under Rule 38
1. Hearing to determine whether the judgment
should be set aside; and
2. If in the affirmative, a hearing on the merits of the
case.
Note: Failure to file an answer to the petition for relief
does not constitute default, even without such answer the
court will still have to hear the petition and determine its
merits (Regalado, p. 447).
SECTION 7. PROCEDURE WHERE THE DENIAL
OF AN APPEAL IS SET ASIDE
Remedies if Rule 38 no longer available
1. Petition for Annulment of Judgment under Rule
47; and
2. A direct or collateral attack if judgment is void ab
initio for lack of jurisdiction.
Note: Under A.M. No. 08-8-7 SC, otherwise known as the
Rule of Procedure for Small Claims Cases, a Motion for
New Trial or Reconsideration (Rule 37), and a Petition for
Relief from Judgment (Rule 38) are prohibited pleadings.
Both remedies, likewise, are prohibited pleadings under
the Rule on Summary Procedure.
R ULE 39
E XECUTION , S ATISFACTION AND
E FFECT OF J UDGMENT
Execution

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A process provided by law for the enforcement of a final
judgment. Enforcement is part of the court’s jurisdiction.
It is the fruit and end of suit ( Ayo v. Violago-Isnani, A.M.
No. RTJ-99-1445, June 21, 1999).
Against whom issued: Execution can only issue against
a party and not against one who never had his day in
court.
Writ of Execution
A judicial writ issued to an officer authorizing him to
execute the judgment of the court.
Essential requisites of a writ of execution
1. A writ of execution to be valid, must conform
strictly to the decision or judgment which gives it life;
and
2. It cannot vary the terms of the judgment it seeks
to enforce.
Final Judgment or Order
One which disposes of the whole subject matter or
terminates the particular proceedings or action, leaving
nothing to be done by the court but to enforce by
execution what has been determined.
Note: Judgments and orders become final and executory
by operation of law and not by judicial declaration. The
trial court need not even pronounce the finality of the
order as the same becomes final by operation of law. Its
finality becomes a fact when the reglementary period for
appeal lapses, and no appeal is perfected within such
period (Testate of Maria Manuel Vda. De Biascan, G.R.
No. 138731, December 11, 2000; Vlason Enterprises v.
Court of Appeals, G.R. Nos. 121662-664, July 6, 1999).
A void judgment for want of jurisdiction is no judgment at
all. It cannot be the source of any right nor the creator of
any obligation. All acts performed pursuant to it and all
claims emanating from it have no legal effect. Hence, it
can never become final and any writ of execution based
on it is void (Galicia v. Manliquez, G.R. No. 155785 April
13, 2007).
Test to determine whether a judgment or order is
final or interlocutory: If the judgment or order leaves
nothing more for the court to do with respect to the merits
of the case, it is a final order. Otherwise, it is an
interlocutory order.
Classes of execution
A.As to their nature:
CIVIL PROCEDURE
1. Compulsory execution – known as Execution as a
Matter of Right (Section 1)
2. Discretionary execution – known as Execution
Pending Appeal (Section 2)
B.As to how it is enforced (Section 6):
1. Execution by motion
2. Execution by independent action
SECTION 1. EXECUTION UPON JUDGMENTS AND
FINAL ORDERS.
Execution as a matter of right
1. On motion;
2. Upon a judgment or order that disposes of the
action or proceeding;
3. Upon expiration of the period to appeal therefrom
and no appeal has been duly perfected.
General Rule: It is a matter of right on the part of the
winning party. The court cannot refuse execution.
Unless: (I-NEED-U-VIP)
1. Where the judgment turns out to be incomplete
or conditional;
2. Judgment novated by subsequent agreement of
the parties;
3. Equitable grounds like a change in situation of
the parties which makes execution inequitable
(Supervening fact doctrine);
4. Execution is enjoined;
e.g. Petition for Relief from Judgment or Annulment of
Judgment with TRO or writ of preliminary injunction
5. Judgment has become dormant except
support which can be executed by motion;
6. Execution is unjust or impossible;
7. When the judgment has already been executed
by the voluntary compliance thereof by the parties
(Cunanan v. Court of Appeals, G.R. No. L-25511,
September 28, 1968);
8. When refusal to execute has become imperative
in the higher interest of justice;
9. When the execution is sought against property
exempt from execution under Sec. 13 of Rule 39.
Ministerial duty of the court: Finality of judgment has
the effect of entitling the prevailing party to execution as a
matter of right. It is the ministerial duty of the court to do
and it is compellable by mandamus. Such ministerial duty
finds exception when subsequent events would render
execution of judgment unjust (Mangahas v. Paredes, G.R.
No. 157866, February 14, 2007).
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Take note that for the supervening event to apply, the Discretionary Execution Execution As A Matter Of
supervening event must happen after the judgment has Right
become final and executory. May issue before the lapse Period to appeal has
of period to appeal, and already lapsed and no
Instances where execution is a matter of right: even during appeal. appeal is perfected.
1. Section 1, paragraph 1 – no appeal; judgment becomes
final; Discretionary upon the
Ministerial duty of the court
2. Section 1, paragraph 2 – there is an appeal; once the court; there is inquiry on
provided there are no
CA judgment becomes final; whether there is good
supervening events.
3. Section 4 – Judgment in an action for injunction, reason for execution.
receivership, accounting, support, judgment declared to
be immediately executory; and
4. Rule 70 – Judgments in Forcible Entry and Unlawful Execution is a matter Discretionary
Detainer cases. of right after expiration execution upon good
of period to appeal and reasons stated in a
Quashal of writ of execution when proper: (C- no appeal is perfected. special order after due
WWIDSS) hearing.
1. A change in the situation of the parties renders
execution inequitable;
2. Issued against the wrong party; Sheriff enforces writ of
3. Issued without authority; execution.
4. Improvidently issued;
5. Defective in substance;
6. Judgment already satisfied; and Losing party is made to indemnify
7. The controversy was never submitted to the thru:
court. Payment with interest;
Levy and sale of personal property;
General Rule: The dispositive portion of the decision is Levy and sale of real property;
that part that becomes the subject of execution. Delivery of personal and real
property.
Exceptions:
1. Where there is ambiguity, the body of the opinion may
be referred to for purposes of construing the judgment Note: Unlike judgments that are final and executory, a
because the dispositive part of a decision must find judgment subject to discretionary execution cannot be
support from the decision’s ratio decidendi (Mutual insisted upon but simply prayed and hoped for because a
Security Ins. Corp. v. Court of Appeals, G.R. No. L- discretionary execution is not a matter of right.
47018, September 11, 1987);(The Insular Life
Assurance Company, Ltd. v. Toyota Bel-Air, Inc., G.R. Execution Pending Appeal
NO. 137884, March 28, 2008) and By the appellate court: It can order the execution of
2. Where extensive and explicit discussion and judgment pending appeal for good reasons to be stated in
settlement of the issue is found in the body of the a special order after due hearing (Bangkok Bank Public
decision (Wilson Ong Ching Kian Chung, et al v. Company Ltd. v. Lee, G.R. 159806, Jan. 29, 2006).
Chinese National Cereals Oil and Foodstuffs Import
and Export Corp., et al., G.R. No. 131502, June 8, By the trial court: May also do so in the exercise of its
2000). residual jurisdiction under Rule 41 and 42.
Note: When the writ of execution varies the terms of the Grounds:
dispositive portion, the defeated party can file: 1. Insolvency of the judgment debtor; and
1. Motion to quash the writ of execution, if denied; 2. Wastage of asset by judgment debtor.
and
2. File petition for certiorari under Rule 65 with Requisites for discretionary execution:
prayer for TRO (Albano, p.470). 1. There must be a motion filed by the prevailing party
with notice to the adverse party;
SECTION 2. DISCRETIONARY EXECUTION

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2. There must be a hearing of the motion for
discretionary execution;
3. There must be good reasons to justify the
discretionary execution; and
4. The good reasons must be stated in a special
order after due hearing (Sec. 2, Rule 39).
“The requirement of good reason is important and must
not be overlooked, because if the judgment is executed
and, on appeal, the same is reversed, although there are
provisions for restitution, oftentimes damages may arise
which cannot be fully compensated. Accordingly,
execution should be granted only when these
considerations are clearly outweighed by superior
circumstances demanding urgency, and the above
provision requires a statement of those circumstances as
a security for their existence” (City of Bacolod v. Enriquez,
G.R. No. L-9775, May 29, 1957).
Examples of good reasons:
1. When there is danger of the
judgment becoming ineffectual (Scottish Union v.
Macadaeg, G.R. Nos. L-5717, August 30, 1952);
2. Old age;
3. Where the appeal is for the
purpose of delay;
4. When the successful party files a
bond (but is not by itself alone, a good reason);
An award for actual and compensatory damages may be
ordered executed pending appeal, but not an award for
moral or exemplary damages.
Ratio: Moral and exemplary damages are dependent on
the outcome of the appeal. While the amounts of actual
damages are fixed and certain (Radio Communications of
the Phils., Inc. v. Lantin, G.R. No. L-59311, January 31,
1985).
SECTION 3. STAY OF DISCRETIONARY
EXECUTION
The party against whom an execution is directed may file
a supersedeas bond to stay discretionary execution.
Supersedeas Bond
One filed by the party against whom the execution was
issued and approved by the court conditioned upon the
performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in
part.
CIVIL PROCEDURE
Supersedeas bond guarantees satisfaction of the
judgment in case of affirmance on appeal. It does not
answer for damage to property pending the appeal.
General Rule: An order of execution is not appealable
otherwise there would be no end to the litigation between
the parties.
Exceptions :
1. When the terms of the judgment are not very
clear; and
2. When the order of execution varies with the tenor
of the judgment.
SECTION 4. JUDGMENTS NOT STAYED BY
APPEAL
General Rule: Judgment is stayed by appeal
Exceptions : Instances when judgment is immediately
executory (IRASO):
1. Injunction;
2. Receivership;
3. Accounting;
4. Support; and
5. Such other judgments declared to be immediately
executory unless otherwise ordered by the trial court .
e.g. A judgment in forcible entry or unlawful detainer
when favorable to the plaintiff (Sec. 19 Rule 70).
The reason for the non-stay of judgment for support is
because support is immediately needed and its delay may
unduly prejudice the one in need of it.
The rule on immediate execution of judgment in an
injunction case does not apply to a judgment in an action
for prohibition (Embroidery & Apparel Control Board v.
Cloribel, G.R. No. L-20024, June 30, 1967).
General Rule: Once a judgment attains finality it thereby
becomes immutable and unalterable . It may no longer
be modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous
conclusion of fact or law, and regardless of whether the
modification is attempted to be made by the court
rendering it or by the highest court of the land ( Abalos v.
Philex Mining Corp. G.R. No. 140374 November 27,
2002).
Exception : The court may modify or alter a judgment
even after the same has become executory whenever
circumstances transpire rendering its execution unjust and
inequitable, as where certain facts and circumstances
justifying or requiring such modification or alteration
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transpired after the judgment has become final and party. That second revived judgment can again be
executor (David v. Court of Appeals, G.R. No. 115821 enforced under Sec. 6.
October 13, 1999). (Other Exceptions Discussed in Rule
36). Sec.6 does not apply in:
1. Judgments for support;
Ratio: The fact that the decision has become final does 2. Contempt orders in unauthorized reentry on the land
not preclude a modification or an alteration thereof by an ejected defendant;
because even with the finality of judgment, when its 3. Issuance of Writs of Possession; and
execution becomes impossible or unjust, it may be 4. Special Proceedings (i.e. land registration cases).
modified or altered to harmonize the same with justice
and the facts. Revival of Judgment Revival of Judgment
In Sec. 6 In Sec. 34
SECTION 5. EFFECT OF REVERSAL OF
It is carried out through the
EXECUTED JUDGMENT It is an independent action.
filing of a motion in court.
If reversed totally or partially, or annulled (Rule 47), on
appeal or otherwise, the trial court may, on motion, issue Assumes that there is no Assumes that a judgment
orders of restitution or reparation of damages as equity execution within the first is executed within the first
and justice may warrant under the circumstances. five (5) years. five (5) years.
The party who files the The party who files such
SECTION 6. EXECUTION BY MOTION OR action is the judgment motion is not the original
INDEPENDENT ACTION creditor himself, or his judgment creditor but he is
assignee, or successor-in- the highest bidder in the
Modes of enforcement interests. public auction sale.
1. By motion within 5 years from date of its entry; Filed because the movant
Filed due to lapse of the
2. By independent action for revival of judgment is deprived of the property
five (5) year period.
after five (5) years from entry and before it is barred by purchased.
statute of limitations which is ten (10) years from entry
under Art. 1144 (3) of Civil Code. This action is a SECTION 7. EXECUTION IN CASE OF DEATH OF
personal one and not quasi in rem. PARTY
A.In case of death of the judgment obligee : Execution
A dormant judgment is one that was not executed within will issue in any case upon the application of his
five (5) years. The enforcement of a dormant judgment is executor or administrator, or successor in interest.
in the nature of an ordinary civil action with the object of B.In case of death of judgment obligor
(1) reviving the dormant judgment and (2) executing the 1. Before levy:
judgment reviving it. Execution will issue if the action is for the recovery
of real or personal property or any lien thereon.
Note: The independent action to revive judgment will
not necessarily be filed with the same court that decided Execution will not issue if the action is for the
the case. It shall be filed in the RTC as one incapable of recovery of a sum of money. In this situation, the
pecuniary estimation. It must also satisfy requirements of judgment obligee should file a claim against the
venue in Rule 4. estate of the judgment obligor under Rule 86.

Five (5)-year period may be extended if delay is traceable 2. After levy

to the fault of the judgment debtor.
The five (5)-year period is to be counted not from the date
the judgment became final in the sense that no appeal
could be taken therefrom but when it became executory in
the sense that it could already be enforced (Tan Ching Ji
v. Mapalo, G.R. No. 21933, February 22, 1971).
A revived judgment is a new judgment thus another five or
ten (5/10)-year period to execute and revive is given the
Execution will continue even in money judgment. The
property may be sold for the satisfaction of the
judgment obligation, and the officer making the sale
shall account to the corresponding executor or
administrator for any surplus in his hands.
Ratio: After a valid levy, the property is already
separated from the estate of the deceased and is
deemed in custodia legis.

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SECTION 8. ISSUANCE, FORM AND CONTENTS
OF A WRIT OF EXECUTION
Note: Appeal is the remedy for an order denying the
issuance of a writ of execution.
However, an order granting the issuance of a writ of
execution of a final judgment is not appealable under
Rule 41; the remedy is to file an appropriate special civil
action under Rule 65.
SECTION 9. EXECUTION OF JUDGMENTS FOR
MONEY, HOW ENFORCED
If award is for payment of money:
1. Immediate payment on demand;
2. Satisfaction by levy;
3. Garnishment of debts and credits.
The judgment obligor shall pay in cash, or certified bank
check payable to the judgment obligee or any other form
of payment acceptable to the obligee (Sec 9[a]).
Levy
It is an act by which an officer sets apart or appropriates a
part or the whole property of the judgment debtor for
purposes of the execution sale.
Levy is a pre-requisite to the auction sale. In order that an
execution sale may be valid, there must be a previous
valid levy. A sale not preceded by a valid levy is void and
the purchaser acquires no title (Valenzuela v. De Aguilar,
G.R. No. L-18083-84, May 31, 1963).
The sheriff can validly levy any property of the judgment
obligor which may be disposed of for value but not exempt
from execution. The judgment obligor has the option to
choose which property to levy upon.
If he does not exercise the option, the officer shall first
levy on the personal properties, if any, and then on the
real properties if the personal properties are insufficient to
answer for the judgment (Sec 9[b]).
Real or personal property or any interest in either may be
levied upon in like manner and with like effect as under a
writ of attachment.
Real Property: by filing with the Register of Deeds a copy
of the order together with the description of the property
and a notice that it is attached (Section 7[a], Rule 57).
Personal Property: If capable of manual delivery, by taking
and safely keeping it in the custody of the sheriff after
CIVIL PROCEDURE
issuing the corresponding receipt therefor (Section 7[b],
Rule 57).
Garnishment
It is an act of appropriation by the court when the property
of debtor is in the hands of a third person.
A specie of attachment for reaching any property or
credits pertaining or payable to a judgment debtor.
The sheriff may levy on debts due the judgment obligor
and other credits, including bank deposits, financial
interests, royalties, commissions and other personal
property not capable of manual delivery in the possession
or control of third parties (Sec. 9[c]).
The garnishee or the 3rd person who is in possession of
the property of the judgment debtor is deemed a forced
intervenor.
Procedure for garnishment
1.The sheriff will serve a notice upon the person owing
such debts (garnishee);
2. The garnishee shall make a written report to the court
within 5 days stating whether or not the judgment
obligor has sufficient funds;
3. The garnished amount shall be delivered directly to the
judgment oblige within 10 days from service of notice.
Attachment Garnishment
It refers to money, stocks,
credits and other incorporeal
It refers to corporeal
property which belong to the
property in the possession
judgment debtor but is in the
of the judgment debtor.
possession or under the
control of a third person.
SECTION 10. EXECUTION OF JUDGMENTS FOR
SPECIFIC ACT
1. Conveyance, delivery of deeds, or other
specific acts, vesting title;
When the party refuses to comply: The court can
appoint some other person at the expense of the
disobedient party and the act done shall have the same
effect as if the required party performed it. The court, by
an order, may also divest title of any party in real or
personal property situated in the Philippines and vest it
in others, which shall have the same effect of a
conveyance executed in due form of law.
2. Sale of real or personal property;
3. Delivery or restitution of real property (e.g.
In ejectment cases): The officer shall demand from the
judgment obligor to vacate peaceably within 3 working
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days, and restore possession of the property to the
judgment obligee.
If the party refuses to vacate the property: The
remedy is not contempt because the writ of execution
did not direct the judgment debtor to do anything;
instead it was directed to the sheriff. The Sheriff must
oust the party and if after dispossession, the judgment
debtor should execute acts of ownership or possession,
then and only then may he be punished for contempt
(Pascua v. Heirs of Segundo Simeon, G.R. No. L-
47717, May 2, 1988).
A writ of execution directing the sheriff to cause the
defendant to vacate is in the nature of a habere facias
possessionem and authorizes the sheriff to break
open the premises where there is no occupant therein
(Arcadio v. Ylagan, A.C. No. 2734, July 30, 1986).
Note: Habere Facias Possessionem – the name of the
process commonly resorted to by the successful party
in an action of ejectment, for the purpose of being
placed by the sheriff in the actual possession of the land
recovered.
4. Removal of improvements on property
subject of execution;
There must be a special order (Writ of Demolition)
issued (1) upon motion of the judgment oblige; (2) after
due hearing and (3) after the judgment obligor has
failed to remove the improvements within a reasonable
time fixed by the court.
5. Delivery of personal property.
General Rule: The judgment debtor cannot be cited in
contempt of court. Generally, contempt is not a remedy to
enforce a judgment.
Exceptions :
1. Refusal to perform a particular act or Special
Judgments under Sec. 11 where he may be cited in
contempt; and
2. In case of the provisional remedy of support
pendente lite under Rule 61, the judgment debtor may
still be cited for contempt even if the decision is not a
special judgment and requires the latter to pay money.
SECTION 11. EXECUTION OF SPECIAL
JUDGMENTS
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Special Judgment
One which can only be complied with by the judgment
obligor because of his personal qualifications or
circumstances.
When a judgment requires the performance of any act
other than judgment for money and judgments for specific
act, a certified copy of the judgment shall be
attached to the writ .
The writ of execution shall be served upon the party
required to obey the same and such party may be
punished for contempt if he disobeys.
Note: A special judgment may be enforced by contempt if
the defendant refuses to comply with the judgment
because the writ is already directed to the judgment
obligor.
SECTION 12. EFFECT OF LEVY ON EXECUTION
AS TO THIRD PERSONS
The levy on execution creates a lien in favor of the
judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
SECTION 13. PROPERTY EXEMPT FROM
EXECUTION
Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from
execution (FO3-CFP-L1S-LMR-E):
1. The judgment obligor’s family home as provided
by law, or the homestead in which he resides, and land
necessarily used in connection therewith;
2. Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
3. Three (3) horses, or three cows, or three
carabaos, or other beasts of burden, such as the
judgment obligor may select necessarily used by him in
his ordinary occupation;
4. His necessary clothing and articles for ordinary
personal use, excluding jewelry;
5. Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding
PhP100,000 pesos;
6. Provisions for individual or family use sufficient
for 4 months;
7. The professional libraries and equipment of
judges, lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding PhP300,000 pesos in
value;
 REMEDIAL LAW
8. One (1) fishing boat and accessories not
exceeding the total value of PhP100,000 pesos owned
by a fisherman and by the lawful use of which he earns
his livelihood;
9. So much of the salaries, wages, or earnings of
the judgment obligor for his personal services within the
4 months preceding the levy as are necessary for the
support of his family;
10. Lettered gravestones;
11. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any life
insurance;
12. The right to receive legal support, or money or
property obtained as such support, or any pension or
gratuity from the Government; and
13. Properties specially exempted by law.
But no article or species of property mentioned in this
section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of
foreclosure of a mortgage hereon.
When to invoke exemption from execution: A claim
for exemption must be raised before sale on execution.
SECTION 14. RETURN OF THE WRIT OF
EXECUTION
The lifetime of such writ corresponds to the period within
which the judgment may be enforced by motion, that is,
within 5 years from entry thereof.
SECTION 15. NOTICE OF SALE OF PROPERTY
ON EXECUTION
Notice requirement
A.If perishable property: By posting written notice of the
time and place of the sale in three (3) public places,
preferably in conspicuous areas of the municipal or city
hall, post office and public market where the sale is to
take place, for such time as may be reasonable,
considering the character and condition of the property;
B.Other personal property: By posting similar notice in
three (3) public places above-mentioned for not less
than five (5) days;
C.If real property: By posting for 20 days in three (3)
public places particularly describing the property and
stating where the property is to be sold, and if the
assessed value of the property exceeds P50,000, by
publishing a copy of the notice once a week for two (2)
consecutive weeks in one (1) newspaper selected by
raffle (whether in English, Filipino, or any major regional
language published, edited and circulated or, in the
absence thereof, having general circulation in the
province or city).
CIVIL PROCEDURE
Note: In all cases, a written notice of the sale shall be
given to the judgment obligor, at least three (3) days
before the sale, except as provided in par (a) hereof
where notice shall be given at any time before the sale.
SECTION 16. PROCEEDINGS WHERE PROPERTY
CLAIMED BY THIRD PERSON
Remedies of a third-party claimant
1. Summary hearing before the court which
authorized the execution;
2. Terceria or third-party claim filed with the sheriff;
3. Action for damages on the bond posted by
judgment creditors; or
4. Independent reivindicatory action.
The remedies are cumulative and may be resorted to by
the third party claimant independently of or separately
from the others.
If the winning party files a bond, it is only then that the
sheriff can take the property in his possession. If there is
no bond, the sale cannot proceed.
Note: The officer shall not be liable for damages to any
third-party claimant if such bond is filed for the taking or
keeping of the property.
However, the judgment obligee can claim damages
against a third-party claimant who filed a frivolous or
plainly spurious claim, and such judgment obligee can
institute proceedings therefor in the same or separate
action.
Note: The timing of the filing of the third party claim is
important because the timing determines the remedies
that a third party is allowed to file. A third party claimant
under Section 16 of Rule 39 of the 1997 Rules of Civil
Procedure may vindicate his claim to the property in a
separate action, because intervention is no longer allowed
as judgment has already been rendered. A third party
claimant under Section 14 of Rule 57 of the same Rules,
on the other hand, may vindicate his claim to the property
by intervention because he has a legal interest in the
matter in litigation (Fort Bonifacio Development Corp. v.
Yllas Lending Corp. G.R. No. 158997 October 6, 2008).
Third party claim Third party complaint
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Pleading filed by a Ordinary Sale on Sale in Judicial

Affidavit made by a third defendant against the third Execution Foreclosure of Mortgage
person who claims to be person not a party to the
entitled to the property in action for contribution, There is no right of
the custody of a sheriff indemnity, subrogation, or redemption, except by the
Right of redemption exists
any other relief mortgagor where the
when property is real
mortgagee is a bank or a
Filed by third-party claimant Filed by third-party plaintiff banking institution
Title acquired after the Title acquired upon entry of
SECTION 17. PENALTY FOR SELLING WITHOUT expiration of the redemption the confirmation and
NOTICE, OR REMOVING OR DEFACING NOTICE period when final deed of registration of the
conveyance is executed foreclosure sale
The following are liable for actual and punitive
damages:
SECTION 20. REFUSAL OF PURCHASER TO PAY
1. An officer selling without the notice
The officer may again sell the property to the highest
prescribed by Sec. 15; and
bidder and shall not be responsible for any loss
2. A person willfully removing or defacing the
occasioned thereby.
notice posted, if done before the sale, or before the
satisfaction of judgment if satisfied before the sale.
But the court may order the refusing purchaser to pay to
the court the amount of such loss, with costs, and may
Punitive damages: in the amount of PhP5,000 pesos.
punish him for contempt if he disobeys the order. The
officer may thereafter reject any subsequent bid of such
Actual and punitive damages may be recovered by
purchaser who refuses to pay.
MOTION in the same action.
SECTION 21. JUDGMENT OBLIGEE AS
SECTION 18. NO SALE IF JUDGMENT AND
PURCHASER
COSTS PAID
When the purchaser is the judgment obligee, and no third
At any time before the sale of property on execution, the
party claim has been filed, he need not pay the amount of
judgment obligor may prevent the sale by paying the
the bid if it does NOT exceed the amount of his judgment.
amount required by the execution and the costs that have
If it does, he shall pay only the excess.
been incurred therein.
SECTION 22. ADJOURNMENT OF SALE
SECTION 19. HOW PROPERTY SOLD ON
1. If with written consent
EXECUTION; WHO MAY DIRECT MANNER AND
of the judgment obligor and obligee, or their duly
ORDER OF SALE
authorized representatives: To any date and time
All sales of property under execution must be made:
agreed upon.
1. At public auction;
2. If without such
2. To the highest bidder;
agreement: From day to day if it becomes necessary to
3. To start at the exact time fixed in the notice.
do so for lack of time.
3. After sufficient property has been sold to satisfy the
execution, no more shall be sold and any excess shall
SECTION 23. CONVEYANCE TO PURCHASER OF
be promptly delivered to the judgment obligor or his
PERSONAL PROPERTY CAPABLE OF MANUAL
authorized representative, unless otherwise directed by
DELIVERY
the judgment or order of the court.
When purchaser pays the purchase price, the personal
property, capable of manual delivery, must be delivered to
Ordinary Sale on Sale in Judicial him and if desired execute and deliver to him a certificate
Execution Foreclosure of Mortgage of sale.
Must be confirmed by the
court in order to divest the SECTION 24. CONVEYANCE TO PURCHASER OF
Need not be confirmed by PERSONAL PROPERTY NOT CAPABLE OF
rights in the property of the
the court MANUAL DELIVERY
parties and to vest the
rights in the purchaser In this case the officer must execute and deliver to the
purchaser a certificate of sale.

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SECTION 25. CONVEYANCE OF REAL PROPERTY;
CERTIFICATE THEREOF GIVEN TO PURCHASER
AND FILED WITH REGISTRY OF DEEDS
The officer must give to the purchaser a Certificate of
Sale.
Contents of the certificate of sale:
1. A particular description of the real property sold;
2. The price paid for each distinct lot or parcel;
3. The whole price paid by him; and
4. A statement that the right of redemption expires
one (1) year from the date of the registration of the
certificate of sale.
Note: Confirmation of the sale is not needed unlike in
judicial foreclosure of mortgage. The certificate of sale is
merely provisional (Raymundo v. Sunico, G.R. No. 8241,
September 27, 1913).
May the validity of an auction sale be attacked?
General Rule: No, because of the presumption of regular
performance of duty by the sheriff.
Exceptions :
1. When from the nature of the irregularity or from
intrinsic facts, injury resulted (Somera Vda. De Navarro
v. Navarro, 76 Phil. 122);
2. When the price obtained is shockingly
inadequate and it is shown that a better price can be
obtained at a resale (Barrozo v. Macaraeg, G.R. No. L-
1282, April 25, 1949).
Exception to the Exception : The rule that you can
question the validity of the auction sale if the price
obtained is shockingly inadequate does not apply when
the property sold is real property.
SECTION 26. CERTIFICATE OF SALE WHERE
PROPERTY CLAIMED BY THIRD PERSON
The certificate of sale to be issued shall make express
mention of the existence of such third-party claim.
SECTIONS 27 .WHO MAY REDEEM REAL
PROPERTY SO SOLD.
SECTION 28. TIME AND MANNER OF, AND
AMOUNTS PAYABLE ON, SUCCESSIVE
REDEMPTIONS;NOTICE TO BE GIVEN AND FILED.
Redemption: This right of redemption is transferable and
may be voluntarily sold, but it cannot be levied upon by
the judgment creditor so as to deprive the judgment
debtor of any further rights to the property.
CIVIL PROCEDURE
Right of redemption:
1. Personal Property – none; Sale is absolute.
2. Real Property – There is a right of
redemption.
Who may redeem (Sec. 27 ):
1. Judgment obligor, or his successor in interest, in
the whole or any part of the property; or
Successor in interest – includes a person to whom he
has transferred his right of redemption, or one to whom
he has conveyed his interests in the property for
purposes of redemption, or one who succeeds to his
property by operation of law, or a person with a joint
interest in the property, or his spouse or heirs (Magno v.
Viola, et al., G.R. No. 37521, December 22, 1934).
2. Redemptioner who is a creditor having a lien by
virtue of an attachment, judgment or mortgage on
the property sold, subsequent to the lien under which
the property was sold.
Note: If his lien is prior to the judgment, he is not a
redemptioner because his interests in his lien are fully
protected (relate to Section 12).
When can redemption be made (Sec.28) :
A.By the judgment obligor: Within one (1) year from
the date of registration of the certificate of sale.
B.By the first redemptioner: Within one (1) year from
the date of registration of the certificate of sale; or
C.By all subsequent redemptioners: Within sixty (60)
days from the last redemption, provided that the
judgment debtor has not exercised his right of
redemption.
But, in all cases the judgment obligor shall have the entire
period of one (1) year from the date of the registration of
the sale to redeem the property. If the judgment obligor
redeems, no further redemption is allowed and he is
restored to his estate.
The period of redemption is NOT suspended by an
action to annul the foreclosure sale.
Note: The periods for redemption are not extendible or
interrupted. The parties may, however, agree on a longer
period, in such case, it would be a conventional
redemption (Lazo v. Republic Surety & Insurance Co.,
Inc., G.R. No. 27365, Jan. 30, 1970).
Redemption price (Sec.28)
A.By the judgment obligor or first redemptioner:
1. Purchase price;
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2. 1% interest thereon, up to the time of
redemption;
3. Any amount of assessments or taxes which
the purchaser may have paid thereon after purchase
and interest on such last named amount at the same
rate; and
4. IF the purchaser be also a creditor having a
prior lien to that of the redemptioner, other than the
judgment under which such purchase was made, the
amount of such other lien, with interest.
B.By subsequent redemptioners:
1. Amount paid on the last redemption;
2. 2% interest thereon;
3. Any amount of assessments or taxes which the
last redemptioner may have paid thereon after
redemption by him with interest on such last-named
amount; and
4. Amount of any liens held by said last
redemptioner prior to his own, with interest.
The redemption price for subsequent redemption shall be
the same (redemption price becomes higher and higher).
May redemption be paid in any form other than
cash? Yes. The rule is construed liberally in allowing
redemption (to aid rather than defeat the right) and it has
been allowed in the case of a cashier’s check, certified
bank checks and even checks.
The offer to redeem must be accompanied with a bona
fide tender or delivery of the redemption price.
However, a formal offer to redeem with a tender is not
necessary where the right to redeem is exercised through
the filing of a complaint to redeem in the courts, within the
period to redeem.
Note: The periods for redemption in Sec. 28 are not
extendible or interrupted. The parties may, however, agree
on a longer period of redemption but in such case, it
would be a matter of conventional redemption (Lazo v.
Republic Surety & Insurance Co., Inc., G.R. No. 27365,
January 30, 1970).
SECTION 29. EFFECT OF REDEMPTION BY
JUDGMENT OBLIGOR, AND A CERTIFICATE TO
BE DELIVERED AND RECORDED THEREUPON;
TO WHOM PAYMENTS ON REDEMPTION MADE
The person to whom the redemption payment is made
must execute and deliver to him a Certificate of
Redemption acknowledged before a notary public or other
officer authorized to take acknowledgments of
conveyances of real property.
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The payments mentioned in this and the last preceding
sections may be made to the: (1) purchaser, or (2)
redemptioner, or (3) for him to the officer who made the
sale.
SECTION 30. PROOF REQUIRED OF
REDEMPTIONER
Redemptioner must produce to the officer, or person from
whom he seeks to redeem, and serve with his notice to
the officer:
1. A copy of the judgment or final order under
which he claims the right to redeem certified by the
clerk of court wherein the judgment or final order is
entered; or
2. If he redeems upon a mortgage or other
lien, a memorandum of the record thereof, certified by
the Register of Deeds; or
3. An original or certified copy of any
assignment necessary to establish his claim; or
4. An affidavit executed by him or his agent
showing the amount then actually due on the lien.
Note: When the original owner wants to redeem, there is
no need for him to prove his right as a judgment debtor.
SECTION 31. MANNER OF USING PREMISES
PENDING REDEMPTION; WASTE RESTRAINED
SECTION 32. RENTS, EARNINGS AND INCOME
OF PROPERTY PENDING REDEMPTION
Rights of the judgment debtor: (UNCURE)
1. Use the property in the same manner it was
previously used;
2. Make necessary repairs to buildings thereon
while he occupies the property;
3. Collect rents, earnings and income derived from
the property until the expiration of period of redemption;
4. Use it in the ordinary course of husbandry (Sec.
31);
5. Remain in possession of the property; and
6. Cannot be ejected (Sec. 32).
SECTION 33. DEED AND POSSESSION TO BE
GIVEN AT EXPIRATION OF REDEMPTION
PERIOD; BY WHOM EXECUTED OR GIVEN
The purchaser is entitled to a conveyance and
possession of the property if there is no redemption
made within 1 year from date of the registration of the
certificate of sale, or last redemptioner whenever 60
days have elapsed and no other redemption has been
made.
 REMEDIAL LAW
He is substituted to and acquires all the rights, title,
interest and claim of the judgment obligor to the property
at the time of levy. The purchaser’s rights retroact to the
date of levy.
Two (2) documents which the sheriff executes in
case of real property:
1. Certificate of Sale. After the auction sale, he will
execute in favor of the purchaser the certificate of sale
under Section 25. From the registration of the said
certificate, the one year period starts.
2. Deed of Conveyance. If after one (1) year there
is no redemption, a deed of conveyance is executed
(Section 33).
The deed of conveyance is what operates to transfer to
the purchaser whatever rights the judgment debtor had
in the property. The certificate of sale after execution
sale merely is a memorial of the fact of sale and does
not operate as a conveyance.
The purchaser acquires no better right than what the
judgment debtor had in the property levied upon. Thus,
if the judgment debtor had already transferred the
property executed prior to the levy and no longer has an
interest in the property, the execution purchaser
acquires no right (Pacheco v. Court of Appeals, G.R.
No. L-48689, August 31, 1987).
When a third person is in possession: The procedure
is for the court to order a hearing and determine the
nature of such adverse possession.
SECTION 34. RECOVERY OF PRICE IF SALE IS
NOT EFFECTIVE; REVIVAL OF JUDGMENT
The purchaser may recover the purchase price
when:
1. The purchaser or his successor-in-interest fails
to recover possession of the property; or
2. Is evicted due to:
a. Irregularities in the proceedings
concerning the sale; or
b. Judgment has been reversed or set
aside; or
c. The property sold was exempt from
execution; or
d. A third person has vindicated his
claim to the property.
When the sale was not effective under the
circumstances in this section, the purchaser may:
CIVIL PROCEDURE
1. File a motion in the same action or file a
separate action to recover from the judgment creditor
the price paid;
2. File a motion for revival of judgment in his
name against the judgment debtor; or
3. Bring an action to recover possession of the
property.
SECTION 35. RIGHT TO CONTRIBUTION OR
REIMBURSEMENT
Contribution and reimbursement may be obtained in a
separate action, unless cross-claims have been filed and
adjudicated in the same action, in which case, execution
may issue to compel contribution or reimbursement
(Feria, Civil Procedure Annotated, Vol. 2, 2001 Ed., p.
108).
Remedies of the judgment creditor in aid of
execution or if judgment is not fully satisfied
1. If the execution is returned unsatisfied, he may
cause examination of the judgment debtor as to his
property and income (Sec. 36);
Note: The order of examination of the judgment obligor
shall be issued only by the court which rendered the
judgment.
2. He may cause examination of the debtor of the
judgment debtor as to any debt owed by him or to any
property of the judgment debtor in his possession (Sec.
37);
3. If after examination, the court finds property of
the judgment debtor, either in his own hands or that of
any person, the court may order the property applied to
the satisfaction of the judgment (Sec. 37);
4. A party or other person may be compelled, by
an order or subpoena, to attend before the court or
commissioner to testify as provided in Sec 36 & 37
(Sec. 38);
5. If the court finds the earnings of the judgment
obligor for his personal services are more than sufficient
for his family’s needs, it may order payment in fixed
monthly installments (Sec. 40);
6. The court may appoint a receiver for the
property of the judgment debtor not exempt from
execution or forbid a transfer or disposition or
interference with such property (Sec. 41);
7. If the court finds that the judgment debtor has
an ascertainable interest in real property either as
mortgagor, mortgagee, or otherwise, and his interest
can be ascertained without controversy, the court may
order the sale of such interest (Sec. 42);
8. If the person alleged to have the property of the
judgment debtor or the person indebted to him, claims
an adverse interest in the property, or denies the debt,
the court may authorize the judgment-creditor to
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institute an action to recover the property , forbid its Auter action pendant – A plea that another action is
transfer and may punish disobedience for contempt pending for the same cause.
(Sec. 43);
Res Judicata (A Matter Adjudged): It is a rule that a final
Note: The person indebted to the judgment obligor may judgment rendered by a court of competent jurisdiction on
pay to the sheriff holding the writ of execution the amount the merits is conclusive as to the rights of the parties and
of his debt or so much thereof as may be necessary to their privies, and, as to them, constitutes an absolute bar
satisfy the judgment, and the sheriff’s receipt shall be a to a subsequent action involving the same claim, demand
sufficient discharge for the amount so paid or directed to or causes of action (Black’s Law Dictionary).
be credited by the judgment oblige on the execution (Sec.
39). Requisites:
1. A final judgment or order – The judgment must
SECTION 44. ENTRY OF SATISFACTION OF be final and executory which is beyond the power of the
JUDGMENT BY CLERK OF COURT court to alter.
2. Jurisdiction over the subject matter and the
SECTION 45. ENTRY OF SATISFACTION WITH OR parties by the court rendering it – If the court did not
WITHOUT ADMISSION acquire jurisdiction over the subject matter and the
parties, the judgment is void and cannot be invoked as
SECTION 46. WHEN PRINCIPAL BOUND BY res judicata.
JUDGMENT AGAINST SURETY 3. Judgment upon the merits;
When a judgment is rendered against the surety, the General Rule: A dismissal without a trial is not an
principal debtor is also bound by the judgment from the adjudication upon the merits.
time that he has notice of the action or proceeding, and an Exception : Under Sec. 3, Rule 17, where there is no
opportunity at the surety’s request to join in the defense. trial but the dismissal shall have the effect of an
adjudication upon the merits.
SECTION 47. EFFECT OF JUDGMENT OR FINAL 4. Between the two cases:
ORDERS a. There is identity of parties – Identity of
This refers to judgments which are considered as parties exists when (1) the parties in both cases are
conclusive and may be rebutted directly by means of relief the same, or (2) the actions are between those in
from judgment or annulment of judgment or indirectly by privity with them, as between their successors in
offering them in evidence under the parole evidence rule. interest by title subsequent to the commencement of
Two parts the action, litigating for the same thing and under the
1. Res Judicata – also known as bar by same title and in the same capacity, or (3) where
former judgment or direct estoppel by judgment. It there is substantial identity even if there are
covers paragraphs (a) and (b) of Section 47. additional parties.
There is also identity of parties even if the defendant
In Rem In Personam in the first case becomes the plaintiff, and vice-versa
(Paragraph A) (Paragraph B) (HSBC v. Aldecoa & Co., G.R. No. 8437, March 23,
The decision is conclusive The judgment or final order 1915).
upon title of the thing, the is conclusive between b. Identity of subject matter;
will or administration or the parties and their c. Identity of cause of action – There is
condition, status or successors in interest, identity of causes of action when the two actions are
relationship of the person. litigating for the same thing based on the same delict or wrong committed by the
and under the same title defendant even if the remedies are different.
and in the same capacity.
e.g. land registration cases; e.g. accion reinvindicatoria Note: No res judicata in:
naturalization 1. Revival of judgment
Cause of action is for revival of dormant judgment.
2. Conclusiveness of judgment – also 2. Annulment of judgment.
known as estoppel by verdict, or estoppel by record, or Cause of action is extrinsic fraud or lack of jurisdiction;
collateral estoppel by judgment or preclusion of issues Subject matter is the judgment itself.
or rule of auter action pendant. It covers paragraph (c).

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Under the doctrine of res judicata, no matter how expounded on the merits of that action (Jarantilla v. Court
erroneous a judgment may be, once it becomes final, it of Appeals, G.R. No. 80194, Mar. 21, 1989).
cannot be corrected.
Immutability of judgments: Once a judgment attains
Conclusiveness of judgment: The issues actually and finality it thereby becomes immutable and unalterable .
directly resolved in a former suit cannot again be raised in The decisions of the court must be immutable at some
any future case between the same parties involving a definite period of time, no matter how erroneous a
different cause of action. judgment may be. Otherwise, there would be no end to
litigation. (See Rule 36 for Exceptions)
It has the effect of preclusion only of issues.
SECTION 48. EFFECT OF FOREIGN JUDGMENT
The parties in both actions may be the same but the OR FINAL ORDERS
causes of action are different.
Public policy principle: A judgment by a court is
Bar by Former Conclusiveness of enforceable only within its territorial jurisdiction.
Judgment Judgment
There is identity of parties, There is only identity of Effect of foreign judgments: Provided that the foreign
subject matter and causes parties and subject tribunal had jurisdiction:
of action. matter. 1. In case of judgment against a specific thing, the
judgment is conclusive upon the title to the thing; or
The first judgment The first judgment is 2. In case of a judgment against a person, the
constitutes as an conclusive only as to judgment is presumptive evidence of a right as between
absolute bar to all matters directly adjudged the parties and their successors-in-interest by a
matters directly adjudged and actually litigated in subsequent title.
and those that might have the first action. The
been adjudged. second action can be Note: The judgment of foreign tribunal cannot be
prosecuted. enforced by execution in the Philippines. Such judgment
It has the effect of It has the effect of only creates a right of action and its non-satisfaction, a
preclusion of claims. preclusion only of issues. cause of action, and it is necessary that a suit be brought
upon said foreign judgment in our local courts.
Rule of Stare Decisis
This rule holds that when the Supreme Court has laid Where to file
down a principle of law applicable to a certain state of The suit upon the foreign judgment is considered as one
facts, it will adhere to that principle and apply to it to all incapable of pecuniary estimation and therefore it must be
future cases where the facts are substantially the same filed in the RTC.
(Hacienda Bino v. Cuenca, G.R. No. 150478, April 15,
2005). There are two ways of giving effect to a foreign judgment:
(a) an ordinary action to enforce the foreign judgment may
Doctrine of Law of the Case be filed in court or (b) it may be pleaded in an answer or a
According to this principle, whatever is once irrevocably motion to dismiss (Herrera, Remedial Law, Vol. II, 2007
established as the controlling legal rule or decision Ed., p. 531).
between the same parties in the case continues to be the
law of the case whether correct on general principles or Note: In both instances, the judgment may be repelled
not, so long as the facts on which such decision was by evidence of (JN CFC)
predicated continue to be the facts of the case before the a. Want of jurisdiction;
court. This principle generally finds application in cases b. Want of notice;
where an appellate court passes on a question and c. Collusion;
remands the case to the lower court for further d. Fraud; or
proceedings. The question there settled becomes the law e. C lear mistake of law or fact.
of the case upon subsequent appeal (RCPI v. Court of
Appeals, G.R. No. 139763, April 26, 2006).
A PPEAL
Note: This rule does not apply to resolutions rendered in
connection with the case wherein no rationale has been Three modes of appeal:

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1. Ordinary Appeal (Rule 40 and 41)

a. Notice of appeal R ULE 40
b. Record on appeal A PPEAL FROM M UNICIPAL T RIAL
2. Petition for Review (Rule 42)
3. Appeal by Certiorari (Rule 45) C OURTS TO THE R EGIONAL T RIAL
C OURTS
Issues raised on appeal
The rules on the issues to be raised on appeal may be Ordinary Appeal
summarized as follows: An appeal by notice of appeal from a judgment or final
1.In all cases decided by the RTC in the exercise of its order of a lower court on questions of fact and law.
original jurisdiction, appeal may be made to the Court of
Appeals by mere notice of appeal where the appellant Note: A question that was never raised in the court
raises questions of fact or mixed questions of fact and below cannot be allowed to be raised for the first time on
law; appeal, without offending the basic rules of fair play,
2.In all cases decided by the RTC in the exercise of its justice and due process (Villanueva v. Sps Salvador, G.R.
original jurisdiction where the appellant raises only No. 139436, January 25, 2006).
questions of law, the appeal must be taken to the
Supreme Court on a petition for review on certiorari
under Rule 45.
3.All appeals from judgments rendered by the RTC in the
exercise of its appellate jurisdiction, regardless of
whether the appellant raises questions of fact, Ordinary Appeal Petition for Review
questions of law, or mixed questions of fact and law, Matter of right Discretionary
shall be brought to the Court of Appeals by filing a All the records are No records are elevated
petition for review under Rule 42 (Macawiwili Gold elevated from the court of unless the court decrees
Mining and Development Co., Inc. v. CA, G.R. No. origin. it.
115104, October 12, 1998). Notice and record on
appeal are filed with the Filed with the CA.
When appeal is a matter of right court of origin.
1. First appeal is a matter of right The case was decided by
Exception : In civil cases, first appeal is not a matter the RTC pursuant to its The case was decided by
right if filed with the Supreme Court. original jurisdiction. The the RTC pursuant to its
2. In criminal cases, when the RTC case was originally filed appellate jurisdiction
imposes death penalty, the Court of Appeals shall in the RTC.
automatically review the judgment (Section 3[d] Rule
122). If the Court of Appeals finds that death penalty SECTION 1. WHERE TO APPEAL
should be imposed, the CA shall not render judgment
but certify and elevate the case to the Supreme Court Appeal to the RTC
for review (Section 13[a] Rule 124). Mode of Appeal : Notice of Appeal within fifteen (15) days
from receipt of decision.
Note: Only final judgments or orders can be appealed as
distinguished from interlocutory judgments or orders which After an appeal to the RTC has been perfected, the MTC
are not appealable. loses its jurisdiction over the case and any motion for the
execution of the judgment should be filed with the RTC.
The right to appeal is neither a part of due process but a
mere statutory privilege that has to be exercised only in Note: The Rules on Summary Procedure no longer
the manner and in accordance with the provisions of law applies when the case is on appeal.
(Stolt-Neilsen v. NLRC, G.R. No. 147623, December 13,
2005). SECTION 2. WHEN TO APPEAL
1. Within 15 days after notice of judgment or final
The right to appeal is not a constitutional or a natural right order;
(Canton v. City of Cebu, G.R. No. 152898, February 12, 2. Where a record on appeal is required, within 30
2007). days from notice of judgment or final order by filing a
notice of appeal and a record on appeal.

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Note: Sec. 2 of Rule 40 provides that the period of appeal
shall be interrupted by a timely motion for new trial or
reconsideration.
But, under the “Fresh Period Rule”, a party litigant may
either file his notice of appeal within 15 days from receipt
of the RTC’s decision or file it within 15 days from receipt
of the order denying his motion for new trial or motion for
reconsideration (Neypes v. Court of Appeals, G.R. No.
141524, September 14, 2005).
Ratio and Basis: Pursuant to its sole prerogative to
amend procedural rules, the SC deems it necessary to
change the afore-stated rule in order to standardize the
appeal periods provided in the Rules of Court, to be
counted from receipt of the order denying the motion for
new trial or motion for reconsideration (whether full or
partial or any final order or resolution) and to afford
litigants fair opportunity to appeal their cases.
The fresh period shall apply to:
1. Rule 40
2. Rule 41
3. Rule 42
4. Rule 43
5. Rule 45
Note: No motion for extension of time to file a motion for
new trial or reconsideration shall be allowed. But if the
appeal requires the filing of a record on appeal, a motion
for extension to submit record on appeal is allowed.
SECTION 3. HOW TO APPEAL
A.By Notice of Appeal:
1. File a notice of appeal with the trial court;
2. The notice of appeal must indicate:
a. Parties;
b. Judgment or final order appealed from;
c. Material date showing timeliness of
appeal.
3. A copy served on the adverse party; and
4. Payment in full of docket fees and other lawful
fees.
B.By Record on Appeal: Required in cases where
multiple appeals are allowed:
1.
Special proceedings such as probate;
2.
Actions for recovery of property with accounting;
3.
Actions for partition of property with accounting;
CIVIL PROCEDURE
4.
Special civil actions of eminent domain
(expropriation);
5.
Special civil actions for foreclosure of mortgage.
(Roman Catholic Archbishop of Manila v. Court
of Appeals, G.R. No. 111324, July 5, 1996).
Note: The rationale behind allowing more than one
appeal in the same case is to enable the rest of the
case to proceed in the event that a separate and
distinct issue is resolved by the court and held to
be final (Roman Catholic Archbishop of Manila v.
CA, supra).
Material Data Rule
The notice of appeal must also be accompanied by a
statement of the material dates showing the timeliness of
the appeal.
SECTION 4. PERFECTION OF APPEAL; EFFECT
THEREOF
Governed by Section 9, Rule 41.
Note: The notice of appeal does not require the approval
of the court. The function of the notice of appeal is merely
to notify the trial court that the appellant was availing of
the right to appeal, and not to seek the court’s permission
that he be allowed to pose an appeal (Crisologo v. Daray,
A.M. No. RTJ-07-2036, August 30, 2006).
SECTION 5. APPELLATE COURT DOCKET AND
OTHER LAWFUL FEES
Within the period for taking an appeal, the appellant shall
pay to the clerk of court which rendered the judgment or
final order appealed from the full amount of the appellate
court docket and other lawful fees. Payment of appellate
court docket fees is jurisdictional. Failure to do so is a
ground for dismissal of appeal (Sec.1[c] Rule 50).
However, non-payment of docket fees does not
automatically result in dismissal of appeal, the dismissal
being discretionary in the court if there are justifications
for non-payment (Fontanar v. Bonsubre, G.R. No. 56315,
Nov. 25, 1986).
SECTION 6. DUTY OF THE CLERK OF COURT
Within 15 days from the perfection of the appeal, the clerk
of court or the branch clerk of court of the lower court shall
transmit the original record or the record on appeal,
together with the transcripts and exhibits, to the appellate
court/ RTC.
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APPEAL FROM MTC TO RTC
Appeal decision of MTC by filing notice of
appeal and pay within 15 days from receipt
of judgment.
15 days from perfection of appeal,
MTC clerk transmits record to RTC
Notice to parties that an appeal is being
taken from the decision of MTC
Within 15 days from notice:
Appellant submits memorandum to the RTC
Appellee files his own memorandum 15 days
from receipt of appellants’ memorandum
If uncontested, Any party may
judgment is appeal by filing
entered in the a petition for
book of entries. review with the
CA.
SECTION 7. PROCEDURE IN THE REGIONAL
TRIAL COURT
1. Upon receipt of the complete record or record
on appeal, the clerk of court of the RTC shall notify the
parties of such fact.
2. Within 15 days from such notice, it shall be the
duty of the appellant to submit a memorandum which
shall briefly discuss the errors imputed to the lower
court, a copy of which shall be furnished the adverse
party.
Note: The requirement for the submission of
appellant’s memorandum is a mandatory and
compulsory rule. Non-compliance therewith authorizes
the dismissal of the appeal.
3. Within 15 days from the receipt of the
appellant’s memorandum, the appellee may file his
memorandum. Upon the filing of the memorandum of
the appellee, or the expiration of the period to do so, the
case shall be considered submitted for decision.
Note: If the appellee does not file a memorandum, the
case shall be submitted for decision BUT it does not
follow that he will lose the case.
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SECTION 8. APPEAL FROM ORDERS DISMISSING
CASE WITHOUT TRIAL; LACK OF JURISDICTION
A.If the lower court dismissed the case without trial
on the merits, RTC may:
1. Affirm, if ground of dismissal is lack of
jurisdiction over the subject matter. The RTC, if it has
jurisdiction, shall TRY the case on the merits as if the
case was originally filed therein;
2. Reverse, in which case, it shall remand the case
for further proceedings.
B.If the case was tried on the merits by the lower
court without jurisdiction over the subject matter:
RTC shall not dismiss the case if it has original
jurisdiction, but shall decide the case, and shall admit
amended pleadings or additional evidence.
Note: Purpose is to avoid double payment of docket
fees.
SECTION 9. APPLICABILITY OF RULE 41
By virtue of this provision, the inferior courts also exercise
residual jurisdiction in the same manner provided under
par. 5 Sec. 9 of Rule 41.
R ULE 41
A PPEAL FROM THE R EGIONAL
T RIAL C OURTS
Note: As amended by A.M. No. 07-7-12 SC, effective
December 27, 2007.
Three modes of appeal from decisions of the RTC
1. Ordinary appeal or appeal by writ of error , where
judgment was rendered in a civil or criminal action by
the RTC in the exercise of its original jurisdiction.
This mode of appeal, governed by Rule 41, is taken to
the Court of Appeals on questions of fact or mixed
questions of fact and law.
2. Petition for review, where judgment was
rendered by the RTC in the exercise of its appellate
jurisdiction.
This mode of appeal, covered by Rule 42, is brought to
the Court of Appeals on questions of fact, of law, or
mixed questions of fact and law.
3. Petition for review on certiorari or appeal by
certiorari to the Supreme Court.
 REMEDIAL LAW CIVIL PROCEDURE

This mode of appeal, provided for by Rule 45, is
brought to the Supreme Court from the decision of the
Regional Trial Court in the exercise of its original
jurisdiction and only on questions of law (Sec. 2, Rule
41, Rules of Court; Five Star Marketing Corporation v.
Booc, G.R. No. 143331, October 5, 2007).
SECTION 1. SUBJECT OF APPEAL
1. Final in the sense that it is already executory and that
happens if there is no appeal. And that is for purposes
of applying rule 39 on execution.
2. Final in the sense that it is not merely interlocutory
because it completely disposes of the case or a
particular matter therein and there is nothing more for
the court to do after its rendition (Bairan v. Tan Sui Lay,
G.R. No. L-19460, December 28, 1966).

Appealable cases: Test for determining whether a judgment or order is

1. Judgments or final orders that completely final or interlocutory: Does it leave something to be
disposes of the case; done in the trial court with respect to the merits of the
2. A particular matter in a judgment declared by the case? If it does, it is interlocutory, hence, you cannot
Rules to be appealable. appeal yet; if it does not, it is final and therefore you can
appeal (Reyes v. De Leon, G.R. No. L-3720, June 24,
Non-appealable cases (DIDSES-D) 1952)
1. An order denying a petition for relief or any
similar motion seeking relief from judgment; A judgment based on compromise is not appealable and
2. An interlocutory order; is immediately executory. The remedies to set aside a
3. An order disallowing or dismissing an appeal; compromise agreement are: (1) motion to set aside; (2)
4. An order denying a motion to set aside a motion for reconsideration or new trial; (3) petition for
judgment by consent, confession or compromise on the relief from judgment; or (4) petition for annulment of
ground of fraud, mistake or duress, or any other ground judgment.
vitiating consent;
5. An order of execution; This rule refers to appeals from RTC exercising original
6. A judgment or final order for or against one or jurisdiction. An appeal on pure questions of law cannot
more of several parties or in separate claims, be taken to the CA and such improper appeal will be
counterclaims, cross-claims and third party complaints, dismissed pursuant to Sec. 2, Rule 50 (Regalado, p. 526).
while the main case is pending, unless the court allows
an appeal therefrom; and
7. An order dismissing an action without prejudice.

Remedy in cases where appeal is not allowed:

Special civil action of certiorari or prohibition if there is
lack or excess of jurisdiction or grave abuse of discretion Section 2. Modes of appeal
or mandamus if there is no performance of duty (Rule Petition for
65). Ordinary appeal Petition for
review on
(Appeal by writ review
certiorari
Note: The order denying a motion for new trial or of error) (Rule 42)
(Rule 45)
reconsideration has been deleted from the list. Hence, an
Case is decided Case is Case is decided
aggrieved party may no longer assail an order denying a
by the RTC in its decided by the by the RTC, CA,
motion for new trial or a motion for reconsideration by way
original RTC in the CTA and
of Rule 65. The proper remedy is to appeal from the
jurisdiction. exercise of its Sandiganbayan
judgment
appellate
jurisdiction.
Interlocutory Order
Appealed to the
Refers to an order which does not dispose of the case but
Appealed to the Petition for SC.
leave something else to be done by the trial court on the
CA. review with the
merits of the case.
CA.
Note: The term ‘final’ has two (2) possible meanings in
Civil Procedure:

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Petition for 1. Full names of all the parties to the

Ordinary appeal Petition for proceedings stated in the caption of the record;
review on
(Appeal by writ review 2. Include the judgment or final order from
certiorari
of error) (Rule 42) which the appeal is taken;
(Rule 45)
3. In chronological order, copies of ONLY
File a notice of File a verified File a verified
such pleadings, petitions, motions and all interlocutory
appeal or a petition for petition for
orders as are related to the appealed judgment for the
record on appeal review with the review on
proper understanding of the issue involved;
with the court of CA. Pay the certiorari with
4. Together with such data as will show
origin (RTC) and docket and the SC (Rule
that the appeal was perfected on time (Material Data
give a copy to the lawful fees, and 45). Pay docket
Rule);
adverse party. P 500 as and lawful fees
5. Every record on appeal exceeding 20
deposit for and P 500 for
pages must contain a subject index.
costs with the costs.
CA. Furnish Submit proof of
SECTION 7. APPROVAL OF RECORD ON APPEAL
RTC and service of a copy
Procedure if the appeal is through a record on appeal:
adverse party to the lower
1. File record on appeal;
copy of such court and
2. Appellee may file an objection within five (5) days
(Rule 42). adverse party.
from his receipt thereof;
Within 15 days Within 15 days Within 15 days 3. If there is no objection the court may:
from the notice of from notice of from notice of a. Approve it as presented; or
the judgment for the decision to the judgment or b. Direct its amendment on its own or
notice of appeal be reviewed or order or denial upon the motion of the adverse party.
and within 30 from the denial of the MR or 4. If an amendment is ordered the appellant must
days for records of a MR or new new trial. redraft the record within the time ordered or if there is
on appeal. trial. no time, within ten (10) days from receipt;
5. Submit the record for approval with notice on the
SECTION 3. PERIOD OF ORDINARY APPEAL adverse party.

The appeal shall be taken within: SECTION 8. JOINT RECORD ON APPEAL

1. Fifteen (15) days from notice of the judgment or Where both parties are appellants, they may file a joint
final order appealed from; record on appeal within the time provided.
2. Thirty (30) days from notice of the judgment or
final order where a record on appeal is required; SECTION 9. PERFECTION OF APPEAL; EFFECT
3. Forty-eight (48) hours from notice of the THEREOF
judgment or final order appealed from in habeas corpus
cases. Appeal is deemed perfected
1. By notice of appeal: As to him, upon the filing
SECTION 4. APPELLATE COURT DOCKET AND of the notice of appeal in due time; and
OTHER LAWFUL FEES 2. By record on appeal: As to him, with respect to
the subject matter thereof, upon the approval of the
SECTION 5. NOTICE OF APPEAL record on appeal filed in due time.
Notice of appeal must specify the following matters:
1. The parties to the appeal; Effect of a perfected appeal: In appeals by notice of
2. Judgment or final order or part thereof appealed appeal , the court loses jurisdiction over the case upon the
from; perfection of the appeal filed in due time AND the
3. The court to which the appeal is being taken; expiration of the time to appeal of the other parties.
and
4. The material dates showing the timeliness of In appeals by record on appeal , the court loses
the appeal. jurisdiction only over the subject matter thereof upon
approval of the records on appeal filed in due time and the
SECTION 6. RECORD ON APPEAL; FORM AND expiration of the time to appeal of the other parties.
CONTENTS THEREOF

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Residual power/jurisdiction of the court after losing 1. To attach to the record of the case 5 copies of
jurisdiction but prior to the transmittal of the original record the transcript of testimonial evidence;
or record on appeal: (O PAPA) 2. Transcribe such testimonial evidence;
1. Order execution pending appeal under Rule 39, 3. Shall affix an index containing the names of the
Sec.2 (motion for execution was filed before the witnesses and pages where their testimonies are found;
expiration of the period to appeal); and
2. To issue orders for the preservation of the rights 4. List of the exhibits and pages wherein each
of the parties which do not involve matters litigated by appears.
appeal;
3. To approve compromise prior to the transmittal SECTION 12. TRANSMITTAL
of the record; The clerk of the trial court shall transmit to the appellate
4. Permit appeal by an indigent; court the original record or approved record on appeal:
5. Allow withdrawal of the appeal. 1. Within 30 days from perfection of appeal;
2. Together with proof of payment of the appellate
The concept of residual jurisdiction of the trial court is court docket and other lawful fees;
available at a stage in which the court is normally deemed 3. Certified copy of the minutes of the proceedings;
to have lost jurisdiction over the case or the subject matter 4. Order of approval;
involved in the appeal. There is no residual jurisdiction to 5. Certificate of correctness;
speak of where no appeal or petition has even been filed 6. Original documentary evidence; and
(Fernandez v. Court of Appeals, G.R. No. 131094, May 7. Original and three (3) copies of the transcript.
16, 2005).
SECTION 13. DISMISSAL OF APPEAL
Duration of residual powers Prior to the transmittal of the original record or the record
on appeal, the trial court may, motu proprio or on motion,
Ordinary Appeal Petition for Review
dismiss the appeal for:
Until the records are Until the Court of Appeals 1. Having been taken out of time; or
transmitted to the gives due course to the 2. Non-payment of the docket and other lawful fees
appellate court. petition. within the reglementary period.

SECTION 10. DUTY OF THE CLERK OF COURT OF
THE LOWER COURT
Within 30 days after perfection of the appeal, it shall be
the duty of the clerk of court:
1. To verify the correctness of the original record or
record on appeal, as the case may be, and to make
certification of its correctness;
2. To verify the completeness of the records that will
be transmitted;
3. If found incomplete, to take such measures as
may be required to complete the records;
4. To transmit the records to the appellate court;
5. If the efforts to complete the records fail, he shall
indicate in his letter of transmittal:
a. Those that were not included;
b. Reasons for their non-transmittal; and
c. The steps taken or could be taken.
6. The clerk of court shall furnish the parties with
copies of his letter of transmittal.
The requirement regarding the perfection of the appeal
within the reglementary period is not only mandatory but
jurisdictional.
Can the trial court dismiss the appeal on the ground
that the appeal is dilatory? No. Such ground can only
be passed upon by the appellate court. Otherwise, the
trial courts can easily forestall review of their decisions
(Dasalla v. Caluag, G.R. No. L-18765, July 31, 1963).
R ULE 42
P ETITION FOR R EVIEW FROM THE
R EGIONAL T RIAL C OURTS TO THE
C OURT OF A PPEALS
Nature: This mode of appeal is not a matter of right. It is
a matter of discretion on the part of CA on whether or not
to entertain the appeal.

SECTION 11. TRANSCRIPT

Upon perfection of the appeal, the clerk shall direct the
stenographer concerned: SECTION 1. HOW APPEAL TAKEN; TIME FOR
FILING

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The party desiring to appeal from a decision of the RTC 1. Require the respondent to file a comment on the
rendered in the exercise of its appellate jurisdiction petition, not a motion to dismiss, within 10 days from
may: notice; or
1. File a verified petition for review with the CA: 2. Dismiss the petition if it finds the same to be:
a. Within 15 days from notice of decision; a. Patently without merit;
or b. Prosecuted manifestly for delay; or
b. Within 15 days from denial of c. The questions raised therein are too unsubstantial to
petitioner’s Motion for New Trial or MR. require consideration.
2. Pay the corresponding docket and other lawful
fees, and depositing PhP500 for costs; Note: The ground for dismissal of an appeal under
3. Furnish the RTC and the adverse party with a Section 1 of Rule 50 are discretionary upon the appellate
copy of the petition. court. The very wording of the rule uses the word “may”
instead of “shall”. This indicates that it is only directory
The CA may grant an additional period of 15 days within and not mandatory. Sound discretion must be exercised in
which to file the petition for review. No further extension consonance with the tenets of justice and fair play,
shall be granted except for the most compelling reason keeping in mind the circumstances obtaining in each case
and in no case to exceed 15 days. (Mercury Drug Corporation v. De Leon, G.R. No. 165622,
October 17, 2008).
SECTION 2. FORM AND CONTENTS
The petition shall be filed in seven (7) legible copies, with SECTION 5. CONTENTS OF COMMENT
the original copy intended for the court being indicated Comment of the respondent shall be filed in seven (7)
and shall: legible copies, accompanied by certified true copies of
1. State the full names of the parties to the case; such material portions of the record referred to therein
2. Indicate the specific material dates showing that together with other supporting papers and shall: (AIR)
it was filed on time; 1. State whether or not he accepts the statement of
3. Set forth concisely a statement of the: matters involved in the petition;
a. Matters involved; 2. Point out such insufficiencies or inaccuracies as
b. Issues raised; he believes exist in petitioner’s statement of matters but
c. Specification of errors of fact or law, or without repetition; and
both, allegedly committed by the RTC; and 3. Reasons why the petition should not be given
d. Reasons or arguments relied upon for due course.
the allowance of the appeal;
4. Accompanied by clearly legible duplicate A copy of the comment shall be served on the petitioner.
originals or true copies of the judgment or final orders of
both lower courts; and SECTION 6. DUE COURSE
5. Certificate of non-forum shopping. Petition for review is not a matter of right but discretionary
on the CA. It may only give due course to the petition if it
Note: A certificate of non-forum shopping is required shows on its face (CA finds prima facie) that the lower
even if a petition for review is not an initiatory pleading. court has committed an error of fact and/or law that will
warrant a reversal or modification of the decision or
SECTION 3. EFFECT OF FAILURE TO COMPLY judgment sought to be reviewed.
WITH REQUIREMENTS
Failure to comply with any of the following requirements SECTION 7. ELEVATION OF RECORD
shall be sufficient ground for dismissal: It is merely discretionary on the CA to order the elevation
1. Payment of docket and other lawful fees; of the records. This is because until the petition is given
2. Deposit for costs; due course, the trial court may still issue a warrant of
3. Proof of service of the petition; and execution pending appeal and in some cases such as
4. Contents of the documents, which should ejectment and those of Summary Procedure, the
accompany the petition. judgments are immediately executory.

SECTION 4. ACTION ON THE PETITION It is only when the CA deems it necessary that the Clerk
The CA may: of the RTC will be ordered to elevate the records of the
case.

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SECTION 8. PERFECTION OF APPEAL; EFFECT 16. Philippine Atomic Energy Commission;

1. Deemed perfected as to the petitioner upon the timely 17. Board of Investments;
filing of the petition for review and payment of the 18. Construction Industry Arbitration Commission;
corresponding fees; and and
2. Court loses jurisdiction over the case upon perfection 19. Voluntary arbitrators authorized by law.
of appeal on time and expiration of the period to appeal.
A party adversely affected by a decision or ruling of the
Residual Power of the court before the CA gives due CTA en banc may file with the Supreme Court a verified
course to the petition (Same as in Sec. 9, Rule 41). petition for review on certiorari pursuant to Rule 45 (Sec.
12, R.A. No. 9282 and A.M. 07-7-12-SC).
Except in civil cases decided under the Rule on
Summary Procedure, the appeal shall stay the judgment Note: The Court of Appeals has jurisdiction over
or final order unless the CA, the law, or these Rules shall orders, directives and decisions of the Office of the
provide otherwise (Sec. 8[b]). Ombudsman in administrative disciplinary cases only. It
cannot, therefore, review the orders, directives or
SECTION 9. SUBMISSION FOR DECISION decisions of the Office of the Ombudsman in criminal and
If the petition is given due course: non-administrative cases (Golangco v. Fung, Office of the
1. Case may be set for oral argument; or Ombudsman, G.R. Nos. 147640-147762, October 12,
2. The parties may be required to submit 2006).
memoranda within 15 days from notice;
3. Case shall be deemed submitted for decision In criminal cases, the ruling of the Ombudsman shall be
upon filing of the last pleading or memorandum. elevated to the Supreme Court by way of Rule 65. The
Supreme Court’s power of review over resolutions and
orders of the Office of the Ombudsman is restricted only
R ULE 43 to determining whether grave abuse of discretion has
A PPEALS FROM THE C OURT OF been committed by it. The Court is not authorized to
T AX A PPEALS AND THE Q UASI - correct every error or mistake of the Office of the
Ombudsman other than grave abuse of discretion
J UDICIAL A GENCIES TO THE (Villanueva v. Ople, G.R. No. 165125, November 18,
C OURT OF A PPEALS 2005). The remedy is not petition for review on certiorari
under Rule 45 but a petition for certiorari under Rule 65
SECTION 1. SCOPE (Salvador v. Mapa, G.R. No. 135080, November 28,
Appeals from awards, judgments, final orders or 2007).
resolution of or authorized by any quasi-judicial agency in
the exercise of its quasi-judicial functions. Findings of fact of the agency concerned, when supported
by substantial evidence, shall be binding on the CA.
These agencies include
1. The Civil Service Commission; SECTION 2. CASES NOT COVERED
2. Securities and Exchange Commission; Judgments and final orders or resolutions of the NLRC
3. Office of the President; are reviewable by the Court of Appeals in an original
4. Land Registration Authority; action for certiorari under Rule 65 (St. Martin Funeral
5. Social Security Commission; Home v. NLRC, G.R.. No. 130866, September 16, 1998).
6. Civil Aeronautics Board; SECTION 3. WHERE TO APPEAL
7. Bureau of Patents Trademarks and Technology Appeal under this Rule may be taken to the CA within the
Transfer; period and in the manner herein provided, whether the
8. National Electrification Administration; appeal involves questions of fact, of law, or mixed
9. Energy Regulatory Board; question of law and fact.
10. National Telecommunications Commission;
11. Department of Agrarian Reform under R.A. No. SECTION 4. PERIOD OF APPEAL
6657; Fifteen (15) days from:
12. GSIS; 1. Notice of the award, judgment, final order or
13. Employees Compensation Commission; resolution; or
14. Agricultural Inventions Board; 2. Date of publication, if publication is required
15. Insurance Commission; by law for its effectivity; or

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3. Denial of petitioner’s MNT or MR (Only 1 SECTION 11. TRANSMITTAL OF RECORD

MR shall be allowed).
The CA may grant additional 15 days only within which to
file the petition for review, upon proper motion and
payment in full of docket fees.
No further extension shall be granted except for the most
compelling reason and in no case shall exceed 15 days.
Within 15 days from notice that the petition has been
given due course, the CA may require the agency
concerned to transmit the original or a legible certified
copy of the entire record of the proceeding under review.
SECTION 12. EFFECT OF APPEAL
General Rule: Appeal shall not stay the award,
judgment, final order or resolution sought to be reviewed.

SECTION 5. HOW APPEAL TAKEN Exception : When the CA shall direct otherwise
1. By filing a verified petition for review in seven (7) upon such terms as it may deem just.
legible copies;
2. With proof of service of a copy thereof on the SECTION 13. SUBMISSION FOR DECISION
adverse party and on the court or agency a quo; Similar to Section 9 of Rule 42.
3. Pay to the clerk of court of CA docket and other
lawful fees; and
4. Deposit the sum of PhP500 for costs. R ULE 44
O RDINARY A PPEALED C ASES
RTC as Appellate Quasi-Judicial Agencies
Court (Rule 42) (Rule 43) SECTION 1. TITLE OF CASES
Decision is stayed by an Decision is immediately In all cases appealed to the CA under Rule 41, the title of
appeal. executory; not stayed by an the case shall remain the same but party appealing the
appeal. case shall be referred to as appellant and the adverse
Factual findings not Factual findings are party as the appellee.
conclusive to CA. conclusive upon CA if
supported by substantial SECTION 2. COUNSEL AND GUARDIANS
evidence. Counsel and guardians ad litem in the court of origin, shall
be considered as such in the CA.
SECTION 6. CONTENTS OF THE PETITION
1. State the full names of the parties to the case; When others appear or are appointed, notice shall be
2. Set forth concisely a statement of the facts and served on the adverse party and filed with the court.
issues involved and the grounds relied upon for review;
3. Accompanied by clearly legible duplicate SECTION 3. ORDER OF TRANSMITTAL OF
originals or certified true copy of the award, judgment, RECORD
final order or resolution appealed from; If not transmitted within 30 days after perfection of the
4. Certificate of non-forum shopping; and appeal, either party may file a motion with trial court, with
5. State the specific material dates showing that it notice to the other, for the transmittal.
was filed on time.
SECTION 4. DOCKETING OF THE CASE
SECTION 7. EFFECT OF FAILURE TO COMPLY
WITH REQUIREMENTS SECTION 5. COMPLETION OF RECORD
Sufficient ground for dismissal.
SECTION 6. DISPENSING WITH COMPLETE
SECTION 8. ACTION ON THE PETITION RECORD
If completion of the record cannot be accomplished within
SECTION 9. CONTENTS OF THE COMMENT a sufficient period due to insuperable or extremely difficult
cause:
SECTION 10. DUE COURSE 1. The court on its own motion; or
The foregoing sections are similar to Sections 4, 5, and 6 2. On motion of any of the parties
of Rule 42.
May declare that the record and its accompanying
transcripts and exhibits are already sufficient to decide the
issues.

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SECTION 7. APPELLANT’S BRIEF
It shall be filed, within forty-five (45) days from receipt of
the notice of the clerk of court that all the evidence is
attached to the record. The brief shall be filed in:
1. Seven (7) copies of legibly typewritten,
mimeographed or printed brief; and
2. With proof of service of two (2) copies thereof upon
the appellee.
Failure to file appellant's brief on time is a ground for
dismissal of the appeal.
If a motion to dismiss an appeal has been filed, it
suspends the running of the period for filing the
appellant’s brief, as the same would be unnecessary
should the motion be granted.
The failure of the appellant to make specific assignment of
errors in his brief or page references to the record as
required in this section is a ground for dismissal of his
appeal.
SECTION 8. APPELLEE’S BRIEF
It shall be filed similar to appellant’s brief within forty-five
(45) days from the receipt of the appellant’s brief.
SECTION 9. APPELLANT’S REPLY BRIEF
Within 20 days from receipt of the appellee’s brief,
appellant may file a reply brief answering points not
covered in his main brief.
SECTION 10. TIME FOR FILING MEMORANDA IN
SPECIAL CASES
In certiorari, prohibition, mandamus, quo warranto and
habeas corpus cases, parties shall file in lieu of briefs,
their respective memoranda within a non-extendible
period of 30 days from receipt of the notice.
The failure of the appellant to file his memorandum within
the period therefore may be a ground for dismissal of the
appeal.
Brief Memorandum
Ordinary appeals. Certiorari, Prohibition,
Mandamus, Quo Warranto
and Habeas Corpus cases.
Filed within forty-five (45) Within thirty (30) days.
days.
CIVIL PROCEDURE
Brief Memorandum
Contents specified by Shorter, briefer, only one
Rules. issue involved - No subject
index or assignment of
errors just facts and law
applicable.
SECTION 11. SEVERAL APPELLANTS OR
APPELLEES OR SEVERAL COUNSEL FOR EACH
PARTY
Several appellants or appellees each counsel
representing one or more but not all of them – shall be
served with only one (1) copy of the briefs.
Several counsels represent one appellant or appellee,
copies of the brief may be served upon any of them.
SECTION 12. EXTENSION OF TIME FOR FILING
BRIEFS
General Rule: Not allowed.
Exception : For good and sufficient cause and only if the
motion for extension is filed before the expiration of the
time sought to be extended.
SECTION 13. CONTENTS OF APPELLANT’S BRIEF
(SAC FIARC)
1. Subject index of the matter in the brief with a
digest of the arguments and page references, and a
table of cases alphabetically arranged, textbooks and
statutes cited with references to the pages where they
are cited;
2. Assignment of errors;
3. Under heading of “Statement of the case”, clear
and concise statement of the nature of the action,
summary of the proceedings, appealed rulings and
orders of the court, nature of the judgment and any
matters necessary to an understanding of the nature of
the controversy;
4. Under the heading “Statement of facts,” clear
and concise statement in a narrative form of the facts
admitted by both parties and of those in controversy;
5. Clear and concise statement of the issues of fact
or law;
6. Under the heading “Argument,” appellant’s
arguments on each assignment of error with page
reference to the record. Authorities relied upon shall be
cited;
7. Under the heading “Relief,” specification of the
order or judgment which the appellant seeks; and
8. In cases not brought up by record on appeal,
appellant’s brief shall contain, as an appendix, a copy of
the judgment or final order appealed from.
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SECTION 14. CONTENTS OF APPELLEE’S BRIEF
1. Subject index of the matter in the brief with a
digest of the arguments and page references, and a
table of cases alphabetically arranged, textbooks and
statutes cited with references to the pages where they
are cited;
2. Under the heading “Statement of Facts”,
appellee shall state that he accepts the statement of
facts in the appellant’s brief, or under the heading
“Counter-Statement of Facts”, point out such
insufficiencies or inaccuracies as he believes exist in
the appellant’s statement of facts; and
3. Under the heading “Argument,” appellee shall set
forth his arguments in the case on each assignment of
error with page references to the record. Authorities
relied upon shall be cited.
SECTION 15. QUESTIONS THAT MAY BE RAISED
ON APPEAL .
The appeal can raise only questions of law or fact that:
1. Has been raised in the court below; and
2. Which is within the issues framed by the parties.
Rule: The reversal of a judgment on appeal is generally
binding only on the parties in the appealed case and does
not affect or inure to the benefit of those who did not join
or were not made parties to the appeal.
Exception : Where the rights of such parties are so
interwoven and dependent on each other as to be
inseparable due to community of interests.
R ULE 45
A PPEAL BY C ERTIORARI TO THE
S UPREME C OURT
RTC, Sandiganbayan, CTA en
banc or CA renders decision
Any party files a petition for review on certiorari
within 15 days from notice of final judgment or
order of lower court or notice of denial of motion
for reconsideration or new trial.
Appellant serves copies of petition on
adverse parties and to the lower court,
and pay the corresponding docket fees.
SC may dismiss the petition or require
the appellee to comment.
If given due course, parties may
submit memoranda.
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OPERATIONSof the lower court.
REMEDIAL LAW
SECTION 1. FILING OF PETITION WITH SUPREME
COURT
Appeals to the SC can be taken from a judgment or final
order or resolution of the CA, the Sandiganbayan, the
Court of Tax Appeals en banc, the RTC or such other
courts as maybe authorized by law and only by verified
Petition for Review on Certiorari .
The petition may include an application for a writ of
preliminary injunction or other provisional remedies. The
petitioner may seek the same provisional remedies by
verified motion filed in the same action or proceeding at
any time during its pendency (as amended by A.M. 07-7-
12-SC).
Except as provided in criminal cases in Sec 13(c) Rule
124 in relation to Sec 3(e) Rule 122, whenever the CA
imposes reclusion perpetua, life imprisonment or a lesser
penalty, judgment may be appealed to the SC by Notice
of Appeal filed with the CA.
Note: The petition shall raise only questions of law
which must be distinctly set forth.
Questions of Law Questions of Fact
Doubt or controversy as to Doubt or difference as to
what the law is on certain the truth or falsehood of
facts. facts, or as to probative
value of the evidence
presented.
If the appellate court can The determination involves
determine the issue raised evaluation or review of
without reviewing or evidence.
evaluating the evidence.
Can involve questions of Query invites the calibration
interpretation of the law of the whole evidence
with respect to certain set considering mainly the
of facts. credibility of witnesses,
existence and relevancy of
specific surrounding
circumstances and relation
to each other and the whole
probabilities of the situation.
 REMEDIAL LAW
Note: The Supreme Court is not a trier of facts, and is not
to review or calibrate the evidence on record. Moreover,
findings of facts of the trial court, as affirmed on appeal by
the Court of Appeals, are conclusive on the Court (Boston
Bank of the Philippines v. Manalo, G.R. No. 158149,
February 9, 2006).
It has to be emphasized that it is not the duty of the
Supreme Court to review, evaluate, and weigh the
probative value of the evidence adduced before the lower
courts (Frondarina v. Malazarte, G.R. No. 148423,
December 6, 2006).
General Rule: The findings of fact of the CA are final and
conclusive and cannot be reviewed on appeal to the SC.
Exceptions to Conclusiveness of Facts
1. When the finding is grounded entirely on
speculations, surmise or conjecture;
2. When inference made is manifestly absurd,
mistaken or impossible;
3. When the judgment is premised on a
misrepresentation of facts;
4. When there is grave abuse of discretion in the
appreciation of facts;
5. When the findings of fact are conflicting;
6. When the CA in making its findings went beyond
the issues of the case and the same is contrary to both
the admissions of appellants and appellees;
7. When the findings of fact of the CA are at
variance with those of the trial court, the SC has to
review the evidence in order to arrive at the correct
findings based on the record;
8. When the findings of fact are conclusions without
citation of specific evidence on which they are based;
9. When the facts set forth in the petition as well as
in the petitioner’s main and reply briefs are not disputed
by the respondents;
10. The findings of fact of the CA is premised on the
supposed evidence and is contradicted by the
evidence on record; and
11. When certain material facts and circumstances
have been overlooked by the trial court which, if taken
into account, would alter the result of the case in that
they would entitle the accused to acquittal.
SECTION 2. TIME FOR FILING; EXTENSION
Within 15 days from notice of the judgment or final order
or resolution appealed from or denial of the petitioner’s
motion for new trial or MR filed in due time.
The SC may for justifiable reasons grant an extension of
30 days only within which to file the petition provided that
the motion for extension is duly filed and served, with full
CIVIL PROCEDURE
payment of the docket and other lawful fees and the
deposit for costs before the expiration of the reglementary
period.
SECTION 3. DOCKET AND OTHER LAWFUL FEES;
PROOF OF SERVICE
Unless he has theretofore done so, petitioner shall pay
the corresponding docket and other lawful fees to the
clerk of court of SC and deposit PhP500 for costs.
Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted
together with the petition.
SECTION 4. CONTENTS OF THE PETITION
The petition shall be filed in eighteen (18) copies and
shall:
1. State the full names of the appealing party as the
petitioner and the adverse party as respondent;
2. Indicate the specific material dates showing that
it was filed on time;
3. Set forth concisely a statement of the:
a. Matters involved;
b. Reasons or arguments relied upon for
the allowance of the appeal;
4. Accompanied by clearly legible duplicate original
or certified true copy of the judgment or final order or
resolution; and
5. Contain a certificate of non-forum shopping.
Note: The Rules of Court provides that the Supreme
Court “may require or allow the filing of pleadings, briefs,
memoranda, or documents, as it may deem necessary
within such periods and under such conditions as it may
consider appropriate”; and “[i]f the petition is given due
course, the Supreme Court may require the elevation of
the complete record of the case or specified parts thereof
within fifteen (15) days from notice.” These provisions are
in keeping with the overriding standard that procedural
rules should be liberally construed to promote their
objective and to assist the parties in obtaining a just,
speedy, and inexpensive determination of every action or
proceeding (Metropolitan Bank & Trust Company v.
Absolute Management Corporation, G.R. No. 170498.
January 9, 2013).
SECTION 5. DISMISSAL OR DENIAL OF PETITION
1. Failure of the petitioner to comply with:
a. The payment of the docket or other lawful fees,
b. Deposit for costs,
c. Proof of service, and
d. The contents of and the documents which would
accompany the petition;
2. Appeal is without merit; or
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3. Is prosecuted manifestly for delay; or Appeal by Review of Petition for

4. That the questions raised therein are too Certiorari Judgments, Certiorari
unsubstantial to require consideration. (Rule 45) Final Orders or (Rule 65)
Resolutions
Note: SC may dismiss the petition motu proprio. (Rule 64)
Directed against
SECTION 6. REVIEW DISCRETIONARY an interlocutory
Review will be granted only when there are special and Involves the
order of the
important reasons therefore. Involves the review of
court or where
review of the judgments, final
there is no
The following, while neither controlling nor fully measuring judgment award orders or
appeal or any
the court’s discretion, indicate the character of the or final order on resolutions of
other plain,
reasons which will be considered: the merits. COMELEC and
speedy or
a. Court a quo has decided a question of COA.
adequate
substance, not theretofore determined by the SC, or remedy.
has decided it in a way probably not in accord with law Filed not later
or with the applicable decisions of the SC; or Filed within 15 Filed within 30
than 60 days
b. Court a quo has so far departed from the days from notice days from notice
from notice of
accepted and usual course of judicial proceedings, or of judgment, of judgment, final
judgment, order
so far sanctioned such departure by a lower court, as to final order or order or
or resolution
call for an exercise of the power of supervision. resolution resolution sought
sought to be
appealed from. to be reviewed.
reviewed.
SECTION 7. PLEADINGS AND DOCUMENTS THAT Unless a writ of
MAY BE REQUIRED; SANCTIONS Shall not stay preliminary
For purposes of determining Sec. 5 or Sec. 8, SC may the execution injunction or
require or allow the filing of such pleadings, briefs, Stays the
unless SC shall temporary
memoranda or documents within such periods and under judgment or
direct otherwise restraining order
such conditions as it may consider appropriate. order appealed
upon such terms is issued, does
from.
as it may deem not stay the
SC may impose the corresponding sanctions in case of just. challenged
non-filing or unauthorized filing or non-compliance with proceeding.
the conditions. The judge, court,
The appellant quasi-judicial
SECTION 8. DUE COURSE; ELEVATION OF and the appellee agency, tribunal,
RECORDS The COMELEC
are the original corporation,
and COA shall
parties to the board, officer or
SECTION 9. RULE APPLICABLE TO BOTH CIVIL be public
action, and the person shall be
AND CRIMINAL CASES respondents who
lower court or public
are impleaded in
quasi-judicial respondents
Appeal by Review of Petition for the action.
agency is not who are
Certiorari Judgments, Certiorari impleaded. impleaded in the
(Rule 45) Final Orders or (Rule 65) action.
Resolutions Motion for The filing of a Motion for
(Rule 64) reconsideration motion for reconsideration
Petition is based Petition is based Petition is based is not required. reconsideration or for new trial is
on questions of on questions of on questions of or new trial, if required;
law. law. jurisdiction. allowed under If a motion for
the procedural reconsideration
It is a mode of
rules of the or new trial is
It is a mode of appeal but the It is a mode of
Commission, filed, the period
appeal. petition used is review.
shall interrupt shall not only be
Rule 65.
period fixed. interrupted but
another 60 days
shall be given to

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Appeal by Review of Petition for SECTION 1. TITLE OF CASES .

Certiorari Judgments, Certiorari In all cases originally filed in the CA, the party instituting
(Rule 45) Final Orders or (Rule 65) the action shall be called petitioner and the opposing party
Resolutions the respondent.
(Rule 64)
the petitioner. SECTION 2. TO WHAT ACTIONS APPLICABLE .
(SC Admin. Original actions for certiorari, prohibition, mandamus, and
Matter 02-03). quo warranto. Petitions for habeas corpus are excluded,
being governed by the rules on special proceedings and
The court is in The Court is in Sec. 3, Rule 41.
the exercise of the exercise of Court exercises
its appellate its appellate original SECTION 3. CONTENTS AND FILING OF
jurisdiction and jurisdiction and jurisdiction. PETITION; EFFECT OF NON-COMPLIANCE WITH
power of review. power of review. REQUIREMENTS.
The petition The petition shall contain:
The petition shall be filed 1. Full names and actual addresses of all petitioners
The petition shall and respondents;
shall be filed with the RTC,
be filed with the 2. Concise statement of the matters involved;
with the CA,
Supreme Court. 3. Factual background of the case;
Supreme Court. Sandiganbayan
and COMELEC. 4. Grounds relied upon for the relief prayed for;
5. In actions filed under Rule 65, indicate the
Note: As a rule, a party cannot file a petition both under material dates showing:
Rules 45 and 65 of the Rules of Court because said a. When notice of the judgment or final order or
procedural rules pertain to different remedies and have resolution was received;
distinct applications. The remedy of appeal under Rule 45 b. When a motion for new trial or reconsideration, if any,
and an original action for certiorari under Rule 65 are was filed; and
mutually exclusive and not alternative or cumulative. c. When notice of the denial thereof was received;
Thus, a party should not join both petitions in one 6. Filed in seven (7) legible copies, with proof of
pleading. When a party adopts an improper remedy his service on the respondent;
petition may be dismissed outright (Nagkakaisang 7. Accompanied by clearly legible duplicate original
Mamumuo Sa PICOP Resources, Inc. v. Court of or certified true copy of the judgment or final order or
Appeals, G.R. Nos. 148839-40, November 2, 2006). resolution;
8. Certificate of non-forum shopping;
However, the Court may set aside technicality for 9. Payment of docket and other lawful fees; and
justifiable reasons when the petition before the court is 10. Deposit the amount of P500.
clearly meritorious and filed on time both under Rules 45
and 65. In accordance with the liberal spirit which Failure to comply with the foregoing requirements shall be
pervades the Rules of Court and in the interest of justice, sufficient ground for the dismissal of the petition.
the Court may treat the petition as having been filed under
Rule 45 (International Corporate Bank, Inc. v. Court of Substantial Compliance Rule: Rule 46 applies to
Appeals, G.R. No. 129910, September 5, 2006). actions for certiorari filed in the Court of Appeals but Rule
65 generally supplements the same. Mere duplicate
Note: Rule on Writ of Amparo and Habeas Data originals are sufficient under Rule 46 even if Rule 65
requires only certified true copies (Republic of the
Any party may appeal from the final judgment or order to Philippines v. Carmel Development, Inc., G.R. No.142572,
the Supreme Court under Rule 45. The appeal may raise Feb. 20, 2002).
questions of fact or law or both. The period of appeal shall
be five (5) working days from the date of notice of the SECTION 4. JURISDICTION OVER PERSON, HOW
judgment or order. ACQUIRED

Jurisdiction is acquired
R ULE 46 1. Over the petitioner – By filing of the petition;
O RIGINAL C ASES 2. Over the respondent – By the service on the
latter of the order or resolution indicating the courts

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initial action on the petition or by his voluntary The purpose of such action is to have the final and
submission. executory judgment set aside so that there will be a
renewal of litigation. It is resorted to in cases where the
SECTION 5. ACTION BY THE COURT ordinary remedies of new trial, appeal, petition for relief of
judgment, or other appropriate remedies are no longer
The court may: available through no fault of the petitioner, and is based
1. Dismiss the petition outright with specific reasons on only two grounds : (1) extrinsic fraud and (2) lack of
for such dismissal; or jurisdiction (Alaban v. Court of Appeals, G.R. No. 156021,
2. Require the respondent to file a comment on the September 23, 2005).
same.
Like a petition for relief, an action for annulment of a
SECTION 6. DETERMINATION OF FACTUAL judgment is a recourse equitable in character, allowed
ISSUES only in exceptional cases as where there is no available or
adequate remedy (Ramos v. Combong, G.R. No. 144273,
Procedural outline (original cases in the court of October 20, 2005).
appeals)
1. Filing of the petition; The remedy may no longer be invoked where the party
2. Order to acquire jurisdiction over respondents has availed himself of the remedy of new trial, appeal,
OR outright dismissal for failure to comply with the petition for relief or other appropriate remedy and lost or
requirements as to form and payment of docket and where he has failed to avail himself of those remedies
other legal fees; through his fault or negligence (Heirs of Maura So v.
3. Require respondents to file comment within ten Obliosca, G.R. No. 147082, January 28, 2008).
(10) days from notice;
4. Court may require the filing of a reply or such Nature: It is not a mode of appeal but an independent
other pleadings as it may deem necessary; civil action.
5. Determination of factual issues, the court itself
may conduct hearings or delegate the reception of Where filed:
evidence on such issues to any of its members or to an Judgments, Final Orders, Judgments, Final
appropriate court, agency or office (Sec. 6); and or Resolutions of RTC Orders, or Resolutions
6. Submission of Memoranda. of MTC
Filed with the Court of
Note: The reception of evidence may be delegated to a Filed with the RTC
Appeals
member of the Court of Appeals or a judge of the lower Basis: It has exclusive
court who is not a public respondent. Basis: RTC as a court of
original jurisdiction over said
general jurisdiction under
action under Section 9 (2)
SECTION 7. EFFECT OF FAILURE TO FILE Section 19 (6) of BP 129
of BP 129
COMMENT The CA may dismiss the The RTC has no such
The case may be decided on the basis of the record, case outright; it has the discretion. It is required to
without prejudice to any disciplinary action which the court discretion on whether or not consider it as an ordinary
may take against the disobedient party. to entertain the petition. civil action.

R ULE 47 Important condition for the availment of this remedy:

A NNULMENT OF J UDGMENT OR The petitioner failed to move for new trial in, or appeal
from, or file a petition for relief against, or take other
F INAL O RDERS AND R ESOLUTION appropriate remedies assailing the questioned judgment
or final order or resolution through no fault attributable to
SECTION 1. COVERAGE
him.
Annulment of Judgment
If he failed to avail of those other remedies without
A remedy in law independent of the case where the
sufficient justification, he cannot resort to annulment
judgment sought to be annulled was rendered and may be
provided in this Rule, otherwise he would benefit from his
availed of though the judgment has been executed.
own inaction or negligence.

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Note: Annulment of Judgment does not apply to
judgments rendered by quasi-judicial bodies. It does not
apply also to decisions or orders of the Ombudsman in
administrative cases whose decisions or orders may be
appealed to the Court of Appeals under Rule 43
(Macalalag v. Ombudsman, G.R. No. 147995, Mar. 5,
2004).
SECTION 2. GROUNDS FOR ANNULMENT
1. Extrinsic fraud or collateral fraud – Extrinsic
or Collateral Fraud refers to any fraudulent act of the
prevailing party in the litigation which is committed
outside of the trial of the case , whereby the
defeated party has been prevented from exhibiting fully
and fairly presenting his side of the case.
The use of forged instruments or perjured testimonies
during trial is not an extrinsic fraud. Such evidence does
not preclude a party’s participation in the trial (Bobis v.
Court of Appeals, G.R. No. 113796, December 14,
2000).
Extrinsic fraud shall not be a valid ground if it was
availed of, or could have been availed of, in a motion for
new trial or petition for relief.
abuse of discretion will support a petition for certiorari
under Rule 65 but it will not support an action for
annulment of judgment (Riano, p. 486).
Note: While under Section 2, Rule 47 of the Rules of
Court a Petition for Annulment of Judgment may be based
only on the grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes lack of due process
as additional ground to annul a judgment. In Arcelona v.
Court of Appeals, the Supreme Court declared that a final
and executory judgment may still be set aside if, upon
mere inspection thereof, its patent nullity can be shown for
having been issued without jurisdiction or for lack of due
process of law (Leticia Diona, represented by her
Attorney-in-fact, Marcelina Diona v. Romeo Balangue,
Sonny Balangue, Reynaldo Balangue, and Esteban
Balangue, Jr., G.R. No. 173559. January 7, 2013)
Attack of a void judgment: When the judgment is null
and void on its very face, the judgment may be attacked:
1. Directly; or
2. Collaterally;
When the nullity is not apparent on the face of the
judgment, the judgment can only be directly attacked.

2. Lack of jurisdiction over the subject matter Direct Attack

and over the person. An independent action must be filed to challenge the
validity of the judgment whose nullity is not patent on its
Lack of jurisdiction face.
The defense of lack of jurisdiction may be barred by
estoppel by laches, which is that failure to do something Collateral Attack
which should be done or to claim or enforce a right at a A collateral attack is made when, in another action to
proper time or a neglect to do something which one obtain a different relief, an attack on the judgment is made
should do or to seek or enforce a right at a proper time. as an incident in said action. This is proper only when the
judgment is on its face null and void such as in cases of
Note: The rule is that jurisdiction over the subject lack of jurisdiction to render the judgment.
matter is conferred upon the courts exclusively by law,
and as lack of it affects the very authority of the court to SECTION 3. PERIOD FOR FILING ACTION
take cognizance of the case, the objection may be
raised at any stage of the proceedings. Extrinsic Fraud Lack of
Jurisdiction
However, considering the facts and circumstances of
the present case, a party may be barred by laches from Period of Before it is barred
Four (4) years from
invoking this plea for the first time on appeal for the Filing by laches or
discovery.
purpose of annulling everything done in the case with action estoppel.
the active participation of said party invoking the plea Effect of Court may on motion Set aside the
(Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, judgment order the trial court questioned
1968). to try the case as if a judgment and
timely MNT had render the same
Note: The petitioner must show not a mere grave been granted. null and void,
abuse of discretion but an absolute lack of jurisdiction without prejudice to
(Republic of the Philippines v. “G” Holdings, Inc., G.R. the original action
No. 141241, November 22, 2005). A claim of grave being re-filed in the

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proper court.
SECTION 7. EFFECT OF JUDGMENT
SECTION 4. FILING AND CONTENTS
SECTION 8. SUSPENSION OF PRESCRIPTIVE
The action shall be commenced by filing:
PERIOD
1. Verified petition alleging therein:
Prescriptive period for the re-filing of the aforesaid original
a. With particularity the facts and the law
action shall be deemed suspended from the filing of such
relied upon;
original action until the finality of the judgment of
b. Petitioner’s good and substantial cause
annulment.
of action or defense;
2. Filed in seven (7) legible copies together with
However, the prescriptive period shall not be suspended
sufficient copies corresponding to the number of
where the extrinsic fraud is attributable to the plaintiff in
respondents;
the original action.
3. Certified true copy of the judgment or final order
or resolution shall be attached to the original copy of the
petition;
4. Affidavits of witnesses or documents supporting
SECTION 9. RELIEF AVAILABLE
the cause of action or defense; and
Judgment may include award of damages, attorney’s fees
5. Certificate of non-forum shopping.
and other relief.
Note: The petitioner need not be a party to the judgment
If already executed, the court may issue Orders of
sought to be annulled. What is essential is that the
Restitution or other relief as justice and equity may
petitioner is one who can prove his allegation that the
warrant.
judgment was obtained and that he was affected thereby
(Alaban v. Court of Appeals, supra ). It is a remedy in law
SECTION 10. ANNULMENT OF JUDGMENTS OR
independent of the case where the judgment sought to be
FINAL ORDERS OF MUNICIPAL TRIAL COURTS
annulled is promulgated (Villanueva v. Nite, G.R. No.
Filed in the RTC having jurisdiction over the MTC.
148211, July 25, 2006).
RTC is a court of general jurisdiction. All cases, the
SECTION. 5. ACTION BY THE COURT
jurisdiction over which is not specifically provided for by
law to be within the jurisdiction of any other court fall
Two stages:
under its jurisdiction (Durisol Philippines, Inc. v. Court of
1. A preliminary evaluation of the petition for prima
Appeals, G.R. No. 121106, February 20, 2002).
facie merit therein; and
2. The issuance of summons as in ordinary civil
Note: Where a petition for annulment of judgment was
cases and such appropriate proceedings thereafter as
dismissed by the Court of Appeals, the Supreme Court is
contemplated in Sec. 6 (Regalado, p. 572).
without jurisdiction to entertain another petition for
annulment in the guise of a special civil action for
The rule allows the CA to dismiss the petition outright as
certiorari under Rule 65. The remedy of the petitioner is to
in special civil actions.
file a petition for review on certiorari under Rule 45 (Lapu-
lapu Development v. Risos, G.R. 118633, September 6,
For the court to acquire jurisdiction over the respondent,
1996).
the rule requires the issuance of summons should prima
facie merit be found in the petition and the same is given
Annulment of judgments of quasi-judicial bodies: In
due course.
Macalalag v. Ombusdman (G.R. No. 147995, March 4,
2004), the Court ruled that Rule 47 of the 1997 Rules of
Note: Res judicata is not a bar to an action for
Civil Procedure on annulment of judgments or final orders
annulment of the judgment sought to be annulled (Orbeta
and resolutions cover annulment of the judgments of
v. Sendiong, G.R. No. 155236, July 8, 2005).
Regional Trial Courts by the Court of Appeals.
SECTION 6. PROCEDURE
The silence of B.P. Blg. 129 on the jurisdiction of the Court
Procedure in ordinary cases shall be observed.
of Appeals to annul judgments or final orders and
resolutions of quasi-judicial bodies like the DARAB
The reception of evidence may be referred to a member
indicates its lack of such authority (Springfield
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Development Corporation v. RTC of MIsamis Oriental,
G.R. No. 142628, February 6, 2007) (Riano, p. 488).
R ULE 48
P RELIMINARY C ONFERENCE
Nature: Preliminary conference before the appellate court
is not mandatory. Its calling is within the discretion of said
court.
SECTION 1. PRELIMINARY CONFERENCE
At any time during the pendency of a case, court may call
the parties and their counsel: (DAFT)
1. To define, simplify and clarify the issues for
determination;
2. To consider the possibility of an amicable
settlement, except when the case is not allowed by law
to be compromised;
3. To formulate stipulations of facts and admissions
of documentary exhibits, limit the number of witnesses
to be presented ; and
4. To take up such other matters which may aid the
court in the prompt disposition of the case.
Failure to appear at the preliminary conference is a
ground for dismissal of the petition (Sec.1 [h], Rule 50;
Sec 5 [e], Rule 56).
SECTION 2. RECORD OF THE CONFERENCE
SECTION 3. BINDING EFFECT OF THE RESULTS
OF THE CONFERENCE
In the CA, this procedural device may be availed of not
only in original actions but also in cases on appeal
wherein a new trial was granted on the ground of newly
discovered evidence.
The CA can act as a trier of facts. Hence, the preliminary
conference authorized is a convenient adjunct to such
power and function.
R ULE 49
O RAL A RGUMENT
SECTION 1. WHEN ALLOWED
At its own instance or upon motion of a party, the court
may hear the parties in oral argument on the merits of a
case or any material incident in connection therewith.
SECTION 2. CONDUCT OF ORAL ARGUMENT
CIVIL PROCEDURE
SECTION 3. NO HEARING OR ORAL ARGUMENT
FOR MOTIONS
Motions in the SC and the CA do not contain notices of
hearing as no oral arguments will be heard in support
thereof; and if the appellate court desires to hold a
hearing thereon, it will itself set the date with notice to the
parties. The adverse party may file objections to the
motion within 5 days from service, upon the expiration of
which such motion shall be deemed submitted for
resolution.
R ULE 50
D ISMISSAL OF A PPEAL
SECTION 1. GROUNDS FOR DISMISSAL OF
APPEAL (RF-PUSANAN)
a. Failure of the record on appeal to show on its
face that the appeal was taken within the period fixed
by these rules;
b. Failure to file the notice of appeal or the record
on appeal within the period prescribed by these rules;
c. Failure of the appellant to pay the docket and
other lawful fees as provide in Sec. 5, Rule 40 and Sec
4, Rule 41;
d. Unauthorized alterations, omissions or additions
in the approved record on appeal as provide in Sec 4,
Rule 44;
e. Failure of appellant to serve and file the required
number of copies of his brief or memorandum within the
time provided by these Rules;
f. Absence of specific assignment of errors in the
appellant’s brief, or of page references to the record as
required in Sec 13, par a, c, d and f, Rule 44;
g. Failure of the appellant to take the necessary
steps for the correction or completion of the record
within the time limited by the court in its order;
h. Failure of the appellant to appear at the
preliminary conference under Rule 48 or to comply with
the orders, circulars, or directives of the court without
justifiable cause; and
i. The fact that the order or judgment appealed
from is not appealable.
Note: With the exception of Section 1 (b), dismissal of
an appeal is directory and not mandatory (Advincula v.
IAC, G.R. No. 75310, Dec. 10, 1987).
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Other grounds for the dismissal of an appeal are: (AMF) SECTION 1. WHEN CASE DEEMED SUBMITTED
1. By agreement of the parties, as where the case FOR JUDGMENT
was amicably settled by them; A.In ordinary appeals
2. Where the appealed case has become moot or 1. No hearing on the merits – Upon the filing of
academic; and the last pleading, brief, or memorandum; or expiration
3. Where the appeal is frivolous or dilatory. of the period for its filing;
2. Hearing is held – Upon its termination or
Failure to File Notice of Failure to File Brief upon the filing of the last pleading or memorandum
Appeal Within the Period as may be required or permitted to be filed by the
court; or expiration of the period for its filing;
Not jurisdictional, maybe
Jurisdictional B. In original actions and petitions for review
waived by the parties
1. No comment is filed – Upon expiration of the
period to comment;
Decision becomes final Results in abandonment of 2. No hearing is held – Same as in A(1);
and executory upon appeal, which could lead to 3. Hearing is held – Same as in A(2).
failure to move for dismissal upon failure to
reconsideration move for reconsideration
SECTION 2. BY WHOM RENDERED
SECTION 2. DISMISSAL OF IMPROPER APPEAL Members who participated in the deliberation on the
TO THE COURT OF APPEALS merits of the case before its assignment to a member for
No transfer of appeals, erroneously taken to it or to the the writing of the decision.
Court of Appeals, whichever of these tribunals has
appropriate appellate jurisdiction, will be allowed. Also, SECTION 3. QUORUM AND VOTING IN THE
elevating such appeal by the wrong mode of appeal shall COURT
be a ground for dismissal. To be binding, a judgment must be duly signed and
promulgated during the incumbency of the judge who
A resolution of the Court of Appeals dismissing the appeal signed it.
and remanding the case to the trial court for further
proceedings is merely interlocutory. Hence, a motion for Note: Where the decision was promulgated after two of
its reconsideration filed a year later may be entertained the three justices necessary to constitute a quorum in a
and granted. division had lost their authority to act as justices, said
decision is null and void (Lao v. To-Chip, G.R. No. 76594,
The Court of Appeals may dismiss the appeal outright February 26, 1988).
even without motion.
SECTION 4. DISPOSITION OF THE CASE
The remedy if dismissed for improper appeal: To re-file it
in the proper forum but has to be within the prescribed SECTION 5. FORM OF DECISION
period. The requirement for the statement of facts and the law
refers to a decision or for that matter a final resolution.
SECTION 3. WITHDRAWAL OF APPEAL The same are not required on minute resolutions since
A matter of right before the filing of the appellee’s brief. these usually dispose of the case not on its merits but on
procedural or technical considerations.
Note: While under this section, an appeal may be
withdrawn by the appellants as a matter of right at any With respect to petitions for review and motions for
time before the filing of the appellee’s brief; however the reconsideration, the Constitution merely requires a
rule does not apply where the notice of withdrawal filed by statement of the legal basis for the denial thereof or
new counsel did not bear the appellant’s conformity refusal of due course thereto. The court may opt, but it is
(Pioneer Insurance and Surety Corp. v. De Dios not required to issue an extended resolution thereon.
Transportation, G.R. No. 147010, July 18, 2003).
Decisions and resolutions of a court in appealed cases
shall clearly and distinctly state the findings of fact and the
R ULE 51 conclusions of law on which they are based, which (1)
may be contained in the decision or final resolution itself,
J UDGMENT or (2) adopted by reference from those set forth in the

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decision, order, or resolution appealed from (Sec. 40, BP
129).
Memorandum Decision
One rendered by an appellate court which incorporates by
reference the findings of fact and conclusions of law
contained in the decision of the lower court (Sec. 24,
Interim Rules for Memorandum Decision).
SECTION 6. HARMLESS ERROR RULE (IN
APPEALS)
The court, at every stage of the proceeding, must
disregard any error or defect which does not affect the
substantial rights of the parties such as error in admission
or exclusion of evidence or error or defect in the ruling or
order.
SECTION 7. JUDGMENT WHERE THERE ARE
SEVERAL PARTIES
SECTION 8. QUESTIONS THAT MAY BE DECIDED
General Rule: The appellate court can only rule on the
basis of grounds raised as errors on appeal.
Exceptions :
1. Those affecting jurisdiction over the subject matter;
2. Evidently plain and clerical errors within the
contemplation of law;
3. In order to subserve the ends of justice;
4. Matters raised in the trial court having some bearing on
the issue which the parties failed to raise or which the
lower court ignored; and
5. Matters closely related to an error assigned.
SECTION 9. PROMULGATION AND NOTICE OF
JUDGMENT
In justifiable situations or by agreement in the division, the
filing of dissenting or separate opinions may be reserved
or the majority opinion may be promulgated without
prejudice to the subsequent issuance of a more extended
opinion, provided the requisite votes for promulgation of
judgment have been obtained and recorded.
SECTION 10. ENTRY OF JUDGMENTS AND FINAL
RESOLUTIONS
SECTION 11. EXECUTION OF JUDGMENT
General Rule: The motion for its execution may only be
filed in the proper court after its entry.
Exception : Where the judgment or final order or
resolution, or a portion thereof, is ordered to be
immediately executory,
CIVIL PROCEDURE
In original actions in the Court of Appeals , its writ of
execution shall be accompanied by a certified true copy of
the entry of judgment or final resolution and addressed to
any appropriate officer for its enforcement.
In appealed cases, where the motion for execution
pending appeal is filed in the Court of Appeals at a time
that it is in possession of the original record or the record
on appeal, the resolution granting such motion shall be
transmitted to the lower court from which the case
originated, together with a certified true copy of the
judgment or final order to be executed, with a directive for
such court of origin to issue the proper writ for its
enforcement.
Note: Equally untenable is the contention that respondent
judge, before allowing execution, should have notified the
parties of the receipt by him of the records of the case
from the appellate court, in accordance with paragraph 2,
section 11 of Rule 51 of the Rules of Court. The duty
prescribed by the rule cited applies only to the clerk of the
court of first instance and not to the judge or clerk of the
municipal or city court (Salud Clemente-De Guzman v.
Municipal Judge Reyes, A.M. No. 2358-MJ, June 29,
1982 ).
R ULE 52
M OTION FOR R ECONSIDERATION
SECTION 1. PERIOD FOR FILING
Within 15 days from notice.
The rules now require the service of the motion to the
adverse party.
SECTION 2. SECOND MOTION FOR
RECONSIDERATION
The rules prohibit a second motion for reconsideration by
the SAME party.
Note: The absolute terms of this Rule is tempered by
Section 3, Rule 15 of the Internal Rules of the Supreme
Court that provides:
“Sec. 3. Second Motion for Reconsideration. – The Court
shall not entertain a second motion for reconsideration
and any exception to this rule can only be granted in the
higher interest of justice by the Court en banc upon a vote
of at least two-thirds of its actual membership. There is
reconsideration "in the higher interest of justice" when the
assailed decision is not only legally erroneous, but is
likewise patently unjust and potentially capable of causing
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unwarranted and irremediable injury or damage to the
parties. A second motion for reconsideration can only be
entertained before the ruling sought to be reconsidered
becomes final by operation of law or by the Court’s
declaration.”
Separately from these rules is Article VIII, Section 4 (2) of
the 1987 Constitution which governs the decision-making
by the Court en banc of any matter before it, including a
motion for the reconsideration of a previous decision. This
provision states:
“Section 4. (2) All cases involving the constitutionality of a
treaty, international or executive agreement, or law, which
shall be heard by the Supreme Court en banc, and all
other cases which under the Rules of Court are required
to be heard en banc, including those involving the
constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the
concurrence of a majority of the Members who actually
took part in the deliberations on the issues in the case and
voted thereon (Apo Fruits Corporation v. Land Bank of the
Philippines, G.R. No. 164195, April 5, 2011).”
The prohibition does not include interlocutory orders
(Dizon v. Court of Appeals, G.R. No. 96296, June 18.
1992).
The rule against entertaining a second motion for
reconsideration is rooted in the basic tenet of immutability
of judgments. At some point a decision becomes final and
executory and, consequently, all litigations must come to
an end (Verginesa-Suarez v. Judge Dilag, A.M. No. RTJ-
06-2014, August 16, 2011).
A second motion for reconsideration is forbidden except
for extraordinarily persuasive reasons, and only upon
express leave first obtained (Systra Philippines v.
Commissioner of Internal Revenue, G.R. No. 176290,
September 21, 2007).
SECTION 3. RESOLUTION OF THE MOTION
Ninety (90) days from the date the CA declares it
submitted for resolution.
This time limit applies only to MR in the CA. It does not
apply to MR in SC, pursuant to the exception in Sec. 2
(b), Rule 56.
SECTION 4. STAY OF EXECUTION
R ULE 53
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SECTION 1. PERIOD FOR FILING; GROUND
Filing of a motion for new trial is at any time after the
perfection of the appeal from the decision of the lower
court and before the Court of Appeals loses jurisdiction
over the case.
The only ground is newly discovered evidence which
could not have been discovered prior to the trial in the
court below by the exercise of due diligence and of such
character as would probably alter the result thereof. A
second motion for new trial in the CA would not be
possible, unlike in Sec. 5 Rule 37.
Note: Rule 53 is not applicable to the SC. It is not a trier
of facts.
SECTION 2. HEARING AND ORDER
Testimonies may be taken orally or by depositions.
SECTION 3. RESOLUTION OF THE MOTION
Ninety (90) days from the date the CA declares it
submitted for resolution.
SECTION 4. PROCEDURE IN NEW TRIAL
R ULE 54
I NTERNAL B USINESS
SECTION 1. DISTRIBUTION OF CASES AMONG
DIVISIONS
SECTION 2. QUORUM OF THE COURT
R ULE 55
P UBLICATION OF J UDGMENTS
AND F INAL R ESOLUTIONS
SECTION 1. PUBLICATION
1. It shall be published in the Official Gazette and in the
Reports officially authorized by the court;
2. In the language in which they have been originally
written;
3. Together with the syllabi therefor prepared by the
reporter in consultation with the writers thereof;
4. Memoranda of all other judgments and final resolutions
not so published shall be made by the reporter and
published in the Official Gazette and the authorized
reports.
 REMEDIAL LAW CIVIL PROCEDURE

SECTION 2. PREPARATION OF OPINIONS FOR Note: The dismissal of the appeal may be motu proprio or
PUBLICATION on motion of the respondent.

SECTION 3. GENERAL MAKE-UP OF VOLUMES SECTION 6. DISPOSITION OF IMPROPER APPEAL

Official reports of court decisions which are published by
the Government and, therefore, constitute primary
authority thereon, are those in the Philippine Reports,
Official Gazette and Court of Appeals Reports, all of which
are authorized by law (Regalado, p. 659).
R ULE 56
P ROCEDURE IN THE S UPREME
C OURT
Improper Appeal
Improper appeal means the choice or mode of appeal is
correct but the appellant raises issues which the court
could not resolve (e.g. Where petition for review on
certiorari was taken but factual issues are invoked for
resolution).
In this instance the case (1) may be referred to the CA,
although the SC (2) may also dismiss the appeal.

A.ORIGINAL CASES Erroneous Appeal

SECTION 1. ORIGINAL CASES COGNIZABLE Erroneous appeal means error in the choice or mode of
The rule specifically states what cases may be originally appeal (e.g. Where appeal taken to the SC is by notice of
filed with the Supreme Court. appeal instead of a petition for review on certiorari )
1. Petition for certiorari, prohibition, mandamus, (Circular No. 2-90, March 9, 1990).
quo warranto, habeas corpus;
2. Disciplinary proceedings against members of the In this instance, the appeal shall be dismissed outright.
judiciary and attorneys;
3. Cases affecting ambassadors, other public SECTION 7. PROCEDURE IF OPINION IS
ministers and consuls; and EQUALLY DIVIDED
4. Petitions for writ of amparo and habeas data.

SECTION 2. RULES APPLICABLE

Rules 46, 48, 49, 51, 52 and 56 subject to certain
exceptions.
B.APPEALED CASES
SECTION 3. MODE OF APPEAL
An appeal to the Supreme Court may be taken only by a
petition for review on certiorari (Rule 45).
P ROVISIONAL R EMEDIES
Provisional Remedies
Provisional remedies are temporary, auxiliary, and
ancillary remedies available to a litigant for the protection
and preservation of his rights while the main action is
pending. They are writs and processes which are not main
actions and they presuppose the existence of a principal
action (Riano, p.532).

SECTION 4. PROCEDURE
SECTION 5. GROUNDS FOR DISMISSAL OF
APPEAL (TM – PReCEN)
1. Failure to take the appeal within the
reglementary period;
2. Lack of merit in the petition;
3. Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
4. Failure to comply with the requirements
regarding proof of service and contents of and the
documents which should accompany the petition;
5. Failure to comply with any circular, directive or
order of the SC without justifiable cause;
6. Error in the choice or mode of appeal; and
7. Fact that the case not appealable to the SC.
The following are the provisional remedies provided for in
the Rules of Court: (AIR 2S)
1. Preliminary Attachment (Rule 57);
2. Preliminary Injunction (Rule 58);
3. Receivership (Rule 59);
4. Replevin (Rule 60); and
5. Support Pendente Lite (Rule 61).
Note: The enumeration above is not exclusive. For
example, in the special proceeding of custody of minors,
the court may grant a parent visitation rights and/or
temporary custody of the child (Sec. 6, Rule 99, Rules of
Court; Tan v. Adre, A.M. No. RTJ-05-1898, January 31,
2005).

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These provisional remedies are also available in criminal and operation of government infrastructure projects.
cases (Rule 127), and in some special civil actions and
special proceedings. Jurisdiction over provisional remedies: The court
which grants or issues a provisional remedy is the court
Purpose of provisional remedies: Provisional remedies which has jurisdiction over the main action.
are resorted to by litigants for any of the following
reasons: (PSSP) Inferior courts may also grant all appropriate provisional
1. To preserve or protect the rights or interests of remedies in an action pending with it and is within its
litigants while the main action is pending; jurisdiction (Riano, p. 532; Sec. 33 [1] BP 129).
2. To secure the judgment;
3. To preserve the status quo; and
4. To preserve the subject matter of the action. R ULE 57
P RELIMINARY A TTACHMENT
Other provisional remedies
A.Issued by a family court Preliminary Attachment
1. Temporary Custody of A provisional remedy issued upon order of the court
Minor Children; where an action is pending, to be levied upon the property
2. Order allowing of the defendant so that it may be held by the sheriff as
Visitation Rights of Parents; security for the satisfaction of whatever judgment may be
3. Guardian Ad litem of rendered in the case (Davao Light and Power, Inc. v.
a child; Court of Appeals, G.R. No. 93262, November 29, 1991).
4. Hold Departure Order
(Criminal cases under Circular 39-97 and Family The provisional remedy of preliminary attachment is harsh
cases under AM 02-11-12); and rigorous for it exposes the debtor to humiliation and
5. Spousal and Child annoyance. The rules governing its issuance are,
Support (AM 02-11-12); therefore, strictly construed against the applicant (Wee v.
6. Administration of Tankiansee, G.R. No.171124, February 13, 2008).
Common Property (AM 02-11-12)
B.Interim Reliefs in a Petition for a Writ of Amparo Requisites for a preliminary attachment to issue
(TWIP) 1. The case must be any of those where preliminary
1. Temporary Protection attachment is proper (see grounds below);
Order 2. The applicant must file a motion whether ex parte or
2. Inspection Order with notice and hearing;
3. Production Order 3. The applicant must show by affidavit that there is no
4. Witness Protection sufficient security for the claim sought to by enforced
Order and that the amount claimed in the action is as much as
C.Interim Reliefs under R.A. No. 9372, Human Security the sum of which the order is granted above all
Act counterclaims; and
1. 4. The applicant must post a bond executed to the
Inspection, Examination of Accounts and Freeze Order adverse party.
2.
Seizure and Sequestration of Accounts and Assets Being provisional in character, attachment depends for
3. its existence and effectivity upon the pendency of a
Restriction of Travel principal action in court.

Note: The court, justice or judge may grant certain interim
reliefs immediately after the filing of the petition motu
proprio or at any time before final judgment. The
respondent may also avail of interim reliefs—inspection
and production orders (Riano, p. 534 & 536).
P.D. No. 1818 prohibits the issuance of injunctive writs
not only against government entities but also against any
person or entity involved in the execution, implementation,
Attachment places the property under the custody of the
court (in custodia legis). It is in the nature of proceeding
quasi in rem (Banco-Espanol Filipino v. Palanca, G.R.
No. L-11390, March 26, 1918) although sometimes
referred to as an action in rem (Valdevieso v. Damalerio,
G.R. No. 133303, February 17, 2005).
Whether in rem or quasi in rem, the legal effects are
identical because in both cases, jurisdiction over the

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person of the defendant is not required as long as the
court acquires jurisdiction over the res (Biaco v.
Countryside Rural Bank, G.R. Nos. 140743 & 140745,
September 17, 2009; Villareal v. Court of Appeals, G.R.
No. 107314, September 14, 1998).
It does not affect the decision on the merits; the right to
recover judgment on the alleged indebtedness and the
right to attach the property of the debtor are entirely
separate and distinct, and the judgment in the main
action neither changes the nature nor determines the
validity of the attachment.
Attachment is purely a statutory remedy, thus, it cannot
exist without a statute granting it (US v. Namit, G.R. No.
12957, October 29, 1918).
Purposes of preliminary attachment:
1. Seize the property of the debtor before final judgment
and put the same in custodia legis even while the
action is pending for the satisfaction of a later
judgment (Insular Bank of Asia and America v. Court of
Appeals, G.R. No. 61011, October 18, 1990); or
2. To enable the court to acquire jurisdiction over the res
or the property subject of the action in cases where
service in person or any service to acquire jurisdiction
over the defendant cannot be effected (Philippine
Commercial International Bank v. Alejandro, G.R. No.
175587, October 24, 2008).
Kinds of Attachment
1. Preliminary Attachment is one issued at the
commencement of the action or at any time before
entry of the judgment as security for the satisfaction of
any judgment that may be recovered in the cases
provided for by the rules.
2. Garnishment is a kind of attachment in which the
plaintiff seeks to subject either the property of the
defendant in the hands of a third person called
garnishee, to his claim or the money which said third
person owes the defendant (Rizal Commercial
Banking Corporation v. De Castro, G.R. No. L-34548,
November 29, 1988).
3. Levy on Execution is the writ issued by the court
after judgment by which the property of the judgment
obligor is taken into the custody of the court before the
sale of the property on execution for the satisfaction of
a final judgment.
SECTION 1. GROUNDS UPON WHICH
ATTACHMENT MAY ISSUE
CIVIL PROCEDURE
The proper party may have the property of the adverse
party attached (1) at the commencement of the action or
(2) at any time before entry of judgment.
Parties entitled to attachment:
1. Plaintiff;
2. Any proper party.
The term plaintiff or “any other plaintiff” in whose favor
an attachment is granted under the rule, includes also the
defendant whenever he asserts a counterclaim against
the plaintiff, whether or not such counterclaim arises out of
the same transaction which is the subject matter of
plaintiff’s original claim. It also includes defendant in
interpleader when he asserts a counterclaim against the
plaintiff; in this case, he may attach the funds in dispute.
Grounds for the Issuance of a Writ of Attachment:
(REPo-GReS)
1. In actions for recovery of a specified sum of
money or damages, except moral and exemplary, on a
cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party about to
depart from the Philippines with intent to defraud his
creditors;
2. In actions for money or property embezzled or
fraudulently misapplied or converted to his own use by
a public officer, or an officer of a corp., or an attorney,
factor, broker, agent or clerk, in the course of his
employment as such, or by any person in a fiduciary
capacity, or for a willful violation of duty;
Note: It is also a provisional remedy in criminal cases
under Rule 127, Sec.2.
3. In actions to recover the possession of property
unjustly or fraudulently taken, detained, or converted
when the property or part thereof, has been concealed
or disposed of to prevent its being found by the
applicant or any authorized person;
Preliminary Attachment Replevin
The property to be attached The property is a specific
is any property of the one, the thing object of the
adverse party, not action.
necessarily the object of
the action.
Any time before entry of May only be availed of
judgment. before an answer is filed.
Personal or real property. Personal property only.
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4. In actions against a person guilty of fraud in The proceeds of the sale

contracting the debt (dolo causante) or incurring or The proceeds of the sale are turned over to the
performing an obligation upon which the action is are in custodia legis. attaching creditor.
based (dolo incidente);
a. Dolo Causante – fraud used to induce another to Intervention is not available
enter into a contract (Art. 1338, Civil Code of the Intervention is a remedy to
as remedy because there is
Philippines); a stranger whose property
an assumption of final
b. Dolo Incidente – fraud employed by a party in the has been attached.
judgment in Rule 39
fulfillment of his obligation or after the obligation has
been contracted; this only obliges the person Proceeding in attachment is in rem where the defendant
employing it to pay damages (Art. 1344, Civil Code of does not appear, and in personam where he appears in
the Philippines) the action (Regalado, p. 622).
5. In actions against a party who has removed or
disposed of his property, or is about to do so, with intent Three (3) stages in the grant of preliminary
to defraud his creditors; attachment
6. In actions against non-residents not found in the 1. The court issues the order granting the
Philippines, or on whom summons is served by application;
publication. 2. The writ of attachment issues pursuant to
the order granting the writ;
Here, the attachment is intended to enable the court to 3. The writ is implemented.
acquire jurisdiction over the res by converting the action
in personam to an action quasi in rem, and thus, Note: For the initial two stages, it is not necessary that
justifying summons by publication and other modes of jurisdiction over the person of the defendant be first
summons under Sec. 15 of Rule 14. obtained.

Note: The foregoing enumeration is exclusive . Except for
No. 6, all the grounds contemplate the commission of
fraud by the person against whom it is issued.
Preliminary attachment on appeal: Even if a case is
already on appeal, preliminary attachment could still be
availed of by an applicant.
Note: Matters concerning preliminary attachment should
be strictly construed.
However, once the implementation of the writ
commences, the court must have acquired jurisdiction
over the defendant for without such jurisdiction, the court
has no power or authority to act in any manner against the
defendant (Mangila v. Court of Appeals, G.R. No. 125027,
August 12, 2002).
When to apply for preliminary attachment
1. At the commencement of the action; or
2. At any time before entry of judgment.

Classes of attachment Methods to procure attachment:

Preliminary
Attachment
(Rule 57)
It is an auxiliary remedy to
give security for a judgment
still to be rendered.
There is no sale because a
decision has not yet been
rendered.
Resorted to at the
commencement of the
action or at any time before
entry of judgment, for the
temporary seizure of
property of the adverse
party.
Final Attachment
(Rule 39)
It is a means for the
execution of a final
judgment.
It should always be
accompanied by a sale at
public auction.
Available after the judgment
in the main action had
become executory, and for
the satisfaction of said
judgment.
1. Writ may be prayed for in
the complaint itself providing that allegations
warranting its issuance are made therein;
2. May be issued pursuant to
a separate motion for attachment whenever the writ
is not prayed for in the original complaint.
It is not only the plaintiff who may apply for the issuance of
a writ of preliminary attachment. The pertinent provisions
of Sec. 1, Rule 57 provide that “a plaintiff or any proper
party …” (Riano, p. 548).
SECTION 2. ISSUANCE AND CONTENTS OF
ORDER
Issued either ex-parte or upon motion with notice and
hearing by the court in which the action is pending.

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It may be heard ex parte (an exception to the general rule
that motions are supposed to be heard).
Reason for ex parte hearing: If the plaintiff contends
before the court that he is dealing with a dishonest person
and if this person is given a chance to be heard, he might
continue with his acts of dishonesty and convey all his
properties before the court could take his properties under
custodia legis.
However, when issued ex-parte, the writ cannot be
enforced and may not be validly implemented unless
preceded by a service of summons upon the defendant,
or simultaneously accompanied by service of summons, a
copy of the complaint, the application for attachment, the
order of attachment and the attachment bond (Davao
Light and Power Co. Inc. v. Court of Appeals, supra;
Mangila v. Court of Appeals, G.R. No. 125027, August 12,
2002).
SECTION 3. AFFIDAVIT AND BOND REQUIRED
The affidavit and bond required must be duly filed with the
court before the order issues.
Note: The affidavit must contain all the allegations
required; failure to do so renders the writ totally defective
as the judge issuing it acts in excess of jurisdiction.
Contents of the affidavit
1. A sufficient cause of action exists;
2. Case is one of those mentioned in Sec. 1;
3. No other sufficient security for the claim sought
to be enforced by action;
4. Amount due to the applicant or possession of
which is entitled to recover is as much as the sum for
which the order is granted above all legal
counterclaims.
SECTION 4. CONDITION OF APPLICANT’S BOND
Bond posted by the attaching creditor answers for the
damages and costs which may be adjudged to the
adverse party arising from and by reason of the
attachment.
SECTION 5. MANNER OF ATTACHING PROPERTY
(Rule on Prior or Contemporaneous Service)
Note: Levy shall not be made unless preceded or
contemporaneously accompanied by: (SCABO)
1. Service of summons;
2. A copy of the complaint;
3. Application for attachment;
4. Affidavit and bond of the applicant; and
5. Order and writ of attachment.
CIVIL PROCEDURE
But prior or contemporaneous service of summons shall
not apply when:
1. Summons could not be served personally or
by substituted service;
2. Defendant is a resident of the Philippines
temporarily absent therefrom;
3. Defendant is a non-resident; and
4. The action is one in rem or quasi-in rem.
Note: All properties exempt from execution are likewise
exempt from attachment (Sec. 2, Rule 57; Sec. 13, Rule
39).
How to prevent the attachment: If the attachment has
not yet been effected, the party whose property is sought
to be attached may prevent the attachment either:
1. By depositing with the court from which the writ was
issued an amount equal to the value of the bond fixed
by the court in the order of attachment or an amount
equal to the value of the property to be attached,
exclusive of costs; or
2. By giving a counterbond executed to the applicant,
in an amount equal to the bond posted by the latter to
secure the attachment or in an amount equal to the
value of the property to be attached, exclusive of costs
(Riano, p. 557).
SECTION 6. SHERIFF’S RETURN
SECTION 7. ATTACHMENT OF REAL AND
PERSONAL PROPERTY
What may be the subject of attachment:
1. Real property or any interest therein;
2. Personal property capable of manual delivery;
3. Stocks or shares or interest therein;
4. Debts and credits, including bank deposits,
financial interest, royalties, commissions and other
personal property not capable of manual delivery; or
5. Interest of the party against whom attachment is
issued in property belonging to the estate of the
decedent, whether as heir, legatee, or devisee.
Par. (3) and (4) refer to garnishment. By such notice of
garnishment, the court acquires jurisdiction over the
garnishee and the latter becomes a forced intervenor in
the case.
Debt
Means some definite amount of money, ascertained or
capable of being ascertained, which may be paid over to
the sheriff or to the court, while credits and personal
property are something belonging to the defendant, but
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in possession and under the control of the garnishee
(Feria, p.294).
Property legally attached is property in custodia legis and
cannot be interfered with without the permission of the
proper court, but this is confined to cases where the
property belongs to the defendant or one in which the
defendant has proprietary interest.
Principle of Seniority of Liens
Where the property attached by the judgment creditor had
previously been mortgaged, the judgment creditor’s lien is
inferior to that of the mortgagee which must first be
satisfied in the event of foreclosure. In reality, what was
attached by the judgment creditor was merely the
judgment debtor’s right or equity of redemption (Top Rate
International Services Inc. v. Intermediate Appellate Court,
G.R. No. 67496, July 7, 1986).
Note: There could be several attachment issued by
different courts over the same property.
SECTION 8. EFFECT OF ATTACHMENT OF
DEBTS, CREDITS AND ALL OTHER SIMILAR
PERSONAL PROPERTY
It is not necessary to serve summons upon the garnishee
in order that the trial court may acquire jurisdiction. All that
is necessary is the service upon him of the writ of
garnishment (Perla Compania de Seguros v. Ramolete,
G.R. No. 60884, November 13, 1991).
SECTION 9. EFFECT OF ATTACHMENT OF
INTEREST IN PROPERTY BELONGING TO THE
ESTATE OF A DECEDENT
SECTION 10. EXAMINATION OF PARTY WHOSE
PROPERTY IS ATTACHED AND PERSONS
INDEBTED TO HIM OR CONTROLLING HIS
PROPERTY; DELIVERY OF PROPERTY TO
SHERIFF
Note: The examination in Rule 39 is proper only when the
writ of execution is returned unsatisfied.
Examination under this section is not subject to a
preliminary condition but is anticipatory in nature and may
be resorted to even if the writ of attachment was not
returned because no property could be found to be levied
upon thereunder.
If the garnishee does not admit the indebtedness or he
claims the property, the controversy must be determined
in an independent action (Bucra Corp. v. Macadaeg, G.R.
No. L-2894, August 30, 1949).
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SECTION 11. WHEN ATTACHED PROPERTY MAY
BE SOLD AFTER LEVY ON ATTACHMENT AND
BEFORE ENTRY OF JUDGMENT
Sale at public auction after levy on attachment and before
entry of judgment may be ordered by the court in case the
property attached is (1) perishable in nature, or that (2)
the interests of all the parties will be subserved.
The proceeds will be in custodia legis.
SECTION 12. DISCHARGE OF ATTACHMENT
UPON GIVING COUNTERBOND
SECTION 13. DISCHARGE OF ATTACHMENT ON
OTHER GROUNDS
Grounds for discharge of preliminary attachment:
(CI-JEE)
1. Debtor has posted a counter-bond or has made
the requisite cash deposit (Sec. 12);
2. Attachment was improperly or irregularly issued
(Sec. 13) as where there is no ground for attachment,
or the affidavit and/or the bond filed therefore are
defective or insufficient (Sec. 3);
3. Judgment is rendered against the attaching
creditor (Sec. 19);
4. Attachment is excessive, but the discharge shall
be limited to the excess (Sec. 13); and
5. Property attached is exempt from execution.
An ex-parte discharge or suspension of the attachment is
a disservice to the orderly administration of justice and
nullifies the underlying role and purpose of preliminary
attachment in preserving the rights of the parties
pendente lite as an ancillary remedy.
SECTION 14. PROCEEDINGS WHERE PROPERTY
CLAIMED BY THIRD PERSON
Remedy of the third person:
1. File a terceria or third party claim
(similar to Sec. 16, Rule 39);
2. File independent action to recover
his property; or
3. File a motion for intervention (This is available
only before a judgment is rendered, hence, not allowed
under Rule 39.).
Note: A third-party claim may be filed with the sheriff
while he has possession of the properties levied upon,
this being the only time fixed for the purpose (Mangaoang
v. Provincial Sheriff of La Union, G.R. No. L-4869, May
26, 1952).
 REMEDIAL LAW
Attachment bond under Sec. 3 is different from the
bond under Sec. 14 (proceedings where property
claimed by third person).
Sec. 3 refers to the attachment bond to assure the return
of defendant’s property or the payment of damages to the
defendant if the plaintiff’s action to recover possession of
the same property fails, in order to protect the person’s
right of possession of said property, or to prevent the
defendant from destroying the same during the pendency
of the suit.
Under Sec. 14, the purpose of the bond is to indemnify
the sheriff against any claim by the intervenor to the
property seized or for damages arising from such seizure,
which the sheriff was making and for which the sheriff was
directly responsible to the third party (Fort Bonifacio
Development Corporation v. Yllas Lending Corporation,
G.R. No. 158997, October 6, 2008).
SECTION 15. SATISFACTION OF JUDGMENT OUT
OF PROPERTY ATTACHED; RETURN OF SHERIFF
SECTION 16. BALANCE DUE COLLECTED UPON
AN EXECUTION; EXCESS DELIVERED TO
JUDGMENT OBLIGOR
SECTION 17. RECOVERY UPON THE COUNTER-
BOND
Where the writ of execution is returned unsatisfied, the
liability of the counter-bond automatically attaches without
the need for the plaintiff to file a supplemental pleading to
claim payment from the surety (Vanguard Assurance
Corp. v. Court of Appeals, G.R. No. L-25291, May 27,
1975).
SECTION 18. DISPOSITION OF MONEY
DEPOSITED
SECTION 19. DISPOSITION OF ATTACHED
PROPERTY WHERE JUDGMENT IS FOR PARTY
AGAINST WHOM ATTACHMENT WAS ISSUED
SECTION 20. CLAIM FOR DAMAGES ON
ACCOUNT OF IMPROPER, IRREGULAR OR
EXCESSIVE ATTACHMENT
When must application for damages be filed: Before
the trial or before appeal is perfected, or before the
judgment becomes executory.
It shall be awarded after hearing and included in the
judgment.
CIVIL PROCEDURE
If the judgment of the appellate court be favorable to the
party against whom the attachment was issued, he must
claim damages during the pendency of the appeal.
Procedure for claiming damages outlined in Sec. 20 is
exclusive . Hence, such claims for damages cannot be
the subject of an independent action.
Exception :
1. Where the principal case was dismissed for lack
of jurisdiction by the trial court without giving an
opportunity to the party whose property was attached to
apply for and prove his claim; and
2. Where the damages by reason of the attachment
was sustained by a third person who was not a party to
the action wherein such writ was issued.
Note: Any award of damages for the wrongful issuance
of a provisional remedy should be recovered in the SAME
CASE. The recovery of damages cannot be had in a
separate action.
R ULE 58
P RELIMINARY I NJUNCTION
SECTION 1. PRELIMINARY INJUNCTION
DEFINED; CLASSES
Injunction
A judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a particular act.
Preliminary Injunction (PI)
An ancillary or preventive remedy where a court requires
a person, a party or even a court or tribunal either to
refrain (prohibitory) from or to perform (mandatory)
particular acts during the pendency of an action. It is
merely a temporary remedy subject to the final disposition
of the principal action (Dungog v. Court of Appeals, G.R.
Nos. 77850-51, March 25, 1988).
Purpose: To preserve the status quo or to prevent future
wrongs in order to preserve and protect certain interests
or rights during the pendency of the action (Cortez-
Estrada v. Heirs of Domingo / Antonia Samut, G.R. No.
154407, February 14, 2005).
Status Quo
The last actual, peaceable and uncontested situation
which precedes a controversy. It is the situation existing at
the time of the filing of the case.
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Requisites: Prohibitory Injunction Prohibition

1. There must be a verified application; (Rule 65)
2. The applicant must establish that he has a right to
relief or a right to be protected and that the act against without or in excess of
which the injunction is sought violates such right; jurisdiction.
3. The applicant must establish that there is a need to
restrain the commission or continuance of the acts It may be the main action Always the main action.
complained of and if not enjoined would work injustice itself or just a provisional
to him; remedy.
4. A bond must be posted, unless otherwise exempted
by the court; and
Mandatory Injunction Mandamus
5. The threatened injury must be incapable of pecuniary
(Rule 65)
estimation.
Directed to a party litigant, Special civil action seeking
Kinds of injunction not to a tribunal and is a judgment commanding a
Preliminary Prohibitory Preliminary Mandatory issued to require a party to tribunal, board or officer or
Injunction Injunction perform an act to restore person to perform a
Purpose is to prevent a the last peaceable ministerial duty required to
Purpose is to require a uncontested status be performed by law
person from the
person to perform a preceding the controversy.
performance of a particular
particular act.
act.
The act has already been General rule: A writ of preliminary injunction should not
The act had not yet been performed and this act has issue to take (the properties) out of the possession of one
performed. violated the rights of party to place it in the hand of another (Medina v.
another. Greenfield Dev’t Corporation, G.R. No. 140228,
November 19, 2004).
Status Quo is preserved. Status Quo is restored.
Exception : A possessor deprived of his possession
When writ may be issued: It may be issued at any through forcible entry may within 10 days from the filing of
stage prior to the judgment or final order. the complaint present a motion to secure from the
competent court, in the action for forcible entry, a writ of
Injunction may be an action in itself, brought specifically preliminary mandatory injunction to restore him in his
to restrain or command the performance of an act. As an possession. The court shall decide the motion within 30
action, it is immediately executory under Sec. 4, Rule 39. days from filing thereof (Article 539, New Civil Code).

General Rule: It will not issue against acts already SECTION 2. WHO MAY GRANT PRELIMINARY
consummated. INJUNCTION
1. Supreme Court in its original and appellate
Exception: If the acts complained of are continuing in jurisdiction;
nature and were in derogation of plaintiff’s rights at the 2. Court of Appeals whether or not in aid of its
outset. appellate jurisdiction;
3. Trial court in cases pending before it within its
territorial jurisdiction;
Prohibitory Injunction Prohibition
4. Sandiganbayan; and
(Rule 65)
5. Court of Tax Appeals.
Directed against a party in Directed against a court,
the action. tribunal or a person Note: If the main action is one for injunction, an inferior
exercising judicial, quasi- court cannot grant the preliminary injunction.
judicial or ministerial
functions. Ratio: An action for injunction is one incapable of
pecuniary estimation, hence, cognizable by the RTC.
It does not involve Based on the ground that
jurisdiction of the court. the court against whom the
Limitations as to power of RTC to issue writ of
writ is sought had acted
preliminary injunction

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1. It could restrain acts being or about to be
committed within its territorial jurisdiction only;
2. It could not issue said writ in unfair labor
practices;
3. It could not issue said writ against the Securities
and Exchange Commission (SEC), Bureau of Patents,
Trademarks and Technology Transfer, or the
COMELEC; and
4. It could not interfere by injunction with the
judgment of a court of concurrent or coordinate
jurisdiction.
SECTION 3. GROUNDS FOR ISSUANCE OF
PRELIMINARY INJUNCTION
(EnCoD)
1. Applicant is entitled to the relief demanded; or
2. Commission, continuance or non-performance of the
act complained of would work injustice to the applicant;
or
3. Party, court, agency or a person is doing, threatening,
or is attempting to do, or is procuring or suffering to be
done, some act or acts probably in violation of the rights
of the applicant respecting the subject of the action or
proceeding.
Where a writ of preliminary injunction may not be
issued by the court:
1. Foreclosure of a mortgage by a government
bank (P.D. No. 385);
2. Commencement and performance of
infrastructure projects by the government unless it is the
SC which will issue the writ (R.A. No. 8975); and
3. Concessions, licenses, permits, patents or
public grants as to the disposition, exploitation,
utilization, exploration and/or development of natural
resources (P.D. No. 605).
SECTION 4. VERIFIED APPLICATION AND BOND
FOR PRELIMINARY INJUNCTION OR TEMPORARY
RESTRAINING ORDER
Absence of verification makes an application or petition
for preliminary injunction patently insufficient both in form
and substance (Rivera v. Mirasol, A.M. No. RTJ-04-1885,
July 14, 2004).
The applicant must post a bond unless exempted by the
court. This shall be in an amount to be fixed by the court
and executed in favor of the party enjoined to the effect
that the applicant shall pay to the party enjoined all
damages which he may sustain by reason of the
preliminary injunction or the restraining order if the court
should finally decide that the applicant was not entitled to
the writ or order.
CIVIL PROCEDURE
SECTION 5. PRELIMINARY INJUNCTION NOT
GRANTED WITHOUT NOTICE; EXCEPTION
There must be prior notice to the person sought to be
enjoined and a hearing before preliminary injunction may
be granted.
A.If great or irreparable injury would result to the applicant
before the matter can be heard on notice: The court
may issue a temporary restraining order, effective only
for 20 days from notice on the party sought to be
enjoined.
B.If the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury: The judge
may issue ex parte a TRO effective only for 72 hours
from issuance.
Its effectivity may be extended after conducting a
summary hearing w/in the 72-hour period until the
application for preliminary injunction can be heard.
Injury is considered “irreparable” if it is of such constant
and frequent recurrence that no fair or reasonable redress
can be had therefore in court of law or where there is no
standard by which their amount can be measured with
reasonable accuracy (SSC v. Bayona, G.R. No. L-13555,
May 30, 1982).
The total period of effectivity of the TRO: shall not
exceed 20 days, including the 72 hours.
Note: If application is denied or not resolved within said
period, the TRO is deemed automatically vacated.
The effectivity of TRO is not extendible. There is no need
for a judicial declaration to that effect.
A TRO issued by the CA or any of its members is effective
for 60 days from notice to the party sought to be enjoined.
A TRO issued by the SC or a member thereof is effective
until further orders.
Note: The trial court, the CA, the Sandiganbayan or the
CTA that issued a writ of preliminary injunction against a
lower court, board, officer, or quasi-judicial agency shall
decide the main case or petition within six (6) months from
the issuance of the writ (as amended by A.M. No. 07-7-
12-SC effective December 27, 2007).
An order granting a writ of preliminary injunction is an
interlocutory order, not a final order.
Unlike other provisional remedies, preliminary injunction
may not be defeated by a counterbond.
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It is improper for a judge to order a hearing on the SECTION 7. SERVICE OF COPIES OF BONDS;
issuance of a temporary restraining order where it was not EFFECT OF DISAPPROVAL OF THE SAME
prayed for in the complaint (Universal Motors Corporation
v. Rojas, AM No. RTJ-03-1814, May 26, 2005). SECTION 8. JUDGMENT TO INCLUDE DAMAGES
AGAINST PARTY AND SURETIES
Injunction TRO The procedure for claiming damages on the bond is the
same as that in preliminary attachment.
May exceed 20 days. Does not exceed 20 days
(RTC); Does not exceed 60 Recovery of damages for irregular issuance of injunction,
days (CA); Indefinite (SC). as where the main case is dismissed and the injunction is
Restrains or requires the Maintains the status quo. dissolved, is limited to the amount of the bond.
performance of particular
acts. SECTION 9: WHEN FINAL INJUNCTION GRANTED
If after the trial of the action it appears that the applicant is
entitled to have the act or acts complained of permanently
Status Quo Order
enjoined.
Status quo order is not a TRO. It is more in the nature of a
cease and desist order. It has no specified duration and
does not specifically direct the performance of an act. It Preliminary Injunction Final Injunction
lasts until it is revoked. Its duration may even be subject Section 1 Rule 58 Section 9 Rule 58
to agreement of the parties. No bond is required for its One issued in the judgment
issuance. Granted at any stage of an in the case permanently
action prior to the judgment restraining the defendant or
Note: It is resorted to when the projected proceedings in or final order therein. making the preliminary
the case made the conservation of the status quo injunction permanent.
desirable or essential, but the affected party neither
sought such relief nor did the allegations in his pleading
sufficiently make out a case for a TRO. R ULE 59
R ECEIVERSHIP
TRO issued by executive
judge for multi-sala TRO issued by ordinary SECTION 1. APPOINTMENT OF RECEIVER
courts / ordinary judge judge Upon verified application , one or more receivers of the
for single-sala courts property which is the subject of the action may be
appointed by the court where the action is pending in the
Good for 20 days including following cases: (IFAC)
Good for 72 hours
the first 72 hours 1. Applicant has an interest in the property or fund
Issued before raffling Issued after raffling subject of the proceeding and such property is in
danger of being lost, removed, or materially injured
Issued after summary unless a receiver is appointed;
Issued ex-parte
hearing 2. In foreclosure of mortgage, when the property is
in danger of being wasted, dissipated or materially
SECTION 6. GROUNDS FOR OBJECTION TO, OR injured, and that its value is probably insufficient to
FOR MOTION OF DISSOLUTION OF, INJUNCTION discharge the mortgage debt or that it has been agreed
OR RESTRAINING ORDER: upon by the parties;
1. Insufficiency; 3. After judgment, to preserve the property during
2. On other grounds upon affidavits of the party the pendency of an appeal or to dispose of it according
or person enjoined, which may be opposed by the to the judgment or to aid execution;
applicant also by affidavits; and 4. When appointment of receiver is the most
3. If injunction would cause irreparable damage convenient and feasible means of preserving,
to the person enjoined while the applicant can be fully administering or disposing of the property in litigation.
compensated for such damages as he may suffer
provided the defendant files a BOND to pay all the Note: The property must be under litigation.
damages which the applicant may suffer.

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Purpose: For the preservation of, and at making more
secure existing rights; to protect and preserve the rights of
the parties during the pendency of the main action, during
the pendency of an appeal or as an aid in the execution of
a judgment when the writ of execution has been returned
unsatisfied (Riano, p. 590).
A receiver is a person appointed by the court in behalf of
all the parties to an action for the purpose of preserving
the property involved in the suit and to protect the rights of
all the parties under the direction of the court (Mallari v.
Court of Appeals, G.R. No. L-26467, July 15, 1981). He is
an officer of the court who is indifferent to the litigants and
neutral.
A receiver is not a representative party under Rule 3 but a
real party in interest, but he cannot file a case without the
consent of the receivership court.
Receivership, like injunction, may be the principal action
itself or just an ancillary remedy.
Such appointment of the RTC, during the perfection of an
appeal, is covered by its residual jurisdiction under Sec. 9
of Rule 41, since this does not involve any matter litigated
by the appeal.
A receiver could be appointed even after the termination
of the case, even during the execution stage of the
judgment.
Note: This provisional remedy may be resorted to
during the pendency of an appeal or even after the
judgment has become final and executory.
Who may grant receivership: Receivership may be
granted by the court in which the action is pending, by the
Court of Appeals or the Supreme Court, or any member
thereof.
SECTION 2. BOND ON APPOINTMENT OF
RECEIVER
SECTION 3. DENIAL OF APPLICATION OR
DISCHARGE OF RECEIVER
Receivership may be denied or lifted:
1. If the appointment sought or granted is without
sufficient cause (Sec. 3);
2. Adverse party files a sufficient bond to answer for
damages (Sec. 3);
3. Bond posted by the applicant for grant of
receivership is insufficient (Sec. 5); or
4. Bond of the receiver is insufficient (Sec. 5).
CIVIL PROCEDURE
SECTION 4. OATH AND BOND OF RECEIVER
Before entering upon his duties, the receiver shall be
sworn to perform them faithfully and shall file a bond.
Two kinds of bonds in receivership
1. Applicant’s Bond;
2. Receiver’s Bond.
SECTION 5. SERVICE OF COPIES OF BONDS;
EFFECT OF DISAPPROVAL
SECTION 6. GENERAL POWERS OF RECEIVER.
Powers of the receiver include: (BTRC 2 - MPD 2I)
1. Bring and defend, in such capacity, actions in
his own name;
2. Take and keep possession of the property in
controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of which
he is the receiver;
5. Compound for and compromise the same;
6. Make transfers;
7. Pay outstanding debts;
8. Divide the money and other property that shall
remain among the persons legally entitled to receive the
same;
9. Generally to d o such acts respecting the
property as the court may authorize; and
10. Invest funds in his hands, only by order of the
court upon the written consent of all the parties.
No action may be brought by or against a receiver without
leave of the court which appointed him.
A receiver may not invest funds without an order from the
court and without the written consent of the parties to the
action.
The rule talks of the current receiver of the company and
not the previous receiver. The reason behind Rule 59,
Section 6, which requires leave of court for all suits by or
against the present receiver, is to forestall any undue
interference with the receiver’s performance of duties
through improvident suits. Apparently, such situation
cannot apply to Orendain who is no longer BF Homes’
receiver. Hence, an action filed by a successor-receiver
against his predecessor-receiver is allowed under Rule
59, Section 6 without leave of court (Orendain v. BF
Homes, Inc., G.R. No. 146313, October 31, 2006).
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SECTION 7. LIABILITY FOR REFUSAL OR The purpose is to have

NEGLECT TO DELIVER PROPERTY TO RECEIVER the property put in the
A person who refuses or neglects to deliver a property, The purpose is to recover custody of the court to
within his control and which is the subject of the action, to personal property capable of secure the satisfaction of
the receiver may be punished for contempt and shall be manual delivery from the the judgment that may be
liable to the receiver for the money or the value of the defendant. rendered in favor of the
property plus damages. plaintiff at some future
time.
SECTION 8. TERMINATION OF RECEIVERSHIP; The property either belongs
COMPENSATION OF RECEIVER The property does not
to the plaintiff or one over
The court, (1) on motion of either party or motu proprio, belong to the plaintiff but
which the plaintiff has a right
(2) upon determining that the necessity for a receiver no to the defendant.
of possession.
longer exists, shall (3) after due notice to all parties and a May be sought only when Available even if recovery
(4) hearing, settle the accounts of the receiver, direct the principal action is for the of property is only
delivery of the funds or property in his possession to the recovery of personal incidental to the relief
person adjudged entitled thereto and order the discharge property. sought.
of the receiver. The receivers shall be entitled to a Can be sought only when May be resorted to even if
reasonable compensation which is to be taxed as costs defendant is in actual or the property is in
upon the defeated party or apportioned as justice constructive possession of possession of a third
requires. the property. person.
Can be availed of even if
SECTION 9. JUDGMENT TO INCLUDE RECOVERY Cannot be availed of when
property is in custodia
AGAINST SURETIES property is in custodia legis.
legis.
Available from
Note: Where the damages sustained were not by commencement but
reason of the appointment of the receiver but to his own Available before defendant
before entry of judgment
malfeasance, the recovery shall be against the receiver’s answers.
(i.e. even when there has
bond and may be recovered in a separate action (De la already been an answer).
Rosa & Co. v. De Borja, G.R. No. L-28611, January 30, Bond is double the value of
1929). Bond is fixed by the court.
the property.
Extends only to personal Extends to all kinds of
property capable of manual property whether real,
R ULE 60
delivery personal or incorporeal
R EPLEVIN Attachment to recover
possession of personal
SECTION 1. APPLICATION Available to recover personal property unjustly detained
property even if the same is presupposes that the
Replevin not being concealed, same is being concealed,
The provisional remedy seeking for possession of a removed or disposed of. removed or disposed of to
personal property prior to the determination of the main prevent its being found or
action for the recovery thereof. taken by the applicant.
Replevin may also be a main action with the ultimate goal Note: There can be no replevin and preliminary
of recovering personal property capable of manual attachment in the same case because the purposes are
delivery wrongfully detained by a person. In this sense, it different. In Rule 57, it is for security. In Rule 60, it is for
is a suit in itself (Riano p. 593). recovery of possession.
When applied for: A writ of replevin must be applied for SECTION 2. AFFIDAVIT AND BOND
at the commencement of the action or at any time before
the defendant files his answer, for which reason there can Procedure for the application for Replevin
be no replevin before the appellate courts. (Requisites):
1. File an application at the
Writ of Preliminary commencement of the action or at any time before
Writ of Replevin
Attachment defendant answers.

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2. Application must contain an affidavit.
The affidavit must show that:
a. Applicant is the owner of the property claimed,
particularly describing it, or is entitled to the
possession thereof;
b. Property is wrongfully detained by the adverse
party;
Note: If the detention is actually allowed by law, then
no replevin (Twin Ace Holding v Rufina, G.R. No.
160191, June 8, 2006)
c. Property has not been distrained or taken for a
tax assessment or a fine pursuant to law, or seized
under a writ of execution or under custodia legis; and
d. Actual market value of the property.
3. Applicant must give a bond, executed to
the adverse party and double the value of the property.
SECTION 3. ORDER
Upon the filing of the affidavit and the approval of the
bond, the court shall issue an order and the
corresponding writ of replevin describing the personal
property and requiring the sheriff to take such property
into his custody.
SECTION 4. DUTY OF THE SHERIFF
1. Serve a copy of the order together with a copy of the
application, affidavit and bond to the adverse party;
2. Take the property, if it be in the possession of the
adverse party, or his agent, and retain it in his custody;
3. Demand delivery of the property if the property is
concealed in a building or enclosure, and if it be not
delivered, cause the building or enclosure to be broken
open and take the property into his possession;
4. After taking possession, keep the property in a secure
place and shall be responsible for its delivery to the
party entitled thereto.
SECTION 5. RETURN OF THE PROPERTY
In order to recover possession of the personal property
taken under a writ of replevin, the defendant must post a
redelivery bond (also double the value of the property
as stated in the applicant’s affidavit) and serve a copy of
such bond on the plaintiff within five (5) days from the
taking by the officer. Both requirements are mandatory
and must be complied with within the 5-day period.
SECTION 6. DISPOSITION OF PROPERTY BY
SHERIFF
The sheriff shall retain the property for five (5) days.
Within such period, the adverse party (1) may object to
the sufficiency of the applicant’s bond or surety or (2) he
may file a redelivery bond.
CIVIL PROCEDURE
After five (5) days and the adverse party failed to object or
his redelivery bond is insufficient, the sheriff shall deliver
the property to the applicant.
Defendant entitled to the return of the property
under a writ of replevin if:
1. He seasonably posts a redelivery bond;
2. Plaintiff’s bond is found to be insufficient or
defective and is not replaced with a proper bond; or
3. Property is not delivered to the plaintiff for any
reason.
SECTION 7. PROCEEDINGS WHERE PROPERTY
CLAIMED BY THIRD PERSON
Similar as in third-party claims in execution and in
attachment.
Note: In Section 14 of Rule 57, the affidavit is served
upon the sheriff while he has possession of the attached
property. In Section 7 of Rule 60, the affidavit is served
within the five 5 days in which the sheriff has possession ,
in connection with Section 6.
SECTION 8. RETURN OF PAPERS
The sheriff must file the order, with his proceedings
indorsed thereon with the court within 10 days after taking
the property.
SECTION 9. JUDGMENT
The court shall determine who has the right of possession
to and the value of the property and shall render
judgment in the alternative for the delivery to the party
entitled to the same, or for its value in case delivery
cannot be made, and also for damages that may be
proven by the parties, with costs.
SECTION 10. JUDGMENT TO INCLUDE
RECOVERY AGAINST SURETIES
Plaintiff who obtains possession of the personal property
by a writ of replevin does not acquire absolute title
thereto, nor does the defendant acquire such title by re-
bonding the property, as they only hold the property
subject to the final judgment in the action. A buyer of such
property also does not acquire title thereto but also holds
the property subject to the results of the suit.
Surety’s liability under the replevin bond should be
included in the final judgment to prevent duplicity of suits
or proceedings.
Provisions of Section 20 of Rule 57 are applicable not
only to the replevin bond of the plaintiff but also to the
redelivery bond posted by the defendant for the lifting of
the writ.
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Replevin bond: replevin bond is simply intended to
indemnify the defendant against loss that he may suffer by
being compelled to surrender the possession of the
disputed property pending trial of the action.
Note: A writ of replevin may be served anywhere in the
Philippines.
Case: In reversing the RTC ruling and consequently
dismissing the replevin case for lack of jurisdiction, the CA
held: We find that the car plan privilege is a benefit arising
out of employer-employee relationship, Astorga being
district sales manager of SMART. Thus, the claim for
such falls squarely within the original and exclusive
jurisdiction of the labor arbiters and the NLRC.” We do
not agree. The RTC rightfully assumed jurisdiction over
the suit and acted well within its discretion in denying
Astorga’s motion to dismiss. SMART’s demand for
payment of the market value of the car or, in the
alternative, the surrender of the car, is not a labor, but a
civil, dispute. It involves the relationship of debtor and
creditor rather than employee-employer relations. As
such, the dispute falls within the jurisdiction of the regular
courts (Smart Communications, Inc. v. Astorga, G.R. No.
148132, January 28, 2008).
R ULE 62
S UPPORT P ENDENTE L ITE
Support Pendente Lite
An amount of support provisionally fixed by the court in
favor of the person or persons entitled thereto during the
pendency of an action for support. Here the main action is
for support and support pendent lite is the provisional
remedy.
Note: Under Section 4 of Rule 39, the judgment in an
action for support is immediately executory.
This provisional remedy is available only in an Action for
Support, or where one of the reliefs sought is Support for
the Applicant (Coquia v. Baltazar, G.R. No. L-2942
December 29, 1949).
Where filed: It is exclusively cognizable by a Family
Court.
Exception : In criminal actions, where right to support
arises by reason of crime and as long as the civil aspect is
tried together with it, the RTC and MTC having jurisdiction
may also issue this remedy.
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Note: This is the only provisional remedy that does not
require a bond.
SECTION 1. APPLICATION
1. At the commencement of the action; or
2. At any time before judgment or final order.
The application must be verified , stating the grounds
for the claim and the financial conditions of both parties. It
shall be accompanied by:
1. Affidavits;
2. Depositions; or
3. Other authentic documents in support thereof.
Note: Where the right to support is put in issue by the
pleading or the fact from which the right is in controversy
or has not been established, the court cannot grant
support pendente lite (Francisco v. Zandueta, G.R. No. L-
43794, August 9, 1935).
SECTION 2. COMMENT
SECTION 3. HEARING
SECTION 4. ORDER
If the application is granted, the court shall issue an order
where it shall fix the amount of money to be provisionally
paid as support. If denied, the principal case shall be tried
and decided as early as possible.
Note: Includes “other forms of support”, meaning
medical attendance, housing, clothing, education, etc.
In determining the amount of support to be awarded,
such amount should be in proportion to the resources or
means of the giver and the necessities of the recipient,
pursuant to Articles 194, 201 and 202 of the Family Code.
It is incumbent upon the trial court to base its award of
support on the evidence presented before it. The evidence
must prove the capacity or resources of both parents who
are jointly obliged to support their children as provided for
under Article 195 of the Family Code; and the monthly
expenses incurred for the sustenance, dwelling, clothing,
medical attendance, education and transportation of the
child (Lam v. Chua, G.R. No. 131286, March 18, 2004).
SECTION 5. ENFORCEMENT OF ORDER
Failure to comply with an order granting support pendente
lite may warrant:
1. The issuance of an order of execution against the
non-complying party; and
2. May likewise make him liable for contempt.
 REMEDIAL LAW CIVIL PROCEDURE

Note: Support pendente lite is interlocutory, thus, the

same may be modified at any stage of the proceedings.
The amount fixed in the order is only provisional. It can be
modified depending on the changing conditions affecting
the ability of the obligor to pay the amount fixed for
support.

SECTION 6. SUPPORT IN CRIMINAL CASES

Art. 345 RPC, Civil liability of persons guilty of crimes
against chastity – Persons guilty of rape, seduction or
abduction shall also be sentenced… (3) In every case to
support the offspring.

Abduction may be committed with mere lewd designs,

without carnal knowledge; hence, there need not
necessarily be an offspring.

SECTION 7. RESTITUTION
Remedies of party who was erroneously compelled to
give support:
1. Apply for an order for such reimbursement by the
recipient on motion in the trial court in the same case,
unless such restitution is already included in the
judgment; or
2. Failing therein, file a separate action for
reimbursement against the person legally obliged to
give support.

Note: See Comparative Chart on Provisional Remedies

for more details.

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