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LECTURE NOTES ON CIVIL PROCEDURE

WHAT IS CIVIL PROCEDURE

It is the procedure governing the filing, processing and adjudication of civil actions. It essentially is the
lawyer’s law that defines the rules of the game that lawyers and judges play.

It is embraced in Rules 1 to 71 of the Rules of Court and after its revision, is now commonly known as
the 1997 Rules of Civil Procedure. It is divided into the following topics: General Provisions (Rule 1),
Ordinary Civil Actions (Rules 2-5), Procedure in Regional Trial Courts (Rules 6-39), Appeals (Rules
40-43), Procedure in the Court of Appeals (Rules 44-55), Procedure in the Supreme Court (Rule 56),
Provisional Remedies (Rules 57-61), and Special Civil Actions (Rules 62-71).

Included within its scope are the 1991 Rules on Summary Procedure and Local Government Code
provisions on the Katarungang Pambarangay.

JURISDICTION

Any discussion of procedural rules should always be preceded by a discussion of jurisdiction.

The presence of jurisdiction gives rise to the application of the rules for the purpose of resolving the
action that is brought before a court. Absent jurisdiction, the only thing a court can do as provided by
the rules is to dismiss the action. If a court acts without jurisdiction, all its acts are null and void.
Further, any decision it may render is not a decision in contemplation of law and cannot be
executory. See: Abbain v. Chua 22 SCRA 748, Estoesta vs. CA 179 SCRA 203, Dava v. People 202
SCRA 62

Simply defined JURISDICTION refers to the power and authority of a court or tribunal to hear, try and
decide a case. It has also been defined as the authority by which courts and judicial officers take
cognizance of and decide cases.

REQUISITES FOR A VALID EXERCISE OF JURISDICTION

1. It must have jurisdiction over the persons of the parties. It is acquired over the plaintiff upon his
filing of a complaint. On the other hand, it is acquired over the defendant by his voluntary appearance
before the court or the employment of the coercive power of legal process.

2. It must also have jurisdiction over the subject matter in controversy Jurisdiction over the subject
matter of the compliant as determined by the allegations in the complaint and the law in force at the
time of the commencement of the action.

2.1 Determined by allegations in the complaint

2.1.a The facts allege dispossession of the property by force – the allegations make out a case for
forcible entry – The law provides that such cases fall within the jurisdiction of the MTC.

2.1.b The allegation is for recovery or payment of the sum of 500,000, subject matter jurisdiction is
with the RTC

2.1.c The plaintiff claims PHP 500,000 but after trial he is only entitled to PHP 100,000, subject
matter jurisdiction is with the RTC. See: Ratilla v. Tapucar, 75 SCRA 64

2.1.d It cannot be made to depend on the defenses interposed in an answer or a motion to dismiss
AS IT IS THE COMPLAINT, PETITION OR INITIATORY PLEADING THAT BRINGS THE CASE FOR
TRIAL AND JUDGMENT – ALTHOUGH THE DEFENDANT MAY IN HIS ANSWER OR MOTION
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ATTACK JURISDICTION – if the Rule were otherwise – NO ACTION CAN PROSPER as all the
defendant has to do is to allege that jurisdiction is vested in another court. The EXCEPTION is the
defense of agricultural tenancy. See Section 3, Rule 70

2.2 Determined by the law in force at the time of the commencement of the action

2.2.a If action for payment of a sum of money is filed after the effectivity of RA 7961 on April 15,
1994 (Expanding the jurisdiction of the MTC and implemented by Adm. Circular 9-94-June 14, 1994)
interest, damages of whatever kind ( as long as incidental), attorney’s fees, litigation expenses and
costs are not to be considered in fixing the jurisdictional amount, but must be specifically alleged and
filing fees paid thereon

2.2.b There is a shipment of goods from HK to Manila. The shipment was short. Consignee sued in
Manila, carrier moved to dismiss for lack of jurisdiction since the Bill of Lading provided that in case of
dispute, suit must be brought in HK. Motion will not prosper as jurisdiction is conferred by law and
cannot be stipulated by the parties.

DISTINCTIONS BETW EEN THE NATURE OF JURISDICTION EXERCISED BY THE COURTS

1. AS TO THE NATURE OF THE EXERCISE OF JURISDICTION – it is General, meaning it is


exercised over all kinds of cases or Limited, meaning it exercised over and extends only to a
particular or specified cases

2. AS TO THE NATURE OF THE CAUSE OR THE ACTION – it is Original, meaning it is exercised by


courts in the first instance or Appellate, meaning it is exercised by a superior court to review and
decide a cause or action previously decided by a lower court.

3. AS TO THE EXTENT OF THE EXERCISE OF JURISIDICTION – it is Exclusive, meaning it is


confined to a particular court or CONCURRENT, meaning two or more courts have jurisdiction at the
same time and place. In this instance, the court which has first validly acquired jurisdiction takes it to
the exclusion of the others. NOTE THOUGH the DOCTRINE OF HIERARCHY OF COURTS which
requires litigants to initially seek proper relief from the lower courts in those cases where the Supreme
Court has concurrent jurisdiction with the Court of Appeals and the Regional Trial Court to issue the
extraordinary writs of certiorari, prohibition or mandamus. The Supreme Court is a court of last resort
and its jurisdiction to issue extra-ordinary writs should be exercised only when absolutely necessary,
or where serious and important reasons therefor exist. See Pearson v. IAC, 295 SCRA 27. Also,
concurrence of jurisdiction does not grant any party seeking any of the extra-ordinary writs the
absolute freedom to file the petition with the court of his choice. See: Ouano vs. PGTT International
Investment Corporation, 384 SCRA 587

4. AS TO SITUS – it is Territorial, meaning it is exercised within the limits of the place where the court
is located or Extra-Territorial meaning it is exercised beyond the confines of the territory where the
court is located.

WHAT HAPPENS WHEN JURISDICTION IS ACQUIRED

Jurisdiction once acquired continues until the case is terminated. It is not affected by subsequent
legislation placing jurisdiction in another tribunal. See Mercado vs. Ubay, 187 SCRA 719. The
exception is when the expressly provides for retroactivity. See Latchme Motoomull v. Dela Paz, 187
SCRA 743

DOCTRINE OF PRIMARY JURISDICTION

That which vests in an administrative tribunal the jurisdiction to determine a controversy requiring the
exercise of sound administrative discretion – stated otherwise – if jurisdiction is vested upon an
administrative body, no resort to courts can be made until the administrative body shall have acted on
the matter.

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WHEN CAN THE ABSENCE OF JURISDICTION BE QUESTIONED

The general rule is jurisdiction may be questioned at any stage of the proceedings, even on appeal,
BUT a party may be barred from raising it on the ground of laches or estoppel when he has actually
invoked the jurisdiction of the court by participating in the proceedings, then belatedly questions lack
of jurisdiction after judgment has gone against him. See: Tijam v. Sibonghanoy, 23 SCRA 29, Lopez
v. Northwest 223 SCRA 469, Soliven v. FastForms Phil. Inc, GR No. 139091, October 18, 2004, citing
PNOC v. CA,. 297 SCRA 402, APT v. CA 300 SCRA 597 and Producers Bank v. NLRC, 298 SCRA
517. See also: Sections 2 and 3, Rule 47 – Annulment of Judgment based on extrinsic fraud or lack
of jurisdiction.If based on lack of jurisdiction before it is barred by laches or estoppel.

PROBLEM AREAS AFFECTING JURISDICTION

1. ACTIONS INCAPABLE OF PECUNIARY ESTIMATION

1.1 Generally, it is one where the basic issue is something other than the right to recover money,
where the money claim is incidental to or is a consequence of the principal relief being sought. It is a
claim, the subject of which cannot be estimated in terms of money.

1.2 Examples: Action for specific performance – although damages are being sought BUT if
damages are part of an alternative prayer, jurisdiction should be based on the amount. OTHERS:
Action for appointment of receivers, expropriation, interpleader, support, and rescission

1.3 In determining which court has jurisdiction, the applicable test is the NATURE OF THE
ACTION TEST (Determination as to whether or not the action is capable of pecuniary estimation. If
not capable, jurisdiction is with the RTC. If capable-jurisdiction is determined by the amount
claimed/value of the personal property) BUT this test must yield to the PRIMARY OBJECTIVE TEST
(where notwithstanding the fact that the action appears to be incapable of pecuniary estimation, if the
primary objective is to recover real property, jurisdiction will be determined by the assessed value of
the real property)

2. DETERMINATION OF AMOUNTS OF THE CLAIM TO DETERMINE JURISDICTION AND


PAYMENT OF DOCKET FEES -

2.1 Foreclosure of chattel – to collect 100K but actual value is 500K – MTC – RULE: Jurisdiction
is determined by the amount claimed by the plaintiff.

2.2 Action for removal of improvements with prayer for 10,000 for attorney’s fees – RTC
incapable of pecuniary estimation.

2.3 Action to collect sum of money – within jurisdiction of the MTC but with accessory prayer for
damages beyond MTC jurisdiction – MTC - if action is personal, damages are to be excluded – (Adm
Circ. 09-94 – June 14, 1994) for determining jurisdiction but payment is still to be collected –
Damages, Interest, Attorney’s fees and Litigation costs.

BUT – if action is for damages over 400K – RTC because it is the main cause of action or one of the
causes of action.

3. IF DOCKET FEES ARE INCORRECT – The trial court should allow the plaintiff to pay within a
reasonable period of time before the expiration of the applicable prescriptive or reglamentary period –
EFFECT – defendant must move to dismiss the complaint on the ground of lack of jurisdiction – if not
he may be considered to be in estoppel. See NSC v. CA – GR 123215, Feb 2, 1999)

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4. DOCKET FEES FOR MAIN/REAL ACTION PAID BUT THOSE FOR RELATED DAMAGES ARE
NOT PAID –Trial court may expunge the claims or allow on motion, a reasonable time for amendment
of the complaint or accept payment of the requisite legal fees.

5. IF CLAIMS ARE UNSPECIFIED BUT ARISE AFTER FILING –The required additional fee shall
constitute a lien on the judgment

LEVELS OF SUBJECT MATTER JURISDICTION

1. JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court in civil cases of which it cannot be deprived and which cannot
be diminished by Congress is to review, revise, reverse, modify, or affirm on appeal or certiorari as
the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) all cases
in which the constitutionality or validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (b) all
cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation
thereto; (c) all cases in which the jurisdiction of any lower court is in issue; and (d) all cases in which
only an error or question of law is involved.

The foregoing Constitutional definition is of appellate jurisdiction. Congress, however, is not


prohibited from increasing or adding to this Constitutionally-defined jurisdiction. And so Congress has
given the Supreme Court original jurisdiction over cases affecting ambassadors, other public
ministers, and consuls and petitions for the issuance of writs of certiorari, prohibition and mandamus
against the Court of Appeals. Congress has also vested the Supreme Court with jurisdiction,
concurrent with the RTCs, over petitions for the issuance of the writs of certiorari, prohibition, habeas
corpus, and in actions brought to prevent and restrain violations of law concerning monopolies and
combinations in restraint of trade.

The appellate jurisdiction in civil cases of the Supreme Court as defined in the Constitution had
been revised and expanded a little bit more by law to include all cases involving petitions for
naturalization or denaturalization, all decisions of the Auditor General, if the appellant is a private
person or entity, and final judgments or orders of the Commission on Elections.

2. JURISDICTION OF THE COURT OF APPEALS

The Court of Appeals has both original and appellate jurisdiction. Its original jurisdiction, which is
exclusive, is over actions for annulment of RTC judgments. Its original jurisdiction, which is
concurrent with the Supreme Court and the RTCs, is to issue writs of mandamus, prohibition,
certiorari, habeas corpus and quo warranto, and auxiliary writs or processes, whether or not in aid of
its appellate jurisdiction.

The appellate jurisdiction of the Court of Appeals, which is exclusive, is over final judgments or
resolutions of RTCs and quasi-judicial agencies, such as the Securities and Exchange Commission,
Sandiganbayan an National Labor Relations Commission.

3. JURISDICTION OF REGIONAL TRIAL COURTS

The RTCs are our second-level trial courts. As the Supreme Court and the Court of Appeals, RTCs
have both original and appellate jurisdiction in civil cases.

Their original jurisdiction is concurrent with the Supreme Court and the Court of Appeals in the
issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunctions
but, as issued by RTCs, these writs may be enforced only within their respective regions, and over
actions affecting ambassadors and other public ministers and consuls. The original jurisdiction of
RTCs, which is exclusive, is broad and covers the following cases: (1) all civil actions in which the
subject of the litigation is incapable of pecuniary estimation; (2) all civil actions which involve the title
to, or possession of, real property, or any interest therein, where the assessed value of the property
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involved exceeds Two hundred thousand pesos (P200,000.00) or for civil actions in Metro Manila,
where such value exceeds Four hundred thousand pesos (P400,000.00) except actions for forcible
entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon
the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts; (3) all actions
in admiralty and maritime jurisdiction where the demand or claim exceeds Two hundred thousand
pesos (P200,000.00) or in Metro Manila, where such demand or claim exceeds Four hundred
thousand pesos (P400,000.00); (4) all matters of probate, both testate and intestate, where the gross
value of the estate exceeds Two hundred thousand pesos (P200,000.00) or, in probate, both testate
and intestate, where the gross value of the estate exceeds Two hundred thousand pesos
(P200,000.00) or, in probate matters in Metro Manila, where such gross value exceeds Four hundred
thousand pesos (P400,000.00); (5) all actions involving the contact of marriage and marital relations;
(6) all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions; (7) all
civil actions and special proceedings falling within the exclusive jurisdiction of a Juvenile and
Domestic Relations Court and of the Court of Agrarian Relations as then provided by law; and (8) all
other cases in which the demand, exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs or the value of the property in controversy exceeds Two hundred
thousand pesos (P200,000.00) or, in such other cases in Metro Manila, where the demand, exclusive
of the above-mentioned items exceeds For hundred thousand pesos (P400,000.00).

The appellate jurisdiction of the RTCs is over all cases decided by Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts in their respective territorial jurisdiction.

The term “damages of whatever kind” has been specially defined by the Supreme Court for
purposes of determining the jurisdictional amount in respect to the jurisdiction of the RTC. This term
is understood to apply only to cases when the damages are merely incidental to or a consequence of
the main cause of action, and that therefore where the claim for damages is the main cause of action
or one of the causes of action, the amount of the claim shall be considered in determining the
jurisdiction of the court.

The Supreme Court has however designated certain branches of the RTCs to handle exclusively
certain cases as corporate and intellectual property cases.

4. JURISDICTION OF METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS AND


MUNICIPAL CIRCUIT TRIAL COURTS

The MTCs are the first-level trial courts in this country. They have therefore no appellate jurisdiction
and all their jurisdiction is exclusive and encompasses the following cases: (1) all civil actions and
probate proceedings, testate and intestate, including the grant of provisional remedies in proper
cases, where the value of the personal property, estate, or amount of the demand does not exceed
Two hundred thousand pesos (P200,000.00) or, in Metro Manila where such personal property,
estate, or amount of the demand does not exceed Four hundred thousand pesos (P400,000.00),
exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses, and costs, the
amount of which must be specifically alleged: Provided, That where there are several claims or
causes of actions between the same or different parties, embodied in the same complaint, the
amount of the demand shall be the totality of the claims in all the causes of action irrespective of
whether the causes of action arose out of the same or different transactions; (2) cases of forcible
entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of
ownership in his pleadings and the question of possession cannot be resolved without deciding the
issue of ownership, the issue of ownership shall be resolved only to determine the issue of
possession; and (3) all civil actions which involve title to, or possession of, real property or any
interest therein where the assessed value of the property or interest therein does not exceed Two
hundred thousand pesos (P200,000.00) or, in civil actions in Metro Manila, where such assessed
value does not exceed Four hundred thousand pesos (P400,000.00) exclusive of interest, damages
of whatever kind, attorney’s fees, litigation expenses and costs.

The MTCs may however be assigned by the Supreme Court to hear and determine certain
cadastral cases and petitions for habeas corpus.

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RULE I GENERAL PROVISIONS

The Rules shall be known and cited as the Rules of Court.1 They shall apply in all courts, except as
otherwise provided by the Supreme Court2 in civil, criminal and special proceedings.3They do not
apply to election cases, land registration, cadastral, naturalization and insolvency, and other cases
not herein provided, except by analogy or in suppletory character and whenever practicable and
convenient.4

For purposes of the subject matter, only Rules 1 to 71 or the 1997 Rules of Civil Procedure shall be
discussed herein.

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. Examples: To enforce payment of a loan or to eject an intruder
on one’s property.

1.1 A Civil Actions may be:

1.1.a ORDINARY or SPECIAL – both are governed by the rules for ordinary civil actions, subject to
specific rules prescribed for a special civil action.

1.1.b IN PERSONAM- brought against a person based on personal liability to the person bringing
the action

1.1.c IN REM- it is directed against the thing itself rather than the person

1.1.d QUASI IN REM – names a person as a defendant but its object is to subject the person’s
interest in property to a corresponding lien or obligation (Ramos vs. Ramos, 399 SCRA 43)

1.2 Distinguishing it from other kinds of actions:

1.2.a CRIMINAL - one by which the state prosecutes a person for an act or omission punishable
by law.

1.2.b SPECIAL PROCEEDING – remedy by which a party seeks to establish a status, right or a
particular fact.

1.3
DISTINCTIONS BETW EEN A CIVIL ACTION AND SPECIAL PROCEEDINGS –

CIVIL ACTION

Adversarial-between plaintiff and


and defendant

formal demand of a right by one


against the other

SPECIAL PROCEEDINGS

not necessarily as it may involve only 1


party

declaration of a status, right or a parti


cular fact

1
Section 1, Rule 1, 1997 Rules of Civil Procedure
2
Supra, Section 2, Rule 1
3
Supra, Section 3, Rule 1
4
Supra,,Section 4, Rule 1
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WHEN AN ACTION IS COMMENCED

An action is commenced upon the filing of the original complaint in court. If an additional defendant is
impleaded in a later pleading – it is commenced on the date of the filing of the later pleading
IRRESPECTIVE OF W HETHER THE MOTION FOR ITS ADMISSION, IF NECESSARY, IS DENIED
BY THE COURT.5

1. Note though that FILING IS DEEMED DONE ONLY UPON PAYMENT OF THE DOCKET FEE
REGARDLESS OF ACTUAL DATE OF THE FILING OF THE COMPLAINT 6 (MAGASPI V.
RAMOLETE 115 S 193)

EXCEPT – if the plaintiff is authorized to litigate as a pauper litigant – he is exempt from filing fees.

2. Note that the commencement of the action interrupts the period of prescription as to the parties to
the action.7

HOW SHOULD THE RULES BE CONSTRUED

The rules shall be construed liberally in order to promote their objective of securing a just speedy and
inexpensive disposition of every action or proceeding.8

1. Liberal construction is the controlling principle to effect substantial justice. Litigation should as much
as possible, be decided on their merits, and not on technicalities. It does not mean, however, that
procedural rules are to be ignored or disdained at will to suit the convenience of a party.9

2. Liberal construction of the rules should be made by the courts in cases: (1) a rigid application will
result in manifest failure or miscarriage of justice, especially if a party successfully shows that the
alleged defect in the questioned final and executory judgment is not apparent on its face or from the
recitals contained therein (2) where the interest of substantial justice will be served (3) where the
resolution of the motion is addressed solely to the sound and judicious discretion of the court (4)
where justice to the adverse party is not commensurate with the degree of this thoughtlessness in not
complying with the procedure prescribed.10

3. Note that in doing so, substantial justice and equity considerations must not be sacrificed. Periods
for filing are as a matter of practice, strictly construed. Neither can liberality of the rules be invoked if it
will result in the wanton disregard of the rules or cause needless delay in the administration of
justice.11
4. Concommitant to a liberal application of the rules of procedure should be an effort on the part of the
party invoking liberality to adequately explain his failure to abide by the rules.12

5. The rules and procedure laid down for the trial court and the adjudication of cases are matters of
public policy. They are matters of public order or interest which can in no wise be changed or
regulated by agreements between or stipulations by parties to an action for their singular
convenience.13 (Republic vs. Hernandez, 253 SCRA 509)

6. The Supreme Court has the power to suspend or set aside its rules in the higher interest of
justice.14

5
Supra, Section 5, Rule 1
6
Magaspi v Ramolete, 115 SCRA 193
7
Cabrera v Tiano,8 SCRA 542
8
Supra,Section 6, Rule 1
9
Vda De Toledo v Toleda, 417 SCRA 260
10
Seapower Shipping Enterprises, Inc. v CA, 360 SCRA 173, Tan v CA, 295 SCRA 755
11
El Reyno Homes v Ong, 397 SCRA 563
12
Sebastian v Hon. Morales, 397 SCRA 549, Duremdes v Duremdes, 415 SCRA 684
13
Republic v Hernandez, 253 SCRA 509
14
Fortica v Corona, GR No. 131457, April 24, 1998
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RULE 2CAUSE OF ACTION

The basis of an ordinary civil action is a cause of action.15 A cause of action is the act or omission by
which a party violates a right of another.16

WHAT ARE THE REQUISITES OF A CAUSE OF ACTION

The requisites for a cause of action are: (1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created (2) an obligation on the part of the defendant to respect and
not to violate such right (3) an act or omission on the part of the defendant constituting a violation of
the plaintiff’s right.17

DISTINGUISHING IT FROM RIGHT OF ACTION

RIGHT OF ACTION is the right to commence and maintain an action, it is a remedial right that
depends on substantive law, while a CAUSE OF ACTION is a formal statement of the operative facts
that give rise to such remedial right which is a matter of statement and is governed by procedural
law. WHEN ALL ELEMENTS OF A CAUSE OF ACTION ARE PRESENT, THERE WILL BE A RIGHT
OF ACTION

The distinction is best used to explain the principle that the existence of a cause of action may only
be ascertained from the allegations of the complaint.18

HOW MANY SUITS CAN BE FILED FOR A CAUSE OF ACTION

A party may not institute more than one suit for a single cause of action.19

1. If a party institutes more than one suit, the filing of one or a judgment upon the merits in anyone
is available as a ground for the dismissal of the others. 20 This is also known as SPLITTING A CAUSE
OF ACTION.
2. The SINGLENESS OF CAUSE OF ACTION of a cause of action is determined as follows:

2.1 In an action EX DELICTO, the singleness of a cause of action lies in the singleness of the
delict or wrong violating the right of a person. If however, one injury results from several wrongful
acts, only one cause of action arises. Example: A party who is injured could not maintain an action for
damages based on a breach of the contract of carriage against the owner of the vehicle in which he
was riding and another action for quasi-delict against the driver/owner of the offending vehicle. The
recovery under one remedy necessarily should bar recovery under another. This, in essence, is the
rationale for the proscription in our law againt double recovery for the same act or omission which,
obviously stems from the fundamental rule against unjust enrichment.21

2.2 In an action EX CONTRACTU, the rules are as follows:

2.2.a In a single or indivisible contract, only one cause of action arises from a single or several
breaches. Example: In a contract of sale of personal property by installments, the remedies of the
unpaid seller is alternative, they are: (1) elect fulfillment (2) cancel the sale, should the vendee’s
failure to pay cover two or more installments, and (3) foreclose the mortgage on the thing sold if one
22
has been constituted should the vendee fail to pay two or more installments.

15
Supra, Section 1, Rule 2
16
Supra, Section 2, Rule 2
17
Navao v CA, 251 SCRA 545
18
Equitable Bank v CA, 425 SCRA 544
19
Supra, Section 3, Rule 2
20
Supra, Section 4, Rule 2
21
Joseph v Bautista, 170 SCRA 540
22
Articles 1484,1486, NCC
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2.2.b If the contract provides for several obligations, each obligation not performed gives rise to a
single cause of action. But if upon filing of the complaint several obligations have already matured, all
of them shall be integrated into a single cause of action. Example: Contract for delivery of goods in
part or over a period.

2.2.c If the contract is divisible in its performance, and the future performance is not yet due, but
the obligor has already manifested his refusal to comply, the contract is entire and the breach is total.
Thus, there can only be one action.23

IF A PARTY HAS SEVERAL CAUSES OF ACTION

He can join his causes of action24 as he may in one pleading assert, in the alternative or otherwise, as
many causes of action as he may have against the opposing party, subject to the following
conditions:

1. party joining the causes of action shall comply with the rule on joinder of parties, which provides
that : All persons in whom or against whom any right to relief is respect to or arising out of the same
transaction is alleged to exist, whether jointly, severally or in the alternative, may except as otherwise
provided in these rules, join as plaintiffs or be joined as defendants in one complaint, where any
question of law or fact common to all such plaintiffs or to all such defendants may arise in the action.25

2. joinder does not allow the inclusion of special civil actions or actions governed by special rules .
Example: An action for a sum of money cannot be joined with an action for iIlegal detainer

3. where causes of action are between same parties but pertain to different venues or jurisdictions,
joinder may be allowed in the RTC provided one of the causes of action falls within its jurisdiction and
venue lies therein.

4. when the claims in all causes of action are principally for recovery of money, the aggregate amount
shall be the test of jurisdiction.

EFFECT OF MISJOINDER

Upon motion of a party or on the initiative of the court, a misjoined cause of action may be severed
and proceeded with separately.26

RULE 3PARTIES TO CIVIL ACTIONS

WHO MAY BE PARTIES TO A CIVIL ACTION

Only natural or juridical persons or entitles authorized by law may be parties in a civil action. 27 They
are called: PLAINTIFF – he is one who has interest in the subject of the action and obtaining the
relied demanded. He may be the claimant in the original complaint, the counter-claimant in the
counter claim, or cross-claimant in a cross-claim or the third party plaintiff and the DEFENDANT – he
is one who has an interest in the controversy adverse to the plaintiff. He may be the original
defending party, the defendant in a counter-claim, or cross-defendant in a cross-claim.

For ready reference, a COUNTER-CLAIM is any claim which a defending party may have against
an opposing party.28A CROSS-CLAIM is a claim by one party against a co-party arising out of the
transaction or occurrence that is the subject matter either of the original action or of a counter-claim

23
Blossom & Co v Manila Gas Corporation, 55 Phil 226
24
Supra, Section 5, Rule 2
25
Supra, Section 6, Rule 3
26
Supra, Section 6, Rule 2
27
Supra,,Section 1, Rule 3
28
Supra, Section 6, Rule 6
9
therein. 29 A THIRD PARTY CLAIM is a claim that a defending party may, with leave of court, file
against a person not party to an action for contribution, indemnity, subrogation or any other relief, in
respect to his opponent’s claim.30

1. The state or any of its political subdivisions, while considered as juridical entities, they can sue but
as a general rule, they cannot be sued without its consent.

2. A foreign corporation cannot be a plaintiff in suit when it is transacting business in the


Philippines without a license.

3. Entities authorized by law are recognized labor organizations and entities without legal personality
referring to 2 or more persons not organized as an entity with juridical personality enter into a
transaction, they may be sued under the name by which they are generally or commonly known but in
their answer to the complaint, their names and addresses must be revealed.31

4. A sole proprietorship may not be a party as it is neither a natural, juridical or entity allowed or
authorized by law. If one sues as such, the action may be dismissed on the ground of lack of capacity
to sue. It does not possess a juridical personality separate and distinct from the personality of the
owner of the enterprise.32It cannot sue or file or defend an action in court.33

PARTIES IN INTEREST

A real party in interest in the party who stands to be benefited or injured by the judgment or party
entitled to the avails of the suit. UNLESS OTHERW ISE AUTHORIZED BY LAW OR THE RULES – all
actions must be prosecuted or defended in the name of the real party in interest.34

1.A real party in interest-plaintiff is one who has a legal right, while a real party in interest-defendant
is one who has a correlative obligation, whose act or omission violates the legal rights of the former.35

2. WHEN A SUIT IS NOT BROUGHT IN THE NAME OF THE REAL PARTY IN INTEREST,it may be
dismissed on the ground that the complaint states no cause of action.36 Note that the dismissal is not
due to lack of or no legal capacity to sue nor lack of legal personality, as the latter is not ground for
dismissal for dismissal under the 1997 Rules of Civil Procedure.

2.1 It states NO CAUSE OF ACTION BECAUSE IT IS NOT BEING PROSECUTED IN THE


NAME OF THE REAL PARTY IN INTEREST.

2.2 LACK OF LEGAL CAPACITY TO SUE means that the plaintiff is not in exercise of his civil
rights, does not have the necessary qualification to appear or does not have the character or
representation he claims. Example: Trustee or Minor, AS DISTINGUISHED FROM LACK OF LEGAL
PERSONALITY means that the plaintiff is not the real party in interest. Dismissal is based on the fact
that the complaint states no cause of action

3. Legal standing means a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the act being challenged. The term interest is
material interest, an interest in issue, and to be affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. Moreover, the interest must be
personal and not one based on a desire to vindicate the constitutional right of some third or unrelated
party.

CLASSIFICATION OF REAL PARTIES IN INTEREST

29
Supra, Section 8, Rule 6
30
Supra, Section 11, Rule 6
31
Supra, Section 15, Rule 3
32
Mangila v Court of Appeals, 387 SCRA 162, Yao Ka Sin Trading v Court of Appeals, 209 SCRA 763
33
Juasing Hardware v Mendoza, 115 SCRA 783
34
Supra, Section 2, Rule 3
35
Gan Hock v. Court of Appeals, 197 SCRA 223
36
Tankiko v Cesar, 302 SCRA 559
10
1. INDISPENSABLE PARTY is a party without whom no final determination can be had of an action.37
They are those with such an interest in the controversy that a final decree would necessarily affect
their rights, so that the courts cannot proceed without their presence. Example: owners of property
over which reconveyance is asserted are indispensable parties without whom no relief is available
and without whom the court can render no valid judgment.38

1.1 Without the presence of indispensable parties to the suit, the judgment of the court cannot
attain real finality.39

2. NECESSARY PARTY is a party who is not indispensable but who ought to be joined as a
party if complete relief is to be accorded as to those already parties or for a complete determination or
settlement of the claim subject of the action. 40 A necessary party’s presence is necessary to
adjudicate the whole controversy but whose interests are so far separable that a final decree can be
made in their absence without affecting them. Example: If the plaintiff only sues a one of his joint
debtors, the joint debtor who is not sued is merely a necessary party. As a consequence, the plaintiff
only recovers the share of the debt due from the joint debtor defendant.

2.2 A necessary party is to be impleaded as a party for complete determination of an action,


while an indispensable party is impleaded for a final determination of an action.

PERSONS W HO CAN SUE IN BEHALF OF A REAL PARTY IN INTEREST

The following may sue in behalf of a real party in interest

1. REPRESENTATIVES- actions are allowed to be prosecuted / defended by a representative or by


one acting in a fiduciary capacity BUT the BENEFICIARY SHALL BE INCLUDED IN THE TITLE and
shall be deemed to be the REAL PARTY IN INTEREST.41

1.1 Examples of representatives are: (1) trustee of an express trust (2) a guardian, executor or
administrator, or (3) a party authorized by law or the Rules.

1.2 An agent acting in his own name and for the benefit of an unknown principal may sue or be
sued without joining the principal except when the contract involves things belonging to the principal.
This refers to an AGENCY WITH AN UNDISCLOSED PRINCIPAL. 42

2. HUSBAND AND WIFE- as a general rule shall sue or be sued jointly, except as provided by law.43
Non joinder of party’s husband is not fatal. It is a mere formal defect.44

2.1 They are required to sue and be sued jointly as they are joint administrators of the Absolute
Community or the Conjugal Partnership.45

2.2 The exceptions provided by law are when the property relations of husband and wife are
governed by the rules on separation of property46 or one is disposing of exclusive property.47

2.3 NOTE that the legal provision against the disposition of conjugal property by one spouse
without the consent of the other has been established for the benefit, not of third persons, but only for

37
Supra, Section 7, Rule 3
38
Valenzuela v Court of Appeals, 363 SCRA 779
39
Domingo v Scheer, 421 SCRA 468
40
Supra, Section 8, Rule 3
41
Supra, Section 3, Rule 3
42
Article 1883, NCC
43
Supra, Section 4, Rule 3
44
Miranda v Besa, 435 SCRA 532
45
Articles 96 and 124, Family Code
46
Article 145, Family Code
47
Article 111, Family Code
11
the spouse for whom the law desires to save the conjugal partnership from damages that might be
caused. No other party can avail of the remedy other than the aggrieved spouse.48

3. MINORS OR INCOMPETENTS- may sue or be sued with the assistance of father, mother,
guardian or, if he has none, a guardian ad litem.49

3.1 A guardian ad litem is a special guardian appointed by the court in which a particular litigation
is pending to represent or assist a minor or an incompetent person involved in or has interest in the
property subject of litigation. His status as such exists only in that particular litigation in which the
appointment occurs.

3.2 Note that the appointment of a guardian ad litem may occur in the following: for minor heirs
when substituting for a deceased party50, incompetency or incapacity of a party51, service of summons
on a minor or incompetent52, and when the best interest of the child require it.53

JOINDER OF PARTIES

Joinder of Parties refers to the act of uniting several parties in a single suit either as plaintiffs or
defendants.

1. The rule on joinder of parties states that: All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction is alleged to exist, whether jointly, severally or in the
alternative, may except as otherwise provided in these rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all
such defendants may arise in the action.54

2. Joinder of Parties, as a rule, is permissive when there is a question of law or fact common to all the
plaintiffs or defendants. This means that the right to relief or to resist the action arises out of the
same transaction or event or series of transactions or events. Example: action by passengers of a
common carrier for injuries sustained in an accident, there is no community of interest, the extent of
the interest is limited to the extent of damages being claimed by each.

3. It becomes compulsory when the parties to be joined are indispensable parties.55

4. The exception to compulsory joinder of parties is when the subject of the action is proper for a class
suit. The subject matter of the controversy is proper for a class suit when it is one of common or
general interest to many persons so numerous that it is impractical to join all as parties.56 All the
parties who are interested in the action as plaintiffs or defendants are all indispensable parties but not
all need to be joined.

4.1 The requisites of a class suit are:

1. The subject matter of the controversy is one of common or general interest to many persons. There
must be an INDIVISIBLE RIGHT AFFECTING MANY INDIVIDUALS WHOSE PARTICULAR
INTEREST IS OF INDETERMINATE EXTENT AND IS INCAPABLE OF SEPARATION. This requires
that the benefit to one is a benefit to all. Examples: stockholder derivative suits and taxpayer suits.

1.1 Improper for a class suit is when a claimant is interested only in collecting his claims and has
no concern in protecting the interests of the others.57

48
Villaranda v Villaranda, 423 SCRA 571
49
Supra, Section 5, Rule 3
50
Supra, Section 16, Rule 3
51
Supra, Section 18, Rule 3
52
Supra, Section 10, Rule 14
53
Article 222, Family Code
54
Supra, Section 6, Rule 3
55
Supra, Section 7, Rule 3
56
Supra, Section 12, Rule 3
57
Cadalin v POEA Administrator, 238 SCRA 721
12
2. The parties affected are so numerous that it is impracticable to join all as parties

3. The parties bringing or defending the class suit are found by the court to be sufficiently numerous
and representative as to fully protect the interest of all.
nd rd
To comply with the 2 and 3 requisite, the Complaint most allege: (1) existence of a subject matter
which is of common or general interest to many persons, and (2) existence of a class and the number
of persons belonging to that class

4.2 It can be brought by the plaintiffs as a class or may be filed against the defendants as a
class

4.3 Any party in interest shall have the right to intervene to protect his individual interest.

4.4 The general rule, is that the party bringing the suit in his own name and that of others
similarly situated has the right to control the suit, BUT, it shall not be dismissed or compromised
without the approval of the court.58

5. If there is a failure to join an indispensable party, the court must order the plaintiff to amend his
complaint for the purpose of impleading the indispensable party. If the plaintiff fails, refuses or the
party cannot be sued because he is a non-resident defendant in a personal action, the complaint
must be dismissed.59

6. If there is a failure to join a necessary party, the pleader in the pleading in which a claim is
asserted without joining a necessary party shall (1) set forth the name of the necessary party, if
known and (2) state the reason for omission. If the court finds the reason for the omission is not
meritorious, it may order the inclusion of the omitted necessary party if jurisdiction over his person is
obtained.

If pleader fails to comply with order for inclusion without justifiable cause, it shall be deemed a waiver
of the claim against the party, BUT the non-inclusion does not prevent the court from proceeding in
the action, and the judgment therein shall be without prejudice to rights of such necessary party.60

7. MISJOINDER OR NON JOINDER NOT A GROUND FOR DISMISSAL.Parties may be dropped or


added by order of the court on motion of any party or on its own initiative at any stage of the action
and on such terms that are just. Any claim against a misjoined party may be severed and proceeded
against separately.61

NOTE HOWEVER – that if the party to be joined is indispensable and the plaintiff fails or refuses or
such party cannot be sued – the complaint must be dismissed (NDC v. CA 211 S 422)

8. IF A PARTY TO BE JOINED AS A PLAINTIFF DOES NOT CONSENT OR CANNOT BE


OBTAINED he may be made a defendant and the reason therefor shall be stated in the complaint.62

DISTINCTIONS BETW EEN

Indispensable party Necessary party

if not joined – action cannot proceed if not joined–action proceeds judgment


judgment is not valid is voted but does not resolve the contro-
versy.

58
Supra, Section 2, Rule 17
59
NDC v Court of Appeals, 211 SCRA 422
61
Supra, Section 11, Rule 3
62
Supra, Section 10, Rule 3
13
60
Supra, Section 9, Rule 3

61
Supra, Section 11, Rule 3
62
Supra, Section 10, Rule 3
14
-non joinder – dismissed non joinder – waiver of claim

WHO WILL PLAINTIFF SUE IF HE IS UNCERTAIN

If he (plaintiff) uncertain – against who of several persons he is entitled to relief – HE MAY JOIN ANY
OR ALL OF THEM AS DEFENDANTS – in the ALTERNATIVE – although a right to relief against one
may be inconsistent with a right of relief against the other.63

EXAMPLE: An action where the owner of goods is not sure whether they were lost in transit or while it
was on deposit in the warehouse of the arrastre operator – He may sue the shipper or the operator of
the warehouse in the ALTERNATIVE – although the right against the SHIPPER is based on
ADMIRALITY, while that against the OPERATOR is based on CONTRACT. Action for damages
arising from loss of goods due to a collision.

IF THE IDENTITY/NAME OF THE DEFENDANT IS UNKNOWN

He may be sued as the unknown owner, heir, devisee or by such other designation as the case may
require – WHEN THE IDENTITY OR NAME IS DISCOVERED – the pleading must be amended
accordingly.64 EXAMPLE: Action to recover real property from several unknown heirs of a common
ancestor.

EFFECT OF DEATH OF A PARTY (Sec 16)

When a party dies and his claim is not extinguished – it shall be the duty of counsel – to inform the
court within 30 days after such death of the : (1) FACT OF DEATH (2) NAME AND ADDRESS OF
LEGAL REP/REPS

IF NOT, Counsel may be subject to disciplinary action.

ONCE NOTICE IS GIVEN – The COURT SHALL ORDER THE LEGAL REP/S TO APPEAR AND BE
SUBSTITUTED WITHIN 30 DAYS FROM NOTICE.

Note: Heirs may be allowed to be substituted for the deceased without requiring the appointment of
an executor or administrator and the court can appoint a guardian ad litem for minor heirs.

IF LEGAL REP/S DO NOT APPEAR OR NOTICE IS NOT GIVEN-

The court can order the opposing party, within a specified time – to procure the appointment of an
executor or administrator to appear for and in behalf of the deceased – Expenses – if paid by
opposing party can be recovered as costs

IF DEATH/SEPARATION OF A PUBLIC OFFICER (Sec 17)

If sued in his public capacity – and he dies, resigns or otherwise ceases to hold office –

The action may be MAINTAINED AND CONTINUED by or against his successor, if within 30 days
after successor assumes the office or such time as granted by the court – it is SATISFECTORILY
SHOWN by a party that there is a substantial need for continuing and maintaining it and that the
successor ADOPTS or CONTINUES OR THREATENS to adopt or continue the action of his
predecessor.

63
Supra, Section 13, Rule 3
64
Supra, Section 14, Rule 3
14
BEFORE SUBSTITUTION – IF NO EXPRESS ASSENT, the public officer shall be given reasonable
notice of the application and be accorded an opportunity to be heard.

EFFECT OF DEATH OF DEFENDANT ON A CONTRACTUAL MONEY CLAIM

If the action is for the recovery of money that arises from a CONTRACT, express or implied, and the
defendant dies BEFORE ENTRY OF A FINAL JUDGMENT, the RULE is – it will not be dismissed but
shall be allowed to continue until entry of judgment, a favorable judgment obtained shall be enforced
in the manner provided by the rules for prosecuting claims against the ESTATE OF A DECEASED
PERSON.65

1. RULES TO BE OBSERVED IN CASE OF DEATH OF OBLIGOR are: (a) If he dies before the
action is filed, a money claim must be filed in the testate or intestate proceedings (b) if he dies during
the pendency of an action, the action continues until entry of judgment, and the judgment claim is
then filed with the testate or intestate proceedings. It must be noted that a money claim judgment
need not be proven because it is conclusive. NOTE FURTHER, that if property has been levied upon
before death. It can disposed of in the manner provided by the rules on execution of judgments
because it has already been segregated from estate. If there is a deficiency, a money claim can be
filed subsequently.

2. IF IT DOES NOT ARISE FROM CONTRACT, RE: CLAIMS FOR RECOVERY,


ENFORCEMENT
OF A LIEN OR DAMAGES DUE TO TORT, the rules are: (a) if he dies before the action is filed, it
may be filed against the executor or administrator (b) if already filed , it continues to final judgment
and may be executed on as against the executor or administrator.66

3. In a case for ejectment where the defendant died before the case could be decided and without
being able to testify on his counterclaim for damages. The trial court dismissed the ejectment suit and
ordered the plaintiff to pay the wife of the defendant moral damages and attorney’s fees. The plaintiff
contends on appeal that the counterclaim should have been dismissed pursuant to Rule 3, Section 21
(old rule). HELD: The argument is misplaced, defendant was the plaintiff in his counterclaim, the rule
is not applicable as it pertains to a defendant who dies before final judgment. In this case, it is the
plaintiff who died and all that is required is a timely motion for substitution. No recovery though can be
allowed as no evidence was adduced.67

4. If a claim involves a conjugal debt that was not brought and one of the spouses die before filing, the
claim must be brought in the testate or intestate proceedings of the deceased spouse.68 ( Alipio v. CA,
GR. 134100, 9-29-2000)

5. IF IT IS THE PLAINTIFF WHO DIES: (a) if action is purely personal to him, the action is abated (b)
if action is not purely personal, it continues but counsel must give notice of death.

EFFECT ON INCOMPETENCY/INCAPACITY ON AN ACTION

1.The court, upon motion with notice, may allow the action to be continued by or against the
incompetent or incapacitated person assisted by his guardian or guardian ad litem.69

EFFECT OF A TRANSFER OF INTEREST PENDING LITIGATION

65
Supra, Section 20, Rule 3
66
Supra, Section 7, Rule 39
67
UST v Court of Appeals, GR No. 124250, October 18, 2004
69
Supra, Section 3 and 18, Rule 3
15
68
Alipio v Court of Appeals, GR No. 134100, September 29, 2000

69
Supra, Section 3 and 18, Rule 3
16
1. The action may be continued by or against the original party, unless the court upon motion directs
the person to whom interest is transferred to be substituted in the action or joined with the original
party.70

2. The rule refers to a transfer pendente lite. The transferee pendente lite shall stand exactly in the
shoes of the transferor. Consequently, any judgment will be binding upon him.

3. A transferee pendent elite does not have to be included or impleaded by name in order to be bound
by the judgment because the action or suit may be continued for or against the original party or the
transferor and still binding on the transferee.71

4. In a case on appeal where the transferee pendente lite did not appeal, he nevertheless was
benefited by the appeal of the transferor pendent elite.72

INDIGENT/PAUPER LITIGANT

1. An indigent or pauper litigant Is one who litigates on a claim that he has no money, or property
sufficient and available for food, shelter and basic necessities for himself and his family.73

2. An indigent or pauper litigant must file an ex-parte application for authority to litigate as an indigent
that is too be resolved by the court after hearing. Attached to the motion is an affidavit attesting to the
fact that he does not earn a gross income of PHP 4000.00 in Metro-Manila, or PHP 3,000.00
elesewhere and has no real property with a fair market value of PHP 50,000.00. Said affidavit must
be supported by another affidavit of a disinterested person. Note that recently, an indigent litigant has
been defined as one (a) whose gross income and that of their immediate family does not exceed an
amount double the monthly minimum wage of an employee and (b) who does not own real property
with a fair market value as stated in the current tax declaration of more than PHP 300,000.00. If there
is any falsity in the affidavit or that of the disinterested person, it shall constitute sufficient ground to
dismiss the action or strike out the pleading, without prejudice to whatever criminal liability is
incurred.74

3. The effect of being allowed to litigate as an indigent or pauper litigant are: (1) exemption from the
payment of docket fees and other lawful fees (2) exemption from TSN fees which the Court may order
to be furnished BUT, the amounts due shall be a LIEN on a favorable judgment unless the Court
orders otherwise.

4. The allowance to litigate as an indigent or pauper litigant can be contested at any time before
judgment is rendered by any adverse party. If found to be meritorious, the proper fees are assessed
and are to be collected. IF NOT PAID, execution shall issue on the payment thereof without prejudice
to other sanctions.

5. On appeal, a motion to litigate as an indigent or pauper litigant is allowed.

WHEN SOLICITOR GENERAL IS REQUIRED TO APPEAR

In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree,
rule or regulation, the court, in its discretion, may require the appearance of the SOLGEN, who may
be heard in person or through a representative duly designated by him.75

RULE 4 – VENUE OF ACTIONS

1. Venue is the place where the action is to be commenced and tried. It has also been defined as the
proper location for the trial of a case.

70
Supra, Section 19, Rule 3
71
State Invetsment House, Inc. v Court of Appeals, 318 SCRA 47
72
Jocson v Court of Appeals, GR 88297, March 22, 1990
73
Supra, Section 21
74
Section 19, Rule 141, Rules of Court
75
Supra, Section 22, Rule 3
16
2. Distinguishing it from jurisidiction: (a) venue is the place where action is commenced and tried,
jurisdiction is the authority of a court to hear and decide the action (b) venue may be waived,
jurisdiction over the subject matter cannot be waived, but that over the person can be waived (c)
venue may be the subject of a written agreement, jurisdiction cannot be subject of a written
agreement (d) a court cannot motu-propio dismiss on improper venue, while when there is no
jurisdiction, a court can motu-propio dismiss the action.

3. The following are the rules on


venue:

3.1 IF IT IS A REAL ACTION or one that affects title to or possession of real property, or interest
therein, it shall be commenced and tried in the proper court which has jurisdiction over the area
wherein the real property involved or a portion thereof is situated. Forcible Entry and Detainer actions
are to be commenced and tried in the Municipal Trial Court which has jurisdiction over the area
wherein the real property involved, or any portion thereof, is situated.76

2. IF IT IS A PERSONAL ACTION or one that is brought for the recovery of personal property, for the
enforcement of a contract or recovery of damages for its breach of for the recovery of damages due
to injury to person or property or such all other actions shall be commenced or tried where the plaintiff
or ANY OF THE PRINCIPAL PLAINTIFFS reside or any of the defendants reside, or if a NON-
77
RESIDENT DEFENDANT, where he may be FOUND at the election of the plaintiff

2.1 RESIDE – means the place of abode, whether permanent or temporary – as distinguished
from domicile – fixed permanent residence, where if one is absent he intends to return.

2.2 Is the complaint for cancellation of a real estate mortgage with damages, a real or personal
action? It is a real action, the controlling factor in determining venue of such a case is the primary
objective for which it is filed. An action for cancellation of a real estate mortgage is necessarily an
action affecting title to real properties since the primary objective is to recover the properties that the
bank had foreclosed on.78

2.3 In personal actions, it is the residence of the proprietor, not the business address of the sole
proprietorship that is considered to determine venue as a sole proprietorship has no legal
personality.79

2.4 R engaged the services of L as geodetic surveyor to subdivide two parcels of land located in
Batangas. As payment for L’s services, R agreed to given him one lot. After the survey, R delivered to
L possession of one lot as payment for his services. However, R failed to deliver to L the tile of the lot.
L, who resides in Quezon City, filed with the RTC of Quezon City an action against R for specific
performance to compel R to deliver to him the title to the lot. R moved to dismiss on the ground of
improper venue, contending that since his is a real action, the complaint must be filed in the RTC of
Batangas where the lot is situated. Is R correct? No, R is not correct. This action for specific
performance is a personal action. The venue therefore, was properly laid in Quezon City where the
plaintiff resides. It is not a real action because plaintiff L is not seeking the recovery of the lot as he is
already in possession thereof. He is merely asking the delivery of the title to him, which is a personal
action.80

3. IF DEFENDANT IS A NON-RESIDENT or one who does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff , or any property of said

76
Supra, Section 1, Rule 4
77
Supra, Section 2, Rule 4
78
Go v UCPB, GR No. 156187, November 11, 2004
79
Mangila v Court of Appeals, 387 SCRA 162
80
Dimo Realty & Development, Inc. et al. v.
Dimaculangan, G.R. NO. 130991, March 11, 2004
17
defendant located in the Philippines, the action may be commenced and tried in the court of the place
where the plaintiff resides, or where the property or any portion thereof is situated or found. 81

3.1 The provision refers to a Quasi in Rem action in which an individual is named as a defendant,
and the purpose of the action is to subject his interest therein to an obligation or lien burdening the
property.

3.2 A non-resident alien who cannot be found can sue and be sued as by filing his complaint, he
submits to the jurisdiction of the Court, even if he has never been able to enter the Philippines.82
(Dilweg vs. Philipps, 12 S 243)

THE RULES ON VENUE ARE NOT APPLICABLE

The rules on venue will not apply if: (1) in cases where a specific rule or law provides otherwise (2)
Where the parties have validly agreed in writing BEFORE FILING OF THE ACTION ON EXCLUSIVE
VENUE83

1. EXAMPLES: (1) Quo Warranto proceedings may be instituted in the Supreme Court, Court of
Appeals or the Regional Trial Court exercising territorial jurisdiction over the area where the
respondent/s reside. If the Solicitor General commences the action, he may do so in the Supreme
Court, Court of Appeals or the Regional Trial Court of Manila. 84 The criminal or civil action for
damages due to libel can only be instituted either in Regional Trial Court of the place where he holds
office or in the place where the alleged libelous article was printed and first published; and if the
offended parties are private individuals, the venue shall be in the Regional Trial Court of the place
where the libelous article was printed and first published or where any of the offended parties actually
resides at the time of the commission of the offense85 or 2. Art 360, RPC. Libel – Civil and
Criminal action to be distributed in the RTC where public official holds office or where libelous article
was first printed or published (3) Intracorporate Controversies are to be filed in the Regional Trial
Court where principal office corporation is located.86

2. Any agreement as to venue must be in writing and for exclusivity, the intent must be clear,
otherwise, it will be interpreted to allow for an additional venue.

2.1 The freedom of the parties to stipulate on the venue is however subject to the usual rules on
contract interpretation. Where the provision appears to be one-sided as to amount to a contract of
adhesion, the consent of the parties thereto may well be vitiated and the venue stipulation will not be
given effect.87

2.2 Venue as stipulated in the promissory note shall govern notwithstanding the absence of a
stipulation as to venue in an accompanying surety agreement as the latter can only be enforced in
conjunction with the former.88

HOW VENUE IS QUESTIONED

Venue may be questioned in (1) in a motion to dismiss89, or (2) in an answer by way of an affirmative
defense90. If NOT SO MADE, it is deemed waived.

81
Supra, Section 3, Rule 4
82
Dilweg v Philipps, 12 SCRA 243
83
Supra, Section 4, Rule 4
84
Supra, Section 7, Rule 66
85
Article 360, Revised Penal Code
86
RA 8799, and A.M. 01-02-04-CS, March 13, 2001
87
Sweet Lines v Teves, 83 SCRA 361
88
Philippine Bank of Communications v Lim, 455 SCRA 714
89
Supra, Section 1 (c) ,Rule 16
18
RULE 5-UNIFORM PROCEDURE IN TRIAL COURTS

The procedure in Municipal Trial Court shall be the same as in the Regional Trial Court, except when
(1) a provision applies only, expressly or impliedly, to a particular court, or (2) In civil cases covered
by the Rules on Summary Procedure

1.An example of a provision that applies only to a Municipal Trial Court is that which refers to an
appeal taken from an order of the lower court dismissing the case without trial on the merits.91

PROCEDURE IN REGIONAL TRIAL COURTS

RULE 6- KINDS OF PLEADINGS

PLEADING DEFINED is a written statement of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.92

1. The pleadings that are allowed are: (a) Claims of a party are asserted in the complaint,
rd th
counterclaim, cross-claim, 3 party complaint (4 …..), or complaint in intervention (2) Defenses of a
party are alleged in the answer to the pleading asserting a claim against him (3) Reply to the answer93

2. The specific KINDS OF PLEADINGS are: (a) COMPLAINT, which is the pleading alleging the
plaintiff’s cause of action or causes of action. The names/residences of the plaintiffs and defendants
must be stated in the complaint94 (b) ANSW ER, which is a pleading in which a defending party sets
forth his defenses 95. Its essential purpose is to secure joinder of the issues and not to lay down
evidentiary matter.96

2.1 The following are the kinds of defenses97 that may be interposed in an answer:

2.1.1 NEGATIVE DEFENSE which is a specific denial of a material fact or facts alleged in the
pleading of a claimant essential to his cause/s of action. A specific denial is made 98 by: (a)
Specifically denying the material averment in the pleading of the adverse party and setting forth the
substance of the matter upon which he relies for such denial (b) Deny only a part of the averment by
specifying that so much of it is true and deny the remainder (c) Allegation of lack of knowledge or
information sufficient to form a belief as to the truth of the material averment in the pleading of the
adverse party.

2.1.2 AFFIRMATIVE DEFENSE which is an allegation of new matter, which although hypothetically
admitting the material allegations in the pleading would nevertheless bar or prevent recovery. They
include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, or any other matter by way of confession and avoidance.

Any of the grounds for a motion to dismiss may be pleaded as an affirmative defense. He may then
move for a preliminary hearing as if a timely motion to dismiss has been filed.99

NOTE that the rule that a defending party who sets up an affirmative defense HYPHOTHETICALLY
ADMITS the allegations does not apply if the defense set up is any of the grounds for extinguishment
of the obligation. The EFFECT is that the defending party is deemed to have admitted the validity of

90
Supra, Section 6, Rule 16
91
Supra, Section 8, Rule 40
92
Supra, Section 1, Rule 6
93
Supra, Section 2, Rule 6
94
Supra, Section 3, Rule 6
95
Supra, Section 4, Rule 6
96
Naga Development Corporation v Court of Appeals, 41 SCRA 105
97
Supra, Section 5, Rule 6
98
Supra, Section 10, Rule 8
99
Supra, Section 6, Rule 16
19
the obligation, and if the motion to dismiss is denied, what is left to be proven is the fact of payment or
non-payment.
3. COUNTERCLAIM, which is any claim which a defending party may have against an opposing
party.100

3.1 KINDS OF COUNTERCLAIMS

COMPULSORY

(1) Arises out of or is connected


w/ the transaction or occurrence
constituting the subject matter of
the opposing party’s claim

(2) barred if not set up in the


answer

(3) plaintiff need not


answer

(4) if not answered – no


default

(5) does not require a certification


as to non-forum shopping

PERMISSIVE
1. does not arise out of or is not connected
with the transaction or occurrence constitu-
ting the subject matter of the opposing
party’s claim

2. not barred even if not set up in the


answer

3. plaintiff must answer once docket fees are


paid
4. if not answered – default lies
5. being an initiatory pleading – it requires a
certification as to non-forum shopping

3.2 The REQUISITES OF A COMPULSORY COUNTER-CLAIM are:(a) It arises out of or is


necessarily connected w/the transaction or occurrence that in the subject matter of the party’s claim
rd
(b)It does not require for adjudication the presence of 3 parties over whom the court cannot acquire
transaction (c) It must be cognizable by the regular courts of justice (d) It must be within the
jurisdiction of the court both as to amount and the nature thereof, except that in an original action
before the RTC, counterclaim is considered compulsory regardless of amount (e) It must already be
existing at the time defending party files his answer (Rule 6, Sec. 7, Rule 11, Sec. 8)

See Reyes De leon v Del Rosario, 435 SCRA 232, test to determine whether counterclaim is
compulsory or not.

3.2.1 A compulsory counterclaim that is not yet in existence at the time of the filing of an answer
may be presented or set-up by a supplemental pleading before judgment.101

100
Supra, Section 6, Rule 6
101
Supra, Section 9, Rule 11, Intramuros Administration v Contacto, 402 SCRA 581
20
3.2.2 A compulsory counterclaim may implead persons not parties to the original complaint as their
presence is required for granting complete relief in the determination of a counter-claim or cross
claim, the court shall order them brought in as defendants, if jurisdiction over them can be obtained.102
Summons must thus be served upon them as they must answer the counterclaim as they cannot rely
on the rule that the defendant in the counterclaim is deemed to have adopted the allegations of the
complaint in his answer.103

3.3 The REQUISITES OF A PERMISSIVE COUNTERCLAIM are: (a) It does not require for
rd
adjudication the presence of 3 parties over whom the court cannot acquire jurisdiction (b) It must
be cognizable by the regular courts of justice (c) It must be within the jurisdiction of the court both as
to amount and the nature thereof, except that in an original action before the RTC, counterclaim is
considered compulsory regardless of amount

4.A CROSS-CLAIM is a claim by one party against a co-party arising out of a transaction/occurrence
that is the subject matter either of the original action or the counter-claim.

It may include a claim that a party against whom it is asserted is or may be liable to the cross
104
claimant for all or part of a claim asserted in the action against the cross-claimant.

NOTE that counterclaims may be asserted against an original counter-claimant and that cross-claims
may also be filed against an original cross-claimant.105

5.A REPLY is a pleading, the office or function of which is to deny or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make an issue
as to such matters.

5.1 If a reply is not filed, all new matters are deemed controverted. If plaintiff wishes to interpose
any claims arising out of the new matters so alleged, such claims shall be set forth in an
amended/supplemental complaint.

5.2 If the defense is based on an actionable document, it must be replied to, otherwise it is
admitted.
RD
6.A 3 PARTY COMPLAINT is a claim that a defending party may, WITH LEAVE OF COURT, file
RD
against a person, NOT A PARTY, called 3 party defendant. FOR CONTRIBUTION INDEMNITY,
SUBROGATION, OR ANY OTHER RELIEF in respect of his opponent’s claim. 106

6.1 EXAMPLES:

CONTRIBUTION- A sues X for collection of money based on a promissory note signed jointly and
severally with Y. X may file a complaint against Y for contribution

INDEMNITY – S, as surety, is sued for recovery of the obligation of M. S may file a complaint against
M for whatever amount he may be adjudged to pay as surety

SUBROGATION – X, as lessor, sues Y, as lessee for repairs. Y may file a complaint against his sub-
lessee who filed to comply with the obligation to repair

OTHER RELIEF – X bought land from Y. Later X is sued by A for recovery of the land. X may file a
complaint against Y for his warranty against eviction.
RD
6.2 An ANSW ER TO 3 PARTY COMPLAINT may include (a)DEFENSES COUNTERCLAIMS
RD
OR CROSS-CLAIMS – including such defenses that the 3 PARTY PLAINTIFF may have against

102
Supra, Section 12, Rule 6
103
Lafarge Cement Philippines, Inc. v Luzon Continental Land Corporation, 443 SCRA 522
104
Supra, Section 8, Rule 6
105
Supra, Section 9, Rule 6
106
Supra, Section 11, Rule 6
21
the original plaintiff’s claim, and (b) IN PR0PER CASES, he may assert a counter-claim against the
rd
ORIGINAL PLAINTIFF in respect to his claim against the 3 party plaintiff.107
rd
EXAMPLE: – a REINSURER (3 party defendant) may set up in his answer the defense alleged by
rd
defendant insurer that loss is caused by plaintiff insured. However 3 party defendant cannot file a
counterclaim against the original plaintiff as there is no privity of contract.

WHEN NEW PARTIES CAN BE BROUGHT

If the presence of others besides the parties is required for the granting of full relief in the
determination of a counter-claim or cross- claim the court shall order them to be brought in as
defendants, if jurisdiction over them can be obtained108.

RULE 7 – PARTS OF A PLEADING

The PARTS OF A PLEADING of a pleading are CAPTION, BODY, SIGNATURE, ADDRESS,


VERIFICATION, AND CERTIFICATION AGAINST FORUM SHOPPING.

1. CAPTION – it sets forth the (a) NAME OF THE COURT (b) THE TITLE OF THE ACTION-
this includes an indication of the NAME of the PARTIES, who are REQUIRED to be NAMED in the
ORIGINAL COMPLAINT OR PETITION. In subsequent pleadings, the name of the first party on each
side is sufficient with an appropriate indication when there are other parties. NOTE: In an appeal,
Sections 5 and 6, Rule 41 requires all names to be indicated in the NOTICE OF APPEAL and
RECORD ON APPEAL (c) DOCKET NUMBER , if one has already been assigned. 109

2. BODY - sets forth its designation, the allegations or a party’s claims / defenses, the relief prayed
for, and the date of the pleading –

2.1 The allegations in the body shall be divided unto paragraphs so NUMBERED to be readily
IDENTIFIED. Each shall contain STATEMENT OF A SINGLE SET OF CIRCUMSTANCES so far as it
can be done with convenience. A paragraph may be referred to by its number in all succeeding
pleadings.

2.2 Headings must be used when 2 or more causes of action are joined, the statement of the first
shall be prefaced by : FIRST CAUSE OF ACTION etc. WHEN: 2 or more paragraphs are addressed
to one or several causes of action in the complaint, they shall be prefaced by: ANSW ER TO THE
FIRST CAUSE OF ACTION – and so on. If it addresses several causes of action, the paragraphs
shall be prefaced accordingly.

2.3 Relief should be specified but it may add a general prayer for such further or other relief as
may be deemed just and equitable.

2.4 Date – every pleading is required to be dated.

3. SIGNATURE AND ADDRESS- every pleading must be signed by the party OR counsel
representing him, stating in either case his ADDRESS which should not be a post office box.

3.1 NOTE the word OR because a party may litigate / defend PRO SE or for himself without aid
or counsel. This applies even if a party is already represented by counsel.

3.2 AN ADDRESS IS REQUIRED for service of pleadings or judgments

107
Supra, Section 13, Rule 6
108
Supra, Section 12, Rule 6
109
Supra, Section 1, Rule 7
22
3.3 SIGNIFICANCE OF COUNSEL’S SIGNATURE – it is a CERTIFICATE BY HIM THAT: (a)
He has read the pleading (b)To the best of his information, knowledge and belief there is good
ground to support it (c) It is not interposed for delay

3.4 IF PLEADING IS UNSIGNED It produces NO LEGAL EFFECT. However, the court in its
discretion can allow the deficiency to be remedied if: it SHALL APPEAR THAT THE SAME IS DUE
TO INADVERTENCE AND NOT INTENDED FOR DELAY

3.5 COUNSEL SUBJECT TO DISCIPLINARY ACTION IN RELATION TO the Rule when (a) He
deliberately files an unsigned pleading (b) Signs a pleading in violation of the Rule (c)
Alleges scandalous or indecent matter (d) Fails to promptly report to the court a change in his
address

4. VERIFICATION is an affidavit that the affiant has read the pleading and that the allegations therein
are TRUE and CORRECT of his PERSONAL KNOWLEDGE AND/OR IS BASED ON AUTHENTIC
RECORDS.

4.1 IF A PLEADING REQUIRED TO BE VERIFIED CONTAINS A VERIFICATION BASED ON –


INFORMATION AND BELIEF, OR – UPON KNOW LEDGE INFORMATION AND BELIEF, OR LACKS
A PROPER VERIFICATION, it shall be treated as an UNSIGNED PLEADING.

4.2 A pleading need not be verified, except when otherwise specifically required by LAW OR
RULES110.

4.3 A VERIFICATION IS REQUIRED under rules governing (a) cases covered by the Rules on
Summary Procedure (b) Petition for relief from judgment / order 111 (c) Petition for review112 (d) Appeal
by certiorari 113 (e)Petition for annulment of judgment 114 (f) Injunction 115 (g) Receivership 116 (h)
Support 117 (i) 69) Certiorari, Prohibition or Mandamus 118 (j) Quo Warranto119 (k) Expropriation 120 (l)
Forcible Entry / Detainer121 (m) Indirect Contempt 122

4.4 An improper verification is cured by amending the pleading with the CORRECT
VERIFICATION

5. CERTIFICATION AGAINST FORUM SHOPPING is executed by the plaintiff or principal party who
shall certify under OATH in the COMPLAINT or INITIATORY PLEADING ASSERTING A CLAIM OR
RELIEF – OR IN A SWORN CERTIFICATION ANNEXED THERETO AND SIMULTANEOUSLY FILE
THEREWITH: (1) That he has not therefore commenced any action or filed any claim involving
the same issues in any COURT, TRIBUNAL OR QUASI-JUDICIAL AGENCY, AND to the best of his
knowledge, no such other claim or action is pending therein (2) If there is such other pending action
or claim, a complete statement of the present status thereof (3) That if he should thereafter learn
that the same or similar action has been filed or is pending, he shall report that fact within 5 days
therefrom to the court wherein his complaint / initiatory pleading has been filed.123

110
Supra, Section 4, Rule 7
111
Supra, Section 3, Rule 38
112
Supra, Section 1, Rule 42
113
Supra, Section 1, Rule 45
114
Supra, Section 4, Rule 47
115
Supra, Section 1, Rule 58
116
Supra, Section 1, Rule 59
117
Supra, Section 1, Rule 61
118
Supra, Sections 1,2,3, Rule 65
119
Supra, Section 1, Rule 66
120
Supra, Section 1, Rule 67
121
Supra, Section 3, Rule 70
122
Supra, Section 3, Rule 71
123
Supra, Section 5, Rule 7
23
5.1 The lack of a certification is not curable by amendment, but such shall be cause for dismissal
of the complaint. The dismissal shall be without PREJUDICE unless otherwise provided, upon motion
and after hearing.124

5.2 The NON-COMPLIANCE WITH ANY OF THE UNDERTAKINGS OR SUBMISSION OF A


FALSE CERTIFICATE shall constitute indirect contempt without prejudice to corresponding
administrative and criminal actions. PROVIDED, that if the acts of the party or counsel clearly
constitute WILLFUL and DELIBERATE forum shopping, it shall then be ground for SUMMARY
DISMISSAL WITH PREJUDICE, and shall constitute DIRECT CONTEMPT as well as cause for
administrative sanctions.

5.3 Forum Shopping exists when as a result of an adverse opinion in one forum, a party seeks a
favorable opinion, other than by appeal or certiorari, in another, or when he institutes two or more
actions or proceedings grounded on the same cause, on the gamble that one or the other court would
make a favorable disposition. The most important factor in determining the existence of forum
shopping is the vaxation caused the courts and parties-litigants by a party who asks different courts to
rule on the same or substantially the same reliefs.125

5.3.1 It also occurs when a party attempts to have his action tried in a particular court or jurisdiction
where he feels he will receive the most favorable judgment.

5.3.2 It has been said to exist also where the elements of litis pendentia are present or where a
final judgment in one case will amount to res judicata in another. Hence, the following requisites
concur: (a) identity of parties, or at least such parties represent the same interests in both actions (b)
identity of rights asserted and relief prayed for, the relief being founded on the same facts, and (c)
identity of the two preceding particulars is such that any judgment rendered in the other action will,
regardless, of which party is successful, amount to res judicata in the action under consideration. 126

5.4 The purpose of the certification against forum shopping is to prohibit and penalize the evils of
forum shopping. 127 Forum Shopping is a deplorable practice because it results in unnecessarily
clogging of the already heavily burdened docket of the courts.128

5.5 The execution of the certification is required to be accomplished by the petitioner himself as it
is the petitioner himself who has actual knowledge of whether or not he has initiated similar actions or
proceedings in different courts or agencies.

5.5.1 If there are several plaintiffs, the general rule is that all of them must sign BUT IT MUST BE
NOTED that there is jurisprudence to the effect that: (1) the execution by one of the petitioners or
plaintiffs in a case constitutes substantial compliance where all the petitioners, being relatives and co-
owners of the properties in dispute, share a common interest in the subject matter of the case.129 (2)
the case is filed as a collective raising only one cause of action or defense 130 (3) the signing by 1
spouse substantially complies as they have a common interest in the property131 or is signed by
husband alone is substantial compliance as subject of case is recovery of conjugal property132 (4) 2 of
the parties did not sign as they were abroad. It was considered reasonable cause to exempt them
from compliance with the requirement that they personally execute the certificate133

5.5.2 If the plaintiff or petitioner is a juridical person, the Board may pass a specific resolution
allowing a representative to sign.

124
Castillo v Court of Appeals, 426 SCRA 369
125
Benguet Electric Cooperative, Inc. v Flores, 287 SCRA 449
126
TADI v Solilapsi, 394 SCRA 269
127
BA Savings Bank v Sia, 336 SCRA 484
128
Ruiz v Drilon, 209 SCRA 695
129
Cavile v Heirs of Clarito Cavile, 400 SCRA 255, Gudoy v Guadalquiver, 429 SCRA 722
130
HCC Construction and Development Corporation v Emily Homes Subdivision Homeowners Association, 411 SCRA
504
131
Dar v Alonso Legasto, 339 SCRA 306
132
Docena v Lapesura, 355 SCRA 658
133
Hamilton v Levy, 344 SCRA 821
24
5.5.3 Counsel has been allowed to sign the certification in the following instances: (a) Where the
counsel is the Solicitor General has been deemed to be substantial compliance134 (b)Certification by
acting regional counsel of NPC was accepted because it was his basic function to prepare pleadings
and to represent NPC – Mindanao – as such he was in the best position to know and certify if a
similar action was pleading or had been filed 135 (c) Certification was signed by counsel. The
procedural lapse may be overlooked in the interest of substantial justice. 136 (d) Certification was
executed by an in house counsel is sufficient compliance with the Rules 137

SEE: Ateneo de Naga vs. Bernal, GR 160455, May 9, 2005

The rule in Section 1, Rule 17 is that the plaintiff may dismiss his complaint by filing a notice of
dismissal at any time before service of the answer or of a motion for summary judgment. As a general
rule, such dismissal is without prejudice. Suppose P filed a complaint against D, and before service of
the answer or of motion for summary judgment, P caused the dismissal of his complaint by filing a
notice of dismissal. Months later, P filed the same complaint against D. In the certification on non-
forum shopping appended to the second complaint, P failed to mention about the prior filing and
dismissal of the first case. Is P’s failure to mention about the prior filing and dismissal of the first case
fatal?

No. An omission in the certification on non-forum shopping about any event or case which would not
constitute res judicata or litis pendentia is not fatal. In the problem presented, the dismissal of the first
case would not constitute res judicata precisely because such dismissal is without prejudice to the
refilling of the case. (Roxas v. CA, G.R. No. 139337, Aug. 15, 2001.)
th
To be included as 4 paragraph of the answer in Q&A No. 13; p. 62:

Also, a case pending before the Ombudsman cannot be considered for purposes of determining
forum shopping as the power of the Ombudsman is only investigative in character and its resolution
cannot constitute a valid and final judgment because its duty is to file the appropriate case before the
Sandiganbayan. (Sevilla v. Laggui, A.M. No. RTJ-01-1612, Aug. 14, 2001.)

CAN THE CERTIFICATION BE FILED LATER-

General Rule – NO – Note Uy v. Land Bank GR 136100 July 24, 2000-REINSTATEMENT OF THE
CASE AFTER MOTION TO ADMIT CERTIFICATION

BUT: Loyola v. CA 245 S 477 – one day after, Roadway Express v. CA 264 S 696 – 14 days before
the CA dismissed Petition for Review.

Shipside v. Ca – GR 143377, Feb 20, 2001 – motion for reconsideration – showing authority of
petitioner to execute certification prior to filing.

REASON – special or compelling reasons justified relaxation of the Rule – IN Shipside – merits of
case justified deviation.

DISTINGUISH BETW EEN VERIFICATION / CERTIFICATION

134
Commissioner of Internal Revenue v SC Johnson, 309 SCRA 87
135
Robern Development Corporation v Quitain, 315 SCRA 150
136
Sy Chin v Court of Appeals, 345 SCRA 673
137
Mercury Drug Corporation v Libunao, 434 SCRA 404
25
Verification

-allegations are true and correct


based on personal knowledge /
authentic records

-required in complaints, initiatory


pleadings and in some responsive
pleadings.

-may be cured by amendment or


order to verify

-may not result in dismissal

-may be signed by counsel

Certification

-no action/claim involving the same


no action/claim involving the same

- required only in complaints/initiatory


pleadings.

- cannot be cured by amendment


- results in dismissal
- by the party himself

RULE 8 – MANNER OF MAKING ALLEGATIONS IN PLEADINGS

HOW ALLEGATIONS ARE MADE IN A PLEADING

In general, a pleading must contain in a METHODICAL and LOGICAL form a PLAIN, CONCISE, and
DIRECT statement of the ULTIMATE FACTS on which the party pleading relies for his claim or
138
defense

1. ULTIMATE FACTS are the essential facts constituting the plaintiff’s cause of action. A fact is
essential if it cannot be stricken out without leaving the statement of the cause of action insufficient.
Examples: (a) That an obligation has been constituted, that party must comply, that there is no
compliance (b)That party is the owner of property, that he has a right to its use/possession, that he
has been dispossessed

2. Mere EVIDENTIARY FACTS or those that are necessary for the determination of the ultimate facts
are to be omitted. Evidentiary facts are the premises upon which conclusions of ultimate facts are
based. Examples: (a)That obligation as covered by promissory note was executed before specified
persons, that defendant has several letters indicating intention to/or not to pay (b) How property was
acquired

3. LAWS may be pleaded only if the pleading is an Answer.

PLEADING ALTERNATIVE CAUSES OF ACTION OR DEFENSES

1.A party may set forth two or more statements of a claim or a defense alternatively or hypothetically,
either in one cause of action or defense or in separate causes of actions or defenses. If two or more
statements are made in the alternative and if one of them if made independently would be sufficient,
the pleading is not made insufficient by the insufficiency of one or more of the alternative

138
Supra, Section 1, Rule 8
26
statements.139Example: (a) allegations for breach of contract of carriage and tort (b) allegations for
breach of contract and fraud (c) defense of failure to repurchase by plaintiff and that property was
inherited are inconsistent defenses.

2. Overruling of one does not bar other defense. However, if not set up, determination of one shall bar
the determination of the other.

3. The OBJECT OF PROVISION is to relieve a party from making a definite election in cases where
his claim or defense might fall within two different substantive classes. SO, a party may state as many
claims/defenses as he has regardless of inconsistency.

HOW TO PLEAD CONDITIONS PRECEDENT

A general averment of the performance or occurrence of all conditions precedent is sufficient. 140 (a)
that earnest efforts at a compromise have been exerted, the suit being one between members of the
same family (b) that prior resort to conciliation has been undertaken to no avail

PLEADING CAPACITY TO SUE AND TO BE SUED

The following must be averred: (1) capacity to sue or be sued (2) authority of a party to sue or be
sued in a representative capacity (3) legal existence of an organized association of persons that is
made a party.141

1. Note the cross reference to Sections 1 and 3, Rule 3 referring to who may be parties and
representative parties, and to Section 1(d), Rule 16 referring to a motion to dismiss on the ground of
lack of legal capacity to sue, meaning that a party is not in possession of his civil rights, does not
have the qualification to appear, or does not have the character or representation claimed.

2. A party desiring to raise the issue of lack of legal capacity shall do so by specific denial, which shall
include such supporting particulars as peculiarly within the pleader’s knowledge.

HOW TO AVER FRAUD, MISTAKE, CONDITION OF MIND

Fraud and mistake must be stated with particularity. Condition of mind, such as malice, intent,
knowledge may be averred generally.142

HOW TO AVER/ PLEAD A JUDGMENT/DECISION OF A DOMESTIC/FOREIGN COURT,


JUDICIAL/QUASI-JUDICIAL OFFICER TRIBUNAL BOARD

It is sufficient that a general allegation of the existence of the judgment is made, without setting forth
matter showing jurisdiction to render it.143 Jurisdiction in this case is presumed.

IF ACTION/DEFENSE IS BASED ON AN ACTIONABLE DOCUMENT

1. Where the action or defense is based on a written document ( an actionable document) it is


pleaded by (a) setting forth the substance of such document in the pleading and attaching the
original/copy as an annex OR (b) setting it forth verbatim in the pleading.144

2. AN ACTIONABLE DOCUMENT IS CONTESTED by specifically denying it under oath and setting


forth what he claims to be the fact.

2.1 The requirement DOES NOT APPLY IF: (a) adverse party is not/does not appear to be a
party to the actionable document. Example: Heirs are sued on a document executed by a person they
will inherit from (b) when compliance with an order for an inspection of the original document is

139
Supra, Section 2, Rule 8
140
Supra, Section 3, Rule 8
141
Supra, Section 4, Rule 8
142
Supra, Section 5, Rule 8
143
Supra, Section 6, Rule 8
144
Supra, Section 7, Rule 8
27
refused.145 (c) when the document is not an actionable document but is merely evidence of the claim
or existence of the actionable document . Example: demand letters (d) when the party who has the
benefit of an implied admission waives the benefit Example: he presents evidence as to genuineness
and due execution

3. The EFFECT of not SPECIFICALLY DENYING AN ACTIONABLE DOCUMENT UNDER OATH is


that the genuineness and due execution is admitted. MEANING, that it was executed by him/by
someone authorized by him, it was in the words/figures set forth in the pleading, and that the formal
requirements of law have been observed. THUS, there is no need to present it formally in evidence
because it is an admitted fact.

3.1 A PARTY THOUGH IS NOT BARRED FROM INTERPOSING OTHER DEFENSES as long
as it is not inconsistent with the implied admission. Example: (a) the defense of forgery would be
inconsistent, ON THE OTHER HAND (b) Fraud/Payment are not inconsistent and may be allowed.

HOW ARE OFFICIAL ACT/DOCUMENTS AVERRED

It is sufficient to aver that document was issued or act done in compliance with law. 146 Example:
issuance of certification to file action by Lupon Tagapayapa chair.

HOW ARE SPECIFIC DENIALS MADE

A specific denial is made147 by: (a) Specifically denying the material averment in the pleading of the
adverse party and setting forth the substance of the matter upon which he relies for such denial (b)
Deny only a part of the averment by specifying that so much of it is true and deny the remainder (c)
Allegation of lack of knowledge or information sufficient to form a belief as to the truth of the
material averment in the pleading of the adverse party.

1. If allegations are not denied in the prescribed manner, a party is deemed to have made a
GENERAL DENIAL which is TANTAMOUNT TO AN ADMISSION. 148(Section 11)

1.1 An exception to the rule are allegations that pertain to UNLIQUIDATED DAMAGES

1.2 Note that when the allegations pertain to (a) allegations of usury in a complaint to recover
usurious interest,OR (b) genuineness and due execution of an actionable document are required to
be made UNDER OATH OTHERWISE THEY ARE ADMITTED.

STRIKING OUT OF A PLEADING OR MATTER CONTAINED THEREIN

If the pleading or any matter therein is SHAM, FALSE, REDUNDANT, IMMATERIAL, IMPERTINENT
OR SCANDALOUS, the court can order the pleading or matter contained therein to be stricken
therefrom (a) upon motion made by a party before responding to a pleading (b) if no responsive
pleading is allowed / permitted by the Rules, upon motion by a party within 20 days after service of
the pleading, OR (c) upon the Court’s own initiative149

RULE 9 – EFFECTS OF FAILURE TO PLEAD

The general effect of the failure to plead is that the defenses / objections not so pleaded in an Answer
or a Motion to Dismiss are deemed waived. HOW EVER, if it appears from the pleadings or evidence
on record that (a) the Court has no jurisdiction over the subject matter (b) there is another action

145
Supra, Section 8, Rule 8
146
Supra, Section 9, Rule 8
147
Supra, Section 10, Rule 8
148
Supra, Section 11, Rule 8
149
Supra, Section 12, Rule 8
28
pending between the same parties for the same cause, or (c) the action is barred by prior judgment or
statute of limitations, the court shall DISMISS the claim.150 These defenses are not barred if not set up
(Section 1)

1.A compulsory counterclaim or a cross-claim not set up shall also be barred.151 Note that this is in
consonance with the requirement of the Rules that a a compulsory counterclaim or cross claim
existing at the time of the filing of the answer must be contained therein152 BUT if it arises after the
filing of an answer, it may be set up in a supplemental pleading before judgment153 OR if failure is due
to oversight, inadvertence, excusable neglect or when justice requires, it may be set up by
amendment with leave of court before judgment.154

WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME
ALLOWED

If there is failure to plead within the time allowed, the defendant may be declared in default upon
compliance with the following: (a) the plaintiff must file a motion to declare the defendant in default (b)
serve notice of his motion to defendant, which must include a notice of hearing (c) at the hearing,
show proof of failure on the part of the defendant to file his answer within the reglamentary period.155
Note that a court cannot motu propio declare a defendant in default.

ONCE DECLARED IN DEFAULT

The court can proceed to render judgment granting the claimant such relief as his pleading may
warrant, UNLESS, the Court in its discretion requires the claimant to submit the evidence. Such
reception may be delegated to the Clerk of Court, who must be a member of the BAR

1. In addition, the defaulted defendant is entitled to NOTICE OF SUBSEQUENT PROCEEDINGS but


HE CANNOT TAKE PART IN THE TRIAL. 156

2. EFFECT OF A PARTIAL DEFAULT, where a pleading asserting a claim states a common cause of
action against several defending parties, some of whom answer while others do not , THE COURT
SHALL TRY THE CASE AGAINST ALL UPON THE ANSW ERS THUS FILED AND RENDER
JUDGMENT UPON THE EVIDENCE PRESENTED. 157

3. THE EXTENT OF RELIEF THAT MAY BE AW ARDED shall not exceed the amount or be different
in kind from that prayed for nor award unliquidated damages.158

WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT

The available remedies of a defendant who is declared in default are as follows:

1. MOTION TO SET ASIDE ORDER OF DEFAULT- under oath, filed at any time after notice of
declaration in default and before judgment. Defendant must show by an AFFIDAVIT OF MERIT that
failure to file an answer was due to FAME and that he has a meritorious defense

2. MOTION FOR NEW TRIAL on the ground of FAME if the trial court has rendered judgment
but it has not yet become final

3. APPEAL the judgment by default (not the order as it is interlocutory, and cannot be appealed)
within 15 days from notice of judgment. Note: that if in the meantime, a motion to set aside order of

150
Supra, Section 1, Rule 9
151
Supra, Section 2, Rule 9
152
Supra, Section 8, Rule 11
153
Supra, Section 9, Rule 11
154
Supra, Section 10, Rule 11
155
Supra, Section 3, Rule 9
156
Supra, Section 3 (a), Rule 9
157
Supra, Section 3 (c), Rule 9
158
Supra, Section 3 (d), Rule 9
29
defendant has been denied, it can be assigned as an error in the appeal. THE NON FILING
THOUGH DOES NOT BAR APPEAL

4. PETITION FOR RELIEF FROM JUDGMENT – based on FAME – provided no appeal has
been taken within 60 days from notice and 6 months from entry of judgment.159

5. ACTION TO ANNUL JUDGMENT – based on EXTRINSIC / COLLATERAL FRAUD – within 4


years from discovery of the fraud (ONE THAT INDUCES ONE NOT TO PRESENT HIS
CASE/PREVENTS FULL AND FAIR HEARING)

6. CERTIORARI if improperly declared in default OR motion to set aside was denied and is
tainted with grave abuse of discretion. Filed within 60 days from notice or judgment order resolution
or 60 days from denial (notice) of motion for reconsideration.160

CASES W HERE NO DEFAULT LIES

In the following cases, default does not lie: (a) annulment of marriage (b)declaration of nullity of
marriage (c) legal separation (d) expropriation, and (e) forcible entry, illegal detainer and the other
actions covered by the Rules on Summary Procedure. In the first three cases, the court shall order
the prosecuting attorney to investigate whether or not collusion exists, and if there is no collusion, to
intervene for the state in order to see that the evidence so presented is not fabricated.161

RULE 10 – AMENDED AND SUPPLEMENTAL PLEADINGS

WHAT ARE AMENDMENTS

Amendments consist of: (1 )Adding or striking out an allegation or the name of any party (2)
Corrections of mistakes in the name of a party or mistaken or inadequate allegation or description in
any other respect.

PURPOSE FOR ALLOWING AMENDMENTS

Actual merits of the controversy may speedily be determined without regard to technicalities and in
the most expeditious and inexpensive manner. 162

KINDS OF AMENDMENTS

The kinds of amendments are:

1. Formal Amendments which are defects in the designation of the parties, other clerical or
typographical errors that may summarily be corrected provided no prejudice is caused the adverse
party and are allowed at any stage, at the Court’s own initiative or on motion.163

2. ALL OTHER AMENDMENTS ARE considered as SUBSTANTIAL.

WHEN AMENDMENTS CAN BE MADE

1. Formal and Substantial amendments can be made once as a matter of right before a responsive
pleading is served, or in case of a Reply, at any time within 10 days after it is served. 164

159
Supra, Rule 38
160
Supra, Rule 65
161
Supra, Section 3,(e), Rule 9
162
Supra, Section 1, Rule 10
163
Supra, Section 4, Rule 10
164
Supra, Section 2, Rule 10
30
1.1 Note that the FILING OF MOTION TO DISMISS does not bar an amendment as it is not a
responsive pleading, but can no longer be made if the order dismissing the complaint has become
final.

1.2 Prior to the filing of an answer, the plaintiff has the absolute right to amend the complaint
whether a new cause of action or change in theory is introduced.165

2. After the filing of a responsive pleading, Substantial amendments require leave of court, but leave
may be refused if it appears to the court that the motion was on made with INTENT TO DELAY.
Orders related to leave shall be made upon motion filed in court, with notice to the adverse party and
opportunity to be heard.166

2.1 That the amendments should not substantially alter the cause of action or defense is NO
LONGER THE RULE as the Rules now allow the pleading of alternative causes of action/defenses 167
and that all such causes or defenses must be pleaded in accordance with the rule on waiver.168

2.2 The Trial Court may refuse leave or amendments when: (a) a responsive pleading has been
filed and the motion for leave to amend is made with intent to delay (b) purpose is to confer
jurisdiction as the court must first acquire jurisdiction before it can act169 (c) purpose is to cure the
defect of a non-existent cause of action. Example: An amendment of the complaint to correct its
having been filed prematurely or when the obligation was not yet due.

2.3 IF NO LEAVE IS OBTAINED, the pleading it has no standing and may be stricken from
records

2.4 PROBLEM: Complaint is filed against several defendants. Some defendants answer, the
others have not yet filed their answers. Amendments will be allowed as a matter of right against those
who have not filed answers, and with leave of court, as against those who have filed their answers.170

3. Substantial amendments can also be made when it is necessary to conform to the evidence. This
occurs when issues are tried with the express or implied consent of parties. If such, they are treated
in all respects as if they have been raised in the pleadings 171, thus paving the way for an amendment
of the pleadings to conform to the evidence. This is made upon motion of any party, even after
judgment THOUGH FAILURE TO AMEND DOES NOT AFFECT THE RESULT OF THE TRIAL.
Example: Increased claim for the payment of damages OR made to authorize presentation of
evidence. This occurs when evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, the court may allow the pleadings amended and shall do so with
liberality to authorize presentation of evidence.172

3.1 THUS, the failure of a complaint to state a cause of action may be cured by (1) Presentation
of evidence to prove that cause of action followed by an amendment to conform to evidence, OR (2)
Evidence is objected to and the trial court sustains the objection, this is then followed by an
amendment with leave of court to authorize presentation of evidence. Same remedies may be
resorted to WHEN A PARTY FAILS TO RAISE A DEFENSE IN HIS PLEADING.

THE EFFECTS OF AN AMENDED PLEADING

1. It supersedes the pleading that it amends

2. Admissions in the superseded pleading may be received in evidence against the pleader
because it is not expunged from the records and admissions in the superseded pleading are in the
nature of judicial admissions made by a party in the course of the proceedings which do not require

165
Remington Industrial Sales Corporation v Court of Appeals, 382 SCRA 499
166
Supra, Section 3, Rule 10
167
Supra, Section 2, Rule 8
168
Supra, Section 1, Rule 9
169
Tirona v Alejo, 367 SCRA 17, Gaspar v Dorado, 15 SCRA 331
170
Siasoco v Court of Appeals, 303 SCRA 186
171
Bernardo v Court of Appeals, 263 SCRA 660
172
Supra, Section 5, Rule 10
31
proof and ordinarily cannot be contradicted except by showing that it was made through palpable
mistake or that no such admission was made.173

3. Claims or defenses alleged in the superseded pleading but not incorporated in the amended
pleading shall be deemed waived.174

HOW IS AN AMENDED PLEADING FILED

A new copy of the entire pleading incorporating the amendments which shall be indicated by
appropriate marks shall be filed.175

1.NOTE that the date of filing of amended pleadings does not retroact to the date of the filing of the
original pleading. Hence, the statute of limitations runs until the filing of the amendment, but, an
amendment that merely supplements and amplifies facts originally alleged in the complaint relates
back to the date of the commencement of the action and is not barred by the statute of limitations that
expired after service of the original complaint. Example: The statement of a cause of action is
imperfect and is corrected by an amended complaint, the plea of prescription relates to the time of
filing BUT the rule will not apply if a new defendant is impleaded in the amended complaint and prior
to its filing prescription has set in.

WHAT IS A SUPPLEMENTAL PLEADING

A supplemental pleading setting forth transactions, occurrences or events which have happened
since the date of the pleading sought to be supplemented Example: Setting up counterclaims after an
answer has been filed.176

1.A supplemental pleading is always upon motion, and on such terms as are just and upon
reasonable notice and the ADVERSE PARTY IS GIVEN 10 DAYS FROM NOTICE OF ORDER
ADMITTING THE SUPPLEMENTAL PLEADING TO PLEAD THERETO. 177

2.A supplemental pleading is meant to supply deficiencies in aid of an original pleading, not to entirely
substitute the latter. 178 Thus, when the cause of action stated in the supplemental complaint is
different from the cause of action mentioned in the original complaint, the court should not admit the
supplemental complaint.179

DISTINCTIONS BETW EEN AN AMENDED PLEADING AND A SUPPLEMENTAL PLEADING

(1) An amended pleading is filed either as a matter of right or with leave, a supplemental pleading is
always with leave (2) An amended pleading alleges matters occurring before the filing of the original
pleading, while a supplemental pleading alleges matters occurring after the filing of the original
pleading (3) An amended pleading supersedes the original pleading, while a supplemental pleading
allows the original pleading to stand.

RULE 11: WHEN RESPONSIVE PLEADINGS ARE TO BE FILED

ANSW ER TO THE COMPLAINT

1. Within 15 days after service of summons unless a different period is fixed by the Court.180 The same
period applies to third party complaints.181

173
Supra, Section 4, Rule 129
174
Supra, Section 8, Rule 10
175
Supra, Section 7, Rule 10
176
Supra, Section 9, Rule 11 and Section 2, Rule 9
177
Supra, Section 6, Rule 10
178
Shoemart, Incorporated v Court of Appeals, 190 SCRA 189
179
APT v Court of Appeals, 324 SCRA 533
180
Supra, Section 1, Rule 11
181
Supra, Section 5, Rule 11
32
2. If covered by the Rules on Summary Procedure, it is 10 days

3. If the complaint is amended: (a) as a matter of right, within 15 days from being served with a copy
(b) if with leave of court, within 10 days from notice of order admitting the same. If no new answer is
filed, a previously filed answer may serve as the answer.HOLDS ALSO FOR ANSW ERS TO
AMENDED COUNTER-CLAIMS, CROSS CLAIMS, THIRD PARTY (ETC) CLAIM OR COMPLAINTS
IN INTERVENTION.182

4. If defendant is a foreign private juridical entity, within 15 days if service of summons is made on the
resident agent, within 30 days from receipt of summons by the entity at its home office if received by
the government office designated by law.183

5. If it is a complaint –in- intervention, within 15 days from notice of the order admitting the complaint
in intervention

6. If it is a supplemental complaint, within 10 days from notice of the order admitting the supplemental
complaint. The answer to the complaint shall serve as the answer to the supplemental complaint if no
new or supplemental answer is filed.184
7. If it involves a complaint served on a non-resident defendant who is not in the Philippines through
any of the modes of extra-territorial service, including by publication, within a reasonable time which
shall not be less than 60 days after notice as the court may specify in its order granting leave to effect
extra-territorial service of summons

ANSW ER TO A CROSS CLAIM OR COUNTER CLAIM

The answer to a cross claim or a counter-claim shall be filed within 10 days from service.185 NOTE
that compulsory counterclaims need not be answered unless it raises issues not covered by the
complaint .

NOTE that it is required that a compulsory counterclaim or a cross claim existing at the filing of
defendant’s answer must be included therein BUT, if it matures / or is acquired after serving of
answer, it may with the court’s permission be presented as such in a supplemental pleading. If
already existing and not set up through oversight, inadvertence, or excusable neglect, it may, by
186
leave of court be set up as such by amendment before judgment.

REPLY

It must be filed within 10 days from service of the pleading responded to.187 Altough the filing of a
reply is optional as if one is not filed, all new matters are deemed controverted.188

MAY THE TIME TO PLEAD BE EXTENDED

Upon motion and on terms as may be just, the Court it may extend or allow it to be filed after the time
fixed by the Rules.189 The court may also, upon like terms, allow an answer or other pleading t be filed
after the time fixed by these Rules.

1. NOTE that in cases covered by the Rules on Summary Procedure, the period cannot be extended
nor shortened.

2. In quo warranto cases, the period may be


shortened.190

182
Supra, Section 3, Rule 11
183
Supra, Section 2, Rule 11, Section 128, Corporation Code
184
Supra, Section 7, Rule 11
185
Supra, Section 4, Rule 11
187
Supra, Section 6, Rule 11
188
Supra, Section 10, Rule 6
189
Supra, Section 11, Rule 11
190
Supra, Section 8, Rule 66
33
186
Supra, Sections 8,9, and 10, Rule 11

187
Supra, Section 6, Rule 11
188
Supra, Section 10, Rule 6
189
Supra, Section 11, Rule 11
190
Supra, Section 8, Rule 66
33
3.A lawyer shall not, after obtaining extensions of time to file pleadings, memoranda, or briefs, let the
period lapse without submitting the same or offering an explanation for failure to do so.191

WHEN A COMPLAINT SHOULD BE FILED

A complaint is not a responsive pleading. It is to be filed upon accrual of the cause of action or any
time thereafter but before it is barred by prescription.

RULE 12 – BILL OF PARTICULARS

WHAT IS A BILL OF PARTICULARS

It is a definitive statement of any matter which is not covered with sufficient definiteness or
particularity to enable him to properly prepare his responsive pleading.192
1. The PURPOSE of which is to make more particular or definite the ultimate facts in a pleading but is
NOT INTENDED TO SUPPLY EVIDENTIARY MATTERS

2. It is to be resorted to when the complaint is deficient in details with respect to the factual basis of
each and every item claimed, but such deficiency is not such as to amount to a failure to state a
cause of action as the remedy then is to file a motion to dismiss.193

WHEN SHOULD IT BE FILED

Before filing or responding to a pleading or before filing an answer. If pleading is a reply, within 10
days from service thereof

WHEN WILL OR WHEN CAN COURT ACT UPON IT

Upon filing of the motion that points out the defects complained of, the paragraphs wherein they are
contained, and the details desired (it is a litigated motion, thus requires a notice of hearing) – the
CLERK OF COURT must IMMEDIATELY BRING IT TO THE ATTENTION OF THE COURT, who
may deny or grant the motion OUTRIGHT or allow the parties an opportunity to be heard.194

1. IF GRANTED, whether in WHOLE or in PART, the compliance therewith must be effected within 10
days from notice of order, unless a different period is fixed by the Court.

2. The BILL OF PARTICULARS – may be filed either in a separate or in an amended pleading,


serving a copy on the adverse party.195 ONCE filed, it becomes part of the pleading for which it is
intended.196

EFFECT OF NON-COMPLIANCE WITH ORDER

In case of failure to obey or insufficient compliance, the Court may order the pleading or portions
thereof to which the order was directed to be stricken out OR make such order as it deems just.197
HENCE, it may also dismiss for failure of the plaintiff to obey order of the Court. 198 The striking out of
a complaint by the lower court upon motion of the defendant for failure of the plaintiff to comply with
an order requiring him to submit a bill of particulars as a ground for dismissal is equivalent to an
adjudication on the merits unless otherwise provided by the court.199

191
Rabanal v Tugade, 383 SCRA 484
192
Supra, Section 1, Rule 12
193
Sabangan v Manila Railroad Company, 28 SCRA 772
194
Supra, Section 2, Rule 12
195
Supra, Section 3, Rule 12
196
Supra, Section 6, Rule 12
197
Supra, Section 4, Rule 6
198
Supra, Section 3, Rule 17
199
Vda. De Quillosa v Salazar, 14 SCRA 656
34
WHEN MUST A RESPONSE / ANSW ER BE FILED

After service of a bill / definitive pleading OR notice of denial of the motion for a bill of particulars, the
moving party has the remaining period that he was entitled to at the time of the filing of the motion,
which shall not be less then 5 days in any event.200

RULE 13 – FILING / SERVICE OF PLEADINGS JUDGMENTS / OTHER PAPERS

The Rule applies to all pleadings / papers as well as service thereof, except those for which a
different mode of service is prescribed.201

FILING / SERVICE DEFINED

FILING is the act of presenting the pleading or other paper to the clerk of court, while SERVICE is the
act of providing a party with a copy of the pleading / paper
IF A PARTY IS REPRESENTED BY COUNSEL service is made upon counsel or one of them
UNLESS service is ordered to be made upon the party by the Court.
If there is one counsel for several parties, he is entitled to only one copy served by the opposite side.
202

MODES OF FILING

The modes of filing are (1) Presenting the original copies of pleadings, appearances, motions,
notices, orders, judgments and all other papers to the clerk of court, OR (2) By registered mail. 203

1. The clerk of court shall if filing be PERSONAL, endorse on the pleading, the date and the hour of
filing. If it BY MAIL, the date appearing on the post office stamp / registry receipt shall be date of the
filing / deposit of court. The envelope shall be attached to the record. It bears stressing that it is the
date of mailing, not the date of receipt of the mail matter, which shall be considered as the date of
filing.204 This has been the practice since mail is considered an agent of the Government.205This is
also known as the MAILBOX RULE.

2. The PAPERS that are to served or ARE TO BE FILED / SERVED are JUDGMENTS,
RESOLUTIONS, ORDERS, PLEADINGS SUBSEQUENT TO THE COMPLAINT, WRITTEN
MOTIONS, NOTICE, APPEARANCES, REMAND, OFFER OF JUDGMENT OR SIMILAR PAPERS
SHALL BE FILED AND SERVED UPON AFFECTED PARTIES 206

WHAT ARE THE MODES OF SERVICE

The general rule is that PLEADINGS, MOTION, NOTICES, ORDERS, JUDGMENTS AND OTHER
PAPERS shall be served PERSONALLY or by MAIL. 207

1. IF PERSONALLY served, it may done: (a) by delivering personally a copy to party or his counsel,
OR (b) leaving it in his office with a clerk or person having charge thereof, OR (3) IF NO PERSON IS
FOUND IN THE OFFICE OR HE HAS NO OFFICE, by leaving a copy between the hours of 8am to
6pm at party’s / counsel’s residence, if known, with a person of sufficient age and discretion residing
therein.208

200
Supra, Section 5, Rule 12
201
Supra, Section 1, Rule 13
202
Supra, Section 2, Rule 13
203
Supra, Section 3, Rule 13
204
Ansel v Aledo, 420 SCRA 645
205
Supra, Mintu v Court of Appeals, 53 SCRA 114
206
Supra, Section 4, Rule 13
207
Supra, Section 5, Rule 13
208
Supra, Section 6, Rule 13
35
2. IF BY MAIL, by depositing a copy in the post office in a sealed envelope, plainly addressed to the
party or counsel, if known, at his address / office, OTHERWISE, at his residence, if known, postage
prepaid and with instructions to the postmaster to return the mail to sender after 10 days if
UNDELIVERED. If no registry service is available in the locality of the addressee or sender, service
may be by ordinary mail.209

2.1 If mailed by PRIVATE CARRIER, the date of actual receipt by the court of such pleading and
not date of delivery to the carrier is deemed the date of filing of that pleading.210

3. NOTE THOUGH THAT JUDGMENTS, FINAL ORDERS OR RESOLUTIONS shall be served


personally or by registered mail.

3.1 ALSO, if a party is summoned by publication, and he has failed to appear, judgments, final
orders / resolutions shall also be served upon him by publication at the expense of the prevailing
party.211

4. IF SERVICE CANNOT BE MADE personally or by mail, SUBSTITUTED SERVICE MAY BE


AVAILED OF as long as the office and place of residence of the party or his counsel is also unknown,
service may be made by delivering a copy to the clerk of court, with proof of failure of both personal
service and service by mail. The service is complete at the time of such delivery.212

WHEN SERVICE IS COMPLETE


Service will be deemed complete: (a) Upon actual delivery if undertaken personally (b) Upon
expiration of 10 days after mailing, unless the Court orders otherwise if undertaken by ordinary mail
st
(c) Upon actual receipt by addressee or after 5 days from the date he received the 1 notice of the
213
postmaster, whichever date is EARLIER, if undertaken by registered mail (d) At the time of delivery
to the clerk of court, if undertaken by substituted service

WHAT IS THE RULE ON PRIORITY OF SERVICE

Whenever practicable, service and filing of pleadings and other papers shall be done personally
EXCEPT, with papers emanating from the court. A resort to other modes must be accompanied by an
explanation why service or filing was not done personally. IF NOT, it may be cause to consider the
paper as not filed. 214

1.Where the address of the respondent’s counsel is 83 kilometers away from the address of
petitioner’s counsel, such distance makes personal service impracticable, and a written explanation
why service was not done personally might have been superfluous. Liberal construction has been
allowed in cases where the injustice to the adverse party is not commensurate with the degree of
thoughtlessness in not complying with the procedure prescribed.215

WHAT CONSTITUTES PROOF OF FILING

Proof of filing is shown by: (a) existence of the pleading or other paper in the records of the case (b)
If not in the record, but is claimed to be: (1) FILED PERSONALLY by the written / stamped
acknowledgment of its filing by the Clerk of Court on a copy, and (2) FILED BY REGISTERED
MAIL by the registry receipt and the affidavit of the person who did the mailing containing a FULL
STATEMENT OF: (a) Date and place of depositing in the post office in a sealed envelope addressed

209
Supra, Section 7, Rule 13
210
Industrial Timber Corporation v NLRC, 233 SCRA 597, Beneco v NLRC, 209 SCRA 55
211
Supra, Section 9, Rule 13
212
Supra, Section 8, Rule 13
213
Supra, Section 10, Rule 13
214
Supra, Section 11, Rule 13
215
Maceda v. De Guzman vda de Macatangay, 481 SCRA 415
36
to the Court, with postage prepaid, and (b) Instructions are given to the postmaster to return the mail
to sender after 10 days, if undelivered.216

WHAT CONSTITUTES PROOF OF SERVICE

Proof of service is shown by: (a) Written admission of the party served OR official return of the
server, or affidavit of the party serving, containing a full statement of the DATE, PLACE, MANNER
OR SERVICE if served personally (b) An affidavit of the person mailing of facts showing compliance
with Section 7 of the Rule if served by ordinary mail (c) An affidavit and registry receipt issued by the
mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in
lieu thereof, the unclaimed letter together of the sworn / certified copy of the notice given by the
postmaster to the addressee.217

1. If service is by registered mail, proof of service consists of the affidavit of the person mailing and
the registry receipt, both of which must be appended to the motion. Absent one or the other, or both,
there is no proof of service.218

2. Late filing of the affidavit of service may be considered as substantial compliance with the Rules.219

3. Failure of a party to comply with the required proof of service may be excused where the motion is
not a contentious motion and therefore, no right of the adverse party would be affected by the
admission thereof.220

NOTICE OF LIS PENDENS

Is an announcement to the world that a particular property (real) is in litigation, serving as a warning
that one who acquires the property or an interest therein does at his own risk which is filed with the
Office of the Register of Deeds of the place where the property is located.

1. It shall contain (a) the names of the parties (b) object of the action or defense (c) description of the
property.221

2. It is only from the time of the filing of the notice for record shall a purchaser or encumbrancer of the
property affected thereby, be deemed to have constructive notice of the pendency of the action and
only of its pendency against parties designated by their real names

3. It is available only in an action affecting title or right of possession of real property. Specifically in
actions (a) to recover possession of real estate (b)to quiet title (c) to remove a cloud (d) for
partition (e) other proceeding of any kind in court directly affecting title to the land or the use or
occupation thereof or buildings thereon.222

WHO MAY AVAIL OF IT

The plaintiff or the defendant – when affirmative relief is claimed in the answer

WHEN MAY IT BE CANCELLED

Upon order of the court when: It is shown that it has for the purpose of molesting the adverse party or
it is not necessary to protect the rights of the party who caused it to be recorded.223

216
Supra, Section 12, Rule 13
217
Supra, Section 13, Rule 13
218
Cruz v Court of Appeals, 388 SCRA 72
219
Ace Navigation, Inc v Court of Appeals, 338 SCRA 70
220
PEA v Caoibes, Jr., 312 SCRA 767
221
Supra, Section 14, Rule 13
222
Viewmaster Construction Corporation v Maulit, 326 SCRA 821, Alberto v Court of Appeals, 334 SCRA 756
223
Lim v Vera Cruz, 356 SCRA 386
37
RULE 14 – SUMMONS

DEFINED

It is a writ issued sealed and signed by the clerk of court upon filing of a complaint and payment of
requisite legal fees224 ISSUED to and DIRECTED to the defendant containing the following: (a) name
of the court and of the parties (b) a direction that the defendant answer within the time fixed by the
Rules, and (c) notice that unless defendant answers, plaintiff will take judgment by default and may
be granted the relief prayed for. ATTACHED THERETO IS A COPY OF THE COMPLAINT AND
ORDER FOR THE APPOINTMENT OF A GUARDIAN AD LITEM, IF ANY. 225

1.It shall also contain a reminder to the defendant to observe restraint in filing a motion to dismiss and
instead allege the grounds thereof as defenses in the answer.226

WHO SERVES SUMMONS

The sheriff, his deputy, or other proper Court Officer, or for justifiable reasons by any suitable person
authorized by the court issuing the summons.227

1.An Officer having management of a jail or institution, if a defendant is a prisoner therein is


deputized as a special sheriff for service of summons.228

SIGNIFICANCE OF SUMMONS

The significance of summons is that it is the primary means by which a Court is able to acquire
jurisdiction over the person of the defendant and to give notice that an action has been commenced
against him.

1. Jurisdiction cannot be acquired over the person of the defendant even if he knows of the case
against him unless he is validly served with summons229 OR the defendant voluntarily appears in the
action.

2. Voluntary appearance shall be equivalent to service of summons. The inclusion in a motion to


dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance.230

2.1 The rule abandons previous rulings of the Supreme Court that a motion to dismiss on the
ground of lack of jurisdiction over the person be based solely on that ground, otherwise, it is a
voluntary appearance. This is so because of the OMNIBUS MOTION RULE 231 that all objections
then available be included otherwise they are waived, as the only exceptions are (1) the Court has no
jurisdiction over the subject matter; (2) there is another action pending between the same parties for
the same cause; (3) or, the action is barred by prior judgment or statute of limitations. 232 These
defenses are not barred if not set up.

WHAT ARE THE MODES OF SERVICE

1. Service in person on the defendant by handling a copy thereof to the defendant in person, or
if he refuses to receive and sign for it, by tendering it to him 233

224
Supra, Section 1, Rule 14
225
Supra, Section 2, Rule 14
226
A.M. No. 03-1-09-SC
227
Supra, Section 3, Rule 14
228
Supra, Section 9, Rule 14
229
UCPB v Ongpin, 368 SCRA 464
230
Supra, Section 20, Rules 14
231
Supra, Section 8, Rule 15
232
Supra, Section 1, Rule 9
233
Supra, Section 6, Rule 14
38
2. Substituted service by leaving a copy of the summons at defendant’s residence with some
person of suitable age and discretion, then residing therein or leaving it at defendant’s office or
regular place of business with some competent person in charge thereof.234

2.1 BUT, it may only be resorted to, if for justifiable causes, the defendant cannot be served
personally within a reasonable time. The impossibility of service in person must be indicated in the
return, otherwise, substituted service is void. 235

2.2 Service of summons on the defendant shall be by personal service first and only when the
defendant cannot promptly be served in person will substituted service be availed of.236

3. Service by publication with leave of court, obtained by the filing of a motion in writing,
supported by an affidavit of the plaintiff or some person in his behalf, setting forth the ground that
allows resort to it.237

3.1 The grounds that allow service of summons by publication are: (a) Identity of the defendant is
unknown OR whereabouts of the defendant is unknown and cannot be ascertained by diligent
inquiry238 (b) Defendant does not reside and is not found in the Philippines but the suit can be
maintained against him because it is in REM OR QUASI IN REM 239 (c) Defendant is a Philippine
resident but is temporarily out of the country.240 Note the cross reference with Section 15 and the fact
that SUBSTITUTED SERVICE MAY ALSO BE AVAILED OF.

4. Extra-Territorial Service is allowed in suits against a non-resident defendant not found in the
Philippines can be made by:

4.1 (a) Personal service (b) Publication in a newspaper of general circulation in such places and
for such time as the court may order, in which case a copy of the summons and order of the court
shall be sent by registered mail to the last known address (c) Or any other manner the court may
deem sufficient.241 Resort to registered mail has been deemed appropriate.242

4.2 EXTRA-TERRITORIAL SERVICE CAN BE AVAILED OF when: (a) Action affects the
personal status of the plaintiff (b) Action relates to, or the subject of which is property within the
Philippines in which the defendant has or claims a lien or interest, actual or contingent (c) W hen the
relief demanded, in whole or in part consists of excluding the defendant from any interest in property
located in the Philippines (d) When the defendant’s property has been attached in the Philippines.243

4.3 Resort to extra-territorial service requires leave of court.

UPON WHOM MAY SERVICE OF SUMMONS BE MADE

Service of summons is to be made upon the defendant. If the defendant is: (a) AN ENTITY
WITHOUT JURIDICAL PERSONALITY it is to be served upon any one of them or upon person in
charge of the office or place of business maintained in such name BUT such shall not bind
individually any person whose connection with the entity has, UPON DUE NOTICE, been severed
before the action has brought244 (b) MINOR, INSANE OR OTHERWISE INCOMPETENT it is to be
served upon him personally and his guardian / or guardian ad litem. In addition, in case of a minor,
service may also be made on his father or mother245 (c) REPUBLIC OF THE PHILIPPINES it is to be

234
Supra, Section 7, Rule 14
235
Hamilton v Rey, GR 139283, November 15, 2000
236
Samartino v Raon, 383 SCRA 664
237
Supra, Section 17, Rule 14
238
Supra, Section 14, Rule 14
239
Supra, Section 15, Rule 14
240
Supra, Section 16, Rule 14
241
Supra, Section 15, Rule 14, Valmonte v Court of Appeals, 252 SCRA 92
242
Cariaga v Malaya, 143 SCRA 441
243
Supra, Section 15, Rule 14
244
Supra, Section 8, Rule 14
245
Supra, Section 10, Rule 14
39
served on the Solicitor General 246 (d) PROVINCE, CITY,MUNICIPALITY OR SIMILAR PUBLIC
CORPORATION it is to be served on the executive head, or on such other officers as the law or court
may direct 247 (e) DOMESTIC PRIVATE JURIDICAL ENTITY its is to be served on the president,
managing partner, general manager, corporate secretary, treasurer or in house counsel.248 Note the
abandonment of doctrine of substantial compliance.249 (f) FOREIGN PRIVATE JURIDICAL ENTITY it
is to be served upon its resident agent. If there be no resident agent, the Government official
designated by law such as the SEC, Insurance Commissioner, Superintendent of Banks. If none, any
of its officers or agents in the Philippines. Note the required sequence of service. In addition, if a
lawyer enters an appearance without proof of having been engaged by the foreign corporation, no
voluntary appearance can be inferred.250

AFTER SERVICE IS COMPLETE, WHAT MUST SERVER DO

1. Within 5 days after completion, a copy of the return must be served, personally or by registered
mail, to plaintiff’s counsel, and he shall return the summons to the clerk of court who issued it
together with proof of service.251

2. PROOF OF SERVICE is the writing executed by the server setting forth (1) the manner, place and
date of service; (2) the paper/s which have been served with the process and name of the person
who received the same. IT SHALL BE SWORN TO WHEN MADE BY A PERSON OTHER THAN
THE SHERIFF / DEPUTY.252

2.1 IF SUMMON IS BY PUBLICATION, PROOF OF SERVICE CONSISTS OF: (a) Affidavit of


printer, foreman, principal clerk editor, business manager or advertising manager, COPY OF
PUBLICATION 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 at
/ to his last known address.253

RULE 15 – MOTIONS

DEFINED

A motion is an application for relief other than a pleading.254

REQUISITES OF A VALID MOTION

1. Shall be in writing except when made in open court or in the course of the hearing or trial.255
Example: a motion for continuance made in presence of adverse party.

2. It must state the relief sought to be obtained and the grounds on which it is based, and if
required by the rules or necessary to prove facts alleged therein, it shall be supported by affidavits or
other papers.256

3. It shall be set for hearing by the applicant except when the motion can be acted upon by the
court without prejudicing the rights of the adverse party.257 Example: Motion for extension of time to
plead

246
Supra, Section 13, Rule 14
247
Supra, Section 13, Rule 14
248
Supra, Section 11, Rule 14
249
Mason v Court of Appeals, 413 SCRA 303, E.B. Villarosa and Partner Co, Ltd v. Benito, 312 SCRA 65
250
Litton Mills v Court of Appeals, 256 SCRA 696
251
Supra, Section 4, Rule 14
252
Supra, Section 18, Rule 14
253
Supra, Section 19, Rule 14
254
Supra, Section 1, Rule 15,
255
Supra, Section 2, Rule 15
256
Supra, Section 3, Rule 15
257
Supra, Section 4, Rule 15
40
4. It must contain a notice of hearing addressed to all parties concerned, specifying the time,
258
date of the hearing which must not be later than 10 days after the filing thereof.

4.1 A motion without a notice of hearing is pro-forma or a mere scrap of paper. It presents no
question which the court should decide. The rationale behind the rule is plain: unless the movant sets
the time and place of hearing, the court will be unable to determine whether the adverse party agrees
or objects to the motion, and if he objects, to hear him on his objection. The objective is to avoid a
capricious change of mind in order to provide due process to both parties and ensure impartiality.259

4.2 The absence of the notice of hearing will not toll the running of the reglementary period for
appeal.260

5. It must be served, together with the notice of hearing on the adverse party at least 3 days
before the date of hearing UNLESS THE COURT FOR GOOD CAUSE SETS THE HEARING
EARLIER.261

5.1 The purpose of the three day notice rule is to avoid surprise upon the opposite party and to
give him time to study and meet the arguments of the motion.262

6. There must be proof of service of every written motion set for hearing otherwise it shall not be
acted upon.263

6.1 As a general rule, proof of service is mandatory.264

6.2 A judge can act ex-parte on a motion where the rights of the adverse party are not affected.265

WHEN SHOULD MOTIONS BE SET

All motions must be scheduled for hearing on Friday afternoons or if it be a non-working holiday, in
the afternoon of the next working day UNLESS THE MOTION REQUIRES IMMEDIATE
ACTION.266This day is MOTION DAY.

WHAT SHOULD A MOTION CONTAIN

1.A motion attacking a pleading (motion to dismiss) order, judgment, or proceedings (motion for
reconsideration) shall include all objections then available, and all objections not so included are
deemed waived EXCEPT the defenses of Lack of Jurisdiction, Litis Pendentia, Res Judicata, Statute
of Limitations.267

1.1 This is the OMNIBUS MOTION RULE.268

1.2 The purpose of the Rule is to obviate multiplicity of motions as well as discourage dilatory
pleadings.269 Litigants should not be allowed to reiterate identical motions speculating on the possible
change of opinion of the court or judges thereof.270

258
Supra, Section 5, Rule 15
259
Fajardo v Court of Appeals, 354 SCRA 736
260
Cledera v Sarmiento, 39 SCRA 553
261
Supra, Section 4, Rule 15
262
Remonte v. Bonto, 16 SCRA 257
263
Supra, Section 6, Rule 15
264
Cruz v Court of Appeals, 388 SCRA 72
265
Sumadchat v Court of Appeals, 111 SCRA 488
266
Supra, Section 7, Rule 15
267
Supra, Section 1, Rule 9
268
Supra, Section 8, Rule 15
269
Dacanay v Alvendia, 30 SCRA 31
270
Miranda v Court of Appeals, 71 SCRA 295
41
1.3 It requires the movant to raise all available exceptions in a single opportunity to avoid multiple
piecemeal objections. But to apply the statutory norm, THE OBJECTIONS MUST BE AVAILABLE TO
THE PARTY AT THE TIME THE MOTION WAS FILED. 271

2. IF MOTION IS ONE FOR LEAVE TO FILE A PLEADING OR MOTION, IT SHALL BE


ACCOMPANIED BY THE PLEADING / MOTION SOUGHT TO BE ADMITTED. 272 Example: Motion
for leave to admit amended complaint.

3. As to FORM, the Rules applicable to pleadings shall apply to written motions as far as it concerns
captions, designation, signature and other matters.273

RULE 16 – MOTION TO DISMISS

WHEN AND HOW IT CAN BE FILED

1. By Motion, within the time for the filing of an answer but before the filing of an answer.

1.1 The rule is not absolute as a motion to dismiss may still be filed after answer on the ground of
(a) lack of jurisdiction (b) litis pendentia (c) lack of a cause of action, and (d) discovery during trial of
evidence that would constitute ground for dismissal.274

2. AS AN AFFIRMATIVE DEFENSE IN THE ANSWER, and in the discretion of the court, a


preliminary hearing may be had as if a motion to dismiss has been filed. IF ACTION IS DISMISSED,
it shall be without prejudice to the prosecution in the same / separate action of a counter-claim
pleaded in the answer.275

WHAT GROUNDS ARE AVAILABLE

A motion to dismiss may be made on any of the following grounds:276

1. The court has no jurisdiction over the person of the defending party

2. The court has not jurisdiction over the subject matter of the claims

3. Venue is improperly laid

3.1 An objection to improper venue must be made before a responsive pleading is filed,
otherwise it is deemed waived.277

4. Plaintiff has no legal capacity to sue

4.1 This means that he is not in exercise of his civil rights, or does not have the necessary
qualification to appear or does not have the character / representation he claims AS OPPOSED TO
the LACK OF PERSONALITY TO SUE which means that he is NOT the real party in interest, and the
basis for dismissal then is NO CAUSE OF ACTION or FAILURE TO STATE A CAUSE OF
ACTION.278

5. There is another action pending between the same parties for the same cause

5.1 This is known as litis pendentia

271
PH Credit Corporation v Court of Appeals, 370 SCRA 155
272
Supra, Section 9, Rule 15
273
Supra, Section 10, Rule 15
274
Panganiban v Pilipinas Shell Petroleum Corporation, 395 SCRA 624
275
Supra, Section 6, Rule 16
276
Supra, Section 1, Rule 16
277
Fernandez v ICB, 316 SCRA 326
278
Columbia Pictures, Inc. v Court of Appeals, 261 SCRA 144, Travelwide Assn of the Phil. v. Court of Appeals, 199
SCRA 205
42
5.2 The REQUISITES for its application are: (a) Identity of the parties, or at least such as
representing the same interests in both actions (b) Identity of rights asserted and reliefs prayed for,
the relief being founded on the same facts. Identity in both cases, is such that judgment in the
pending case would, regardless of which party is successful amount to res judicata in the other.279

5.3 BETWEEN THE FIRST OR SECOND ACTION / OR LATTER ACTIONS – APPLY THE
“PRIORITY IN TIME RULE” BUT RULE MUST YIELD TO THE “MORE APPROPRIATE ACTION”.
Example: An action for declaratory relief to interpret a lease contract was filed before an ejectment
case, where the Supreme Court held that the ejectment case is the more appropriate action.280
RD
5.4 There is a 3 TEST: INTEREST OF JUSTICE RULE which is a determination of which court
would be in a better position to serve the interest of justice considering : (a) nature of the controversy;
(b) comparative accessibility of the court to the parties; (c) other similar factors. 281

6. The cause of action is barred by a prior judgment or by the statute of limitations

6.1 The REQUISITES OF RES JUDICATA are: (a) Former judgment must be FINAL (b)
Rendered by a court having jurisdiction over the subject matter and the parties (c) It must be a
st nd
judgment or order on the merits (d)There must be between 1 / 2 action, identity of parties / subject
matter / causes of action

6.2 The DOCTRINE IS FOUNDED ON 2 GROUNDS: (a) Public policy and necessity which
makes it in the interest of the state that there should be an end to litigation (b) Litigant should be
spared the hardship of being vexed twice for the same cause

6.3 NOTE that there can be no res judicata in support cases as future support cannot be
compromised.282

6.4 Statute of Limitations or prescription is a statute establishing a period of time from the accrual
of a cause of action within which a right of action must be exercised. If the action is not brought within
the period, then it is barred.

7. The pleading asserting the claim states no cause of action.

7.1 The TEST OF SUFFICIENCY OF A CAUSE OF ACTION is: Whether accepting the veracity
of the facts alleged in the complaint, the Court can render judgment (valid) upon the same in
accordance with the prayer in complaint.

7.2 NO PRESENTATION OF EVIDENCE IS REQUIRED AS THERE IS A HYPOTHETICAL


ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT

7.3 FAILURE TO STATE A CAUSE OF ACTION/NO CAUSE OF ACTION DISTINGUISHED


FROM LACK OF A CAUSE OF ACTION 283: (a) The former refers to insufficiency of allegations, while
the latter refers to insufficiency of factual basis (b) The former is raised only in a in a motion to
dismiss before responding to a complaint, while the latter can be raised at any time (c) The former
allows dismissal to be had at the early stages of the action, while the latter allows dismissal after
questions of fact have been resolved after evidence is presented or stipulations / admissions are had.

8. Claim or demand set forth in plaintiff’s pleading has been paid, waived, abandoned, or
otherwise extinguished

9. Claim on which the action is founded is unenforceable under the provisions of the statute of
frauds.

279
Victronics Computer v RTC, 217 SCRA 517
280
Teodoro v Mirasol, 99 Phil 150
281
Roa-Magsaysay v Magsaysay, 98 SCRA 592
282
De Asis v Court of Appeals, 303 SCRA 176
283
Supra, Rule 33
43
9.1 Statute of Frauds is statute/s that deals with the enforcement and requirements of
agreements in particular circumstances. It is descriptive of statutes which require certain classes of
contracts to be in writing.284

10. A condition precedent for filing the claim has not been complied with

10.1 In certain cases, referral of a case to the Lupon is a condition precedent for filing a complaint
in court. It is not jurisdictional.285 It may be waived if not raised seasonably in a motion to dismiss.286

RESOLUTION OF A MOTION TO DISMISS

1. It shall BE HEARD287, at the hearing, the parties shall submit arguments on the questions of law
and evidence on the questions of law and fact involved EXCEPT THOSE NOT AVAILABLE AT THAT
TIME. SHOULD THE CASE GO TO TRIAL, EVIDENCE DURING THE HEARINGS SHALL
AUTOMATICALLY BE PART OF THE EVIDENCE OF PARTY PRESENTING THE SAME.

2. After the hearing, Court shall either DISMISS THE ACTION, DENY THE MOTION OR ORDER
AMENDMENT OF THE PLEADING, stating clearly and distinctly the reasons for the action taken.288

2.1 It is now mandated that the Court cannot defer resolution of the motion based on the reason
that the ground relied upon does not appear to be indubitable or sure

3. IF MOTION IS DENIED, the movant shall file an answer within the balance of the period prescribed
by Rule 11, which he was entitled to at the time of serving the motion, but not less than 5 days in any
event, COUNTED FROM NOTICE OF DENIAL. IF ORDERED AMENDED, an answer is to be filed
within period prescribed by Rule 11, counted from service of amended pleading, unless the court
provides a longer period. Note that it is 15 days as no answer has of yet been filed. Hence the
amendment is one that is a matter of right.289

3.1 The EFFECT OF DISMISSAL is that subject to the right to appeal, an order granting a motion
to dismiss on the grounds of (a) prior judgment or statute of limitations (b) claim / demand has
been paid, waived abandoned or otherwise extinguished, or (c) is unenforceable under the statute of
frauds SHALL bar refiling of the same.290

RULE 17 - DISMISSAL OF ACTIONS

PLAINTIFF DISMISSAL OF HIS OWN COMPLAINT

A plaintiff may cause the dismissal of his complaint by:

1. Filing of a notice of dismissal at anytime before service of an answer or motion for summary
judgment. Once filed, the court shall issue an order confirming the dismissal, which is without
PREJUDICE, unless stated otherwise. BUT, such dismissal will operate as adjudication on the merits
when filed by a plaintiff who has once dismissed in a competent court, his action based on or
291
including the same claim. This is known as the 2 dismissal rule.

2. Filing a motion to dismiss but such will not result in dismissal without the approval of the court and
upon terms and conditions as the court deems proper. BUT, if a counterclaim has been pleaded
before service of motion to dismiss – the dismissal is limited to the complaint. If shall be without
PREJUDICE TO RIGHT OF DEFENDANT to prosecute his counterclaim in a separate action unless

284
Litonjua v Fernandez, 427 SCRA 478
285
Junson v martinez, 405 SCRA 390
286
Banares v Balising, 328 SCRA 36
287
Supra, Section 2, Rule 16
288
Supra, Section 3, Rule 16
289
Supra, Section 4, Rule 16
290
Supra, Section 5, Rule 16
291
Supra, Section 1, Rule 17
44
within 15 days from notice of the motion he manifests a preference to have it resolved in the same
action. UNLESS specified, a dismissal is without prejudice. NOTE also that a CLASS SUIT shall not
be dismissed or compromised without the approval of the Court.292

COURT DISMISSAL ON ITS MOTION OR THAT OF DEFENDANT

The court can motu propio or upon motion of the defendant dismiss a complaint when: (a)If, for no
justifiable reason, the plaintiff fails to appear on the date of the presentation of his evidence in chief
on the complaint (b) If, for no justifiable reason, plaintiff fails to prosecute his action for an
unreasonable length of time (c) If, for no justifiable reason, plaintiff fails to comply with Rules of Court
or any order of the Court. DISMISSAL IS WITHOUT PREJUDICE TO RIGHT OF THE DEFENDANT
TO PROSECUTE HIS COUNTERCLAIM IN THE SAME OR SEPARATE ACTION and SHALL HAVE
THE EFFECT OF ADJUDICATION ON THE MERITS, UNLESS OTHERWISE DECLARED BY THE
COURT.293

1. The REMEDIES OF THE PLAINTIFF are: (a) Appeal the dismissal as it is a FINAL ORDER, or (b)
If without prejudice, REFILE THE ACTION as an order dismissing without prejudice is not subject to
appeal.

2. At the pre-trial, the court ordered the parties to submit a compromise agreement within a ten day
period. The parties were unable to submit the compromise agreement, thus leading to a dismissal.
There is nothing in the rules that imposes a sanction for failure to submit a compromise agreement.294

APPLICABILITY OF THE RULE


rd
Rule applies to dismissal by the DEFENDANT of his counterclaims cross-claims or 3 party claims.
Voluntary dismissal by the claimant by notice as under Section 1 of the Rule shall be made before a
responsive pleading, motion for summary judgment is served, or if there be none, before introduction
of evidence at the trial or hearing.295

RULE 18 – PRE-TRIAL

WHAT IS PRE-TRIAL

It is a procedural devise intended to clarify and limit the basic issues between the parties. Its main
objective is to simplify, abbreviate and expedite trial, or otherwise dispense with it.296

It is a conference or hearing at which the court, with the cooperation of the parties, seek to determine
definitively what precisely are the factual issues to be tried and how each party intends to establish
his position on each disputed factual issue.

WHEN CONDUCTED

After the last pleading has been served and filed. It shall be the duty of the plaintiff to move ex-parte
that the case be set for pre-trial.297

1. SC Adm. Circular 3-99 dated January 15, 1999 defined promptly as 5 days.

2. SC Administrative Matter No. 03-1-09, SC, Section A (1.2) Should the plaintiff fail to move ex-parte
to set case for pre-trial, the branch clerk of court should issue a notice of pre-trial.

292
Supra, Section 2, Rule 17
293
Supra, Section 3, Rule 17
294
Ruiz, Jr v CA, 212 SCRA 660
295
Supra, Section 4, Rule 17
296
Interlining v Philippine Trust Company, 378 SCRA 521
297
Supra, Section 1, Rule 18
45
2.1 The same circular also requires that the presiding judge direct the parties to mediation, if
possible. If it fails it will schedule the pre-trial BUT IT MAY ALSO SCHEDULE A PRELIMINARY
CONFERENCE before the branch clerk of court to assist them in REACHING A SETTLEMENT, PRE-
MARKING OF DOCUMENTS AND EXHIBITS AND TO CONSIDER OTHER MATTERS THAT WILL
AID IN PROMPT DISPOSITION. The JUDGE is also directed to consider assisting the parties in
effecting a settlement given the evidence of the parties.

3. The last pleading is the answer to the original complaint, cross claim, or, third party complaint AND
the reply.

NATURE AND PURPOSE

Pre-trial is by nature mandatory and the purpose for its conduct is to take up the following matters:298

1. Possibility of amicable settlement / or submission to alternative modes of dispute resolution

2. Simplification of the
issues

3. Necessity / desirability of amendment to the


pleadings

4. Possibility of obtaining stipulations or admissions of fact and of documents to avoid unnecessary


proof

5. Limitation of number of
witnesses

6. Advisability of a preliminary reference of issues to a


commissioner

7. Propriety of judgment on the pleadings, summary judgment, or dismissing the action if a valid
ground therefor be found to exist

8. Advisability of suspending the


proceedings

9. Such other matter as may aid in the prompt disposition of the action

UPON WHOM NOTICE OF PRE-TRIAL IS TO BE SERVED

It shall be served on counsel, or party if not represented by counsel. Counsel is charged with the duty
to notify the party.299

WHOSE PRESENCE IS REQUIRED AT PRE-TRIAL

The parties and counsel are required to be present during the pre-trial. A party may be excused if: (a)
A valid cause is shown therefore (b)A representative shall appear duly authorized in writing to do the
following: (1) enter into amicable settlement; (2) submit to alternative modes of dispute resolution; (3)
enter into stipulations / admissions of fact / documents.300

EFFECT OF FAILURE TO APPEAR

1. If plaintiff fails to appear despite DUE NOTICE, he may be declared NON SUITED and the
complaint DISMISSED. The dismissal shall be with prejudice, unless otherwise ordered by the court.
HIS REMEDY is to appeal order of dismissal because it is a FINAL resolution. If dismissed without
prejudice, he can REFILE the complaint

298
Supra, Section 2, Rule 18
299
Supra, Section 3, Rule 18
300
Supra, Section 4, Rule 18
46
2. If defendant fails to appear despite due notice, plaintiff IS ALLOWED to present his evidence ex-
parte and the court may render judgment on the basis thereof. 301

3. AS A RULE, THERE CAN BE NO SECOND PRE-TRIAL UNLESS BOTH PARTIES


CONSENT.302

WHAT MUST BE FILED BEFORE PRE-TRIAL

A pre-trial brief must be filed and served on the adverse party at least 3 days before the pre-trial
containing:303

1. Statement of willingness to enter into an amicable settlement, the desired terms or to submit to
alternative modes of dispute resolution

2. Summary of admitted facts / proposed stipulation of facts

3. Issues to be tried or
resolved

4. Number of witnesses / names, abstract of testimonies, approximate number of hours that will be
required for presentation of their respective evidence

5. Copies of all documents intended to be presented which statement of the purposes of their offer

6. Manifestation of their having availed of or their intention to avail of discovery procedure, or need for
referral of any issues to commissioners

7. Applicable law /
jurisprudence

8. Available trial dates of counsel for complete presentation of evidence which must be within a period
3 months from the first day of trial.304

FAILURE TO FILE A PRE-TRIAL BRIEF SHALL HAVE THE SAME EFFECT AS FAILURE TO
APPEAR

PRE-TRIAL ORDER

Proceedings shall be recorded. Upon termination, court shall issue an order which shall recite in
detail: (a) matters taken up (b) action taken thereon (c) amendments allowed to the pleadings (d)
agreements / admissions made by the parties as to any of the matters taken (e) explicitly defining and
limiting the issues to be tried. OBJECT – it shall control the subsequent course of the action,
UNLESS MODIFIED TO PREVENT MANIFEST INJUSTICE. 305

1. Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a case
are properly raised. Thus, to obviate the element of surprise, parties are expected to disclose at a
pre-trial conference all issues of law and fact which they intend to raise at the trial, except such as
may involve privileged or impeaching matters. The determination of issues at a pretrial conference
bars the consideration of other questions on appeal.306

2. NOTE THAT TRIAL SHALL BE LIMITED TO ISSUES STATED IN THE PRE-TRIAL ORDER.307

3. Notwithstanding, courts are not required to resolve all issues raised in pleading unless necessary
for the resolution of the case.308

301
Supra, Section 5, Rule 18
302
Young v Court of Appeals, 204 SCRA 584
303
Supra, Section 6, Rule 18
304
Section 6, SC Adm. Circular 3-99, January 15, 1999
305
Supra, Section 7, Rule 18
306
Son vs. Son, 251 SCRA 556; PPA vs. City of Iloilo, 406 SCRA 88
307
Supra, Section 5, Rule 30
47
RULE 19 – INTERVENTION

WHO MAY INTERVENE

A person who has a (a) legal interest in the matter in litigation (b) has legal interest in the success of
either of the parties (c) has an interest against both or (d) is so situated as to be adversely affected by
309
a distribution or other disposition of property in the custody of the court or an officer thereof.

1. Examples are (a)an action for payment of money, where personal property of the defendant is
rd
attached, a 3 person claiming the attached property can intervene (b) action by alleged owners of
the land sought to be foreclosed.

2. The interest which entitles a person to intervene in a suit must be in the matter in litigation and of
SUCH DIRECT OR/AND IMMEDIATE CHARACTER that intervenor will either GAIN or LOSE by
direct legal operation and effect of judgment. 310

3. Intervention does not lie for a transferee pendente lite.311

HOW AND WHEN CAN A PERSON INTERVENE

Filing of a motion for leave of court to intervene, attaching thereto a copy of the pleading in
intervention, which is then served on the original parties at any time before rendition of judgment by
the trial court.312

1. The COURT MAY REFUSE TO GRANT LEAVE WHEN (a) It will unduly delay or prejudice the
adjudication of the rights of the original parties. Example: Delay or laches in bringing intervention, OR
(b) Intervenor’s rights may be fully protected in a separate proceeding. Example: Attachment of
real property subject of a mortgage

2. The pleadings in intervention are (a) Complaint in Intervention, if he asserts a claim against either
or all of the original parties, OR (b) Answer in Intervention, if he unites with the defending party in
resisting the claim of the plaintiff. 313

3. If granted, a complaint in intervention is to be replied to within 15 days from notice of the order
admitting the same unless a different period is fixed by the court.

4. NO INTERVENTION IS ALLOWED IN LAND REGISTRATION CASES as the remedy is to file an


OPPOSITION. Neither is it allowed in cases covered by the Rules on Summary Procedure.

5. Intervention is merely collateral or accessory or ancillary to the principal action and not an
independent proceeding. Hence, with the final dismissal of the original action, the complaint in
intervention can no longer be acted upon.314
6. An order denying a motion for intervention is
315
appealable.

RULE 20 – CALENDAR OF CASES

MAINTENANCE OF THE COURT CALENDAR

308
IBAA vs. IAC, 167 SCRA 450
309
Supra, Section 1, Rule 19
310
Roxas v Dinglasan, 28 SCRA 430
311
Supra, Section 19, Rule 3
312
Supra, Section 2, Rule 19
313
Supra, Section 3, Rule 19
314
Barangay Matictic v Elbinias, 148 SCRA 83
315
Foster-Gallego v Galang, 435 SCRA 275
48
The clerk of court, under the direct supervision of a judge, shall keep a calendar for PRE-TRIAL,
TRIAL, TRIALS THAT WERE ADJOURNED OR POSTPONED, THOSE WITH MOTIONS TO SET
FOR HEARING. In fixing the calendar, PREFERENCE IS GIVEN TO HABEAS CORPUS, ELECTION
CASES, SPECIAL CIVIL ACTIONS, AND THOSE REQUIRED BY LAW. 316

ASSIGNMENT OF CASES

The assignment of cases shall always by raffle done in open session of which adequate notice shall
be given to afford interested parties the opportunity to be present.317 The purpose is to obviate public
suspicion regarding assignment of cases to predetermined judges.318

RULE 21 – SUBPOENA

WHAT IS A SUBPOENA

A process directed to a person requiring him to attend and testify at the hearing or trial of an action, or
at any investigation conducted by competent authority, or the taking of his deposition

KINDS OF SUBPOENA

The kinds of subpoena are: (a) SUBPOENA AD TESTIFICANDUM if it directs and requires a person
to attend and testify, OR (b) DUCES TECUM if it requires him to bring books/documents/or other
things under his control.319

BY WHOM ISSUED

A subpoena is issued by (a) The court before whom the witness is required to attend (b) The court
where deposition is to be taken (c) Officer or body authorized by law to do so in connection with
investigations that it may conduct (d) Any justice of the Supreme Court/Court of Appeals in any case
or investigation pending within the Philippines320

1.A request by a party for the issuance of a subpoena does not require notice to other parties to the
action.321

2. In taking depositions, the clerk of court shall not issue a subpoena duces tecum without a court
order.322

3. Absent any proceeding, suit or action, commenced or pending before a court, a subpoena may not
issue.323

WHEN IS A WITNESS NOT BOUND BY A SUBPOENA

1. Witness resides more than 100 kilometers from his residence to the place where he is to testify by
the ordinary course of travel.324 This is also called the VIATORY RIGHT OF A WITNESS or the right
not to be compelled to testify in a civil case if he lives more than 100 kilometers from his residence to
the place where he is to testify by ordinary course of travel.

1.1 If the viatory right is invoked, a witness can still be compelled to testify by the taking of his
deposition in a place within 100 kilometers from where he resides, observing the following steps: (a)
Party desiring to take deposition shall give reasonable notice in writing to every other party in the

316
Supra, Section 1, Rule 20
317
Supra, Section 2, Rule 20
318
Ang v Bello, 163 SCRA 358
319
Supra, Section 1, Rule 21
320
Supra, Section 2, Rule 21
321
Adorio v Bersamin, 273 SCRA 217
322
Supra, Section 5, Rule 21
323
Collado v Bravo, 356 SCRA 411
324
Supra, Section 10, Rule 21
49
action stating the TIME, PLACE AND NAME/ADDRESS OF PERSON WHOSE DEPOSITION IS TO
BE TAKEN. There should be proof of service of the notice (b) Proof of service of notice to take
deposition shall be presented to the clerk of court of the place where deposition is to be taken (c) On
the basis of such proof of service, the clerk upon authority and under seal of the court, shall issue the
subpoena BUT a subpoena duces tecum cannot be issued without an order of the Court (4)
Subpoena is to be served on witness whose deposition is to be taken.325

2. Witness is a detention prisoner, if no permission of the court in which his case is pending is
obtained or if the witness is a prisoner sentenced to death, reclusion perpetua or life imprisonment
and is confined in a penal institution, if authority of the SC to bring out the prisoner has not been
obtained. The court should examine and study the application properly to determine if it is being
made for a valid purpose.326

FORM AND CONTENTS OF SUBPOENA

A subpoena must contain the following: (a) Name of the court (b) Title of action/investigation AND IS
TO BE DIRECTED to the person whose attendance is required. IF DUCES TECUM, in addition, it
must contain a reasonable description of the books, documents, things demanded which is must
appear to the Court to be PRIMA FACIE relevant.327

WHAT ARE THE GROUNDS TO QUASH A SUBPOENA

1. If DUCES TECUM, it may be quashed on the following grounds: (a) It is unreasonable and
oppressive (b) Relevancy of the books, documents or things do not appear (c) Person in whose
behalf subpoena is issued fails to advance the reasonable costs of the production thereof (d) The
witness fees and kilometrage allowed by the rules were not tendered when subpoena was served.
Under A.M. No. 04-2-04-SC, witness fees shall be PHP 200.00 a day inclusive of all expenses

2. If AD TESIFICANDUM, it may be quashed on the following grounds: (a) W itness is not bound by
the subpoena (b) Witness fees and kilometrage allowed by rules were not tendered when the
subpoena was served.328

HOW IS A SUBPOENA SERVED

In the same manner as personal or substituted service of summons, original is to be exhibited and
delivered to person on whom it is served – tendering the fees for one day attendance at the
kilometrage allowed by Rules EXCEPT if subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof. Tender must be made so as to allow the witness a
reasonable time for preparation or travel to the place of attendance.329

1. If DUCES TECUM, the cost of production of books, papers or things must also be tendered.

2. Under A.M. No. 04-2-04-SC, the fee for service of summons is PHP 100.00 per witness.

CAN A PERSON BE COMPELLED TO APPEAR AND TESTIFY WITHOUT A SUBPOENA

Yes, when he is PRESENT IN COURT, in which event it is as if he were in attendance upon


subpoena issued by the Court.330

WHAT ARE THE CONSEQUENCES OF DISOBEDIENCE TO A SUBPOENA

The consequences of disobedience are: (a) He may be arrested and brought before the Court where
his attendance is required, the cost of warrant and seizure shall be paid by the witness if the Court

325
Supra, Section 5, Rule 21
326
Supra, Section 2, Rule 21
327
Supra, Section 3, Rule 21
328
Supra, Section 4, Rule 21
329
Supra, Section 6, Rule 21
330
Supra, Section 7, Rule 21
50
finds disobedience to be willful and without just excuse. 331 (b) Citation in contempt by the court from
which the subpoena is issued. It not issued by a Court, then in accordance with the applicable rule /
law.332

RULE 22 – COMPUTATION OF TIME

HOW COMPUTED

The day of the act / event from which the designated period of time begins to run is excluded and
date of performance included. If the last day falls on a Saturday, Sunday or legal holiday in the place
where the Court sits, the time shall not run until the next working day.333

EFFECT OF INTERUPTIONS

Allowable period after interruption shall start to run on the day after, notice of the cessation of the
cause thereof. The day of the act that caused cessation shall be excluded in the computation of the
period.

1.RULE ON COMPUTATION OF TIME DOES NOT APPLY TO PRESCRIPTION OF OFFENSES or


PRESCRIPTION OF CAUSES OF ACTION. Hence, if the last day falls on a Saturday, Sunday or
legal holiday, it prescribes on the said date.

RULES 23 TO 29 – MODES OF DISCOVERY

WHAT IS DISCOVERY

The methods used by the parties to a civil action to obtain information held by the other party that is
relevant to the action.

PURPOSES OF DISCOVERY

The purposes of resort to discovery are: (a) It is a device to narrow down / clarify the basic issues
between the parties (b) It is a device to ascertain the facts relative to the issues

WHAT ARE THE MODES OF DISCOVERY

The modes of discovery (a) Deposition pending action 334 (b) Deposition before action or pending
appeal 335(c) Interrogatories to parties 336 (d) Request for admission by adverse party337 (e) Production
or inspection of documents / things 338 (f) Physical / mental examination of persons339

WHEN CAN DEPOSITIONS PENDING ACTIONS BE TAKEN

1. WITH LEAVE OF COURT, after jurisdiction has been acquired / obtained over any defendant or
over property which is the subject of the action as the issues are not yet joined and disputed facts are
not yet clear OR if a person is confined in a prison with LEAVE OF COURT ONLY, on such terms that
the Court may prescribe.

2. WITHOUT LEAVE OF COURT, after an answer has been


served. 340

331
Supra, Section 8, Rule 21
332
Supra, Section 9, Rule 21
333
Supra, Section 1, Rule 22
334
Supra, Rule 23
335
Supra, Rule 24
336
Supra, Rule 25
337
Supra, Rule 26
338
Supra, Rule 27
339
Supra, Rule 28
340
Supra, Section 1, Rule 23
51
WHOSE DEPOSITION MAY BE TAKEN, HOW TAKEN, BY W HOM

Any person, whether a party or not, upon ORAL EXAMINATION OR WRITTEN INTERROGATORIES
upon the initiative of ANY PARTY.

SCOPE OF A DEPOSITION

GENERALLY, the deponent may be examined regarding any matter, NOT PRIVILEGED, which is
RELEVANT TO THE SUBJECT OF THE PENDING ACTION whether it RELATES TO CLAIM OR
DEFENSE of any other party. INCLUDING THE EXISTENCE, DESCRIPTION, NATURE, CUSTODY,
CONDITION, LOCATION of any BOOKS, DOCUMENTS OR OTHER TANGIBLE THINGS and the
IDENTITY and LOCATION of persons having knowledge of relevant facts.341

1. The limitation as to the taking and scope of a deposition after notice is served for its taking by oral
examination, UPON MOTION SEASONABLY FILED by a PARTY OR of the PERSON to be
examined, and for GOOD CAUSE shown, the court in which the action is pending may order: (a)
Deposition not be taken (b)It be taken only at some designated place other than that stated in the
notice (c)It be taken only on written interrogatories (d) That certain matters shall not be inquired
into (e) That scope of the examination shall be held without anyone present except the parties to the
action, and their officers of counsel (f)That after depositions are sealed, they shall be opened only by
order of the court (g)That secret processes, developments or research need not be disclosed (h)That
parties shall simultaneously file specified documents or information enclosed in sealed envelopes to
be opened as directed by the Court (i) That court may make any order which justice requires to
protect the party or witnesses from annoyance embarrassment or oppression.342

2. During the taking of the deposition, it shall be taken subject to the following limitations:

2.1 During the taking of the deposition, on motion or petition of any party or the deponent upon
showing that the examination is being conducted in BAD FAITH on IN SUCH MANNER as
UNREASONABLY to ANNOY EMBARRASS OR OPPRESS the DEPONENT, or a party – the
COURT where the action is pending or the RTC of the place where deposition is being taken may
ORDER the officer taking the examination to cease forthwith – or limit the scope as provided in
Section 16.

2.2 If terminated, it shall be resumed thereafter only upon order of the Court in which the action is
pending. UPON DEMAND of the OBJECTING PARTY/DEPONENT, the taking shall be suspended
for the time necessary to make a notice for an order. In granting/refusing such order, the court may
impose upon either party or upon the witness the requirement to pay costs/expenses as the Court
may deem reasonable.343

BEFORE W HOM MAY DEPOSITIONS BE TAKEN

1. WITHIN THE PHILIPPINES: a judge, notary public, or person authorized to administer oaths, at any
time or place if so stipulated in writing by the parties.344

2. IN FOREIGN COUNTRIES: On notice before a secretary of the embassy or legation or the


diplomatic minister and his staff, consul general, consul, vice consul or consular agent of the Republic
of the Philippines, or before such person or officer as may be appointed by commission or letters
rogatory.345

2.1 A Commission is an instrument issued by a court of justice or other competent tribunal to


authorize persons to take a deposition or do any other act by authority of such court or tribunal. A
Commission is addressed to officers designated by name or descriptive title.

341
Supra, Section 2, Rule 23
342
Supra, Section 16, Rule 23
343
Supra, Section 18, Rule 23
344
Supra, Sections 10 and 14, Rule 23
345
Supra, Sections 11, 12, and 14, Rule 23
52
2.2 Letters Rogatory is an instrument sent in the name and by authority of a judge or court to
another, requesting the latter to cause to be examined, upon interrogatories filed in a case pending
before the former, a witness who is within the jurisdiction of the judge or court to whom such letters
are addressed. Letters Rogatory are addressed to a judicial authority in a foreign country AND may
be applied for and issued only after a commission has been returned unexecuted.

WHO ARE DISQUALIFIED TO TAKE DEPOSITIONS


th
Person who is a relative within the 6 degree of consanguinity / affinity OR employee or counsel of
any of the parties OR relative within the same degree or employee of counsel OR is financially
interested in the action.346

KINDS OF DEPOSITIONS – HOW TAKEN

A. DEPOSITION UPON ORAL EXAMINATION

1. Giving of reasonable notice in writing to every other party to the action, which must state the time /
place of the taking of the deposition and the name and address of the person to be examined, if
known, IF NOT KNOWN, a general description sufficient to identify him or the particular class or
group to which he belongs. ON MOTION OF PARTY UPON W HOM NOTICE IS SERVED, the
COURT, for CAUSE, may ENLARGE OR SHORTEN THE TIME. 347

2. Officer taking the deposition shall put the witness under oath and shall personally, or by someone
acting under his direction and his presence record the testimony of the witness stenographically
unless the parties agree otherwise.

All objections as to QUALIFICATION OR OFFICER TAKING DEPOSITION, MANNER OF TAKING


EVIDENCE PRESENTED, CONDUCT OF PARTIES OR ANY OTHER OBJECTION – shall be
NOTED – ANY EVIDENCE OBJECTED TO SHALL BE TAKEN SUBJECT TO OBJECTIONS.
PARTIES SERVED WITH NOTICE, IN LIEU OF PARTICIPATING IN THE TAKING OF
DEPOSITION, may submit written interrogatories – which the officer taking the deposition shall
propound to the witness and record the answers VERBATIM.348

3. After the taking of the deposition – and testimony is transcribed – it is submitted to the witness for
examination and shall be read to or by him, unless such is waived by the witness and the parties. IF
THERE ARE CHANGES – IN FORM / SUBSTANCE – which the witness desires to make – it shall be
entered upon the deposition by the officer with a statement as to the reason given by the witness as
why they are being made. The deposition is then SIGNED BY THE W ITNESS, unless the parties by
stipulation waive the signing, or the witness is ill OR cannot be found OR refuses to sign.

IF NOT SIGNED, officer shall sign it and state on the record why it was not signed together with
reasons. If there is refusal to sign, the EFFECT is that the deposition then may be used fully as
though signed, unless on a motion to suppress under Sec 29 (f) {errors or irregularities in
preparation}, the Court holds that the reason for refusal to sign require rejection of the deposition in
whole or in part.349

4. Once signed, the officer shall certify on the deposition that the witness was duly sworn to by him
and that the deposition is a true record of the testimony of the witness. He shall then securely seal the
deposition in an envelope endorsed with the title of the action and marked “deposition of _” to
be promptly FILED W ITH THE COURT WHERE ACTION IS PENDING – OR SENT BY
REGISTERED MAIL TO THE CLERK THEREOF FOR FILING. 350

346
Supra, Section 13, Rule 23
347
Supra, Section 15, Rule 23
348
Supra, Section 17, Rule 23
349
Supra, Section 19, Rule 23
350
Supra, Section 20, Rule 23
53
5. Notice of filing shall then promptly be given by the officer to all parties 351 and upon payment of
reasonable charges, he is to furnish copies of the deposition to any party or the deponent. 352

EFFECT OF NON-APPEARANCE

1. IF PARTY GIVING NOTICE FAILS TO APPEAR AND ANOTHER ATTENDS IN PERSON OR BY


COUNSEL, the Court may order the party giving notice to pay reasonable expenses incurred to
attend, including reasonable attorney’s fees. 353

2. IF PARTY GIVING NOTICE DOES NOT SERVE SUBPOENA AND WITNESS DOES NOT
APPEAR, Court can order party giving notice to pay reasonable expenses for attendance plus
attorney’s fees to a party who appears in person or by counsel354 (Section 24)

B. DEPOSITION UPON WRITTEN


INTERROGATORIES

1. Party desiring to take the deposition upon WRITTEN INTERROGATORIES shall serve them upon
every other party with notice stating: (1) name and address of the person who will answer them (2)
descriptive title and address of the person who will take the deposition (3) W ithin 10 days, party
served may serve cross-interrogatories on the party proposing to take the deposition (4) W ithin 5
days thereafter, the latter may serve re-direct INTERROGATORIES upon the party serving cross–
interrogatories (5) within 3 days after being served of re-direct INTERROGATORIES, a party may
serve re-cross interrogatories upon party proposing to take deposition.355

2. A copy of the notice and copies of all interrogatories shall be delivered by the party taking the
deposition to officer designated in the notice, who shall proceed promptly in the manner provided by
Sections 17, 19 and 20 to take the testimony of the witness in response to the interrogatories and to
prepare, certify, and file / mail the deposition attaching copies of the notice and interrogatories.356

3. Officer must promptly give notice of filing / and may furnish copies to parties and deponent upon
payment of reasonable charges.357

NOTE: that Sections 15, 16 and 18 are applicable and that by motion, it can be asked that the
deposition be upon oral examination.

4. SEE: Gerochi vs. Dept of Energy GR 159796, April 5, 2005

DISTINGUISHED FROM INTERROGATORIES TO PARTIES UNDER RULE 25

An interrogatory under Rule 25 is allowed UNDER THE SAME CONDITIONS AS SPECIFIED IN


SECTION 1, RULE 23 as to when it is to be had and is for the purpose of enabling any party desiring
to elicit material facts / relevant facts from any ADVERSE PARTY by the filing and service upon the
latter of a written interrogatory to be answered by the party served or if party is public / private
corporation or a partnership / association by any officer thereof competent to testify in its behalf.358

HOW AND WHEN ANSWERED

Responses, which must be signed and sworn to, must be filed within 15 days from service, unless the
Court on motion and for good cause shown extends or shortens the time359

351
Supra, Section 21, Rule 23
352
Supra, Section 22, Rule 23
354
Supra, Section 24, Rule 23
355
Supra, Section 25, Rule 23
356
Supra, Section 26, Rule 23
357
Supra, Section 27, Rule 23
358
Supra, Section 1, Rule 25
359
Supra, Section 2, Rule 25
54
353
Supra, Section 23, Rule 23

354
Supra, Section 24, Rule 23
355
Supra, Section 25, Rule 23
356
Supra, Section 26, Rule 23
357
Supra, Section 27, Rule 23
358
Supra, Section 1, Rule 25
359
Supra, Section 2, Rule 25
55
CAN THEY BE OBJECTED TO

Yes, objections may be presented to the court within 10 day after service of notice as in the case of a
motion, answers shall then be deferred until objections are resolved, which shall be as early a time as
is practicable.360

HOW MANY INTERROGATORIES

No party may, without leave of court, serve more than one set of interrogatories to be answered by
the same party.361

SCOPE AND USE

It may relate to any matters that can be inquired into under Section 2, Rule 23 and the answers used
for the same purpose provided for by Section 4, Rule 23362

EFFECT OF FAILURE TO SERVE W RITTEN INTERROGATORIES

Unless thereafter allowed by the court for good cause shown and to prevent failure of justice, a party
not served with written interrogatories may not be compelled by the adverse party to give testimony in
open court or give a deposition pending appeal.363

FURTHER DISTINGUISHING DEPOSITION UPON WRITTEN INTERROGATORIES AND WRITTEN


INTERROGATORIES

1. Any person, party or not can be required to or compelled to give a deposition upon written
interrogatories, while only the adverse party may be compelled to answer a written
interrogatory.

2. A deposition upon written interrogatory is taken before an officer, while an adverse party without
appearing before an officer shall answer them in writing and under oath.

C. DEPOSITIONS BEFORE ACTION OR PENDING APPEAL UNDER RULE 24 (IN


PERPETUAM REI MEMORIAM)

HOW IS A DEPOSITION BEFORE ACTION OBTAINED

By the filing of a verified petition by a person desiring to perpetuate his testimony or that of any
person in relation to any matter cognizable in any court in the Philippines in the Court in the place of
residence of the expected adverse party. 364

1. The CONTENTS OF THE PETITION which shall be entitled in the name of the petitioner and
should show: (a) That petitioner expects to be a party to an action in a Court in the Philippines but is
presently unable to bring it or cause it to be brought (b) The subject matter of the expected action and
his interest therein (c) The facts that he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it (d) The names or description of the person he expects will be
adverse parties and their addresses so far as known (e) The names and addresses of the persons to
be examined and the substance of the testimony which he expects to elicit from each AND SHALL
THEN ASK FOR AN ORDER authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their testimony.365

2. To Perpetuate means to preserve or make available testimony for later use at a trial by means of
deposition.

360
Supra, Section 3, Rule 25
361
Supra, Section 4, Rule 25
362
Supra, Section 5, Rule 25
363
Supra, Section 6, Rule 25
364
Supra, Section 1, Rule 24
365
Supra, Section 2, Rule 24
55
WHAT IS DONE AFTER PETITION IS COMPLETED

Petitioner shall serve a notice upon each person named in the petition as an expected adverse party,
together with a copy of the petition stating that: he will apply to the Court at a time and place stated
therein, for the order described in the petition. At least 20 days before the date of the hearing, the
Court shall cause notice thereof to be served on the parties and prospective deponents in the manner
provided for service of summons.366

WHAT WILL OCCUR THEREAFTER

If the Court is satisfied that the perpetuation of testimony may prevent a failure of justice or delay of
justice, it shall make an order designating or describing the persons whose depositions are to be
taken, specifying the subject and whether it will be upon oral execution or written interrogatories
under Rule 23.367For purposes of applying Rule 23, references to the court in which the action is
pending shall be deemed to refer to thecourt in which petition for such deposition is filed. 368

USE OF DEPOSITION

Deposition taken under the Rule or although not so taken, it would be admissible in evidence, it may
be used in any action involving the same subject matter contained in petition subsequently brought in
accordance with Sections 4 and 5 of Rule 23.369

WHEN DEPOSITIONS PENDING APPEAL ARE TAKEN

If appeal is taken from a judgment of a Court including the CA in proper cases or before the taking of
an appeal if the time therefore has not yet expired. The Court in which judgment was rendered may
allow taking of depositions of witnesses to perpetuate their testimony for use in the event of further
proceedings in the said Court.

HOW TAKEN

Party makes a motion in said Court for leave to take depositions – upon the said notice and service
thereof as if the action was pending therein – MOTION states (1) name and addresses of persons to
be examined and substance of testimony to be elicited (2) reasons for perpetuating testimony.

If Court finds that it is proper to avoid failure or delay of justice – it may allow the depositions to be
taken and used in the same manner and under same conditions as prescribed for depositions in
pending actions.370

EFFECT OF TAKING DEPOSITIONS

A party shall not be deemed to make a person his own witness by taking his deposition.371

EFFECT OF USING DEPOSITIONS

If introduced in evidence in whole/part for any purpose OTHER THAN contradicting or impeaching the
deponent, such makes the deponent the witness of the party introducing the deposition BUT it does
not apply to the use of an adverse party of a deposition as described in Par. (b) Section 4 of Rule
23.372

USE OF DEPOSITION

366
Supra, Section 3, Rule 24
367
Supra, Section 4, Rule 24
368
Supra, Section 5, Rule 24
369
Supra, Section 6, Rule 24
370
Supra, Section 7, Rule 24
371
Supra, Section 7, Rule 23
372
Supra, Section 8, Rule 23
56
When can it be used? – at the trial, upon the hearing of a motion or an interlocutory proceeding –
ANY PART or ALL OF A DEPOSITION, so far as admissible under the rules of evidence may be
used AGAINST any party who was present, or represented at the taking or had due notice thereof, in
ACCORDANCE WITH THE FOLLOWING:

a. May be used by any party for the purpose of contradicting or impeaching the testimony of deponent
as a witness

b. Deposition of a party or any one who at the time of the taking was an officer, director, or managing
agent of a public/private corporation partnership/association which is a party may be used by an
adverse party for any purpose

c. Deposition of a witness, party or not, may be used by any party for any purpose if the court finds
that: (1) witness is dead (2)witness resides more than 100 kilometers from the place of trial/hearing
or is out of the Philippines UNLESS, it appears that his absence is procured by the party offering the
deposition (3) witness is unable to attend/testify because of age, sickness, infirmity or imprisonment
(4) party offering the deposition has been unable to procure the attendance of the witness by
subpoena (5) upon application and notice, exceptional circumstances exist as to make it desirable in
the interest of justice and with due regard to the importance of presenting the testimony of witness in
open court, to allow the deposition to be used.

d. If only a part of the deposition is offered in evidence by a party, the adverse party may require him
to introduce all of which is relevant to the part introduced, and any party may introduce the other
parts.373

WHEN DOES THE DEPOSITION BECOME EVIDENCE OR WHEN CAN IT BE USED AS


EVIDENCE

1. If the deponent is a party, the opposing party can use it to prove his claim or defense. It may also
be used to impeach or contradict the party deponent if he testifies.

2. If the deponent is only a witness, his deposition can only be used to impeach/contradict him if he
testifies BUT if Paragraph (c ) of Section 4 applies, it can be used for any purpose.

WHEN DEPOSITIONS ARE PRESENTED – CAN THEY BE OBJECTED TO- WHEN

Subject to the provisions of Section 29, OBJECTION may be made at the TRIAL or HEARING to
receive in evidence any deposition or part thereof for any reason which would require the exclusion of
the evidence if the witness were then present and testifying.

1. As to notice – are waived unless written objection is promptly served upon the party giving the
notice

2. As to disqualification of the officer is waived unless make before the taking of the deposition or as
soon thereafter as the disqualification becomes known or could be discovered with reasonable
diligence.

3. As to competency relevancy of evidence – objections as to competency of the witness or


competence, relevancy or materiality of the evidence/testimony – are not waived by the failure to
make them before or during the taking of the deposition – UNLESS the ground of the objection is one
which a right have been OBVIATED or REMOVED IF PRESENTED AT THAT TIME

4. As to oral examination and other particulars – Errors and irregularities occurring at the oral
examination in the manner of taking, the form of the questions and answers, in the oath/affirmation, or
the conduct of the parties and errors of any kind which might be obviated, removed or cured it
promptly, prosecuted, are WAIVED, unless reasonable objection thereto is made at the taking of the
deposition.

373
Supra, Section 4, Rule 23
57
5. As to from of written interrogatories – objections are waived unless served in writing upon party
propounding them within the time allowed for the serving of succeeding cross or other interrogatories
and within 3 days after service of the last interrogatory authorized.

6. As to manner of preparation – objections as to the manner in which the testimony is transcribed, or


the deposition is prepared, signed certified, sealed, indorsed, transmitted, filed, or otherwise dealt
with by the officer are WAIVED, unless a motion to suppress the deposition or part thereof is made
with reasonable promptness after such defect is, or with due diligence, might have been
ascertained.374

HOW IS A DEPOSITION ACTUALLY USED AND ONCE A DEPOSITION HAS BEEN USED, WHAT
CAN ADVERSE/ OTHER PARTIES DO

1. Generally, the deponent is called to testify. Hence he may be examined/cross-examined as


375
permitted at the trial under Sections 3 to 18, Rule 132.

2. At the trial or hearing, any party may rebut any relevant evidence contained in a deposition
whether introduced by him or by any other party.376 This is called rebutting a deposition.

IS USE OF THE DEPOSITION LIMITED TO THE ACTION/PENDING ACTION WHEN IT WAS


TAKEN

No, because substitution of parties does not affect the right to use depositions previously taken, when
the action is DISMISSED and another action involving the same subject is afterward brought between
the same parties or their representatives or successors in interest, all depositions lawfully taken and
duly filed in the former action may be used in the latter as if originally taken therefor.377

RULE 26 – REQUESTS FOR ADMISSIONS

WHAT IS A REQUEST FOR ADMISSION

It is a written request for the (1) admission of the genuiness of any material and relevant document
described in and exhibited with the request or (2) the truth of any material or relevant matter of fact
set forth in the request. A party may file and serve a request for admission upon any other party at
any time after the issues have been joined.378

EFFECT OF FILING AND SERVICE UPON ANY OTHER PARTY

Each of the matters of which an admission is requested shall be deemed admitted UNLESS, within a
period designated in the request, which shall not be less than 15 days after service thereof or such
period which the Court will allow on motion, the party served files and serves upon the requesting
party a sworn statement, either denying specifically the matters is setting forth in detail the reason
why he cannot truthfully either admit / deny.

Objections if any shall be submitted to the Court within the period for complying and prior to filing of
the Sworn Statement – compliance is then deferred until objections are resolved which should be
done as early as practicable.379

EFFECT OF ADMISSIONS

It is for the purpose of the pending action only and shall not constitute an admission by him for any
purpose or used against him in any other proceeding380

374
Supra, Section 29, Rule 23
375
Supra, Section 3, Rule 23
376
Supra, Section 9, Rule 23
377
Supra, Section 5, Rule 23
378
Supra, Section 1, Rule 26
379
Supra, Section 2, Rule 26
58
THOUGH any admission, express or implied may be allowed by the court to be withdrawn or
amended upon such terms as may be just.381

EFFECT OF FAILURE TO SERVE

Unless otherwise allowed by the Court for good cause and to prevent failure of justice, a party who
fails to serve a request for admission of material / relevant facts at issue on the adverse party, which
are or ought to be within the latter’s personal knowledge, shall not be permitted to present evidence
on such facts.382

RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS ON THINGS

HOW

On motion of any party showing GOOD CAUSE, the COURT where the action is pending MAY
ORDER, specifying the time, place and manner AND prescribing such terms and conditions as are
just:

1. Any party to produce and permit the inspection, copying, photographing, by or on behalf of a having
party of any designated DOCUMENT, PAPERS, BOOKS, ACCOUNTS, LETTERS,
PHOTOGRAPHS, OBJECTS OR TANGIBLE THINGS – NOT PRIVILEGED – which CONSTITUTE
OR CONTAIN EVIDENCE MATERIAL TO ANY MATTER INVOLVED IN THE ACTION which are in
his possession and control, OR

2. Permit entry upon designated land or other property in his possession / control for the purpose of
INSPECTING, MEASURING, SURVEYING, TAKING PHOTOGRAPHS of the property or any
designated RELEVANT OBJECT or OPERATION thereon. 383

RESORTED TO DETERMINE CONTENTS, STATUS OR PRESERVATION OF THE SAME.

RULE 28 – PHYSICAL / MENTAL EXAMINATION OF PERSONS

WHEN AVAILED OF

In an action in which the MENTAL / PHYSICAL condition of a party is in controversy, a court in its
discretion, can order him to submit to physical / mental examination by a physician.384

1. It can be ordered ONLY upon motion for good cause shown, with NOTICE to the party to be
examined and to all other parties, specifying the time, place, manner, condition and scope of the
examination and person/s by whom it is to be made.385

2. ONCE EXAMINATION IS COMPLETED, the party examined may request that a detailed written
report of the examining physician setting forth his findings / conclusions.

2.1 If requested and delivered, the party causing examination to be made is entitled to request
and receive from examined party a like report of the same mental / physical examination / condition
PREVIOUSLY OR THEREAFTER MADE.

2.2 If request is refused, the court on motion may order delivery by the party examined on such
terms as are just. If the physician fails / refuses to make such report, his testimony may be excluded if
his testimony is offered at trial. 386

380
Supra, Section 3, Rule 26
381
Supra, Section 4, Rule 26
382
Supra, Section 5, Rule 26
383
Supra, Section 1, Rule 27
384
Supra, Section 1, Rule 28
385
Supra, Section 2, Rule 28
386
Supra, Section 3, Rule 28
59
2.3 NOTE a WAIVER OF PRIVILEGE that is caused by requesting and obtaining a report of the
examination ordered or by taking the deposition of the examiner, party examined W AIVES ANY
PRIVILEGE he may have in that action or any other involving the same controversy regarding the
testimony of every other person who has examined or may thereafter examine him in respect of the
same mental / physical examination. 387 This refers primarily to the privilege between doctor and
patient.

RULE 29 – REFUSAL TO COMPLY WITH MODES OF DISCOVERY

1. If he refuses to answer upon being directed to do so or refuses to be sworn, it will constitute


CONTEMPT OF COURT. A citation in contempt shall ensue after the following steps have been
followed or observed:

a. If the party/deponent refuses to answer any question upon oral examination, the deposition may be
completed on other matters or adjourned as the proponent may prefer.

b. The proponent may then apply for an order to compel an answer in the proper court where the
deposition is being taken. This is also applicable to interrogatories.

c. If granted, the court can order that answer be made and if it finds that refusal is without substantial
justification – it may impose upon deponent / counsel advising that no answer be given or both –
reasonable expenses and attorney’s fees in obtaining the order. If denied and the court finds
application was filed without substantial justification proponent / counsel advising application or both
may in the same manner be sanctioned.388

2. Other consequences – (applicable to Sec 1, Rule 29, Rule 27 and Rule 28) the Court may
issue an:

a.order that the matters regarding which the questions are asked, character / description of thing or
land / contents of a paper or physical / mental condition of a party shall be taken to be established in
accordance with the claim of the party obtaining the order.

b.order refusing to allow the disobedient party to support / oppose designated claims / defenses – or
prohibiting him from introducing in evidence the designated things / documents or items of testimony
or from introducing evidence of physical / mental condition.

c. order striking out pleadings or parts thereof or staying proceedings until the order is obeyed,
dismissing the action or proceeding or any part thereof, or rendering judgment by default against the
disobedient party.

d. In lieu or in addition to orders, the disobedient party can be ordered arrested except in relation to a
physical / mental examination.389

OTHER SANCTIONS

1. Expenses on refusal to admit – if requested party serves a sworn denial and party serving request
proves genuineness / truth, he may apply for an order directing the requested party to pay expenses
incurred in making proof plus attorney’s fees. Order is issued except if court finds good reasons for
denial or admissions were of no substantial importance. 390

2. Failure of a party to willfully appear before the officer taking the deposition, after being served with
a proper notice, or fails to serve answers to written interrogatories properly served, court may on
motion and notice: (a)Strike out all or any part of the pleading of that party (b) Dismiss the action /
proceeding / part thereof (c) Enter judgment by default against that party, (d) and ,in its discretion,

387
Supra, Section 4, Rule 28
388
Supra, Sections 1 and 2, Rule 29
389
Supra, Section 3, Rule 29
390
Supra, Section 4, Rule 29
60
order payment of reasonable expenses and attorney’s fees391 BUT no expenses or fees are to be
assessed against the Republic of the Philippines. 392

RULE 30 – TRIAL

NOTICE OF TRIAL

Upon entry of a case in the trial calendar – the clerk shall notify the parties of the date of the trial in
such manner as to ensure receipt of the notice at least 5 days before such date.393

MAY TRIAL BE POSTPONED / ADJOURNED

Courts may adjourn a trial from day to day, and to any stated time – as the expeditious and
convenient transaction of business may require – but it shall have no power to adjourn for a longer
period than one month for each adjournment, nor more than three months in all, except when
authorized in writing by the Court Administrator of the Supreme Court.394

IF MOTION TO POSTPONE IS DUE TO ABSENCE OF EVIDENCE

Can only be granted upon affidavit showing the materiality / relevancy of the evidence and that due
diligence has been used to procure it, BUT, if the adverse party admits the facts to be given in
evidence, or even if he objects or reserves the right to object to their admissibility, the trial shall not be
postponed.395

IF DUE TO ILLNESS OF PARTY OR COUNSEL

May be granted, if it appears upon affidavit or sworn certification that the presence of party / counsel
at the trial is indispensable and that character of illness is such as to render non-appearance
excusable.396

WHAT IS THE ORDER OF TRIAL

Subject to Section 2, Rule 31 on separate trials and unless the court orders for special reasons, it
shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

1. Plaintiff adduces evidence in support of his complaint


rd
2. Defendant adduces evidence in support of his defense, counterclaim, crossclaim and 3 party
complaint
3. Third party defendant, if any, shall adduce evidence of his defense, counterclaim, crossclaim and
th
4 party complaint.
4. Fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them.
5. Parties against whom any counterclaim/crossclaim has been pleaded shall adduce evidence in
support of their defense, in the order prescribed by the Court.
6. The parties may then respectively adduce rebutting evidence, unless the Court, for good reasons
and in the furtherance of justice, permits them to adduce evidence upon their original case.
7. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court
directs the parties to argue or submit memoranda or any further pleadings.
rd
If several defendants or 3 party defendants and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence.397

391
Supra, Section 5, Rule 29
392
Supra, Section 6, Rule 29
393
Supra, Section 1, Rule 30
394
Supra, Section 2, Rule 30
395
Supra, Section 3, Rule 30
396
Supra, Section 4, Rule 30
397
Supra, Section 5, Rule 30
61
MAY THERE BE AN AGREEMENT UPON THE FACTS AND SUBMISSION OF THE CASE FOR
JUDGMENT WITHOUT INTRODUCTION OF EVIDENCE

Yes, provided it be in writing. If the parties agree only on some facts, trial shall be held as to the
disputed facts 398 BUT, no judgment based on stipulation of facts is allowed in legal separation,
annulment of marriage and declaration of nullity. NOTE: that in the same cases, neither is there
judgment by default, judgment on the pleadings, summary judgment, judgment upon confession,
judgment upon compromise, judgment based on stipulation of facts.

WHAT ARE TO BE MADE OF RECORD

All proceedings, including any statement made by the judge with reference to the case, or to any of
the parties, witnesses or counsel shall be made of record in the stenographic notes.399

WHO IS TO RECEIVE EVIDENCE

The judge is required to personally receive the evidence. But in default / ex-parte or when parties
agree in writing it may be delegated to the clerk of court who is member of the bar though he has no
power to resolve objections to any question or admission of exhibits . Such shall be resolved by the
400
court upon submission of his report and transcripts within 10 days from termination of the hearing.

CAN ACTIONS BE SUSPENDED

Actions may be suspended as governed by the provisions of the Civil Code 401: (a)if willingness to
discuss a compromise is expressed by one or both parties (b)if it appears that one of the parties,
before the commencement of an action / proceeding, offered to discuss a possible compromise but
the other party refused the offer.402

RULE 31 – CONSOLIDATION OR SEVERANCE

WHEN CAN CONSOLIDATION TAKE PLACE?

When actions involving a common question of law or fact are pending before the court, it may order
joint hearing or trial of any or all the matters in issue in the actions, it may order all actions
consolidated. Then it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs / delay403

MAY THERE BE CONSOLIDATION ALTHOUGH ACTIONS ARE PENDING IN DIFFERENT


COURTS

Yes, involving the consolidation of civil action WITH criminal action, if filed before criminal action and
trial has not yet commenced.404

PURPOSE OF ALLOW ING CONSOLIDATION

The purpose of allowing consolidation is to avoid multiplicity of suits, guard against oppression or
abuse, prevent delay, clearing of dockets, simplify the work of trial court, save unnecessary expenses
/ costs.

398
Supra, Section 6, Rule 30
399
Supra, Section 7, Rule 30
400
Supra, Section 9, Rule 30
401
Supra, Section 8, Rule 30
402
Civil Code, Article 2030
403
Supra, Section 1, Rule 31
404
Section 1, Rule 111 of the Rules on Criminal Procedure
62
1.NOTE though that if actions involve a common question of law or fact because they arise from a
single cause of action between the same parties, the remedy is dismissal on litis pendentia, not
consolidation.

WHEN CAN SEPARATION TAKE PLACE AND WHAT DOES IT COVER

Covers any claim, cross-claim, counterclaim or third party claim or any separate issue or of any
number of claims, cross-claims, counter claims, third party complaints, or issues in furtherance of
convenience or to avoid prejudice.405

RULE 32 – TRIAL BY COMMISSIONER

WHEN RESORTED TO

Trial by commissioners may be resorted to upon order of the court, which will then refer any or all
issues when: (a)Parties agree in writing and the commissioner may either be agreed upon or
appointed by the Court (b) When parties do not consent, on court’s own motion or upon application of
either party, if may be directed in the following: (1) Trial of an issue of fact requires examination
of a long account (2) The taking of an account is necessary for the information of the court before
judgment or for carrying judgment / or order into effect (3)A question of fact, other than upon the
pleadings arises upon motion or otherwise, in any stage of the case, or for carrying a judgment or
order into effect.406

1. The term commissioner may include a referee, an auditor or examiner407

2. A commissioner is designated or authorized by an ORDER OF REFERENCE– which will specify or


limit his powers, direct him to report only on or upon particular issues or do or perform particular acts,
receive or report evidence only and fix date for beginning / closing hearings and for the filing of the
report.

2.1 He shall then have and exercise the power to: (a)Regulate the proceeding before him (b)Do
all acts and take all measures necessary or proper for the efficient performance of his duties upon the
order (c)Issue subpoenas (d) Swear witnesses (e)Unless otherwise provided, rule upon the
admissibility of evidence408

3. THE TRIAL / HEARING SHALL PROCEED IN ALL RESPECTS AS IT WOULD BE HELD IN


COURT.

PROCEDURE

1. Commissioner takes oath and be sworn to a faithful and honest performance of his duties409

2. Upon receipt of the Order of Reference, and unless otherwise stipulated he shall forthwith set a
time and place for the first meeting of the parties and counsel within 10 days after the date of the
order of reference, and shall notify parties / counsel410

3. If parties / counsel fail to appear, he may proceed ex-parte or in his discretion, adjourn the
proceedings, giving notice to the absent party or counsel of the adjournment411

4. He shall avoid delay as he is duty bound to proceed with all reasonable diligence. Either party on
notice to other parties and the commissioner may apply for a court order to expedite proceedings /
report412

405
Supra, Section 2, Rule 31
406
Supra, Section 1, Rule 32
407
Supra, Section 2, Rule 32
408
Supra, Section 3, Rule 32
409
Supra, Section 4, Rule 32
410
Supra, Section 5, Rule 32
411
Supra, Section 6, Rule 32
63
5. If witness refuses to obey a subpoena or give evidence. It shall constitute contempt of the
appointing court 413

6. Upon completion of trial / hearing / proceeding – he shall file with the court has report in writing
upon the matters submitted to him by the order of reference. When powers are not specified or
limited, he shall set forth his findings of fact and conclusions of law in his report. He shall also attach
all exhibits, affidavits, depositions, paper and transcripts of the testimonial evidence given414

7. Notice is then given by the clerk to the parties of the filing of the report, they shall then be allowed
10 days within which to signify objections to the findings in the report, is so desired.

7.1 NOTE: Objections to the report based on grounds available to the parties during the
proceedings before the commissioner, other than as to the findings / conclusions, shall not be
considered unless made before the commissioner.415

8. Upon expiration of the period, the report shall be set for hearing, after which the court shall issue an
order – adopting, modifying, or rejecting the report in whole or in part or recommitting it with
instructions or requiring the parties to present further evidence to the commissioner416

9. If the parties stipulate that the commissioner’s findings of facts shall be final, only questions of law
shall be thereafter considered. 417

9.1 Note that the findings of the commissioner are merely advisory and are not absolutely binding
upon the court.418

EXPENSES / COMPENSATION

They shall be reasonable as warranted by the circumstances and are to be taxed as costs against the
defeated party or apportioned as justice requires419

WHEN REFERENCE TO COMMISSIONERS IS REQUIRED BY THE RULES

Reference to commissioners is required in the following cases: (a)Expropriation under Rule 67 to


determine just compensation (b)Partition under Rule 69, when parties cannot agree as to the manner
of partition.

RULE 33 – DEMURRER TO THE EVIDENCE

WHO FILES AND W HEN FILED

The defendant is the party who may move for the dismissal of the action after presentation by the
plaintiff of evidence ON THE GROUND that upon the facts and the law, plaintiff has shown no right to
relief.420

EFFECTS OF FILING AND RESOLUTION

1. If granted, the action is dismissed, BUT if appealed and reversed, he loses his right to prevent
evidence and judgment is rendered in favor of the plaintiff421

412
Supra, Section 8, Rule 32
413
Supra, Section 7, Rule 32
414
Supra, Section 9, Rule 32
415
Supra, Section 10, Rule 32
416
Supra, Section 11, Rule 32
417
Supra, Section 12, Rule 32
418
Eternal Gardens Memorial Park Corporation v Court of Appeals, 282 SCRA 553
419
Supra, Section 13, Rule 32
420
Supra, Section 1, Rule 33
421
Quebral v Court of Appeals, 252 SCRA 353
64
1.1 An order dismissing a case for insufficiency of evidence is a judgment on the merits, it is
imperative that it be a reasoned decision and distinctly stating therein the facts and the law on which
it is based.422

2. If denied, defendant may present his evidence as it does not constitute a waiver of right to do so.

3. It is an error on the part of the Court of Appeals to order REMAND, if dismissal is elevated to it on
appeal, it must decide on the evidence adduced by the plaintiff.423

DISTINGUISHED FROM CRIMINAL CASES

(a) In both civil and criminal actions, the basis for both is the insufficiency of evidence. (b) In a civil
action, dismissal by demurrer is by motion only, while in a criminal action, dismissal by demurrer is
upon the court’s initiative or motion giving the prosecution an opportunity to be heard. (c) In a civil
action, leave is not required prior to filing, while in a criminal action leave may / may not be obtained.
If obtained – no waiver of right to present evidence if denied and if there is no leave, it is a waiver
(d) In a civil action, if granted, plaintiff’s remedy is appeal, while in a criminal action, if granted, there
is no appeal as such will constitute double jeopardy.

RULE 34 – JUDGMENT ON THE PLEADINGS

JUDGMENT ON THE PLEADINGS

Can be had if the ANSW ER fails to tender an issue or otherwise admits the material allegations of the
complaint 424

1. There is no MOTU PROPIO RENDITION OF JUDGMENT as it is always by motion.

2. An answer fails to tender an issue when it fails to comply with the requirements of specific denial or
is deemed to have admitted the allegations in the complaint425

3. An answer admits the material allegations when it expressly confesses the truthfulness thereof or
where it omits to deal with them all.

4. NOTE that when an answer raises factual issues involving damages, it is not proper to render
judgment on the pleadings as presentation of evidence is required.

WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS

Only the plaintiff in original complaint, or of the counter-claim, or of the cross claim, or of the third
party complaint may so move for judgment on the pleadings.

WHEN NOT ALLOWED

Judgment on the pleadings is not allowed in cases of: (a)Declaration of nullity of marriage (b)
Annulment of marriage (c) Legal separation. In these cases, the plaintiff is required to prove the
material facts regardless of whether the answer tenders an issue.

RULE 35 – SUMMARY JUDGMENT

WHAT IS SUMMARY JUDGMENT

Is a devise for weeding out sham claims or defenses at an early stage of the litigation thereby
avoiding the expense / loss of time involved in a trial. Its very object is to separate what is formal or

422
Nicos Industrial Corporation v Court of Appeals, 206 SCRA 127
423
Radiowealth Finance Company v Del Rosario, 335 SCRA 288
424
Supra, Section 1, Rule 34
425
Supra, Sections 8,9 and 11, Rule 8
65
pretended in denial or averment from what is genuine and substantial so that only the latter may
subject a suitor to the burden of trial.

1.This is also known as ACCELERATED JUDGMENT 426

WHO MAY MOVE FOR SUMMARY JUDGMENT AND WHEN

Either plaintiff or defendant may move for a summary judgment:

1. If plaintiff or claimant (of original complaint / counterclaim / cross-claim), he may file the motion at
any time after the pleading in answer to his claim has been filed on the ground that although there is
an apparent issue, the same is SHAM / FALSE427 .Example: Answer admits obligation but states that
the amount is wrong or less than that claimed. If plaintiff has proof that there is written
acknowledgment that as of a date or period prior to that of the filing, the defendant was aware of the
true amount, there can be summary judgment.

2. If movant is the defending party, he may file the motion at any time before or after he files his
answer on the ground that plaintiff’s claim against him is SHAM or FALSE 428

3. An issue is sham or false if it is not genuine. GENUINE means that the issue of fact is one that calls
for the presentation of evidence.429

4. In either case, the motion must be filed along with supporting affidavits, depositions or
admissions.

5. The PROCEDURE for the filing and resolution of a motion for summary judgment is as follows:

1. Plaintiff/Defendant serves on the defendant/plaintiff a copy of the motion at least 10 days before
the date of hearing specified in the motion.

2. The defendant/plaintiff MAY serve opposing affidavits, depositions or admissions at least 3 days
before the date of the hearing.

3. Court hears the


motion.

4. If after hearing, it finds that the motion filed by PLAINTIFF justified, thus there is no genuine issue
as to any material fact, it will render summary judgment for the plaintiff. If not, it will deny, set the case
for pre-trial, then trial. If filed by the defendant and is justified, the complaint is dismissed, otherwise
the case proceeds with the filing of answer or pre-trial is set and conducted.

FORM OF AFFIDAVITS / SUPPORTING DOCUMENTS

1. They shall be made on personal knowledge, setting forth such facts as would be admissible in
evidence and shall show affirmatively that the affiant is competent to testify to the matters stated
therein. Certified copies of all papers / parts thereof shall be attached and served therewith.430

2. If affidavits have been determined to the satisfaction of the court that they are presented in bad faith
or solely for the purpose of delay, the Court may forthwith order the offending party to pay reasonable
expenses which may have been incurred by the other party, including attorney’s fees. It may also find
/ adjudge, after hearing, that attending party / counsel are guilty of contempt.431

EFFECT OF THE RENDITION OF SUMMARY JUDGMENT

426
Monterey Foods Corporation v Eserjose, 410 SCRA 627, Puyat v Zabarte, 352 SCRA 738
427
Supra, Section 1, Rule 35
428
Supra, Section 2, Rule 35
429
Excelsa Industries v Court of Appeals, 247 SCRA 560
430
Supra, Section 5, Rule 35
431
Supra, Section 6, Rule 35
66
1. The aggrieved party may appeal the summary judgment as such is final judgment as defined by
Section 1, Rule 41.

2. IF DENIED, it is not appealable as order of denial of motion is interlocutory THOUGH certiorari may
lie if the rendering of a summary judgment is clear, plain and patent but the court refuses or declines
to render it.

WHEN CAN THERE BE A PARTIAL SUMMARY JUDGMENT

When the Court finds that a judgment cannot be rendered upon the whole case or for all the reliefs
because there are controverted facts which require trial. A PARTIAL SUMMARY JUDGMENT is not
appealable and shall be taken together with the judgment that a trial court will render after trial. Thus
it cannot be executed.432

DISTINGUISHED FROM JUDGMENT ON THE PLEADINGS

(a) A Judgment on the Pleadings is available when there is no genuine issue as answer fails to
tender an issue or otherwise admits material allegations, while Summary Judgment is available when
there is an apparent issue but is a sham, fictitious or false (b) A Judgment on the Pleadings is based
exclusively on the pleadings (complaint / answer), while Summary Judgment is based not only on
pleadings but also on affidavits, depositions and admissions, showing that except as to damages
there is no genuine issue (c) A Judgment on the Pleadings can be filed only after an answer has
been filed, while in Summary Judgment, there may or may not be an answer (d) A Judgment on the
Pleadings can only be had by the plaintiff, while in Summary Judgment, either plaintiff or defendant
may move for it (e) a motion for Judgment on the Pleadings is required to be served on adverse
party at least 3 days prior to the hearing, while a motion for Summary Judgment requires service at
least 10 days prior to the hearing

1.Judgment on the Pleadings is a judgment on facts as pleaded, Summary Judgment is a judgment


as summarily proven by affidavits, depositions, admissions. If an answer tenders an issue, there can
be no Judgment on the Pleadings but there can be Summary Judgment, if issue/s is later shown to be
false, sham or fictitious.

RULE 36 – JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF

REQUISITES OF A JUDGMENT/FINAL ORDER

The requisites of a judgment or final order are: (1) It must be in writing (2) It must be personally and
directly prepared by the judge (3) It must state clearly and distinctly the facts and the law on
which it is based (4) It must be signed by the judge (5) It must be filed with the clerk of court.433

1.NOTE that a judge who has been reassigned can pen a decision as long he is still an incumbent
judge.434

WHEN IS JUDGMENT RENDERED

Ordinarily after trial, except in judgment on the pleadings, summary judgment, judgment by
compromise, judgment based on stipulation of facts, judgment upon confession, order of dismissal in
instances when it considered as an adjudication on the merits, judgment in cases covered by the
Rules of Summary Procedure.

1.It is the filing of the judgment or final order with the clerk of court that constitutes RENDITION OF
JUDGMENT, not the date of the writing of the decision or judgment, nor the signing thereof or even
promulgation thereof.435

432
Supra, Section 4, Rule 35
433
Supra, Section 1, Rule 36
434
ABC Davao Auto Supply v Court of Appeals, GR 113296, January 16, 1998
435
Castro v Malazo, 99 SCRA 164
67
2.A MEMORANDUM DECISION is one which adopts by references findings of facts and conclusions
of law contained in the decision of an inferior tribunal. Note that this does not violate the rule as to
statement of the facts and law. This kind of a decision can only be rendered by an appellate court.

3.A SIN PERJUICIO JUDGMENT is one which is without a statement of facts and is to be
supplemented later by the final judgment. Such a judgment is void.

DUTY OF THE CLERK OF COURT WHEN JUDGMENT BECOMES FINAL

If no appeal or motion for reconsideration or new trial is brought within the time provided, the
judgment / final order shall forthwith be entered by the clerk in the BOOK OF ENTRIES OF
JUDGMENT. The date of finality shall be deemed the date of entry and shall contain the dispositive
portion and signed by the clerk which a certificate that such judgment / final order has become final
and executory.436

1. Note that date of entry retroacts to date of finality. Hence, both occur simultaneously by operation of
law.

2. JUDGMENTS THAT ARE FINAL AND EXECUTORY CAN BE CORRECTED but limited only to
NUNC PRO TUNC amendments or those that are merely clerical or typographical.

3. Correction or amendment is also allowed if purpose is to clarify an ambiguity caused by an


omission or mistake, judgment / final order.

4. A COMPROMISE after finality of a judgment is allowed. The basis of the allowance is the principle
of novation, which is a mode of extinguishing an obligation.437

Pet for extraordinary relief- GR 167651, San Pablo vs. marina May 10, 2005

JUDGMENTS MAY BE

1. Given for or against one or more several plaintiffs or for or against one or more several defendants.
Courts, when justice demands require parties on each side to file adversary proceedings as between
themselves to determine their ultimate rights / obligations.438

2. In an action against several defendants, the courts if proper may render judgment against one or
more, leaving the action to proceed against the others.439 Example: Judgment against a surety for
admitted liability.

3. Separate judgments may be rendered when more than one claim for relief is presented, the court at
any stage – upon determination of the issues material to a particular claim and all counter claims
arising therefrom – may render a separate judgment disposing of the claim and proceeding with the
others. BUT, it may stay execution or enforcement until rendition of subsequent judgment/s and may
prescribe such conditions to secure benefit thereof to the party in whose favor the judgment is
rendered.440 Example: It may occur when causes of action have been joined

4. Judgment against entity without juridical personality it shall set forth the individual names / proper
names if known of persons composing it.441

RULE 37 – NEW TRIAL OR RECONSIDERATION

436
Supra, Section 2, Rule 36
437
Magbanua v. Uy, 458 SCRA 185
438
Supra, Section 3, Rule 36
439
Supra, Section 4, Rule 36
440
Supra, Section 5, Rule 36
441
Supra, Section 6, Rule 36
68
WHEN FILED

A motion for new trial or reconsideration may be filed within the period for taking an appeal.442

GROUNDS FOR A MOTION FOR NEW TRIAL

1. Fraud, Accident, Mistake, Excusable Negligence which ordinary prudence could not have
guarded against and by reason of which the aggrieved party was probably impaired in his rights.

1.1 Fraud should be extrinsic or collateral, which refers to such acts that prevents a party from
having a trial / presenting his case in court. It refers to all kinds of deceptions, whether through
insidious machination, manipulation or concealment or misrepresentation that leads another party to
error.443 Examples are: false promise to compromise or connivance of lawyer with adverse party. This
does not include INTRINSIC FRAUD or acts of a party at trial that prevents fair determination.
Examples are: perjury, falsification.

1.2 Accident is a fortuitous event, circumstance, or happening; an event happening without any
human agency or if happening wholly or partly through human agency, is an event which under the
circumstances is unusual or unexpected by the person to whom it happens.444– sickness of a party,
lack of notice – when sent to other address.

1.3 Mistake refers to some unintentional act, omission, or error arising from ignorance, surprise,
imposition, or misplaced confidence. It pertains generally to mistake of fact, not of law.445– failure to
answer / act because he believed it unnecessary because of a compromise or other document.

1.4 Excusable 446Negligence is an excusable omission to do something which a reasonable man,


guided by those considerations which ordinarily regulate the conduct of human affiants, would do; or
the reasonable doing of something which a prudent or reasonable man would not do. – failure is
really that of the party or counsel – non submission on time because of distance traveled.

2. Newly Discovered Evidence, which the aggrieved party could not with reasonable diligence,
have discovered or produced at the trial and which would probably alter the result.

2.1 Hence, the requisites are: (a)Evidence is discovered after trial (b)Such could not have been
discovered and produced at the trial with reasonable diligence (c) Evidence is material – NOT
cumulative, corroborative, or impeaching, and is of such weight that, if admitted, could probably
change the judgment.447

GROUNDS FOR MOTION FOR RECONSIDERATION

The grounds for a motion for reconsideration are: (a) Award of excessive damages (b)
Insufficiency of evidence to justify the decision or final order (c) Decision / final order is contrary to
law

HOW FILED / CONTENTS

It shall be made in writing stating the ground/s, written notice of which shall be served by the movant
on the adverse party.

1. If the Motion for New Trial is based on Fraud, Accident, Mistake or Excusable Negligence, it should
be supported by affidavits of merit, which may be rebutted by affidavits. The requirement of an
affidavit is essential because obviously a new trial would be a waste of the court’s time if the
complaint turns out to be groundless or the defense ineffective.448

442
Supra, Section 1, Rule 37
443
Maestrado v Court of Appeals, 327 SCRA 678
444
Jarco Marketing v Court of Appeals, 321 SCRA 375
445
Agan v Heirs of Sps. Andres and Diosdada Nueva, 418 SCRA 421
446
Mckee v Intermediate Appellate Court, 211 SCRA 517
447
Marikina Valley Development Corporation v Court of Appeals, 294 SCRA 273
448
Yap v Tanada, 163 SCRA 464
69
2. If based on NEWLY DISCOVERED EVIDENCE it should be supported by affidavits of the
witnesses by whom such evidence is expected to be given or by duly authenticated documents which
are proposed to be introduced as evidence.

3. If MOTION FOR RECONSIDERATION, it should point out specifically the finding / conclusions
which are not supported by the evidence / contrary to law, making express reference to testimonial /
documentary evidence or provisions alleged to be contrary to such findings or conclusions.

3.1 IF NOT, the motion is considered a PRO FORMA MOTION. It does not toll the reglementary
period of appeal.449 Note also that such a motion without notice of hearing and proof of service has
the same effect450

IF A MOTION FOR NEW TRIAL IS FILED, W HAT ENSUES

Court may either deny or set aside the judgment or final order and grant a new trial451

1. IF denied, another motion be filed, if it is based on a ground NOT EXISTING NOR AVAILABLE
when the first motion has filed.452 Note that a motion for new trial is an omnibus motion, thus it should
include all grounds then available as those not included are deemed waived.

2. IF granted, the effects are (a) original order / judgment is vacated (b) the action shall stand trial de
novo (c) recorded evidence, insofar as material or competent to establish the issues, shall be used at
the new trial without need to retake therein453

IF MOTION FOR RECONSIDERATION IS FILED – WHAT ENSUES

Court may deny or amend its judgment / final order if it finds that excessive damages are awarded, or
that it is contrary to the evidence or the law454

1. If denied – no second motion for reconsideration is allowed of the judgment or final order. NOTE
THOUGH that if the subject is not a judgment / final order or is an interlocutory order which does not
nd
dispose of a case completely but leaves something more to be done upon its merits, a 2 motion for
reconsideration may be allowed.

2. The filing of a second motion for reconsideration is a prohibited pleading. Thus it does not toll the
running of the reglementary period of appeal.455

OTHERS

1. The periods for resolving the motions are: (a) MTC / RTC – within 30 days from the time it is
submitted for resolution 456 (b) Court of Appeals- within 60 days after if declares it submitted for
resolution (c) Supreme Court- no period is prescribed

2. THE DENIAL OF BOTH MOTIONS IS NOT APPEALABLE, IT IS THE JUDGMENT / FINAL


ORDER THAT IS APPEALABLE. 457

RULE 38 – RELIEF FROM JUDGMENT, ORDERS OR OTHER PROCEEDINGS

GROUNDS UPON WHICH IT IS TO BE BASED

449
Marina Properties Corporation v Court of Appeals, 294 SCRA 273, Cledera v Sarmiento, 39 SCRA 552
450
Firme v Reyes, 92 SCRA 713
451
Supra, Section 3, Rule 37
452
Supra, Section 5, Rule 37
453
Supra, Section 6, Rule 37
454
Supra, Section 3, Rule 37
455
Hongria v Hongria-Juarde, 425 SCRA 504
456
Supra, Section 4, Rule 37
457
Barnes v Reyes, 411 SCRA 538
70
Judgment / final order is entered, or proceeding is thereafter taken against him through FRAUD,
ACCIDENT, MISTAKE, EXCUSABLE NEGLIGENCE. This means that the FAILURE TO ACT ON
JUDGMENT / FINAL ORDER / PROCEEDING ARE DUE TO Fraud, Accident, Mistake or Excusable
Negligence. This also applies to a failure to take an appeal is due.

1. The object to the petition is that the judgment, order, or proceeding be set aside or that the appeal
be given due course.

2. The petition must be


VERIFIED.458

3. The other ways by which a final and executory judgment may be set aside is by Petition for
Certiorari under Rule 65 and Rule 46 and by Annulment of Judgment under Rule 47.459

4. The petition is premised on equity. It should therefore be granted only in exceptional cases.
Petitioner must be able to prove fraud, accident, mistake or excusable negligence and the existence
of a good and substantial cause of action or defense, as the case may be.460

5. It cannot be availed of if there is another remedy in law461and is available only against a final and
executory judgment.462

6. Note though that is the case is covered by the Rules on Summary Procedure, a petition for relief is
a prohibited pleading.463

WHEN AND WHERE FILED

1. It is to be filed within 60 days after he learns of the judgment final order / proceeding but not more
than 6 month after such judgment / final order was entered or such proceeding taken.464

1.1 A few days after expiration of the 60 day period is not entirely fatal as long as it is still filed
within the 6 months period.465

1.2 But if it is a judgment by compromise, the 6 months period runs from date of rendition,
because a judgment upon a compromise is immediately executory and considered to have been
entered on the date it was approved by the trial court.466
1.3 The 6 months period is reckoned from entry of judgment or final order, not from its rendition
or finality467while “from learning” means from notice of judgment or final order468

2. It is to be filed in the same case and in the same court where the judgment / final order was entered
or where proceeding is taken.

PROCEDURE

1. Filing of verified petition accompanied by affidavits showing FAME and the facts showing the
petitioner’s good and substantial cause of action or defense, as the case may be (grounds
constituting his cause of action / defense)

2. Order issued requiring adverse party to answer within 15 days from receipt469 and if warranted a
writ of preliminary Injunction may be issued.470

458
Supra, Sections 1 and 2, Rule 38
459
Arcelona v Court of Appeals, 280 SCRA 20
460
Torno v Intermediate Appellate Court, 166 SCRA 742
461
Alquesa v Cavada, Jr. 3 SCRA 428
462
Valencia v Court of Appeals, 352 SCRA 72
463
Sta Lucia Realty and Development Corporation v Court of Appeals, 343 SCRA 214
464
Supra, Section 3, Rule 38
465
Mago v Court of Appeals, 303 SCRA 600
466
Manipor v Ricafort, 407 SCRA 298
467
Bayog v Natino, 258 SCRA 378
468
Prudence Realty and Development Corporation v Court of Appeals, 231 SCRA 379
71
3. Adverse party answers, but if he does not, he cannot be declared in default.

4. Court hears and may grant relief if the allegations are true or deny if not true.

4.1 If granted, the assailed final order / judgment / proceeding is set aside and proceedings
taken as if a timely motion for new trial has been granted.471 There are in effect two hearings: the first
is as to the merits of the petition, the second is as the merits of the principal case.

4.2 If denied, the order is not appealable472 but may be subject of certiorari under Rule 65

5. Court hears the case as if a timely motion for new trial or reconsideration has granted. If the subject
is denial of an appeal, the lower court shall be required to give due course to the appeal and elevate
the records as if a timely and proper appeal has been made.473

6. Judgment is rendered and is


appealable

DISTINGUISHED FROM A MOTION FOR NEW TRIAL

They are distinguished as follows: (a) a motion for new trial is filed before judgment becomes final,
while a petition for relies if filed after a judgment becomes final (b) a motion for new trial applies to
judgments / final orders, while a petition for relief includes proceedings (c) the grounds for a
motion for new trial includes newly discovered evidence, while a petition for relief is limited to FAME
(d) a motion for new trial is filed within the period for perfecting an appeal, while a petition for relief is
filed within 60 days from knowledge but within 6 months from entry of judgment (e) a motion for new
trial if denied allows an appeal, while a petition for relief from judgment does not allow an appeal (f) a
motion for new trial is a legal remedy, while a petition for relief is a remedy in equity (g) a motion for
new trial requires no verification, while a petition for relief needs to be verified.

RULE 39 – EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

TWO KINDS OF EXECUTION

1. COMPULSORY is one which issues as a matter of right, or motion, upon a judgment or order
that disposes of the action or proceeding UPON EXPIRATION of the period to appeal, if no appeal is
taken therefrom / is perfected. It also issues when appeal is duly perfected and finally resolved.

a. It may be applied for in the court of origin, on motion of judgment obligee – submitting certified true
copies of the judgment / final orders / orders sought to be enforced and ENTRY thereof, with notice to
the adverse party. There is no need for return of records.

b. It may also be applied for in the appellate court, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution in the event of the refusal of
the court of origin to issue the writ. 474

c. A motion is required as there may be questions / disputes as to finality or amounts to be stated in


the writ.

2. DISCRETIONARY is one that is issued, on motion, of the prevailing party for good reasons.
This is also known as EXECUTION PENDING APPEAL / EXCEPTIONAL EXECUTION 475

469
Supra, Section 4, Rule 38
470
Supra, Section 5, Rule 38
471
Supra, Section 6, Rule 38
472
Supra, Section 1(b), Rule 41
473
Supra, Section 7, Rule 38
474
Supra, Section 1, Rule 39
475
Supra, Section 2, Rule 39
72
a. It is filed in the trial court while it has jurisdiction over the case and is in possession of either the
original record or the record on appeal, as the case may be, at the time of the filing of the motion.476
The COURT, may in its discretion, order execution of judgment / final order even before the expiration
of the period to appeal. If the trial court has lost jurisdiction, it is to be filed with the appellate court.

a.1 A court LOSES JURISDICTION when there is perfected appeal and the period to appeal has
expired. W hen a record on appeal is required, it loses jurisdiction OVER THE SUBJECT OF THE
APPEAL upon perfection of the appeal and expiration of the period to appeal.

a.2 The REQUISITES OF EXECUTION PENDING APPEAL are: (1) A motion by the prevailing
party with notice to the adverse party (2)There must be good reason for execution pending appeal (3)
The good reason must be stated in a special order. They must constitute superior circumstances
demanding urgency which will outweigh the injury or damage should the losing party secure a
reversal of the judgment on appeal.477EXAMPLES OF GOOD REASONS are: deterioration of the
goods, prevailing party’s inability to enjoy the decision, or it’s becoming illusory. In a recent case,
OLD AGE was found to be a good reason. 478 NOTE: corporation’s financial distress was not
considered a good reason.

b. DISCRETIONARY EXECUTION BE STAYED upon approval by the proper court of a sufficient


supersedeas bond filed by the party against whom it is directed – CONDITIONED UPON THE
PERFORMANCE OF THE JUDGMENT / FINAL ORDER allowed to be executed in case finally
sustained in whole in part. The bond may then be proceeded against on motion with notice to the
surety.479 BUT, the mere filing of a bond by a successful party allow execution pending appeal nor
constitute good ground.480

b.1 There are JUDGMENTS NOT STAYED BY APPEAL such as judgments in injunction, to
include a judgment dissolving it481 receivership, accounting and support and such other judgments as
are now or hereafter be declared to be immediately executory, shall be enforceable upon their
rendition, they shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial
court. IF STAYED, it shall be upon such terms as to bond or otherwise as may be considered proper
for the security / protection of the rights of the adverse party. ON APPEAL THOUGH, the appellate
court may make an order – suspending, modifying, restoring or granting the injunction, receivership,
accounting or award of support.482

b.2 Judgments in Forcible Entry / Illegal Detainer, if against the defendant are immediately
executory.483 The same is true of a judgment by compromise.484

b.3 IF THERE ARE SEPARATE JUDGMENTS / OR SEVERAL OR PARTIAL JUDGMENTS, they


may executed under the same terms and conditions as execution of a judgment / final order pending
appeal.485

b.4 IF EXECUTION IS GRANTED BUT JUDGMENT / FINAL ORDER IS REVERSED ON


APPEAL totally / partially or annulled, on appeal or otherwise, the trial court, on motion, may issue
orders of reparation or restitution of damages as equity and justice may warrant under the
circumstances.486 The phrase “or otherwise” applies to reversal after a petition for relief has been

476
Philippine Nails & Wires Corpoation v Malayan Insurance Company, 397 SCRA 431
477
Jaca v Davao Lumber Company, 113 SCRA 107
478
FEBTC v Toh, Sr. 404 SCRA 590
479
Supra, Section 3, Rule 39
480
International School v. Court of Appeals, 309 SCRA 474
481
ITC v PTA, 341 SCRA 90
482
Supra, Section 4, Rule 39
483
Supra, Section 19, Rule 70
484
Litton v Court of Appeals, 263 SCRA 40, AFPMBAI v Court of Appeals, 311 SCRA 143
485
Supra, Section 2 (b), Rule 39
486
Supra, Section 5, Rule 39
73
granted under Rule 38 and upon a favorable judgment in a petition for annulment of judgment under
Rule 47

b.5 The Court of Appeals has no authority to issue immediate execution pending appeal of its
own decision. Discretionary execution applies only to a judgment or final order of the trial court.487

WHAT ARE / OR MAY BE THE SUBJECT OF EXECUTION

Only judgments or final orders, or one which disposes of the whole subject matter or terminates a
particular proceeding or action, leaving nothing to be done but to enforce by execution that which has
been determined. AS OPPOSED TO -Interlocutory orders which cannot be enforced by execution,
one that does not dispose of a case completely, but leaves something to be done on the merits.

1. An EXCEPTION is a judgment for support pendente lite.488

2. Distinguishing a “final judgment or order” from one which has become “final and executory”. A final
judgment is one that finally disposes of a case, leaving nothing more to be done by the court in
respect thereto. It is an adjudication on the merits. Once rendered, the task of the court is ended, as
far deciding the controversy or determining rights and liabilities of litigants. Nothing more is to be
done but to await the parties’ next move, and ultimately, to cause execution of the judgment once it
becomes final and executory.489

HOW CAN A FINAL JUDGMENT / ORDER BE ENFORCED

A final and executory judgment may be enforced by (1) By motion within 5 years from date of entry of
judgment (2) By action after the lapse of 5 yrs from date of entry of judgment but before barred by
statute of limitations, which is 10 years. This is known as “action to revive judgment”.490

1. The revived judgment may also be enforced by motion within 5 yrs from date of entry, and
thereafter by action before it is barred by the statute of limitations. The purpose of the action is not to
re-examine the issues as the cause of action is the judgment itself and not the merits of the original
action.491

2. RECONCILING WITH ACTIONS UPON A JUDGMENT under Article 1144, NCC WHICH
PRESCRIBES IN 10 YEARS. The Rules of Court refer to the manner of execution of the judgment.

3. Note that this is not applicable in land registration cases or other special proceedings, IN CIVIL
ACTIONS ONLY.

4. There are however instances when judgment / final order can still be enforced by motion even after
lapse of 5 years when the delay is caused or occasioned by the actions of the judgment obligee or
incurred for his benefit or advantage.492 The liberal construction of the rule resulting in non inclusion of
the period of delay occasioned by the acts of the judgment oblige in the counting of the period was
resorted to as strict adherence to the letter of the law would result in absurdity and manifest
injustice.493

ISSUANCE, FORM, CONTENTS OF A WRIT OF EXECUTION

A writ of execution shall (1)Issue in the name of RP from the Court that granted the judgment (2)
State the name of court, case number, title, and dispositive portion (3) Require the sheriff or other
proper officer to whom it is directed to enforce the writ according to its terms, in the manner herein
provided: (a) execution be against property of judgment obligor, to satisfy judgment with interest, out

487
Heirs of the late Justice JBL Reyes v Demetria, 374 SCRA 206
488
Supra, Section 5, Rule 61
489
Denso Philippines, Incorporated v IAC, 148 SCRA 280
490
Supra, Section 6, Rule 39
491
Laperal v Ocampo, 410 SCRA 339
492
Camacho v Court of Appeals, 287 SCRA 611
493
Republic v Court of Appeals, 260 SCRA 344
74
of his real or personal property (b) if against real or personal property, in the hands of personal
representatives, heirs, devisees, legatees, tenants trustees of the judgment obligor, to satisfy the
judgment, with interest, out of such property (c) if it be for sale of real / personal property, to sell it,
describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall
be recited in the writ (d) if it be for delivery of the possession of real / personal property, to deliver the
possession of the same, describing it, to the party entitled thereto and to satisfy any costs, damages,
rents, profits covered by the judgment out of the personal property of the person against whom it was
rendered, and if no sufficient personal property be present, out of real property (e) in all cases, the
writ shall specifically state the amount of interest, costs damages, rents, profits due as of the date of
issuance of the writ aside from the principal obligation under judgment494

MANNER OF EXECUTION

I. FOR SUMS OF MONEY

1. Immediate payment on demand from judgment obligor payable in cash of certified bank check
payable to the obligee or any form acceptable to him plus lawful fees to be turned over to the clerk of
court of the court that issued the writ.

If judgment obligee is not present to receive the amounts, it shall be delivered by judgment obligor to
the sheriff, turning in all amounts on the same day to the clerk of court or if not practicable, to deposit
in the nearest government depository bank of Regional Trial Court in the locality, then arrangements
are then made for remittance to clerk of court issuing the writ for delivery to the judgment obligee. IN
NO CASE SHALL SHERIFF DEMAND PAYMENT BY CHECK PAYABLE TO HIM

2. Satisfaction by levy – if not paid in cash, the sheriff shall levy on the properties of judgment obligor
of any kind / nature which may be disposed of for value and not otherwise exempt from execution –
giving obligor the option to immediately choose which property or part thereof may be levied upon to
satisfy judgment. If not – sheriff shall levy on personal properties first, if any, then on real properties if
insufficient to answer for judgment. Sheriff can only sell sufficient portion of the personal / real
property levied upon when there is more property then is sufficient to satisfy judgment, on so much of
it to satisfy judgment is to be sold. The conduct of the SALE SHALL FOLLOW THE PROCEDURE
LAID DOWN BY THE RULES TO IMPLEMENT SALE OF PROPERTY.

2.1 EFFECT OF LEVY. A levy on execution shall create lien in favor of the judgment obligee over
the right, title and interest of the judgment obligor in such property at the time of levy – subject to liens
rd
/ encumbrances then existing – effect then on 3 persons – depends on when their liens /
encumbrances – if any, was annotated or interposed. 495

2.2 PROBLEM if LEVY is made beyond the period of 5 years from entry of judgment. The same
is NOT VALID as lifetime or a writ of execution is 5 years from date of entry of judgment.496

3. Garnishment of debts and credits. The officer may levy on debts due the judgment obligor and
other credits. Examples: bank deposits, financial interests, royalties, commissions, and other personal
property. These are not capable of normal delivery and are in the possession and control of third
parties.

3.1 Levy shall be made by serving notice on the person owing such debts or having in his
possession or control such credits to which the judgment obligor is entitled.

3.2 The garnishee, shall then make a written report to the court from service of notice stating
whether or not the judgment obligor has sufficient funds or credits to satisfy the judgment – the
garnished amount shall then be delivered directly to the judgment obligee within 10 working days
from service of notice on him requiring delivery – less lawful fees to be paid directly to the Court.

494
Supra, Section 8, Rule 39
49
Supra, Section 12, Rule 39
496
Supra, Section 14, Rule 39
75
3.3 If there are 2 or more garnishees – the judgment obligor shall have the right to indicate the
garnishee/s who shall deliver, otherwise it shall be the choice of the judgment obligee.497 (Section 9)

4. Writ is to be returned to the Court issuing it immediately after judgment has been satisfied in part or
in whole. If not / cannot be satisfied in full within 30 days from receipt of the writ, the officer shall
report to the court and state the reason therefor. Such writ will continue to be in effect during the
period within which judgment may be enforced by motion, the officer shall then make a report to the
Court every 30 days on the proceedings taken thereon until the judgment is satisfied in full or its
effectivity expires. The returns / reports shall set forth the proceedings taken, filed with the court and
copies promptly furnished parties.498

II. FOR SPECIFIC ACTS499

1. If CONVEYANCE, DELIVERY OF DEEDS OR OTHER SPECIFIC ACTS – party is directed to


comply if he fails to do so within the period specified, court may direct the act to be done at the cost of
the disobedient party, by some other person appointed by the court and when so done it is as if done
by the disobedient party. If it involves real / personal property located in the Philippines, the court in
lieu of directing a conveyance thereof may by an order divest title and vest it in others, which shall
have the force and effect of a conveyance executed in due form of law.

2. If for SALE OF REAL/PERSONAL PROPERTY – the property is to be sold, describing it, and apply
the proceeds in conformity with the judgment.

2.1 The procedure is as follows:

a. Notice must be given as follows:

1. Perishable property – posting of written notice (of time, place, sale) in 3 public places preferably in
conspicuous areas of the municipal/city hall, post office, public market, for such a time as may be
reasonable depending on circumstances.

2. Personal property – posting of written notice in 3 public places for not less than 5 days.

3. Real property – posting of written notice in 3 public places for at least 20 days, describing the
property, where it is to be sold, and if assessed value is in excess of PHP 50,000.00, publishing the
notice in a newspaper of general circulation once a week for 2 consecutive weeks.

IN ALL CASES – written notice is also given to judgment obligor at least 3 days before the sale
except in (a) notice is given at any time in the same manner as personal service of pleadings. 500

4. The CONTENTS OF NOTICE are the place, date exact time not earlier than 9:00 am or later than
2:00 pm. The place may be agreed upon, if not, Real/Personal property not capable of manual
delivery shall be sold at the Office of the Clerk of Court of Regional or Municipal Trial Court issuing
the writ. If capable of manual delivery, where personal property is located.

5. If there is a sale WITHOUT NOTICE, the officer is liable for punitive damages in the amount of PHP
5,000 in addition to actual damages sustained by injured person. IF DEFACED / REMOVED before
the sale / satisfaction of the judgment, the person so defacing or removing shall be liable to pay PHP
5,000.00 plus actual damages. These are recoverable upon motion.501

b. All sales shall be by public auction. This applies also when property is levied upon. Sale is made to
the highest bidder, to start at the exact time stated in the notice.

497
Supra, Section 9, Rule 39
498
Supra, Section 14, Rule 39
499
Supra, Section 10, Rule 39
50
Supra, Section 15, Rule 39
501
Supra, Section 17, Rule 39
76
1. If sufficient property has been sold, no more shall be sold and any excess property / proceeds shall
be delivered to the judgment obligor or his representative, unless otherwise directed by the court
EXAMPLE- other debts due to be paid

2. If sale is of real property – consisting of several known lots – they must be sold separately or if
claimed by a 3rd person, he may require it to be sold separately.

3. Personal property capable of manual delivery – it must be sold within view of those attending and in
such parcels so as to bring the highest price.

4. The judgment obligor, if present may direct the order in which the property is to be sold when such
property consists of several parcels / known lots which can be sold to advantage separately.

5. No officer or his deputies, can be a purchaser, nor be interested directly or indirectly in any
purchase at such sale.502

6. By written consent of both judgment obligor / obligee or their duly authorized representatives, the
auction sale may be adjourned to any date or time agreed by them. Without an agreement – officer
may adjourn from day to day if it becomes necessary.503

WHAT HAPPENS WHEN A PURCHASER REFUSES TO PAY

Officer may again sell the property to the highest bidder and shall not be responsible for any loss
occasioned thereby, like when it is resold for less. But, the court may order the refusing purchaser to
pay unto the Court such loss, and punish him with contempt if he disobeys. Payment shall inure to the
benefit of party entitled to execution, unless he has been satisfied, in which case to the judgment
obligor. IN ADDITION: officer may thereafter reject all bids of such purchaser. 504

CAN JUDGMENT OBLIGEE PURCHASE


rd
Yes, and if no 3 party claim has been filed, he need not pay the amount if it does not exceed the
amount of his judgment. If it does he shall only pay the excess. 505

EFFECT OF PAYMENT BY JUDGMENT OBLIGOR BEFORE SALE OF PROPERTY ON


EXECUTION

Sale is prevented by the payment required by execution and cost incurred therein506

WHAT HAPPENS IF PROPERTY IS CLAIMED BY THIRD PERSON

Third person is called a third party claimant. He is one who claims title to, or right of possession of the
rd
property levied upon by the sheriff. NOTE: there may be a 3 party claimant in execution, preliminary
attachment and replevin.
RD
WHAT DOES 3 PARTY CLAIMANT DO
rd
He can file a 3 party claim or a terceria by executing an affidavit showing his title thereto, or right of
possession over the property being levied upon, stating therein the grounds of such title or right,
serving a copy thereof to the sheriff and judgment obligee. If filed, sheriff is not obliged to proceed
unless the judgment obligee files an indemnity bond in an amount not less than value of the property.
No action on the bond may enforced by the third party claimant unless filed within 120 days from date
rd
of the filing of the bond. If bond is filed – 3 party claimant may vindicate his claim within the period

502
Supra, Section 19, Rule 39
503
Supra, Section 22, Rule 39
504
Supra, Section 20, Rule 39
505
Supra, Section 21, Rule 39
506
Supra, Section 18, Rule 39
77
OR he may institute a separate action to vindicate his claim BUT nothing also prevents the judgment
rd
obligee from claiming damages in the same or separate action against a 3 party claimant who files a
frivolous / spurious claim.

If writ is issued in the name of the RP, no bond is required. Officer is to be represented by the
SOLGEN, and if damages are assessed, it is to be paid out of the National Treasury. 507

C. AFTER SALE, CONVEYANCE MADE AS FOLLOW S

I. REAL PROPERTY – a certificate of sale is given stating the description of the property, price paid
for each distinct lot / parcel, whole price paid and a statement that the right of redemption shall or will
expire one year from date of registration of the certificate. 508 MAKING MENTION OF THE
RD rd
EXISTENCE OF A 3 PARTY CLAIM, IF ANY509 Note: the requirement of mentioning a 3 party
claim, if any, applies also to conveyance over personal property.

THE PARTIES ENTITLED TO REDEEM ARE:

a. Judgment obligor, or his successor in interest, in whole or any part of the property

b. A creditor having a lien by virtue of an attachment, judgment, mortgage on the property sold or on
some part thereof, subsequent to the lien under which the property is sold. Such redeeming creditor
is called a REDEMPTIONER.510

TIME AND MANNER OF REDEMPTION

The judgment obligor / redemptioner may redeem the property from the purchaser at any time within
1 year from registration by paying the amount of purchase, plus 1% interest per month at the time of
redemption, together with the amounts of assessments / taxes paid at the purchase and interest on
the same at the same rate, AND, if the purchaser be also a creditor having a prior lien to that of the
redemptioner, other than the judgment, the amount of the lien plus interest.

Property so redeemed may be redeemed within 60 days after the last redemption upon payment of
the sum paid, w/ 2% interest thereon plus taxes / assessments paid, and amount of liens held by
redemptioner prior to his own. AND SO FORTH.

Written notice however of redemption must be given to the officer who made the sale and duplicate
with the Registry of Deeds and if any assessments / taxes / prior liens are paid, notice must also be
given to above parties OTHERW ISE, redemption can be effected without paying taxes / assessments
/ liens. NOTE: Proof required of redemption under Section 30

PROOF REQUIRED OF REDEMPTION

A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve
with notice to the officer- a copy of judgment or final order, certified by the clerk of court. Mortgage /
other lien – certified copy by the Register of Deeds / or memorandum thereof and affidavit showing
amount due on the lien.511

IF JUDGMENT OBLIGOR REDEEMS

He must make all the payments required to effect a redemption by a redemptioner. Thereupon, no
further redemption is allowed and he is restored to his estate. The person upon whom redemption

507
Supra, Section 16, Rule 39
508
Supra, Section 25, Rule 39
509
Supra, Section 26, Rule 39
510
Supra, Section 27, Rule 39
511
Supra, Section 30, Rule 39
78
payment is made shall execute a Certificate of Redemption after payment. Certificate is then filed with
the Office of the Registry of Deeds.512

WHO IS ENTITLED TO THE USE OF REAL PROPERTY PENDING REDEMPTION

1. Person in possession at the time of sale or entitled to possession afterwards may continue to use it
in the same manner as it was previously used, or to use in the ordinary course of husbandry or to
make necessary repairs to buildings thereon while he occupies the property, BUT the court in proper
cases, may restrain the commission of waste on the property by injunction on the application of the
purchaser / judgment obligee with or without notice. 513

2. Rents, earnings and income shall belong to the judgment obligor until the expiration of his period for
redemption. Neither shall the purchaser or judgment obligee be entitled to the same when such
property is in the possession of a tenant.514

IF NO REDEMPTION IS MADE

If no redemption is made within one year from date of registration, the purchaser is entitled to
possession and conveyance; OR if so redeemed – whenever 60 days has elapsed and no other
redemption is made and the time for redemption has expired, the last redemptioner is entitled to
possession and conveyance. BUT, in all cases the judgment obligor is entitled to have the entire
period of one year.

Officer shall execute the deed / or his successor in interest with the same effect.

Once done, the purchaser / redemptioner shall be substituted to and acquire all the rights title and
interest and claim of the judgment obligor to the property as of the time of the levy. Possession shall
rd
then be given unless property is held by a 3 party adverse to the judgment obligor.515 Manner of
effecting transfer of possession is by writ of possession.516

IF THE SALE IS SUBSEQUENTLY RENDERED INFFECTIVE

If the purchaser of real property or his successor in interest – fails to recover possession or is evicted
therefrom – AS A CONSEQUENCE OF: irregularities in the proceedings concerning the sale,
rd
judgment has been reversed or set aside (RE: RELIEF),property is exempt from execution , or, 3
person has vindicated his right to the property

HE MAY – on motion in the same action OR in a separate action recover from the judgment obligee
the price paid with interest, or so much thereof as has not been delivered to the judgment obligor OR,
he may on motion have the judgment revived in his name (if redemptioner) for the whole price with
interest, or so much thereof as has been delivered to the judgment obligor – Judgment revived shall
have the same force and effect as an original judgment would have as of the date of revived and no
more.517

II. PERSONAL PROPERTY -

a. If capable of Manual Delivery, the officer must deliver the property and if desired, execute
and deliver a certificate of sale, which shall conveys all right with the judgment obligor had in such
property as of date of levy on execution or preliminary attachment. 518

b. If Incapable of Manual Delivery, the officer must execute and deliver a certificate of sale and
such shall convey all rights to purchaser as of the date of levy on execution or preliminary
attachment. 519

512
Supra, Section 29, Rule 39
513
Supra, Section 31, Rule 39
514
Supra, Section 32, Rule 39
515
Supra, Section 33, Rule 39
516
Cometa v IAC, 151 SCRA 563, AutoCorp Group v Court of Appeals, 437 SCRA 678
517
Supra, Section 34, Rule 39
518
Supra, Section 23, Rule 39
79
1. If for DELIVERY OR RESTITUTION OF REAL PROPERTY – officer shall demand of the person
against whom judgment is rendered and all persons claiming rights under him to peaceably vacate
the property within 3 working days and restore possession thereof to the judgment obligee –
OTHERWISE, officer shall oust all such persons thereon, with assistance from peace officers
employing reasonable means and place the judgment obligee in possession. Any costs, damages,
rents, profits shall be satisfied in the same manner as a judgment for money.

2. If for REMOVAL OF IMPROVEMENTS – officer shall not destroy, demolish or remove except upon
special order of the court, issued upon motion / hearing and after the judgment obligee had failed to
remove within a reasonable time fixed by the rules.

3. If for DELIVERY OF PERSONAL PROPERTY – officer shall take possession and forthwith deliver it
to party entitled thereto and satisfy any judgment for money as herein provided. 520

EXECUTION OF SPECIAL JUDGMENTS

Performance of an act other than those enumerated in Section 9 and 10, a certified copy of the
judgment shall be attached to the writ of execution and served upon party against whom it is
rendered, or upon any person required thereby, or by law, to obey the same – if such party / person
disobeys – they may be punished for contempt.521 EXAMPLE: Injunction, Quo warranto

WHAT ARE THE PROPERTIES EXEMPT FROM EXECUTION

Except as otherwise expressly provided by law, the following property, and no other, shall be exempt
from execution:

(a) The judgment obligor’s family home as provided by law, or the homestead in which he
resides, and land necessarily used in connection therewith;

(b) Ordinary tools and implements personally used by him in his trade, employment, or
livelihood;

(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the
judgment obligor may select necessarily used by him in his ordinary occupation;

(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by
the judgment obligor and his family, such as the judgment obligor may select, of a value not
exceeding one hundred thousand pesos;

(f) Provisions for individual libraries and equipment of judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding three
hundred thousand pesos in value;

(h) One fishing boat and accessories not exceeding the total value of one hundred thousand
pesos owned by a fisherman and by the lawful use of which he earns his livelihood;

(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services
within the four months preceding the levy as are necessary for the support of his family;

(j) Lettered
gravestones;

(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life
insurance;

519
Supra, Section 24, Rule 39
520
Supra, Sections 9 and 10, Rule 39
521
Supra, Section 11, Rule 39
80
(l) The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the Government;

(m) 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 thereon.522

Claims for exemption from execution of properties must be presented before its sale on execution by
the sheriff.523

WHAT HAPPENS TO EXECUTION UPON THE DEATH OF A PARTY

It may issue or be enforced:

a. In case of death of judgment obligee, upon application of his executor or administrator

b. In case of death of judgment obligor, against his executor, administrator, or successor in


interest, IF it be for recovery of real or personal property or enforcement of a lien.

c. Death of judgment obligor after execution is actually levied upon any of his property, the
same may be sold for the satisfaction of the judgment obligation and the officer must account to the
executor or administrator for any surplus, if any. 524

AS BETWEEN SEVERAL PERSONS AGAINST WHOM EXECUTION IS DIRECTED

There is a right to contribution or reimbursement if: more than a due portion of the judgment is
satisfied out of the proceeds of the sale of the property of one of them, OR, one pays, without sale,
more than his proportion.

AND, if judgment is upon an obligation of one of them, as security for another, and the surety pays
the amount, or any part thereof, either by sale of property or before a sale, he may compel repayment
from the principal.525

WHAT ARE THE OTHER REMEDIES OF THE JUDGMENT OBLIGEE IF EXECUTION IS NOT
CARRIED OUT OR JUDGMENT IS NOT SATISFIED

1. Examination of the judgment obligor concerning his property and income before the court or a
commissioner – and proceedings may thereafter may be had for the application of his property or
income towards satisfaction of judgment BUT – no obligor can be required to appear before a court or
commissioner outside the province or city where he resides.526

2. Examination of the obligor of the judgment obligor upon proof shown to the satisfaction of the court
that a person, corporation or other juridical entity has property of the judgment obligor or is indebted
to him, the Court may by order require the person, corporation or juridical entity to appear before the
Court / commissioner and be examined concerning the same.

The service of the order shall bind all credits due the judgment obligor and all money / property of the
judgment obligor in the possession / control of the person, corporation or juridical entity.

Notice of all proceedings may also be required by the court.527

522
Supra, Section 13, Rule 39
523
Gomez v Gealone, 203 SCRA 474
524
Supra, Section 7, Rule 39
525
Supra, Section 35, Rule 39
526
Supra, Section 36, Rule 39
527
Supra, Section 37, Rule 39
81
Obligor of judgment obligor may thereafter pay after writ of execution on property has been issued,
the amount of his debt or so much thereof as may be necessary to satisfy the judgment and the
sheriff’s receipt shall constitute sufficient discharge for the amount so paid or directed to be credited
by the judgment obligee on the execution528

In relation to both remedies – party or other person may be compelled to appear by subpoena and
failure to obey an order, subpoena or be sworn or answer as a witness or subscribe to a deposition is
punishable by contempt. 529

3. Order for application of property and income to satisfaction of judgment. – it may include his
property or money due the judgment obligor, not exempt from execution, in his hands or other person,
corporation or juridical entity may be applied to satisfaction of judgment subject to any prior rights
over such property. ALSO, if upon investigation of current income and expenses, the earnings of
judgment obligor are more than necessary for the support of his family, the court may order that
judgment be paid by monthly installments, failing in which he may be punished for indirect
contempt.530

4. Appointment of a receiver – for the property of the judgment obligor, it may also forbid a transfer or
other disposition of or interference with the property of the judgment obligor not exempt from
execution.531 Thereafter, there can be a sale by the receiver upon order of ascertainable interest (or
the real estate itself) of a judgment obligor in real estate in the place where proceedings are had as
mortgagor / mortgagee or otherwise and if his interest can be ascertained without controversy, the
receiver may be ordered to sell and convey such interest or real estate or the interest of the obligor
therein. All proceedings to be approved by the Court before execution of the deed.532

In relation to the foregoing, IF IT APPEARS THAT A PERSON OR CORPORATION, ALLEGED TO


HAVE PROPERTY OF THE JUDGMENT OBLIGOR DENIES OR CLAIMS INTEREST IN THE
PROPERTY ADVERSE TO HIM, The Court may: (1) order judgment obligee to institute an action
against such person or corporation for the recovery of such interest or debt (2) forbid a transfer /
disposition of such interest / debt within 120 days from notice of the order (3) punish disobedience of
such order as for contempt. The order may be modified or vacated at any time by the court that
issued it, or by the court in which the action is brought, upon terms as may be just.533

WHAT IS TO BE DONE AFTER JUDGMENT IS SATISFIED

Entry of satisfaction of judgment by the Clerk of Court in Court Docket and Execution Book upon
RETURN OF WRIT INDICATING SATISFACTION / ON ADMISSION OF SATISFACTION BY
JUDGMENT OBLIGEE / COUNSEL 534

It can also be entered upon demand of judgment obligor when judgment is satisfied in fact – OR upon
notice / motion – court may order entry without admission535

EFFECT OF JUDGMENTS OR FINAL ORDERS

1. Effect of a judgment / final order rendered by a court in the Philippines, having jurisdiction to
pronounce the same.

(a) In case of a judgment / final order against a specific thing, or in respect to probate of a will or
administration of the estate of a deceased person, or in respect to personal, political or legal condition
/ status of a particular person or his relationship to another, the judgment or final order is conclusive
upon the title to the thing, the will, administration status or relationship of the person. HOWEVER,

528
Supra, Section 39, Rule 39
529
Supra, Section 38, Rule 39
530
Supra, Section 40, Rule 39
531
Supra, Section 41, Rule 39
532
Supra, Section 42, Rule 39
533
Supra, Section 43, Rule 39
534
Supra, Section 44, Rule 39
535
Supra, Section 45, Rule 39
82
probate or granting of letters of administration shall only be prima facie evidence of the death of the
testator.536

(b) Other cases, judgment / final order is with RESPECT TO THE MATTER DIRECTLY
ADJUDGED OR AS TO ANY MATTER THAT COULD HAVE BEEN RAISED IN RELATION
THERETO is CONCLUSIVE BETWEEN THE PARTIES AND THEIR SUCCESSORS IN INTEREST
BY TITLE SUBSEQUENT TO THE COMMENCEMENT OF THE ACTION OR SPECIAL
PROCEEDING LITIGATING FOR THE SAME THING, UNDER THE SAME TITLE AND IN THE
SAME CAPACITY.537

(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment / final order which appears on its face to have
been so adjudged or which was actually and necessarily included therein or necessary thereto.538

1.1 Paragraphs (a) and (b) are illustrative of the concept of res judicata that is also known as “bar
by prior judgment”. This exists when between the first case where judgment is rendered, and the
second case where such judgment is invoked, there is identity of parties, subject matter, and cause of
action. When all three are present, the judgment on the merits rendered in the first constitutes an
absolute bar to the subsequent action.

1.2 Paragraph (c) is illustrative of what is known as “conclusiveness of judgment”, when between
the first case wherein judgment was rendered and the second case wherein such judgment is
invoked, there is only identity of parties, but there is no identity of cause of action, the judgment is
thus conclusive in the second case, only as to the matters actually and directly controverted and
determined, and not as to matters merely involved therein.539

1.3 CONCLUSIVENESS OF JUDGMENT, also known as PRECLUSION OF ISSUES or


COLLATERAL ESTOPPEL espouses that issues actually and directly resolved in a former suit cannot
again be raised in any future case between the same parties involving a different cause of action.540

1.4 The doctrine of “ The law of the case” states that whatever has once been irrevocably
established as the controlling legal rule of decision between the same parties, whether correct on
general principles or not, so long as the facts on which the decision was predicated continue to be the
facts of the case before the court.541

2. Effect of a foreign judgment/final


order

(a) If upon a specific thing, the judgment / final order is conclusive upon title to the thing

(b) If against a person – it is presumptive evidence of a right between the parties and their
successors in interest by subsequent title.

In either case, judgment / final order may be repelled by evidence of want of jurisdiction, want of
notice, collusion, fraud, clear mistake of fact / law.542

3. Effect of judgment against a


surety

When a judgment is rendered against a party who stands as surety for another, the latter (principal) is
also bound from the time he has notice of the action or proceeding, and an opportunity at the surety’s
request to join in the defense.543

536
Supra, Section 47 (a), Rule 39
537
Supra, Section 47 (b), Rule 39
538
Supra, Section 47 (c), Rule 39
541
Boiser v NTC, 169 SCRA
542
Supra, Section 48, Rule 39
543
Supra, Section 46, Rule 39
83
539
Oropeza Marketing Corporation v Allied Banking Corporation, 393 SCRA 278
540
Tan v Court of Appeals, 363 SCRA 444

541
Boiser v NTC, 169 SCRA
542
Supra, Section 48, Rule 39
543
Supra, Section 46, Rule 39
83
APPEALS

Rule 40 – Appeals from MTC to RTC

WHERE CAN AN MTC DECISION BE APPEALED

A judgment / final order of the Municipal Trial Court is appealable to the Regional Trial Court
exercising jurisdiction over the area to which the Municipal Trial Court pertains.

1.In the appeal, the case title remains, but party appealing is designated as appellant, while the
adverse party is designated as the party-appellee.544

WHEN CAN APPEAL BE TAKEN

15 days after notice to the appellant. If record on appeal is required 30 days after notice BUT period
can be interrupted by a motion for reconsideration or for new trial, though no motion to extend time for
its filing is allowed. 545

1.Note the “fresh period rule” that is now applicable to an appeal under Rule 40, Rule 41, Rule 43
and Rule 45, which allows a party intending to appeal another 15 days from receipt of an order
denying a motion for reconsideration or new trial to file an appeal 546

HOW IS APPEAL TAKEN

1. By notice of appeal indicating parties, judgment or final order appealed from statement of the
material dates showing timeliness of the appeal.

2. By record on appeal in special proceedings or cases allowing for multiple appeals, like
probate or partition. The record on appeal shall contain the following:

a. Full name of the parties stated in the caption including the judgment / final order from which appeal
is taken
b. In chronological order, copies of all pleadings, petitions, motions, and all interlocutory orders as are
related to the appealed judgment / final order for proper understanding of the issue.
c. Data to show that appeal was filed on time
d. If issue of fact is to be raised, it should include reference the documentary evidence by exhibit
taken on the issue – specifying the documentary evidence by exhibit nos. or letters and testimonial
evidence by the names of the witnesses. If the whole of it is included, a statement to such effect is
sufficient.
e. If more than 20 pages include a subject index 547

NOTE that the requirement for a Approval of record on appeal548 – the trial court may approve it, if no
objection is filed by the appellee – or upon its motion / appellee direct its amendment by the inclusion
of omitted matters which are deemed essential to the determination of the issue of law or facts
involved is the appeal.If amendment is ordered, which the appellant must comply with within the
period stated, any extension or if none, within 10 days, submitting the redrafted record for the
approval of the Court. W here both parties are appellants, they may file a joint record on appeal.549

544
Supra, Section 1, Rule 40
545
Supra, Section 2, Rule 40
546
Neypes v Court of Appeals, GR 141524, September 14, 2005
547
Supra, Section 6, Rule 41
548
Supra, Section 7, Rule 41
549
Supra, Section 8, Rule 41
84
3. Regardless of the mode of appeal, the adverse party is to be furnished with a copy.

WHEN PERFECTED

As determined by Section 9, Rule 41:

1. If by notice of appeal, it is perfected upon the filing of the notice in due time. The court loses
jurisdiction upon perfection and expiration of the time of appeal of other parties.

2. If by record on appeal, it is perfected upon approval of record on appeal filed in due time. Court
loses jurisdiction upon approval and expiration of time to appeal of other parties.

In either case, prior to transmittal of the records, the court may issue orders: (a)protection and
preservation of the rights of the parties not involving any matter litigated by the appeal (b)approve
compromises (c) permit appeals of indigent litigants (d)order execution pending appeal (e) allow
withdrawal of appeal.550 This is power is known as “RESIDUAL JURISDICTION”

3. In both cases, DOCKET FEES / OTHER FEES are also to be paid to the clerk of court of the court
that rendered judgment. Proof payment of the same shall be transmitted to the appellant court
together with the records / record on appeal. 551

a. Late payment of docket fees may be admitted when a party shows a willingness to abide by the
Rules by immediately paying the docket fee six days after filing a notice of appeal and beyond the
period for perfecting an appeal.552

b. Where delay in the payment of docket fee was not due to a desire to delay or defeat the ends of
justice, late payment thereof which causes no prejudice to anyone should not result in the dismissal
of the appeal.553

a. THE RECORD/RECORD ON APPEAL IS TRANSMITTED by the clerk of court within 15 days from
perfection, together with transcripts / exhibits, which he will certify as complete. A copy of the
transmittal shall be furnished the parties.554

WHAT HAPPENS UPON TRANSMITTAL TO THE RTC

Within 15 days from notice, appellant shall submit a memorandum briefly discussing errors imputed to
the lower court, copy furnished the adverse party. Within 15 days from receipt of appellants’
memorandum, appellee may file his own memorandum. Failure of appellant shall be ground for
dismissal of the appeal. Upon filing / expiration, the case is submitted for decision on the basis of the
record in Municipal Trial Court and the memoranda submitted by the parties.555

1. NOTE that if an appeal is taken from an order of the lower Court dismissing the case without trial on
the merits, the Regional Trial Court may affirm or reverse it as the case may be:

a. In case it is affirmed and ground of dismissal is lack of jurisdiction over the subject matter of the
case, the Regional Trial Court, if it has jurisdiction, shall try the case on the merits as if the case was
originally filed with it. In case of reversal, it shall be remanded back for further proceedings.

b. If it was tried on the merits, without jurisdiction, the RTC on appeal shall not dismiss the case if it
has original jurisdiction, but shall decide the case in accordance with Section 7, without prejudice to
the admission of amended pleadings and additional evidence in the interest of justice.556

550
Supra, Section 4, Rule 40
551
Supra, Section 5, Rule 40
552
Mactan Cebu International Airport Authority v Mangubat, 312 SCRA 466
553
Lopez v Court of Appeals, 75 SCRA 401
554
Supra, Section 6, Rule 40
555
Supra, Section 7, Rule 40
556
Supra, Section 8, Rule 40
85
RULE 41 – APPEALS FROM REGIONAL TRIAL COURTS

An appeal may be taken from a judgment /final order that completely disposes of a case, or a
particular matter therein when declared by the Rules to be appealable BUT NO APPEAL CAN BE
TAKEN FROM:

(a) Order denying a motion for new trial or reconsideration. An appeal of judgment/final order is
remedy or certiorari under Rule 65

(b) Order denying a petition for relief from judgment or similar motion. Certiorari under Rule 65 is
remedy

(c) Interlocutory order. Certiorari under Rule 65 or mandamus is remedy

(d) Order disallowing or dismissing an appeal. Mandamus or petition for relief from judgment is
the remedy

(e) Order denying a motion to set aside judgment by consent confession, compromise on the
ground of fraud, mistake, duress or any ground vitiating consent. A petition for relief or a petition to
annul judgment under Rule 47 or Certiorari under Rule 65 is the remedy

(f) Order of execution. Certiorari under Rule 65 is the remedy


rd
(g) Judgment / final order in separate claims, counterclaims, cross claims – 3 party claims,
while main case is pending, unless the court allows an appeal therefrom. The object is facilitate the
trial of all issues.

(h) Order dismissing an action without prejudice. The remedy is to refile or certiorari under Rule
65.557

NOTE: That declaration of presumptive death not appealable by the state, neither by other party.
Remedy of the spouse declared presumptively dead is to file affidavit of reappearance. See Article
41, Family Code

WHAT ARE THE MODES OF APPEAL OF A JUDGMENT OR FINAL ORDER OF A REGIONAL


TRIAL COURT 558

(a) Ordinary appeal refers to an appeal by notice of appeal of the decision of the Regional Trial
Court in cases decided in the exercise of its original jurisdiction raising question of fact or mixed
questions of law and fact

1. The period of ordinary appeal is 15 days from notice of judgment / final order appealed from. If
requiring a record on appeal, it is 30 days. Said periods are interrupted by a motion for new trial or
reconsideration but no extension of time for their filing is allowed. NOTE: That in habeas corpus
cases the period is 48 hours from notice of judgment or final order 559 NOTE ALSO: The application of
the “fresh period rule”.

2. Appellate court docket fees / lawful fees shall be paid within the period for taking an appeal to the
clerk of court of the court that rendered judgment BUT failure to pay is a ground for dismissal of the
complaint560

3. If Appeal is by NOTICE OF APPEAL, it must indicate parties, judgment or final order appealed
from, and include a statement of the material dates showing timeliness of the appeal. 561 or if by

557
Supra, Section 1, Rule 41
558
Supra, Section 2, Rule 41
559
Supra, Section 3, Rule 41
560
Supra, Section 13, Rule 41
86
RECORD ON APPEAL it must comply with the requirements as previously discussed in an appeal
from the Municipal Trial Court to the Regional Trial Court.562

4. PERFECTION OF APPEAL IS AS DISCUSSED under Rule 40. 563 Subsequently, it is the DUTY
OF CLERK OF COURT OF THE LOWER COURT within 30 days after perfection of all appeals to: (a)
verify correctness of the original record / record on appeal and make a certification as to correctness
(b) verify completeness of records transmitted to appellate court (c) If incomplete, take necessary
measures as may be required to complete the records, availing of the authority that he or the court
may exercise for this purpose. (d) transmit the records to the appellate court. (e) then furnish parties
of his transmittal. 564

4.1 IF EFFORTS TO COMPLETE FAIL, it shall be indicated in the letter of transmittal which
exhibits / transcripts are not included, the reasons why they were not transmitted and the steps taken
to make them available.

4.2 It is likewise required that the transcripts be transcribed565 and that the transmittal to include
proof of payment of docket fees.

4.3 Prior to transmittal of record / record on appeal, the court may motu propio or on motion to
dismiss the appeal for having been take out of time OR for non payment of docket and other lawful
fees within the reglementary period.566 If transmitted already, the Court of Appeals may dismiss.

5. Other procedural requirements and disposition of the appeal are governed by Rule 44:

5.1 The title of the case shall remain, party appealing shall be referred to as appellant / adverse
party-appellee. 567 Counsel / guardians ad litem of parties shall likewise be considered as such in
Court of Appeals, when others appear or are appointed, notice shall be filed and furnished adverse
parties.568

5.2 If the RECORDS are not transmitted to the Court of Appeals within 30 days after perfection of
the appeal, either party may file a motion with the Regional Trial Court, with notice to the other, for
transmittal.569

5.3 UPON RECEIPT BY THE COURT OF APPEALS, the clerk shall docket the case and notify
the parties. If appeal is by record on appeal, within 10 days from receipt of notice, appellant must file
with the clerk of court 7 clearly legible copies of approved record on appeal and proof of service
thereof to adverse party of 2 copies. Any unauthorized, alteration, omission or addition shall be
ground for dismissal of the appeal.570

The Clerk of the CA should also ascertain the completeness of the records. If incomplete, he shall
inform the court and recommend measures to complete the record within the shortest possible time
BUT if it cannot be completed due to insuperable or extremely difficult circumstances. The court, on
its own or upon motion, may declare the record sufficient to decide issues and explain reason for
such declaration.571

5.4 ONCE DONE, Briefs are to be filed: (a) The Appellant’s Brief must be filed within 45 days
from notice that all evidence, documentary / testimonial are attached to the record, 7 copies of the
brief are to be filed attaching proof of service of 2 copies to adverse party. 572 Where there are

561
Supra, Section 5, Rule 41
562
Supra, Sections 6,7,8, Rule 41
563
Supra, Section 9, Rule 41
564
Supra, Section 10, Rule 41
565
Supra, Section 11 and 12, Rule 41
566
Supra, Section 13, Rule 41
567
Supra, Section 1, Rule 44
568
Supra, Section 2, Rule 44
569
Supra, Section 3, Rule 44
570
Supra, Section 4, Rule 44
571
Supra, Sections 4 and 5, Rule 44
572
Supra, Section 7, Rule 44
87
several parties, each counsel representing one or more but not all may be served with 1 copy. If
several counsel represent one party, service may be made on any one of them.573 The CONTENTS
OF THE APPELLANT’S BRIEF are: (1) subject index (2)assignment of errors (3) statement of the
case (4)statement of facts (5)statement of issues (6) arguments (7) relief (8) if not by record on
appeal, an appendix, copy of judgment / final order appealed. 574 (b) The Appellee’s Brief is to be
filed within 45 days from receipt of Appellant’s Brief. It is required that 7 copies be filed with proof of
service of 2 copies on appellant. The CONTENTS OF APPELLEE’S BRIEF are: (1) subject index (2)
statement of facts, either a statement of acceptance or counter-statement of facts (3) Arguments 575 (c)
A Reply Brief may be filed by appellant within 20 days from receipt of the Appellee’s Brief.576 NO
EXTENSION OF TIME TO FILE BRIEFS is allowed except for good and sufficient cause, and only if
filed before expiration of the time sought to be extended577 IN LIEU OF BRIEFS, MEMORANDA is
required in certiorari, prohibition, madamus, quo warranto, hebeas corpus within a non-extendible
period of 30 days from notice that all evidence is attached to the record. Failure of appellant to file his
memoranda is ground to dismiss the appeal.578

5.5 QUESTIONS OF LAW OR FACT MAY BE RAISED in the appeal, whether or not a motion for
new trial has been filed and must within the issues framed by the parties.579

As a rule, a party who deliberately adopts a certain theory upon which the case is tried and decided
by the lower court will not be permitted to change his theory on appeal. Points of law, theories,
issues, and arguments not brought to the attention of the lower court need not be , and ordinarily not
be, considered by a reviewing court, as these cannot be raised for the first time at such late stage.
580
Basic considerations of due process underlie this rule.

6. In Criminal Cases, note the possibility of the filing of two notices of appeal when the penalty
imposed by the Regional Trial Court is life imprisonment or reclusion perpetua, appeal is by notice to
the Court of Appeals, and by notice again to the Supreme Court. If the penalty is death, it is
automatically reviewed by the Supreme Court, but such shall be made by the Court of Appeals, which
shall render judgment, then certify it to the Supreme Court, who will then enter the same.581

(b) Petition for Review is an appeal to the Court of Appeals of judgment / final order of the
Regional Trial Court in the exercise of its appellate jurisdiction under Rule 42

1. It is initiated by the filing of a Verified Petition for Review with the Court of Appeals, paying at the
same time to the Clerk of Court of Appeals the corresponding docket fees and lawful fees, depositing
500 for costs, furnishing the Regional Trial Court and adverse party with a copy of the Petition.

2. It is to be filed within 15 days from notice of decision sought to be reviewed or denial of motion for
new trial or motion for reconsideration. UPON PAYMENT OF DOCKET FEES AND DEPOSIT AND
BEFORE EXPIRATION OF THE PERIOD, the Court of Appeals may grant an extension of 15 days.
No further extension can be given unless for the most compelling reason, but in no case to exceed 15
days. 582

3. FORM, CONTENTS, NUMBER OF COPIES. 7 copies are to be filed, indicating the original copy
intended for the Court of Appeals containing (a)full names of parties, without impleading the lower
court / judges (b)specific material dates indicating that it is filed on time (c) statement of matters,
issues, specification of errors of fact / law and reasons / arguments relied upon (d)accompanied by
clearly legible duplicate copies or true copies of judgment of the lower courts, certified correct by
Regional Trial Court clerk of court, pleadings and other material portions supporting the allegations of

573
Supra, Section 11, Rule 44
574
Supra, Section 13, Rule 44
575
Supra, Section 14, Rule 44
576
Supra, Section 9, Rule 44
577
Supra, Section 12, Rule 44
578
Supra, Section 10, Rule 44
579
Supra, Section 15, Rule 44
580
BPI v Leobrera, 416 SCRA 15
581
People v. Mateo, 433 SCRA 640, AM No. 00-5-03-SC, October 15, 2004
582
Supra, Section 1, Rule 42
88
the petition (e) certification against forum shopping / verification. NOTE: Failure to pay fees or comply
with the requirements shall be sufficient ground for dismissal.583

4. The appeal is deemed PERFECTED upon timely filing of the petition and payment of docket fees.
The RTC loses jurisdiction upon perfection of the appeal and lapse of time to appeal by the other
parties. The Regional Trial Court continues to have RESIDUAL JURISDICTION until the same has
been given DUE COURSE.584

5. NOTE that except in cases covered by the Rule on Summary Procedure, appeal shall stay the
judgment / final order unless Court of Appeals or the Rules provide otherwise

6. ONCE FILED, the Court of Appeals may: (a) Require the respondent to file a comment, not a
motion to dismiss, within 10 days from notice (b)Dismiss the petition if found to be patently without
merit, prosecuted manifestly for delay, or questions raised therein are too unsubstantial to require
consideration.585

7. The COMMENT should be filed in 7 copies, accompanied by certified true copies of such
MATERIAL PORTIONS OF THE RECORD AND OTHER SUPPORTING DOCUMENTS, stating:
(a)Statement of whether or not he accepts the statement of matters (b) Point out the insufficiencies
/ inaccuracies (c) State reasons why it should not be given due course. Copy of which must be served
on adverse party.586

8.A petition is given DUE COURSE when upon the filing of the comment or expiration of the period
to file, the Court of Appeals finds PRIMA FACIE that the lower court has committed an error of fact /
law that will warrant a reversal / dismissal. CONSEQUENTLY, the Court of Appeals, if it deems
necessary, will order the elevation by the clerk of the Regional Trial Court of the entire record within
15 days from notice.587

9.IT IS SUBMITTED FOR DECISION after the filing of last pleading or memorandum. Prior to that
though, the Court of Appeals may set it for oral argument / or require memoranda to be submitted
within a period of 15 days from notice.588

(c) Appeal by Certiorari or Petition for Review on Certiorari which should involve a pure question
of law direct to the Supreme Court under Rule 45

1.A Question of Law is one that requires interpretation or application of a law, while a Question of
Fact is one that pertains to a resolution of a factual dispute.

1.1 There is a question of law in a given case when the doubt or difference arises as to what the
law is pertaining to a state of acts, and there is a question of fact when the doubt arises as to the truth
or falsity of alleged facts.589

2. This is initiated by the filing of a Verified Petition for Review on Certiorari raising only questions of
law. This mode of appeal is available to question judgment / resolutions of the Court of Appeals, the
Sandiganbayan, a Regional Trial Court, and other Courts whenever authorized by law.590

3. The TIME FOR FILING is 15 days from notice of the judgment, final / order, or resolution or of
denial of petitioner’s motion for new trial / reconsideration. On motion and with full payment of docket
fees and deposit of costs, the Supreme Court on justifiable reason may grant an extension of 30 days
within which to file the petition.

583
Supra, Sections 2 and 3, Rule 41
584
Supra, Section 8, Rule 42
585
Supra, Section 4, Rule 42
586
Supra, Section 5, Rule 42
587
Supra, Section 6, Rule 41
588
Supra, Section 9, Rule 42
589
Manila Bay Club Corporation v Court of Appeals, 245 SCRA 715
590
Supra, Section 1, Rule 45
89
Docket fees and proof of service of the petition on the lower court and adverse party must accompany
the filing of the petition.591

4.18 copies of the petition are required to be filed, indicating the original copy for the court. It should
contain: (a) full names of parties (petitioner / respondent) without impleading court / judge (b) indicate
material dates (c)concise statements of the matters involved and the reason / arguments relied upon
for the allowance of the petition (d) clearly legible copies of judgment / final order / reconsideration or
certified true copy and other material portion supporting the record (e) Certificate against forum
shopping and verification592

5. UPON FILING, the Supreme Court can:

5.1 DISMISS – (1) for failure to comply with the requirements regarding payment, proof of
service, contents and documents (2) on its own initiative because it is without merit, prosecuted for
delay, or issues are too unsubstantial to require consideration, OR

5.2 ALLOW REVIEW, which is not a matter of right but is discretionary, when there are special /
important reasons therefor: EXAMPLES- (1) when the court a quo has decided a matter of substance
not therefore determined by the Supreme Court or decided in a way not in accord with the law or
applicable decisions of the Supreme Court (2) when court a quo has so far departed from the
accepted and usual course judicial proceedings, or so far sanctioned such departure by a lower court,
as to call for an exercise of the power of supervision.593

6. If given DUE COURSE, the Supreme Court can: (a) Require elevation of the records / or specified
portions thereof within 15 days from notice 594 (b) Require filing of pleadings, briefs, memoranda or
documents as it may deem necessary within periods / conditions it may consider appropriate and
impose sanctions for non-filing / non-compliance or unauthorized filing. This ALSO applies to a
determination as to whether it should be dismissed or denied. 595 The RULE APPLIES TO BOTH
CIVIL / CRIMINAL ACTIONS, except in cases where penalty is death, reclusion perpetua / life
imprisonment.596

7. The exceptions to the general rule that only questions of law may be raised in a petition for review
are:(a) when the conclusion is a finding grounded entirely on speculation, surmises, or conjectures;
(b) when the inference made is manifestly mistaken, absurd, or impossible; (c) where there is a grave
abuse of discretion; (d) when the judgment is based on a misapprehension of facts; (e) when the
findings of fact are conflicting; (f) when the Court of Appeals, in making its findings, went beyond the
issue of the case and the same is contrary to the admissions of both appellant and appellee; (g) when
the findings of the Court of Appeals are contrary to those of the trial courts; (h) when the findings of
facts are conclusions without citation of specific evidence on which they are based; (i) 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; (j) when the finding of fact of the Court of Appeals is premised on the supposed
absence of evidence but is contradicted by the evidence on record; and (k) when the Court of
Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly
considered, would justify a different conclusion.597

(d) By Petition for Review under Rule 43 in a case decided by the Regional Trial Court sitting as
a commercial court.598

1. Applies primarily to appeals from the Court of Tax Appeals and other quasi-judicial agencies to the
Court of Appeals, but is not applicable to judgments / final orders under the Labor Code.599

591
Supra, Sections 2 and 3, Rule 45
592
Supra, Section 4, Rule 45
593
Supra, Sections 5 and 6, Rule 45
594
Supra, Section 8, Rule 45
595
Supra, Section 7, Rule 45
596
Supra, Section 9, Rule 45
597
Martinez v Court of Appeals, 358 SCRA 38
598
A.M. No. 04-9-07-SC, September 14, 2004
90
2. The appeal can include questions of fact, law or mixed questions of law and fact.600

3. The appeal shall be taken within fifteen (15) days from notice if the award, judgment, and final order
of resolution, or from the date of its last publication, if publication is required by law for its effectivity,
or of the denial of the petitioner’s motion for new trial or reconsideration duly filed in accordance with
the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be
allowed. Upon proper motion and the payment of the payment of the full amount of the docket fee
before the expiration of the reglementary period, the Court of Appeals may grant an additional period
of fifteen (15) days only within which to file the petition for review. No further extension shall be
granted except for the most compelling reason and in no case to exceed fifteen (15) days. 601

4. All other procedural matters and requirements are similar to a Petition for Review under Rule 42
EXCEPT that an appeal under this Rule shall not stay the award, judgment, final order or resolution
unless the Court of Appeals deems otherwise.602

7.In summary judicial proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express provision
of Section 247 of the Family Code, are immediately final and executory.603 Appeal by notice of appeal
is erroneous. The Court of Appeals should have dismissed as it had no jurisdiction to review on
appeal. Per Justice Panganiban, Certiorari under Rule 65 is the remedy of the State.

PROCEDURE WITH THE COURT OF APPEALS

RULE 46 – ORIGINAL CASES FILED WITH THE COURT OF APPEALS

Parties are to be designated as petitioner / respondent 604 and is to apply to cases of Certiorari,
Prohibition, Mandamus, Quo W arranto and to petitions for annulment of judgment under Rule 47605

CONTENTS OF PETITION – FILING – EFFECTS OF NON COMPLIANCE

Petitions filed before the Court of Appeals must contain the following: (1) identification of the parties,
a concise statement of matters involved, the factual background of the case, and the grounds relied
upon for the relief prayed for (2)statement of material dates, AND IN A PETITION UNDER RULE 65,
material dates are dates of notice of judgment or final order, when a motion for new trial or
reconsideration was filed, if any, and when notice of denial was received (3) clearly legible duplicate
originals or certified true copy of the attachments (4)certification against forum shopping (5)docket
fees / deposit for cost.606 FAILURE TO COMPLY IS SUFFICIENT GROUND FOR DISMISSAL OF
PETITIONS

A certified true copy is one the certification of which is made by the proper clerk of court or his duly
authorized representative.607

HOW DOES THE COURT ACQUIRE JURISIDICTION

Jurisdiction over the person or the respondent is acquired by service of order or resolution indicating
initial action on the petition or voluntary submission to jurisdiction.608

ACTION TO BE TAKEN BY THE COURT OF APPEALS

599
Supra, Sections 1 and 2, Rule 43
600
Supra, Section 3, Rule 43
601
Supra, Section 4, Rule 43
602
Supra, Section 12, Rule 43
603
Republic v Bernardez-Lorino, 449 SCRA 57
604
Supra, Section 1, Rule 46
605
Supra, Section 2, Rule 46
606
Supra, Section 3, Rule 46
607
Paras v Baldado, 354 SCRA 141
608
Supra, Section 4, Rule 46
91
1. The COURT may dismiss the petition outright with specific reasons OR require the filing of a
comment within 10 days from notice. ONLY PLEADINGS REQUIRED CAN BE FILED – OTHERS
CAN ONLY BE FILED WITH LEAVE OF COURT. 609

2. If factual issues are to be resolved, the Court of Appeals can conduct hearings or delegate
reception of evidence on such issues to any of its members or to an appropriate court / agency /
office. 610(Section 6, Rule 46)

3. If comment is not filed, it may be decided on the basis of the record without prejudice to any
disciplinary action against disobedient party.611

4. The COURT, IF THE PETITION IS NOT DISMISSED


OUTRIGHT:

4.1 Can call the parties / counsel to a preliminary conference, the object of which is to : (a)
consider compromise agreements, except when case is not allowed to be compromised (b)
define, simplify and clarify issues (c)formulate stipulation of facts and admissions of documentary
exhibits, limit the number of witnesses in cases falling within its original jurisdiction or those within its
appellate jurisdiction where a motion for new trial is granted on newly discovered evidence (d)
other matters that may aid in prompt disposition of the case.612

4.2 Record of proceedings is made and a RESOLUTION embodying actions shall be issued613
which shall be binding upon parties and control subsequent proceedings unless within 5 days from
notice, it can be shown by valid cause why it should not be followed or there is need for modifications
to prevent manifest injustice614

4.3 At it own instance or by motion, to hear the parties in oral argument on the merits of the case
or on any material incident AND is limited to such matters as the court may specify in its order or
resolution.615

4.4 In the conduct of oral arguments, unless authorized, only 1 counsel may argue for a party.
Duration, sequence and all related matters shall be as directed by the Court.616

4.5 MOTIONS THOUGH ARE NOT TO BE SET FOR HEARING, AND UNLESS DIRECTED BY
THE COURT, NO HEARING OR ORAL ARGUMENTS shall be allowed in support thereof. The
adverse party may file objections within 5 days from notice, then upon expiration of the period, it is
submitted for resolution.617

RULE 50 - GROUNDS FOR DISMISSAL BY THE COURT OF APPEALS

In ALL CASES THAT COME BEFORE IT, and besides on a finding that the case is without merit,
prosecuted for delay or issue is too unsubstantial to merit consideration, ON MOTION OF THE
COURT OR OF THE APPELLEE, it may dismiss the petition on the basis of:

1. Failure of record on appeal to show on its face that appeal was taken within period fixed by the
Rules.

2. Failure to file notice of appeal or record on appeal within period within the period prescribed by the
Rules.

3. Failure to pay docket fees as provided under Section 5, Rule 40 and Section 4, Rule 41.

609
Supra, Section 5, Rule 46
610
Supra, Section 6, Rule 46
611
Supra, Section 7, Rule 46
613
Supra, Section 2, Rule 48
614
Supra, Section 3, Rule 48
615
Supra, Section 1, Rule 49
616
Supra, Section 2, Rule 49
617
Supra, Section 3, Rule 49
92
612
Supra, Section 1, Rule 48

613
Supra, Section 2, Rule 48
614
Supra, Section 3, Rule 48
615
Supra, Section 1, Rule 50
616
Supra, Section 2, Rule 49
617
Supra, Section 3, Rule 49
92
4. Unauthorized alterations, omissions, additions on record on appeal as provided under Section 4,
Rule 44

5. Failure of appellant to serve and file required number briefs or memoranda within provided time by
these Rules

6. Absence of specific assignment of errors or page references to the record as required by Section
13, paragraphs a,c,d, and f of Rule 44

7. Failure of appellant to take necessary steps for the correction or completion of the records within
time limited by the Court

8. Failure to appear at preliminary conference under Rule 48, or comply with orders, circulars or
directives of the Court without justifiable cause

9. The fact that order / judgment appealed from is not appealable.618

DISMISSAL OF IMPROPER APPEAL

1. An appeal under Rule 41 from the Regional Trial Court to the Court of Appeals raising only
questions of law shall be dismissed as issues purely of law are not reviewable by the Court of
Appeals

2. An appeal by notice of appeal instead of petition for review from a Regional Trial Court exercising
appellate jurisdiction shall be dismissed

3. An appeal erroneously taken to Court of Appeals shall not be transferred but shall be dismissed
outright.619

WITHDRAWAL OF AN APPEAL

An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief.
Thereafter, only upon discretion of the Court.620

RULE 51 - JUDGMENT

When submitted for judgment:

1. IN ORDINARY APPEALS:

a. Where no hearing on merits is held, upon filing of the last pleading, brief, memoranda or expiration
of period to file.

b. Where a hearing is held, upon termination of hearing or upon filing of the last pleading, memoranda
as may be required or permitted, or expiration of period to file

2. IN ORIGINAL ACTIONS / PETITIONS FOR REVIEW

a. Where no comment is filed, upon expiration of the period to file comment


b. Where no hearing, same as 1 (a)
c. Where hearing is held, same as 1 (b)621

3. Judgment is rendered by members of the court who participated in the deliberations on the merits
before assignment to a member for writing of the decision.622

618
Supra, Section 1, Rule 50
619
Supra, Section 2, Rule 50
620
Supra, Section 3, Rule 50
621
Supra, Section 1, Rule 51
622
Supra, Section 2, Rule 51
93
4. Participation of all 3 justices shall be necessary at deliberation and unanimous vote shall be
required for pronouncement. If not, the clerk shall enter the vote of dissenting justices in the record.
Thereafter, Chairman of the division refers it to the Presiding Justice, who will designate 2 justices by
raffle to sit temporarily and to form a special division of five (5) justices. The participation of all is
required for deliberation. Concurrence of majority is required for pronouncement.623

Note: That in rendering judgment, harmless errors or those which do not affect the substantial rights
of the parties 624 or errors that are not assigned will not be considered unless they affect jurisdiction,
validity of judgment, and of proceedings.625

4.1 HARMLESS ERROR DOCTRINE means that any error or defect which does not affect
substantial rights will be disregarded by the reviewing court or tribunal. It is followed to deal with
evidence improperly admitted during trial wherein its damaging quality and impact to the substantial
rights of the litigant are examined. If deemed slight and insignificant, the error is disregarded.626 It is
not a ground for granting of a new trial or for setting aside, modifying, or disturbing a judgment or final
order unless the refusal appears to the Court inconsistent with substantial justice.

5. JUDGMENTS OF THE COURT OF APPEALS IN THE EXERCISE OF


APPELLATE
JURISDICTION MAY affirm, reverse, or modify the judgment or final order appealed from. It may also
order or direct a new trial to be held or that further proceedings be taken.627 The decision must state
clearly and distinctly the findings of fact and conclusions of law on which it is based, which may be
contained in the resolution itself or adopted from those set forth in the judgment, final order appealed
from.628

6. PROCEDURE AFTER JUDGMENT IS:

6.1 After signing by the justices, it shall be delivered to the clerk of court, who shall indicate
thereon the date of promulgation and cause true copies thereof to be served upon the parties or
counsel.629

2. If no appeal, or motion for new trial or reconsideration is filed within the period, the judgment or final
resolution shall be entered in the book of Entries of Judgment. Judgment or final resolution shall be
deemed executory as of the date of entry. The record shall contain the dispositive portion, signed by
the clerk with a statement that it is final and executory. 630

3. Execution shall as a rule issue upon a motion in the proper court upon its entry. In appealed cases,
where the motion is filed with the Court of Appeals at the time that it is in possession of the original
records or record on appeal, the resolution granting the motion shall be transmitted to the lower court
from which the case originated, together with certified copy of the judgment to be executed, with a
directive to said court to issue the proper writ for its enforcement. In original actions, the writ shall be
accompanied by a certified true copy of the entry of judgment and addressed to appropriate officer for
enforcement.631

RULE 52- MOTIONS FOR RECONSIDERATION BEFORE THE CA

Judgments of the Court of Appeals can be the subject of reconsideration within fifteen (15) days from
notice thereof, with proof of service to the adverse party. 632
1. No second motion for reconsideration will be entertained.633

623
Supra, Section 3, Rule 51
624
Supra, Section 6, Rule 51
625
Supra, Section 8, Rule 51
626
People v Teehankee, 269 SCRA 54.
628
Supra, Section 5, Rule 51
629
Supra, Section 9, Rule 51
630
Supra, Section 10, Rule 51
631
Supra, Section 11, Rule 51
632
Supra, Section 1, Rule 52
94
627
Supra, Section 4, Rule 51

628
Supra, Section 5, Rule 51
629
Supra, Section 9, Rule 51
630
Supra, Section 10, Rule 51
631
Supra, Section 11, Rule 51
632
Supra, Section 1, Rule 52
94
2. It is to be resolved within sixty (60) days from submission for resolution 634 and while pending, shall
stay the execution unless for good reason, court directs otherwise.635

RULE 53- MOTION FOR NEW TRIAL

It can be filed at any time after appeal from the lower court has been perfected and before the Court
of Appeals loses jurisdiction, on the ground of newly discovered evidence WHICH COULD NOT
HAVE BEEN DISCOVERED PRIOR TO THE TRIAL IN THE COURT BELOW BY THE EXERCISE
OF DUE DILIGENCE AND WHICH IS OF SUCH A CHARACTER AS WOULD PROBABLY CHANGE
THE RESULT. The motion must be accompanied by affidavits showing the facts constituting the
grounds and the newly discovered evidence.636

The Court of Appeals shall then consider the evidence and that adduced at the trial, to determine if it
will grant or refuse a new trial, or make such order, with notice to both parties, as to the taking of
further testimony, either orally in court, by depositions, or render such other judgment as ought to be
rendered upon terms it may deem just.637 IF GRANTED, the procedure shall be the same as that
granted by a Regional Trial Court.638

Motion should be resolved within 90 days from the date it is declared to be submitted.639

OTHER MATTERS

RULE 54 – Internal Business

Allotment of cases shall be among the different divisions for hearing and decision. The Court of
Appeals En Banc shall make proper orders or rules to govern allotment, the constitution of such
divisions, the regular rotation of justices, filling of vacancies, and other matters. Such will continue in
640
force and repealed or altered by it or the Supreme Court.

A majority of the court shall constitute a quorum for sessions en banc and a majority of the members
present shall be necessary to pass a resolution. Three members of a division shall constitute a
quorum for sessions of a division and the affirmative vote of three members shall be necessary for
pronouncement of judgment/resolution, which shall be reached in consultation among them before
the writing of the opinion by any member of the division.641

RULE 55 – Publication of Judgment/Final Order/Resolution

Judgments and Final Resolutions shall be published in the Official Gazette and in the Reports
officially authorized by the Court, in the language originally written, together with a syllabi. If not so
642
published, a memoranda shall be made and published in the like manner. The publication is to be
643
prepared by the Reporter. Those of the Supreme Court are called Philippine Reports, while those
644
of the Court of Appeals are called Court of Appeals Reports.

RULE 47-ANNULMENT OF JUDGMENT

633
Supra, Section 2, Rule 52
634
Supra, Section 3, Rule 52
635
Supra, Section 4, Rule 52
636
Supra, Section 1, Rule 53
637
Supra, Section 2, Rule 53
638
Supra, Section 4, Rule 53
639
Supra, Section 3, Rule 53
640
Supra, Section 1, Rule 54
641
Supra, Section 2, Rule 54
642
Supra, Section 1, Rule 55
643
Supra, Section 2, Rule 55
644
Supra, Section 3, Rule 55
95
Annulment of judgment covers judgments of the Regional Trial Court for which the ordinary remedies
of new trial, appeal, petition for relief or other appropriate remedies ARE NO LONGER AVAILABLE
THROUGH NO FAULT OF THE PETITIONER 645

1. An important condition for the availment is that the petitioner failed to move for new trial, or appeal
from, or file a petition for relief against, or take other appropriate remedies through no fault
attributable to him. If he failed to avail of the other remedies through his own fault, he would then
benefit from his inaction or negligence.646 He must allege non availment of other remedies through no
fault of the petitioner, otherwise the petition will be dismissed.647

1.1 Note that the correctness of the judgment is not in issue as a petition for annulment is not in
issue.648

1.2 It is a remedy that may be availed of by those who are not even parties to the judgment or to
annul even judgments that have been fully executed.649

2. It is available only on grounds of: (a) EXTRINSIC FRAUD but only when it was not availed of or
could have been availed of in a motion for new trial or petition for relief OR (b) LACK OF
JURISDICTION

2.1 There is extrinsic fraud when the unsuccessful party had been prevented from exhibiting fully
his case, by fraud or deception practice upon him by his opponent, as keeping him away from the
court, or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of
the plaintiff.650

3. The period for its filing if based on extrinsic fraud is within 4 years from its discovery, or if based on
lack of jurisdiction before it is barred by laches or estoppel.651

FILING / CONTENTS OF THE PETITION

Filing is by verified petition alleging therein with particularity, the facts and the law relied upon for
annulment as well as supporting petitioner’s good and substantial cause of action / defense, as the
case may be. Containing (1) certified true copy of judgment / final order / resolution shall be attached
to the original copy intended for the court (2) affidavits of witnesses (3) certification against forum
shopping652

WHAT THE COURT OF APPEALS WILL DO UPON FILING

1. If no substantial merit, it will be dismissed outright with specific reasons for such dismissal.

2. If prima facie merit be found, it shall be given due course and summons shall be served on the
respondent. IF SO, procedure in ordinary civil cases shall be followed but reception may be referred
to a member of the Court or a Regional Trial Court judge.653

EFFECT OF JUDGMENT IN A PETITION FOR ANNULMENT

It shall set aside the questioned judgment / final order / resolution and render the same null and void
– without prejudice to the refiling of the original action in the proper court . However, where it is set
aside by reason of extrinsic fraud, the court on motion, may order the trial court to try the case again
as if a timely motion for new trial has been granted therein.654

645
Supra, Section 1, Rule 47
646
Manipor v Ricafort, 407 SCRA 298
647
Ancheta v Ancheta, 424 SCRA 725
648
Republic v Heirs of Sancho Magdato, 340 SCRA 115
649
Malolos v Dy, 325 SCRA 827
650
Leonardo v ST Best, 422 SCRA 347
651
Supra, Section 3, Rule 47
652
Supra, Section 4, Rule 47
653
Supra, Sections 5 and 6, Rule 47
654
Supra, Section 7, Rule 47
96
The prescriptive period for the refiling of the original action shall be deemed suspended from the filing
of such original action until finality of the judgment of annulment. HOWEVER, the prescriptive period
is or shall not be suspended where extrinsic fraud is attributable to the plaintiff is original action.655

SCOPE OF RELIEF

It may include award of damages, attorney’s fees and other relief. If already executed, restitution or
other relief as justice / equity may warrant.656

IF ALSO APPLIES TO A PETITION TO ANNUL JUDGMENT / FINAL ORDER OF A MUNICIPAL


TRIAL COURT BUT IS FILED W ITH REGIONAL TRIAL COURT and treated as an ordinary civil
action.657 All sections except Section 5 pertaining to dismissal or determination of prima facie merit
shall apply.

RULE 65- CERTIORARI / PROHIBITION AND MANDAMUS

WHAT IS CERTIORARI

Special Civil Action against a tribunal board or officer exercising judicial or quasi-judicial function
which is alleged in a verified petition filed by an aggrieved party to have acted without jurisdiction or in
excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction,
AND there is no appeal, or any plain speedy and adequate remedy in the ordinary course of law,
praying for the judgment annulling / modifying the proceedings of such, tribunal board officer, tribunal
and granting such incidental reliefs as law and justice may require.658

DISTINGUISHED FROM PETITION FOR REVIEW ON CERTIORARI

Certiorari as distinguished from a Petition for Review on Certiorari: (a) In the former, the issue is
whether the lower court acted without, in excess of or with grave abuse of discretion, while in the
latter the issue is based on questions of law (b) in the former, it is addresses an interlocutory order
prior to appeal of a judgment when there is no appeal or any other speedy or adequate remedy, while
the latter involves a review of judgment/final order/ resolution on the merits (c) the former is filed
within 15 days from notice of judgment / order, while the latter is filed not later than 60 days from
notice of the resolution sought to be assailed or denial of a motion for reconsideration (d) the
former shall stay the judgment /final order or award, while the latter does not stay the order or
resolution unless a temporary restraining order or preliminary injunction is issued (e) In the former,
the petitioner/respondent are the original parties in the case and the lower court is not impleaded,
while in the latter, the aggrieved party is the petitioner against the against the lower court, agency and
the prevailing party (f) the former does not require the filing of a motion for reconsideration prior to
filing, while the latter requires a motion for reconsideration prior to filing (g) in the former, the court is
exercising appellate jurisdiction, while in latter, it is exercising original jurisdiction (h) the former can
only be filed in the Supreme court, while the latter may be filed with Supreme Court, Court of Appeals,
or the Regional Trial Court

EXCEPTIONS TO REQUIREMENT AS TO MOTION FOR RECONSIDERATION PRIOR TO FILING


A PETITION FOR CERTIORARI UNDER RULE 65

(1)order is a patent nullity – court a quo has no jurisdiction (2) questions have been raised in certiorari
have been duly raised and passed upon by lower court (3)urgent necessity for resolution (4)where a
motion for reconsideration will be useless (5)petitioner is deprived of due process, there is extreme
urgency for relief (6) in criminal case, relief from order of arrest is urgent, and grant of relief by trial
court is not probable (7) proceedings in lower court are a nullity for lack of due process (8) issue is
purely of law or where public interest is involved.

655
Supra, Section 8, Rule 47
656
Supra, Section 9, Rule 47
657
Supra, Section 10, Rule 47
658
Supra, Section 1, Rule 65
97
WHAT IS PROHIBITION

Special civil action against a tribunal, corporation, board, or person exercising JUDICIAL – QUASI
JUDICIAL – MINISTERIAL FUNCTION which is alleged by an aggrieved party to be acting or about
to act without jurisdiction, in excess of its jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction and there is no appeal, or any plain, speedy and adequate remedy in the
ordinary course of the law praying that judgment be rendered commanding the respondent to desist
from further proceeding in the action or proceeding therein or otherwise granting such incidental
reliefs as law and justice may require.659

DISTINGUISHED FROM CERTIORARI

In CERTIORARI the object is to correct the respondent’s acts by annulling proceedings, while in
PROHIBITION it is to prevent the commission of an act by stopping proceedings. In the former, the
assailed acts have already been done, while in the latter the assailed acts are about to be done or are
being done. In the former, the respondent performs judicial or quasi- judicial, while in the latter, the
respondent performs judicial, quasi-judicial functions or ministerial functions.

WHAT CONSTITUTES JUDICIAL AND QUASI-JUDICIAL POW ER

1. The exercise of judicial function is to determine what the law is, and what the legal rights of parties
are, with respect to a matter is controversy; and whenever an office is clothed with that authority, and
undertakes to determine those questions, he acts judicially.660

2. A quasi-judicial act or function is a judicial act or function performed by one who is not a judge.

WHAT CONSTITUTES GRAVE ABUSE OF DISCRETION

Capricious and whimsical exercise of judgment as may be equivalent to lack or excess of jurisdiction.

WHAT IS MANDAMUS

A special civil action against a tribunal, corporation, board, or officer alleged in a verified petition filed
by an aggrieved party to have unlawfully neglected the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excluded another
from the use and enjoyment of a right or office to which such other is entitled, and there is no plain,
speedy or adequate remedy in the ordinary course of the law, praying that judgment be rendered
commanding the respondent, immediately or at some other time specified by the Court to do the act
required to be done to protect the rights of the petitioner, pay damages sustained by reason of the
wrongful acts.

2 ASPECTS OF MANDAMUS

The aspects of Mandamus are: (a) respondent unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust or station OR (b) respondent
unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled.

1. The legal right of the plaintiff (petitioner) to the thing demanded must be well defined, clear and
certain. The corresponding duty of the defendant (respondent) to perform the required act must also
be clear and specific.661

659
Supra, Section 2, Rule 65
660
Municipal Council of Lemery, Batangas v Provincial Board of Batangas, 56 PHIL 260
661
Enriquez, Jr v Bidin, 47 SCRA 183
98
2. Mandamus lies only to compel performance of a ministerial duty but not to compel performance of a
discretionary duty.662 In granting mandamus, respondent is commanded to perform the particular act
or required to be done and to pay the damages sustained by the petitioner by reason of the wrongful
acts of the respondent.

3. An act is ministerial when officer or tribunal performs in a given state of facts, in a prescribed
manner in obedience to the mandate of a legal authority without regard to the exercise of his own
judgment. If given the authority to decide how and when, it is discretionary.

4. Mandamus does not lie to correct / enforce contractual


obligations.

HOW DISTINGUISHED FROM CERTIORARI/PROHIBITION

In MANDAMUS, the respondent is exercising ministerial power and he has unlawfully neglected to
perform it or excluded a party from occupying or enjoying the privilege of an office to which he is
lawfully entitled and the object is to COMPEL action, while in CERTIORARI, the respondent is
exercising judicial or quasi-judicial powers without jurisdiction or with grave abuse of discretion
amounting to an excess or lack of jurisdiction and the object is to CORRECT. In PROHIBITION , the
respondent is exercising judicial, quasi-judicial or ministerial powers and he is acting or about to act
without jurisdiction or with grave abuse of discretion amounting to an excess or lack of jurisdiction,
and the object is to PREVENT

WHEN MAY IT BE FILED

Not later than 60 days from notice of the assailed judgment, order or resolution. BUT if a timely
motion for reconsideration is filed, whether required or not, the 60 days period shall be counted from
notice of the denial of the motion.663 An extension may be granted for compelling reasons but in no
case to exceed 15 days.

WHERE ELSE CAN BE FILED OTHER THAN THE COURT OF APPEALS

The petition may be filed in the Supreme Court, the Regional Trial Court if relates to an act / omission
of a lower court, corporation, board, officer or person within its territorial jurisdiction, or the
Sandiganbayan, if in aid of its appellate jurisdiction

IT IS FILED WITH THE COURT OF APPEALS

Whether or not in aid of its appellate jurisdiction, when it involves acts / omissions of quasi-judicial
body, unless otherwise provided.

PARTIES TO BE IMPLEADED

In addition to the public respondents, the petition shall also join the person/s interested in sustaining
the proceedings and it shall be the duty of the private respondent to appear and defend both in his
behalf and that of the public respondents and cost awarded shall be against private respondent only.

Unless otherwise directed by the court, the public respondents shall not appear or file an answer or
comment. If elevated to a higher court the public respondents shall be nominal parties, and unless
directed shall not appear or participate in the proceedings therein.664

ORDER TO COMMENT

If petition is sufficient in form or substance, a comment will be required, not a motion to dismiss.665
Orders expediting proceedings / temporary restraining order / injunctions for the preservation of the

662
Calderon v Sol, 215 SCRA 876
663
Supra, Section 4, Rule 65, as Amended by A.M. 00-2-03-SC
664
Supra, Section 5, Rule 65
665
Supra, Section 6, Rule 65
99
rights of the parties may be issued BUT the filing of the petition shall not interrupt the course of the
principal case unless a Temporary Restraining Order or Injunction is granted enjoining the public
respondent from further proceeding.666

ACTIONS THAT MAY BE TAKEN SUSBEQUENTLY

Court may hear or require filing of memoranda. If it finds the allegations to be true, it shall render
judgment for the relief prayed for or to which petitioner is entitled.

It may also dismiss if patently without merit, prosecuted manifestly for delay or issues are too
unsubstantial to require consideration.667 (Section 8)

SERVICE / ENFORCEMENT OF JUDGMENT –

Certified copy of judgment shall be served in such manger as the court may direct and disobedience
thereto shall be punished as contempt. Execution may issue for any damages / cost in accordance
with Section 1, Rule 39.668

RULE 66 -QUO WARRANTO

Quo Warranto is a special civil action brought by verified petition in the name of the Republic of the
Philippines against: (a) person who usurps, intrudes into or unlawfully holds or exercises a public
office, positions or franchise (b) public officer who performs an act that constitutes a ground fro
forfeiture of his office (c) an association that acts as a corporation within the Philippines without
legally being incorporated or without lawful authority to act.669

1. It literally means “ by what authority”.670

2. An individual can bring a quo warranto action in his name when he is claiming to be entitled to a
public office or position usurped or exercised by another may bring an action.671

3. A quo warranto action MUST be commenced by the Solicitor General or Public Prosecutor when
directed by the President or upon complaint or otherwise he has good reason to believe that a cause
can be established by proof.672 If by complaint, a request for indemnity for expenses and costs may
be required to be deposited.673

3. BESIDES the Court of Appeals, the action can be brought before the Supreme Court, a Regional
Trial Court exercising jurisdiction over the area where the respondent/s reside BUT, if the Solicitor
General commences the action, he may bring it before a Regional Trial Court in Manila, the Court of
Appeals or the Supreme Court.674

4. WHEN FILED: within 1 year from accrual of the cause of action (ouster or right to hold position)
Damages if recoverable must be in another action filed within 1 year from entry of judgment.675

5. PARTIES and CONTENTS of the petition: W hen the action is against the person for usurping a
public office, position or franchise, the petition shall set forth the name of the person who claims to be
entitled thereto, if any with an averment of his right to the same and that the respondent is unlawfully
in possession thereof. All persons who claim to be entitled may be made parties, and their respective
rights may be determined in the same action.676

666
Supra, Section 7, Rule 65
667
Supra, Section 8, Rule 65
668
Supra, Section 9, Rule 65
669
Supra, Section 1, Rule 66
670
Tecson v Comelec, 424 SCRA 277
671
Supra, Section 5, Rule 66
672
Supra, Section 2, Rule 66
673
Supra, Section 3, Rule 66
674
Supra, Section 7, Rule 66
675
Supra, Sections 10 and 11, Rule 66
676
Supra, Section 6, Rule 66
100
6. REDUCTION OF TIME for pleadings and other proceedings may be directed by the Court to secure
the most expeditious determination of the matters involved therein consistent with the rights of the
parties. It can also take precedence over other civil matters pending before the Court.677

7. A JUDGMENT where the respondent is found guilty of usurping, intruding into, or unlawfully holding
or exercising a public office, position or franchise shall state that he be OUSTED AND ALTOGETHER
EXCLUDED THEREFROM, and that the rights of the PETITIONER OR RELATOR, meaning the real
party in interest, be determined as justice requires.678 It can also include a judgment for costs679

8. The RIGHTS of a person entitled to public office include the right to demand of the respondent all
books and papers in his custody or control appertaining to the office, otherwise he may be punished
for contempt.680Note: the damages aspect must be brought in another action.

DISTINGUISH BETW EEN QUO WARRANTO AND ELECTION PROTEST

In QUO W ARRANTO the issue is the disqualification / ineligibility of the proclaimed candidate, in a
PROTEST the issue is an irregularity in the election. If in the former, if the respondent is ineligible, the
petitioner does not occupy the position, while in the latter, the protestant can occupy the position if he
obtains a plurality of the votes.

DISTINGUISH BETW EEN QUO WARRANTO AS TO NATURE OF POSITION

In quo warranto involving an ELECTIVE POST the issue is the eligibility of candidate elected, while in
that involving an APPOINTIVE POST the issue is the legality of appointment. In the former, if the
nd
respondent is found ineligible, the found ineligible, 2 highest vote getter, even if eligible cannot be
declared elected, while in the latter, the resolution shall determine who has been legally appointed
and declare who is entitled to occupy the office.

RULE 56 – PROCEDURE IN THE SUPREME COURT

ORIGINAL CASES

The cases cognizable by the Supreme Court are Certiorari, Mandamus, Prohibition, Quo W arranto,
Habeas Corpus, Disciplinary Actions against members of the Judiciary and Attorneys, Cases
681
affecting Ambassadors, Public Ministers or Consuls.

In resolving the cases, applicable rules in the Court of Appeals are also applicable in the Supreme
Court.682

APPEALED CASES

The only mode of appeal to the Supreme Court is by Petition for Review on Certiorari, except in
criminal cases where penalty is death, reclusion perpetua, and life imprisonment683 NOTE: Except in
appeal of criminal cases where penalty is death, reclusion perpetua, life imprisonment, appeal by
Notice of Appeal, will be dismissed 684 AND if by certiorari from the Regional Trial Court to the
Supreme Court, raising issues of fact may be referred to the Court of Appeals for decision or
appropriate action. Determination of the Supreme Court as to whether or not there are issues of fact
is FINAL.

All appealed cases shall be governed by and disposed of in accordance with the applicable
provisions of the Constitution, Rule 45 (Petition for Review on Certiorari) Rule 48 (Preliminary

677
Supra, Section 8, Rule 66
678
Supra, Section 9, Rule 66
679
Supra, Section 12, Rule 66
680
Supra, Section 10, Rule 66
681
Supra, Section 1, Rule 56
682
Supra, Section 2, Rule 56
683
Supra, Section 3, Rule 56
684
Supra, Section 6, Rule 56
101
Conference), Sections 1 (When submitted) 2 (Who renders judgment) and 5 to 11 ( Form to
Execution) Rule 51, Rule 52 (Motion for Reconsideration) and Rule 56. 685

GROUNDS FOR DISMISSAL OF AN APPEAL

Motu propio or upon motion of respondent, it may be dismissed on (1) failure to take appeal within the
reglementary period (2) lack of merit (3) failure to pay docket and lawful fees (4) failure to comply with
requirements of proof of service and documents (5) failure to comply with any circular, directive or
order of the Supreme Court without justifiable cause (6) error in the choice or mode of appeal (7) that
it is not appealable to the Supreme Court686

IF SUPREME COURT OPINION IS EQUALLY DIVIDED OR NECESSARY MAJORITY CANNOT BE


OBTAINED

It will be deliberated further. If after deliberation, no decision is reached, the original action
commenced in the court shall be dismissed. If appealed, it shall stand affirmed. If on incidental
matters, it shall be denied.687

PROVISIONAL REMEDIES

RULE 57 – PRELIMINARY ATTACHMENT

WHAT IS PRELIMINARY ATTACHMENT

It is a provisional remedy issued upon order of the court where the action is pending to LEVY upon
the properties of the defendant therein, the same to be held thereafter by the sheriff as security for
the satisfaction of whatever judgment might be rendered in favor of the attaching creditor.
rd rd
It can also extend to property of the defendant in the hands of 3 persons or money owed by 3
persons to the defendant. This is also known as GARNISHMENT

If judgment has become final and executory, there is a final attachment which is also known as Levy
on Execution

WHEN CAN IT BE AVAILED OF

At any time before entry of judgment.

DISTINCTIONS BETW EEN PRELIMINARY ATTACHMENT AND GARNISHMENT

In PRELIMINARY ATTACHMENT there are two parties, the plaintiff or proper party and the
defendant, while in GARNISHMENT, there is an additional party in the person of the garnishee.
In the former, property is actually seized and a lien is created thereon, while in the latter, there is no
actual seizure.

GROUNDS

1. Action for recovery of money or damages other than moral / exemplary, on a cause of action that
arise from law, contract, quasi – contract, delict, or quasi-delict against a party who is about to depart
from the Philippines with intent to defraud creditors.

2. Action for money or property embezzled or fraudulently misapplied or converted to his own use by a
public officer, an officer of a corporation, or an attorney, factor, broker, agent or clerk in the COURSE

685
Supra, Section 4, Rule 56
686
Supra, Section 5, Rule 56
687
Supra, Section 7, Rule 56
102
OF HIS EMPLOYMENT as such, or by any person in a FIDUCIARY CAPACITY, or for WILLFUL
VIOLATION of such duty.

3. Action to recover possession of property unjustly or fraudulently taken, detained or converted when
the property, or any part thereof, has been concealed, removed or disposed of to prevent its being
found or taken by the applicant or authorized person.

4. Action against a party guilty of fraud in contracting the debt or incurring the obligation upon which
the action is brought or in the performance thereof.

4.1 The fraud should be committed either upon contracting the debt or incurring the obligation
sued upon or in the performance thereof. A debt is fraudulently contracted if at the time of contracting
it, the debtor has a preconceived plan or intention not to pay.688

5. Action against a party who has removed or disposed of his property, or is about to do so, with intent
to defraud creditors.

6. Action against a party who does not reside and is not found in the PI or on whom summons may be
served by publication.689

HOW APPLIED FOR

1. Generally, by motion or is incorporated in the complaint, accompanied by an affidavit, containing


the following: (a) It is executed by the applicant / or some person who is aware or personally knows
the facts (b) A sufficient cause of action exists (c) That ground/s as stated in Section 1 (d) There
is no other sufficient security for the claim sought to be enforced by the action (e) The amount
due the applicant or value of the property that he is entitled to recover, IS AS MUCH AS THE SUM for
which the ORDER is granted, above all legal counterclaims690

2. A BOND must then be executed to the adverse party in the amount fixed by the court,
CONDITIONED that the latter will pay all costs which may be adjudged and all damages sustained by
reason of the attachment, if the court shall finally adjudge that the applicant was not entitled
thereto.691

WHEN ISSUED / BY WHOM

Either ex parte or on motion with notice and hearing, by the court in which action is pending, by the
Court of Appeals or the Supreme Court and must require the Sheriff to attach so much of the property
in the Philppines of the party against whom it is issued NOT EXEMPT FROM EXECUTION as may
be sufficient to satisfy claim UNLESS other party makes a deposit or gives a bond in an amount
equal to that fixed in the order, exclusive of costs. Note: that several writs may be issued at the same
time to the sheriffs of the courts of different judicial regions.692

1. IT IS ISSUED EX-PARTE when the ground is justified further by the fact that the defendant might
abscond or dispose of his property before the writ is issued. It CAN TAKE PLACE even before he is
summoned BUT note that it cannot be enforced unless it is preceded or contemporaneously
accompanied by SERVICE OF SUMMONS, together with complaint, application for attachment,
affidavit, bond, order and the writ itself. This is the PRIOR OR CONTEMPORANEOUS RULE. NOTE:
An Alias summons belatedly filed cannot be deemed to have cured the FATAL DEFECT in the
enforcement of the writ of preliminary attachment.693

2. The prior or contemporaneous rule does not apply when: (a) Summons could not be served
personally or by substituted service despite diligent efforts (b) Defendant is a resident but temporarily

688
FCY Construction Group Incorporated v Court of Appeals, 324 SCRA 270
689
Supra, Section 1, Rule 57
690
Supra, Section 3, Rule 57
691
Supra, Section 4, Rule 57
692
Supra, Section 2, Rule 57
693
Mangila v Court of Appeals, 387 SCRA 162
103
out of the PhiIippines (c)Defendant is a non-resident of the Philippines (d) It is an action in rem or
quasi in rem

2.1 An IN REM action is directly against the thing to determine title to or affect its interest, while
a QUASI-IN-REM is a proceeding against the thing for satisfaction a claim against a person by
adjudication of rights against property over which jurisdiction can be obtained

BY WHOM / HOW ENFORCED

1. By the sheriff, without delay and with all reasonable diligence

1.1 Note that Rule 57 does not provide any lifetime for a writ of preliminary attachment unlike a
writ of execution. 694 What the law provides are enforcing the writ without delay and making sheriff’s
return thereon without delay.

2. He may attach only such property not exempt from execution, as may be sufficient to satisfy
the demand UNLESS defendant makes a deposit or give a counter bond in an amount equal to the
bond fixed by the court or to the value of the property attached. 695 NOTE: That the attachment shall
proceed nevertheless until there have been proceedings undertaken to discharge the attachment. If
found to be insufficient / or is not filed, a NEW ORDER OF ATTACHMENT MAY BE APPLIED
FOR.696

3. Attachment should be in accordance with the


following:

a. If real property, it requires the filing with the Office of the Register of Deeds of a copy of the order
together with notice that property or interest therein is attached.

b. If personal property capable of manual delivery taking it and safely keeping it in custody after
issuance of proper receipt.

c. If stocks / shares / interest in companies, by leaving with the president or managing agent a copy of
the writ and notice.

d. If debts, credits, bank deposits and other like personal properties not capable of manual delivery –
leaving with such persons owing debt, holding credits or in possession a copy of the writ and notice.

e. If interest is in the estate of a decedent, by virtue of his being an heir, legatee, or devisee, by
serving the writ / notice on executor or administrator.

f. If in custodia legis – copy of writ is filed if the proper court or quasi-judicial agency and notice
served on the custodian of the property. 697

3.1 Effect of attachment of debts, credits and similar personal property – persons who have them
are liable to the applicant for the amount of such credits UNTIL the attachment is discharged,
judgment is satisfied or debts are paid698 (Section 8)

3.2 Effect if on property belonging the estate of the decedent, it will not impair the powers of the
executor / administrator or representative – BUT they shall report the attachment to the court when
any petition for distribution is filed – and in the order made upon such petition – the property may be
awarded to the heir / legatee / devisee , but the property attached shall be delivered to the sheriff,
subject to the claim of the heir, legatee, devisee or person claiming under him.699 (Section 9)

694
Roque v Court of Appeals, 93 SCRA 540
695
Supra, Section 5, Rule 57
696
Supra, Section 12, Rule 57
697
Supra, Section 7, Rule 57
698
Supra, Section 8, Rule 57
699
Supra, Section 9, Rule 57
104
3.3 THERE CAN ALSO BE EXAMINATION OF THESE PERSONS TO DETERMINE IF THERE
ARE PROPERTIES THAT MAY BE ATTACHED IN THEIR POSSESSION 700

4. Sheriff shall also make a RETURN without delay, containing full statement of his proceedings under
the writ and a complete inventory of property attached, together with a copy of a counter-bond if one
has been filed, furnishing copies thereof on the applicant.701

5. Property is to be held and disposed of in the following manner:

a. If judgment is recovered by the attaching party

1. Paying to obligee proceeds of all sales of perishable property or others sold pursuant to order
of the court as shall be necessary to satisfy the judgment.

2. If there is a balance, selling so much of the real or personal property as may be necessary to
satisfy the balance, if enough for that purpose, remains in the hands of the sheriff or clerk of court.
Note that there can be an EARLY SALE if it is made to appear to the court in which the action is
pending that the property attached is perishable, or that the interest of all the parties to the action will
be subserved by the sale of the properties at public auction, the proceeds to be deposited with the
court to abide the judgment.702

3. Collecting from all persons having in their possession credits belonging to the obligor or debts
due him

A REPORT / RETURN of all proceedings must be filed with the court and copies furnished all
parties.703

4. If there be a balance, he proceeds to collect as upon ordinary execution. If there be a surplus,


it must be returned.

5. If judgment becomes executory, the surety/ies shall become charged on the counter-bond and
bound to pay the judgment obligee upon demand, the amount due on the judgment, which amount
can be recovered after notice and summary hearing in the same action.704

6. If money was deposited in LIEU of a bond, it is applied under direction of the Court and if
judgment is against attaching party, the whole sum deposited is refunded. 705

b. If judgment is for adverse party –

1. All proceeds of sales or money collected by the sheriff and property attached shall be
delivered to the party whose properties were attached and the order of attachment discharged.

2. Claim for damages before trial, perfection of appeal, or judgment becomes executory, with due
notice to the attaching party and surety setting forth the facts showing his right to damages in
instances where there is improper, irregular or excessive attachment, are to be awarded after hearing
and is to be included in the judgment in the main case.

2.1 If the judgment favorable to him is rendered by the appellate court, he must claim the
damages during the pendency of the appeal by filing the application in the appellate court, before the
judgment becomes executory. The appellate court may allow the application to be heard and decided
by the trial court.

700
Supra, Section 10, Rule 57
701
Supra, Section 6, Rule 57
702
Supra, Section 11, Rule 57
703
Supra, Section 15, Rule 57
704
Supra, Section 17, Rule 57
705
Supra, Section 18, Rule 57
105
2.2 NOTHING, likewise, prevents the party against whom attachment is issued from recovering in
the same action the damages awarded to him from any property of the attaching party not exempt
from execution should the bond or deposit be insufficient.706

WHAT ARE THE REMEDIES OF A PARTY WHOSE PROPERTIES ARE ATTACHED

1. Discharge the attachment by making a cash deposit or counter bond.707 NOTE: That bond
may be subject to RECOVERY by attaching party;

2. Discharge or set aside the attachment on the ground that it was improperly issued or
irregularly enforced, OR bond is insufficient OR what has been attached is excessive, the discharge
is only for the excess.708

3. Claim for damages on account of improper, irregular, or excessive attachment. 709

NOTE: a motion to discharge / dissolve is not allowed if the preliminary attachment is issued on a
ground which is at the same time the applicant’s cause of action as that is TANTAMOUNT TO TRIAL
ON MERITS. Example: action for money, property embezzled, party guilty of fraud in incurring the
obligation
RD
WHAT HAPPENS IF PROPERTY IS CLAIMED BY A 3 PERSON

Claim is to be initiated by affidavit. Upon filing, the sheriff not under obligation to keep the property,
unless attaching party files a bond. No claim for damages for the taking or keeping of the property
may be filed / enforced against the bond unless the action is filed within 120 days from date of the
filing of the bond. 710

RULE 58 – PRELIMINARY INJUNCTION

A Preliminary Injunction isan order granted at any stage of an action or proceeding prior to judgment
or final order, requiring a party or a court, agency, person to refrain from a particular act or acts. It
may also require the performance of an act, if such it is called a preliminary mandatory injunction.711

1.Note that Injunction may also exist as a cause of action. This is best illustrated by the appropriate
remedies for obligations to do or not to do. Obligations to do, the remedy is specific performance.
Obligation not to do, remedy is injunction.

PRIMARY PURPOSE OF INJUNCTION

Is to preserve the status quo or the last actual, peaceable, uncontested status which precedes the
pending controversy.

WHO MAY GRANT

Court where the action is pending. If pending in the Court of Appeals or the Supreme Court, it may be
issued by the Court or any member thereof.712

GROUNDS FOR ISSUANCE

706
Supra, Section 20, Rule 57
707
Supra, Section 12, Rule 57
708
Supra, Section 13, Rule 57
709
Supra, Section 20, Rule 57
710
Supra, Section 14, Rule 57
711
Supra, Section 1, Rule 58
712
Supra, Section 2, Rule 58
106
1. The applicant is entitled to the relief demanded, and the whole or part of the relief consists in
restraining the commission / continuance of the act/s complained of, or in requiring the performance
of an act/s, for a limited period or perpetually.

2. The commission / continuance / non performance of the act/s during litigation will probably
work injustice to the applicant, OR

3. That a party, court, agency or a person is doing, threatening, or is attempting to do or is


procuring or suffering to be done, some act/s in violation of the rights of the applicant respecting the
subject of the action and tending to render judgment ineffectual.713

REQUISITES FOR ISSUANCE OF AN INJUNCTION

1. Existence of a right to be protected

2. Acts against which the injunction is to be directed are violative of the right

These must clearly appear in the allegations in the complaint – OTHERWISE – it may be ground for
its outright denial for INSUFFICIENCY, which is apparent in the application itself OR if already
granted, may be dissolved.714

MAY IT BE ISSUED EX-PARTE –

Its issuance requires (1) a hearing (2) reception of evidence with opportunity to cross (3) finding that
prohibited acts are threatened to be committed or that irreparable injury would be inflicted upon the
applicant.

IF GREAT / IRREPARABLE INJURY WOULD RESULT BEFORE THEN: the Court BY W AY OF


EXCEPTION TO THE RULE ON NON EX-PARTE ISSUANCE (1) can issue a Temporary Restraining
Order for 20 days after a summary hearing OR If it is of extreme urgency, it may issue ex-parte a 72
hour Temporary Restraining Order. The lifetime of a Temporary Restraining Order is 20 days if issued
by a trial court, 60 days if issued by the Court of Appeals, and until further orders if issued by the
Supreme Court. Note that within the 20 day effectivity period of the Temporary Restraining Order, the
court must order the party or person to show cause why the injunction should not be granted,
determine also whether or not the preliminary injunction should be granted, and accordingly issue the
order. 715

HOW OBTAINED

A preliminary injunction or temporary restraining order is obtained upon (1) filing of a verified
application showing facts entitling the applicant to the relief demanded, (2) unless exempted, filing of
a bond in an amount fixed by the court, to the effect that applicant will pay all damages that may be
sustained if the court should finally decide that applicant was not entitled thereto (3) if included in a
complaint / initiatory pleading it shall be raffled only after notice to and in the presence of the adverse
party. In any event, notice shall be preceeded by or contemporaneously accompanied by service of
summons, together with affidavit and bond (PRIOR OR CONTEMPORANEOUS RULE) but such will
not be applicable if defendant / adverse party cannot be served personally / substituted service,
temporarily absent or is a non-resident. The matter shall thereafter be acted upon only after all parties
are heard in a summary hearing, conducted within 24 hours after sheriff’s return of service.716

GROUNDS FOR OBJECTION / DISSOLUTION

1. The application may be denied or if granted, dissolved, upon showing of insufficiency, or while
entitled to an injunction, the issuance or continuance thereof will cause irreparable damage to the

713
Supra, Section 3, Rule 58
714
Supra, Section 6, Rule 58
715
Supra, Section 5, Rule 58
716
Supra, Section 4, Rule 58
107
person enjoined while the applicant can be compensated for the damages and a bond is filed OR if it
appears that extent is too great, it may be modified. 717

2. It may also be dissolved on objection to the sufficiency of the bond, or upon finding of insufficiency,
the failure of surety to justify or filing of a sufficient bond. If it the objection is to the bond of the party
enjoined, the injunction shall be granted or restored. 718

JUDGMENTS OR ORDERS IN INJUNCTION

1. ORDER DISCHARGING IS IMMEDIATELY EFFECTIVE

2. A Final Injunction is granted if it appears that the applicant is entitled to have the act/s permanently
enjoined or confirming the preliminary mandatory injunction.719

3. Judgments eventually rendered may include damages against a party and sureties. 720
rd
4. No injunction can issue against the acts of a co-equal court, except in a 3 party claim where
claimant vindicates his right by a separate action.

RULE 59 – RECIEVERSHIP

WHEN IS A RECEIVER APPOINTED

1. When it appears from a verified application, and as such other proof as the court may require, that
the party applying for the appointment of a receiver has an interest in the property or fund which is the
subject of the action or proceeding as such property / fund is in danger of being lost, removed or
materially injured unless a receiver be appointed to administer and preserve it.

2. When it appears in an action by the mortgagee for the foreclosure of mortgagee that the property is
in danger of being wasted, dissipated or materially injured – and that its value is probably insufficient
to discharge the mortgage debt or that the parties have so stipulated in the mortgage contract.

3. When after judgment, to preserve the property during the pendency of an appeal, or to dispose of it
according to the judgment, or to aid in execution when the execution is returned unsatisfied or the
judgment obligor refuses to apply his property in satisfaction of the judgment or otherwise carry the
judgment into effect.

4. Whenever in other cases, it appears that the appointment of a receiver is the most convenient and
feasible means of preserving, administering or disposing of property in litigation.

WHO APPOINTS A RECEIVER

The court where action is pending or the Court of Appeals, the Supreme Court or a member thereof.
During appeal, the appellate court may allow the application for the appointment to be filed in the
court of origin, which can also decide on the same to be subject to the control of said court.721

1.A receiver of real or personal property, which is the subject of the action, may be appointed by the
court when it appears from the pleadings or such other proof as the judge may require, that the party
applying for such appointment has:
(a) an actual interest in it, and (b) that (a) such property is in danger of being lost, removed, or
materially injured; or whenever it appears to be the most convenient and feasible means of
preserving or administering the property in litigation.722

717
Supra, Section 6, Rule 58
718
Supra, Section 7, Rule 58
719
Supra, Section 9, Rule 58
720
Supra, Section 8, Rule 58
721
Supra, Section 1, Rule 59
722
Commodities Storage & Ice Plant Corp. versus Court of Appeals, 274 SCRA 439
108
2.A receiver is a person appointed by the court or by a quasi-judicial administrative agency, in behalf
of all the parties for the purpose of preserving and conserving the property and preventing its possible
destruction or dissipation, if it were left in the possession of any of the parties. It is the duty of the
receiver to administer the assets of the receivership estate; and in the management and disposition of
the property committed to his possession, he acts in a fiduciary capacity and with impartiality toward
all interested persons.723

3.A receiver is not an agent or representative of any party to the action. He is an officer of the court
exercising his functions in the interest of neither plaintiff nor defendant, but for the common benefit of
al the parties in interest. He performs his duties “subject to the control of the Court,” and every
question involved in the receivership may be determined by the court taking cognizance of the
receivership proceedings. Thus, unauthorized contracts of a receiver do not bind the court in charge
of receivership. They are the receiver’s own contracts and not recognized by the court as contracts
of the receivership.724

WHAT ARE THE POW ERS OF THE RECIEVER

Subject to the control of the court, HE CAN: (a) Bring and defend actions in his own name (b)Take
and keep possession of the properties in controversy (c)To receive rent (d)Collect debts, including
power to compound and compromise them, to pay debts (e)Make transfers (f) To divide money or
other property (g) Other acts as may be authorized by the court

1. Funds though may only be invested by order of the court upon written consent of all parties. No
action may be filed by or against the receiver without leave of court to prevent harassment.725

2. Should there be refusal / neglect to deliver property to a receiver – it is punishable by contempt and
shall be liable for the money or value of the property, plus damages sustained as a consequence of
the refusal / neglect.726

HOW APPLIED FOR

1. By verified application. Note that more than 1 receiver may be applied for and appointed by the
court. NOTE: That receivership may be a principal action or an ancillary remedy.

2. If application is granted – the receiver shall await the filing by the applicant of a bond executed to
the party against whom the application is presented in an amount fixed by the Court to the effect that
the applicant will pay such party all damages that he may sustain by reason of the appointment in
case the same has been procured without SUFFICIENT CAUSE – and the court in its discretion may
require an additional bond to be filed as further security for damages.727

3. The APPLICATION may be denied or receiver discharged when the adverse party files a bond
executed to the APPLICANT to the effect that such party will pay to the applicant all damages he may
suffer by reason of acts, omissions or other matters specified as grounds in the application – If may
also be discharged if it is shown that appointment was obtained without sufficient cause.728

4. BEFORE entering upon his duties, the receiver shall be sworn to perform them faithfully and shall
file a bond executed to such person and in amount fixed by the court, to the effect that he will
faithfully discharge his duties and obey orders from the Court.729

5. Copies of bonds ( Applicant and Reciever OR Adverse Party) shall be served on each interested
party – who may except to its sufficiency or the surety. If found to be insufficient or is not justified and
a bond sufficient in amount and surety is not filed, the application shall be denied and the receiver

723
Arranza versus B.F. Homes, Inc., 333 SCRA 799
724
Pacific Mechandising Corp., versus Consolacion Insurance & Surety Co., Inc., 73 SCRA 564
725
Supra, Section 6, Rule 59
726
Supra, Section 7, Rule 59
727
Supra, Section 2, Rule 59
728
Supra, Section 3, Rule 59
729
Supra, Section 4, Rule 59
109
discharged. If adverse party’s bond is the one excepted to or found insufficient, the receiver shall be
appointed or reappointed as the case may be.730

WHEN TERMINATED

When the court, motu propio or upon motion, shall determine that the necessity for a receiver no
longer exists, it shall alter due notice, settle all accounts, direct delivery of the funds / property in his
possession to the person adjudged to be entitled to receive them and order the discharge of the
receiver from further duty. He is to be allowed compensation as circumstances will warrant to be
taxed against defeated party or apportioned as justice may require.731

Any judgment may include the amount, if any, to be awarded any party upon any bond.732

RULE 60 – REPLEVIN

WHAT IS REPLEVIN

It is a form of a principal remedy and provisional remedy / relief. It is also a mixed action partly in rem
as far as the claim for recovery of personal property and in persona as far as the claim of damages,
the object of which is recovery of possession of personal property applied for at the commencement
of the action or at any time before answer by the party praying for recovery of personal property. 733

HOW

1. Filing of Affidavit containing the following: (a) that applicant is the owner of the property claimed,
particularly describing it, or is entitled to possession of the same (b)that property is a wrongfully
detained by the adverse party, alleging the cause of detention according to the best of his knowledge,
information or belief (c) that property has not been distrained or taken for a tax assessment or
payment of fine or seized under execution, preliminary attachment or in custodia legis, or if so seized,
it is exempt from seizure / custody (d) actual market value NOTE: Not the probable value as declared
by the applicant. Should there be a dispute, it is to be resolved by the Court.

2. Filing of bond in double the value of the property – for return of the property to the adverse party
and payment of such sum as he may recover from the applicant

3. UPON FILING OF AFFIDAVIT AND BOND, the writ of replevin shall issue requiring the sheriff to
forthwith take the property in custody.734

3.1 IN TAKING CUSTODY – if concealed, he may demand delivery, if not delivered, he may
cause the building / enclosure to be broken. Once in possession, it must be kept in a secure place
and shall be responsible for its delivery to the party entitled thereto upon receipt of his fees and
expenses.735

REMEDIES FOR RETURN OF PROPERTY

1.Objection to the sufficiency of the bond / surety but he cannot immediately require delivery OR at
any time before delivery to the applicant, by filing a bond (redelivery bond) executed to the applicant
in double the value of the property as stated in the applicant’s affidavit.

MANNER OF DISPOSITION BY SHERIFF

1. If within 5 days after taking of the property, the adverse party does not object to sufficiency of
the bond / sureties OR he objects and the court affirms its approval of the bond or approves a new
bond OR if he requires return but his bond is objected to (adverse party) and he does not forthwith file

730
Supra, Section 5, Rule 59
731
Supra, Section 8, Rule 59
732
Supra, Section 9, Rule 59
733
Supra, Section 1, Rule 60
734
Supra, Sections 2 and 3, Rule 60
735
Supra, Section 4, Rule 60
110
an approved bond – THE SHERIFF SHALL DELIVER THE PROPERTY TO THE APPLICANT – IF
FOR ANY REASON IT IS NOT DELIVERED, IT MUST BE RETURNED TO ADVERSE PARTY. 736
rd
2. If claimed by a 3 PARTY by affidavit, the sheriff is not bound to keep and deliver the
property unless applicant / agent on demand of the sheriff files a bond approved by the Court to
rd
indemnify the 3 party claimant in a sum not less than the value of the property under replevin. In
case of disagreement as to value, the court shall determine the same. Note that no action on the
bond may be enforced unless filed within 120 days from filing.
rd
The sheriff shall not be liable for damages for the taking and keeping of the property to any such 3
rd
party if the bond is filed. Nothing also prevents the 3 party claimant or the applicant from vindicating
their rights or claims in the same action or in a separate action.

If writ is issued in the name of RP, no bond is required and the sheriff is to be represented by the
SOLGEN and damages so adjudged are paid out of the National Treasury. 737

3. SHERIFF must make return within 10 days after taking of the property. 738

4. The JUDGMENT BY THE COURT shall include a determination who has a better right of
possession to and value of the property and render judgment in the alternative for delivery thereof to
the party entitled or its value in case delivery cannot be made, and also for damages as either party
may prove, with costs. Any amount awarded a party upon any bond shall be claimed, ascertained and
granted as provided by Section 20 of Rule 57.739

5. A W RIT OF REPLEVIN may be served anywhere in the PI

RULE 61 – SUPPORT PENDENTE LITE

WHEN FILED AND HOW

At the commencement of the proper action or proceeding or at any time prior to a judgment or final
order – a verified application may be filed by a party stating the grounds for the claim and the financial
conditions of both parties, accompanied by affidavits, depositions, or other authentic documents in
support thereof.740

1.It is also available in criminal cases when: (a) child is born to offended party allegedly because of
the crime (b) civil liability arising from the criminal action includes support for the offspring (c) civil
aspect has not been waived, reserved or instituted prior to filing of criminal action. This application
may be filed successively by the offended party, her parents, grandparents, guardian or the State in
the corresponding criminal case during its pendency.741

PROCEDURE:

1. Upon filing of verified application – it shall be served on the adverse party, who shall have 5
days to comment unless a different period is fixed by the court. It shall also be verified and
accompanied by affidavits, depositions, authentic documents.742

2. Hearing shall then be conducted no more than 3 days after comment is filed or the period
expires.743

736
Supra, Section 6, Rule 60
737
Supra, Section 7, Rule 61
738
Supra, Section 8, Rule 61
739
Supra, Sections 9 and 10, Rule 61
740
Supra, Section 1, Rule 61
741
Supra, Section 6, Rule 61
742
Supra, Section 2, Rule 61
743
Supra, Section 3, Rule 61
111
3. Court shall determine provisionally the pertinent facts and render such orders as justice and
equity may require, having due regard to the probable outcome of the case and such other
circumstances.

3.1 IF GRANTED, it shall fix the amount of money to be provisionally paid or such other forms or
support as should be provided – taking into account the necessities of the applicant AND resources
or means of the adverse party AND the terms or mode for providing support.

3.2 IF DENIED, the principal case shall be tried and decided as early as possible.744

HOW ENFORCED

If adverse party fails to comply, the court shall, motu propio or on motion, issue an order of execution
rd
without prejudice to his liability for contempt. ALSO, if support be paid by a 3 person, after due
notice and hearing in the same case, he may obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide support.745

RESTITUTION

IF upon judgment / final order – The court finds that the person who has been providing support is not
liable therefor – it shall order the recipient to return the amounts paid plus interest from dates of
actual payment without prejudice to the right of the recipient to obtain reimbursement in a separate
action from the person legally obliged to give support. Should the recipient fail to reimburse, the
person who provided the same, may, in a separate action, seek reimbursement thereof from the
person obliged to give support.746

SPECIAL CIVIL ACTIONS

RULE 62 - INTERPLEADER

WHEN PROPER

Whenever conflicting claims upon the same subject matter are or may be made against a person who
claims no interest whatever in the subject matter, or an interest which in whole or in part is not
disputed by the claimants, he may bring an action against the conflicting claimants to interplead and
litigate their several claims among themselves.747

PROCEDURE:

1. Upon filing of the complaint, the court shall issue an order requiring the conflicting claimants
to interplead with one another. If the interest of justice requires, it may order the subject matter be
paid or delivered to the court.748

2. Summons shall then issued to claimants, together with a copy of the complaint and order.749

3. Within the time for the filing of an answer, motions to dismiss may be filed, if denied the
claimant must file an answer within the period remaining but in no case less than 5 days. If not, he
may be declared in default and thereafter the court may render judgment barring him from any claim
rd
in respect of the subject matter. They may also file counter-claims, cross-claims, 3 party claims, and
750
other responsive pleadings.

4. After the pleadings of the conflicting claimants have been filed, pre-trial conducted, the court
shall proceed to determination and adjudication of their respective claims. The docket and other

744
Supra, Section 4, Rule 61
745
Supra, Section 5, Rule 61
746
Supra, Section 7, Rule 61
747
Supra, Section 1, Rule 62
748
Supra, Section 2, Rule 62
749
Supra, Section 3, Rule 62
750
Supra, Sections 4 and 5, Rule 62
112
lawful fees paid by a party who filed the complaint, as well as costs / expenses of litigation shall
constitute a lien or charge upon the subject matter, unless the court orders otherwise.751

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

WHAT IS DECLARATORY RELIEF

It is a special civil action brought before the Regional Trial Court ONLY by a person interested in a
DEED, W ILL, CONTRACT or OTHER WRITTEN INSTRUMENT, or whose rights are affected by a
STATUTE, EXECUTIVE ORDER OR REGULATION, ORDINANCE or any government regulation
BEFORE BREACH THEREOF, asking the court to DETERMINE ANY QUESTION OF
CONSTRUCTION OR VALIDITY arising, and for a declaration of his rights OR duties thereunder.752

1. ACTIONS for REFORMATION OF INSTRUMENT, TO QUIET TITLE OR REMOVE CLOUDS


THEREFROM, or to CONSOLIDATE OWNERSHIP UNDER Art 1607 NCC may be brought as civil
actions for declaratory relief.

2. NOTE THAT AN ACTION FOR DECLARATORY RELIEF may be brought only before a breach /
violation of the statute or instrument. If already brought AND a breach / violation is committed before
final termination, it is converted into an ordinary civil action. The parties may then file such pleading
as may be necessary or proper.753

WHO ARE THE ALLOW ED PARTIES

1. All persons who have or claim an interest which would be affected by the declaration shall be made
parties and NO DECLARATION shall as except as otherwise provided in these RULES prejudice the
rights of persons not parties to the action.

2. If involving validity of a statute, executive order, regulation, or any other government regulation. The
solicitor general shall be notified and is entitled to be heard upon such question.754

3. If local government ordinance, the corresponding attorney / prosecutor of the Local Government
Unit shall be similarly notified and heard. If alleged to be unconstitutional, the Solicitor General shall
be notified and heard.755

ACTION BY THE COURT


nd
Except in actions falling under the 2 paragraph of Section 1, the court, motu propio, or on motion,
may refuse to exercise the power to declare rights and to construe instruments in any case W HERE
A DECISION WOULD NOT TERMINATE THE CONTROVERSY ON UNCERTAINTY THAT GAVE
RISE TO THE ACTION, or in any case, WHERE THE DECLARATION / CONSTRUCTION is not
NECESSARY and PROPER under the circumstances.756

RULE 64 – REVIEW OR JUDGMENTS / FINAL ORDER OF THE COMELEC AND COA

A judgment / final order of COMELEC / COA is to be brought by the aggrieved party to the Supreme
Court under Rule 65 but the period for filing is 30 days from notice of the judgment or final order
sought to be reviewed. The filing of a motion for new trial / recon if allowed under the procedural rules
of the COMELEC / COA will toll the period. If denied, the aggrieved party only has the remaining
period which is no case shall be less than 5 days in any event, reckoned from notice of denial.757

751
Supra, Sections 6 and 7, Rule 62
752
Supra, Section 1, Rule 63
753
Supra, Section 6, Rule 63
754
Supra, Section 3, Rule 63
755
Supra, Section 4, Rule 63
756
Supra, Section 5, Rule 63
757
Supra, Sections 1,2, and 3, Rule 64
113
1. Note that only judgments/final orders of the COMELEC en banc can be brought to the SC. What is
exercised is the power of review.

2. The bringing of a petition, shall not stay the execution of the judgment, final order or resolution
unless directed otherwise by the Supreme Court.758

RULE 67 – EXPROPRIATION

SEE RP vs. Gingoyon GR 166429, Jan 14, 2005


Rule 67 contemplates two (2) separate final orders, namely:

1. order of expropriation (Section 4, Rule 67) and


2. order of just compensation (Section 8, Rule 67).

An expropriation suit is incapable of pecuniary estimation and falls within the jurisdiction of the
Regional Trial Courts. (Barangay San Roque vs. Heirs of Francisco Pastor, 334 SCRA 127).
Public purpose which will justify expropriation of property generally means such activity which will
serve as convenience, safety, welfare, advantage, or benefit to the entire community, and not to a
particular individual, class or group of persons.
Public use is one which confers some benefit or advantage to the public. It is not confined to actual
use by the public. It includes the right of use by the public, whether it is exercised by one or some or
many members of the public.
Public use contemplates indirect public benefit or advantage (Estate of Salud Jimenez vs. Phil. Export
Processing Zone, 349 SCRA 240). It must be considered in its general concept of meeting a public
need or a public exigency. Manosca vs. CA, 252 SCRA 412).
At present, whatever may be beneficially employed for the general welfare satisfies the requirement
of public use. (Reyes vs. NHA, 395 SCRA 494).

WHAT IS EXPROPRIATION

The taking of private property for public purpose upon the payment of just compensation. It is also
known as exercise of the power of eminent domain.

HOW EXERCISED

Filing of a verified complaint which shall state with certainty the right and the purpose of expropriation,
describing the real / personal property sought to be expropriated, joining as defendants all persons
claiming / owning or occupying any part thereof or interest therein. Note that the subject can be either
real / personal property.759

WHERE FILED

Regional Trial Court, regardless of value as it is an action which is incapable of pecuniary estimation.

UPON FILING, MAY PLAINTIFF TAKE POSSESSION

Plaintiff, upon making a deposit in or with an authorized government depository of an amount equal to
the assessed value of the property for purposes of taxation may take possession of the real property.
If it involves personal property, its value as provisionally ascertained.760

758
Supra, Section 8, Rule 64
759
Supra, Section 1, Rule 67
760
Supra, Section 2, Rule 67
114
1.Note that under Section 19 of the Local Government Code, the LGU can take possession upon
deposit with the court of FIFTEEN PERCENT of the Fair Market Value based on the current tax
declaration.

UPON FILING AND SERVICE

1. The DEFENDANT MAY FILE: (a) A Manifestation that he has no objection or defense to the
action, OR (b) An Answer stating all objections and defenses to the taking of the property. No,
rd
counterclaim, cross claim or 3 party complaint shall be allowed in the answer or any subsequent
pleading.761

2. AFTER, the case now proceeds to a determination of:

2.1 Authority of the plaintiff to expropriate. Thereafter, the court may dismiss the petition or issue
an order of expropriation. The order is appealable BUT SHALL NOT PREVENT DETERMINATION
OF JUST COMPENSATION,IF GRANTED AND PLAINTIFF CANNOT DISMISS OR DISCONTINUE
EXCEPT ON TERMS THAT COURT DEEMS JUST AND EQUITABLE as there is entry already. 762

2.2 NOTE the right of plaintiff to enter into the property and appropriate shall not be DELAYED by
an APPEAL. But if appellate court determines that no right of expropriation exists. It shall order the
RTC to enforce restoration and determine the damages that the defendant sustained.763

3. Just compensation is then determined by no more than 3 court appointed commissioners. If


the Court accepts their report, it will render judgment based thereon. Such judgment is also
appealable.764

3.1 IF upon determination of just compensation, the ownership is uncertain or claims are
conflicting, the court may order sum / sums paid to be given to the Court for the benefit of the person
adjudged in the same proceeding to be entitled thereto BUT, payment will be required to be given to
the defendant or the court before plaintiff can enter into or retain the property.765

4. The JUDGMENT shall state definitely, by an adequate description, the particular property or
interest therein expropriated and the nature of the public use or purpose for which it is expropriated, a
certified copy of which judgment shall be recorded in the registry of deeds and its effect shall to be
shall to be vest in the plaintiff title to the real estate for public use or purpose.766

RIGHT OF PLAINTIFF UPON PAYMENT / TENDER

The plaintiff shall have the right to enter into the property and expropriate for public use or retain it if
already entered. If defendant or counsel absent themselves from the court or decline to receive the
amount, it shall be deposited in the court and shall have the effect of ACTUAL PAYMENT.767

WHO PAYS FOR COSTS

All costs, except that incurred by rival claimants, shall be paid by the plaintiff unless an appeal is
taken therefrom by the owner of the property and the judgment is affirmed. Costs shall include the
fees of the commissioners.768

RULE 68 – FORECLOSURE OF REAL ESTATE

761
Supra, Section 3, Rule 67
762
Supra, Section 4, Rule 67
763
Supra, Section 11, Rule 67
764
Supra, Sections 5,6,7, and 8, Rule 67
765
Supra, Section 9, Rule 67
766
Supra, Section 13, Rule 67
767
Supra, Section 10, Rule 67
768
Supra, Section 12, Rule 67
115
WHAT SHOULD BE STATED IN THE COMPLAINT/PETITION

The complaint in foreclosure of a mortgage or other encumbrance shall set forth: (a)Date and due
execution of the mortgage (b) Its assignments, if any (c)Names/residences of
mortgagor/mortgagee (d)Description of the mortgaged property (e) Statement of the date of the
note or other documentary evidence of the obligation secured by the mortgage (f)Amount claimed to
be unpaid (g)Name/residences of persons having or claiming an interest in the property subordinate
in right to that of the holder of the mortgage, all of whom shall be made defendants.769

WHAT COURT CAN DO

After trial, if the court shall find the facts to be true, it shall ASCERTAIN THE AMOUNT DUE THE
PLAINTIFF AND RENDER JUDGMENT FOR THE SUM WITH AN ORDER FOR IT TO BE PAID BY
ADVERSE PARTY TO THE COURT OR JUDGMENT OBLIGEE WITHIN A PERIOD OF NOT LESS
THAN NINETY (90) DAYS NOR MORE THAN ONE HUNDRED TWENTY DAYS (120) FROM
ENTRY OF JUDGMENT, AND THAT IN DEFAULT, THE PROPERTY SHALL BE SOLD AT PUBLIC
AUCTION. This period is known as MORTGAGOR’S EQUITY OF REDEMPTION. 770

DISTINGUISHING EQUITY OF REDEMPTION FROM RIGHT OF REDEMPTION

Equity of Redemption is the equitable right of the mortgagor to redeem, while Right of Redemption is
the statutory right of the mortgagor to redeem. The former is available before auction sale, while the
latter is available after auction sale. The former is available only judicial foreclosure, while the latter is
available only in extra-judicial foreclosure, but by exception is allowed in judicial foreclosure when the
mortgagee is the PNB or a bank or a banking institution. The period for the exercise of the former is
within 90 days but no more than 120 days from entry of foreclosure judgment, while in the latter it is
one year from redemption is within one year from date of registration of the sheriff’s certificate of sale,
except when the mortgagor is a juridical person, in which case, the right to redeem must be exercised
until, but not after, the registration of the certificate of sale with the applicable register of deeds which
in no case shall be more than three months after foreclosure, whichever is earlier.771

WHAT HAPPENS IF NOT PAID

1. Upon motion, the court shall order the property sold in the manner prescribed under Rule 39, such
SALE shall not affect the rights of persons holding prior liens/encumbrances on the property or parts
thereof.

2. Upon motion, sale shall be CONFIRMED, and such shall operate to divest the rights in the property
of all the parties to the action and to vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.

2.1 Note that when judicial foreclosure is resorted to there is no right of redemption EXCEPT
when the law allows a redemption. EXAMPLE: Section 47 of the Philippine General Banking Law
which allows a one year period for redemption.

3. Upon finality of the order of confirmation or upon expiration of the period of redemption when
allowed by law, the purchaser at auction is entitled to possession unless a third party is holding it
adversely to the judgment obligor, in which case, the purchaser at the auction sale may secure a writ
of possession from the Court ordering the sale.772

3.1 What is to be registered is the order of confirmation. If there is no right of redemption, the title
of the mortgagor is cancelled and a new one issued in the name of the purchaser.

769
Supra, Section 1, Rule 68
770
Supra, Section 2, Rule 68
771
Section 47, Philippine General Banking Law
772
Supra, Section 3, Rule 68
116
3.2 If with right of redemption, the annotation is to await final deed of sale executed by Sheriff.773
(Section 7)

4. PROCEEDS OF THE SALE shall, after deducting the costs, be paid to the persons foreclosing the
mortgage. If there be a balance or residue, it shall be paid to the junior encumbrancers, in the order of
priority ascertained by the Court, if none or there still be a balance or residue after payment, to the
mortgagor.774

5. If debt is not all due, as soon as a sufficient portion of the property has been sold to pay the total
amount, the sale shall terminate. Afterwards, no more shall be sold, BUT if property cannot be sold in
portions, the entire property is to be sold with rebate of interest if proper when the full debt is paid.775

6. Deficiency judgments, if there is a balance, upon motion, the court shall render judgment against
the defendant for the balance, upon which execution may issue. If balance is due at the time of
rendition of judgment OR at such time as the remaining balance becomes due under the terms of the
original contract, which time shall be stated in the judgment.776

7. Note that the provisions of Section 31 as to use of premises by obligor, Section 32 as to rents still
due the obligor, and Section 34 as to recovery of price if sale is not effective of Rule 39 are applicable
as far as the former are not inconsistent.777

RULE 69 – PARTITION

OBJECT OF PARTITION

Separate, divide and assign a thing that is held in common among those to whom it may belong. The
remedy may be availed of regardless of whether it involves real or personal property, or both

WHO CAN FILE AND HOW

Any person, having the right to compel partition of real estate may file, setting forth therein the nature
and extent of his title, adequate description of the property, joining as defendants all other persons
interested in the property.778

1.An action for partition and accounting under Rule 69 is in the nature of a quasi in rem 779.

PROCEDURE

1. If after trial, it finds for the plaintiff, it will order partition. Thereupon, if they AGREE, the
parties may undertake the partition among themselves by proper instruments. The court shall
thereupon confirm the partition so agreed by the parties. Such partition and order of confirmation shall
then be recorded in the registry of deed of the place where the property is situated.

A final order decreeing partition and accounting may be appealed by the party aggrieved thereby.780

2. If they fail to agree, the Court shall appoint not more than 3 commissioners, commanding
them to set-off to the plaintiff and each party in interest such part and proportion of the property as the
court will direct.781

2.1 Before discharging their duties, the commissioners shall take an oath that they will faithfully
discharge their duties, and in so doing they shall view and examine the real property , shall hear the

773
Supra, Section 7, Rule 68
774
Supra, Section 4, Rule 68
775
Supra, Section 5, Rule 68
776
Supra, Section 6, Rule 68
777
Supra, Section 8, Rule 68
778
Supra, Section 1, Rule 69
779
Valmonte v Court of Appeals, 52 SCRA 92
780
Supra, Section 2, Rule 69
781
Supra, Section 3, Rule 69
117
preferences of the parties, determine the comparative value of the property, and shall set apart the
same to the parties in lots or parcels as will be most advantageous and equitable, having due regard
to the improvements, situation and quality of the different parts thereof.782

2.2 If the property cannot be divided without prejudice to the interest of the parties, the court may
order it assigned to one of the parties willing to take the same, provided he pays to the other parties
such amount as determined by the commissioners to be equitable, unless one of the interested
parties asks that the property be sold instead.783

2.3 A report should thereupon be made by the commissioners and filed with the court, which
shall then give the parties 10 days within which to file heir objections to the findings. No proceeding
shall pass title to the property or bind the parties until the court shall have accepted the report and
rendered judgment thereon. Note though that the court has the option to accept or re-commit the
matter to the commissioners.784

3. If actual partition of the property is made, judgment shall state definitely the metes and bounds and
adequate description of the property, the particular portion allocated to each party and its effect is to
vest to each party in the action in severalty the portion of real estate assigned to him. If the whole
property is assigned to one after payment to the others, judgment has the effect of vesting in the party
making payment the whole of the real estate free from any interest of the other parties. If the property
is sold and proceeds divided, judgment has the effect of vesting the property or portion sold in the
purchaser free from any interest of the parties to the action. 785Judgment may include recovery from
the other of just share of rents and profits received by the other from the real estate in question 786 and
costs equitably apportioned among the parties.787

DISTINGUISHING BETWEEN ORDER OF PARTITION AND JUDGMENT OF PARTITION

The Order of Partition finding that plaintiff is entitled to partition, and after which, if the parties agree,
they may partition subject to confirmation by the court, while Judgment of Partition is the judgment
rendered pursuant to the commissioner’s report after it is accepted by the court. BOTH THOUGH
ARE APPEALABLE

782
Supra, Section 4, Rule 69
783
Supra, Section 5, Rule 69
784
Supra, Sections 6 and 7, Rule 69
785
Supra, Section 11, Rule 69
786
Supra, Section 8, Rule 69
787
Supra, Section 10, Rule 69
118
RULE 70- FORCIBLE ENTRY, ILLEGAL/UNLAWFUL DETAINER

WHAT IS FORCIBLE ENTRY

An action brought when a person is deprived of possession of land/building by FORCE,


INTIMIDATION, THREAT, STRATEGY, OR STEALTH.

WHAT IS UNLAWFUL DETAINER

An action brought by a lessor, vendor, vendee or other person against whom possession of
land/building is unlawfully withheld after expiration or termination of the right to hold possession, by
virtue of a contract, express or unpaid. Such action must be brought within one year after withholding
such possession. Also known as an accion interdictal which seeks to recover possession de facto or
physical, actual or material possession.

Note that it is the character or nature of the defendant’s possession which will determine which of the
two actions is appropriate.

UNLAWFUL DETAINER OR FORCIBLE ENTRY OR ACCION INTERDICTAL DISTINGUISHED

From Accion Publiciana which is a plenary action to recover right of possession that is brought after
one year from accrual of the cause of action in a Regional Trial Court and Accion Reivindicatoria
which is an action to recover ownership, including possession.
788
Note: In addition to restitution of possession, damages and costs may also be recovered.

WHAT IS REQUIRED FOR THE ACTION TO BE FILED

1. In Illegal Detainer ,unless otherwise stipulated, the lessor can proceed against lessee only after
demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or
by serving written notice of such demand upon the person found within the premises, or by posting
such notice on the premises if no person is found thereon and the lessee fails to comply within 15
789
days in the case of land or 5 days in case of building.

1.1 If action is terminate the lease due to the expiration of its term, demand is not a
790
prerequisite.

2. No demand is required in Forcible Entry cases.

788
Supra, Section 1, Rule 70
789
Supra, Section 2, Rule 70
790
Lanuza v Munoz, 429 SCRA 562
119
WHEN, WHERE FILED AND NATURE OF PROCEEDINGS

Cases of Forcible Entry/Unlawful Detainer are to be filed within one year from date of actual entry or
date of last demand before the Municipal Trial Court and shall be covered by the Rules on Summary
Procedure, irrespective of the amount of damages or unpaid rentals, unless they are covered by
791
agricultural tenancy laws or otherwise provided by law.

PROCEDURE TO BE FOLLOWED

1. The only allowable pleadings are the complaint, compulsory counterclaim and cross-claim pleaded
792
in the answers and answers thereto. All pleadings are to be verified.

2. Upon filing of the complaint, the court may, from an examination of the allegations in the complaint
and such evidence attached thereto, dismiss the complaint on any of the grounds for a motion to
793
dismiss which are apparent therein. If not dismissed, it shall proceed to issue summons.

3. If summons is issued, the defendant shall file his answer within 10 days from receipt, serving a
copy thereof to the plaintiff. Affirmative or negative defenses not pleaded are deemed waived, except
lack of jurisdiction over the subject matter. Crossclaims or counterclaims not asserted are barred. If
the answer contains crossclaims or counterclaims, answers thereto are to be filed within 10 days from
794
service of the answer in which they are pleaded.

4. Failure to answer the complaint within the period above provided, the court, motu proprio, or on
motion of the plaintiff, shall render judgment as may be prayed for therein: Provided, however, That
the court may in its discretion reduce the amount of damages and attorney’s fees claimed for being
excessive or otherwise unconscionable. This is without prejudice to the applicability of Section 3, Rule
795
9 of the Rules of Court, if there are two or more defendants.

5.A preliminary conference is then scheduled not later than 30 days after the last answer is filed. The
provision of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent
with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal
of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to
judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be
dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with
Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a
common cause of action who had pleaded a common defense shall appear at the preliminary
conference.

No postponement shall be granted except for highly meritorious grounds and without prejudice to
796
sanctions which the court may deem to impose.

6. Within 5 days after the termination of the preliminary conference, an order shall be issued by the
court stating the following matters: (a) Whether the parties have arrived at an amicable settlement,
and if so, the terms thereof (b)The stipulations or admissions entered into by the parties (c)
Whether, on the basis of the pleadings and the stipulations and admissions made by the parties,
judgment may be rendered without the need of further proceedings, in which event the judgment shall
be rendered within thirty (30) days from issuance of the order (d) A clear specification of material

791
Supra, Section 3, Rule 70
792
Supra, Section 4, Rule 70, Article II, Section 3 (a) and (b), Rules on Summary Procedure
793
Supra, Section 5, Rule 70, Article II, Section 4, Rules on Summary Procedure
794
Supra, Section 6, Rule 70, Article II, Section 5, Rules on Summary Procedure
795
Supra, Section 7, Rule 70, Article II, Section 6, Rules on Summary Procedure
796
Supra, Section 8, Rule 70, Article II, Section 7, Rules on Summary Procedure
120
facts which remain controverted; and (e) Such other matters intended to expedite the disposition of
797
the case.

7. Within 10 days from receipt of the order, the parties shall submit the affidavits of their witnesses,
798
evidences and position papers setting forth the law and the facts relied upon. The affidavits
submitted shall only state the facts of direct personal knowledge of the affiant which are admissible
in evidence and must indicate their competence to testify. A violation may subject the party or counsel
to disciplinary action and will be cause to expunge the inadmissible affidavit or portion thereof from
799
the record.

8. The following petitions, motions, or pleadings are PROHIBITED and shall not be allowed to be filed:

(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject
matter, or failure to comply with the preceding section pertaining to referral to the Lupon for
conciliation. The case may then be dismissed WITHOUT PREJUDICE and may be revived upon
800
showing of compliance. The filing of a motion to dismiss after an answer is filed does not violate
the rules. W hat is proscribed is a motion to dismiss that stops the running of the period for the filing of
801
an answer and cause undue delay.

(b) Motion for a bill of particulars;

(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;

(e) Motion for extension of time to file pleadings, affidavits or any other paper;

(f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

(j) Reply;

(k) Third-party complaints; and


802
(l) Interventions.

9. Note that a PRELIMINARY MANDATORY INJUNCTION may be granted by the court upon motion
presented within 5 days from the filing of the complaint to restore him in possession, which should be
803
decided by the court within 30 days from filing thereof AND upon motion of the plaintiff, within 10
days from perfection of an appeal to the Regional Trial Court to restore him in possession if the court
is satisfied that the appeal of the defendant is FRIVOLOUS or DILATORY, or that his (plaintiff’s)
804
appeal is prima facie meritorious.

10. The court shall then render judgment within 30 days after receipt of the last affidavits and
position papers, or the expiration of the period for filing the same.

797
Supra, Section 9, Rule 70, Article II, Section 8, Rules on Summary Procedure
798
Supra, Section 10, Rule 70, Article II, Section 9, Rules on Summary Procedure
799
Supra, Section 14, Rule 70, Article II, Section 20, Rules on Summary Procedure
800
Supra, Section 12, Rule 70, Article IV, Section 18, Rules on Summary Procedure
801
Heirs of Olivas v Flor, 161 SCRA 393
802
Supra, Section 13, Rule 70, Article IV, Section 19, Rules on Summary Procedure
803
Supra, Section 15, Rule 70, Article II, Section 10, Rule on Summary Procedure
804
Supra, Section 20, Rule 70
121
However, should the court find it necessary to clarify certain material facts, it may, during the said
period, issue an order specifying the matters to be clarified, and require the parties to submit
affidavits or other evidence on the said matters within ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits,
or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to gain time for the rendition of the
805
judgment.

11. Should the defense of OWNERSHIP be raised, the court shall only consider the same if the
issue of possession cannot be resolved without deciding the issue of ownership. It shall thus be
resolved only to determine possession and any judgment shall be conclusive only on possession and
806
shall not be a bar to another action between the parties respecting the title to the land or building

12. The judgment to be rendered by the court in favor of the plaintiff shall include restitution of the
premises, the sum justly due as arrears of rent or as reasonable compensation for the use of the
premises, attorney’s fees and costs. If the allegations are not true, it shall render judgment for the
defendant for recovery of cost. If a counterclaim is established, the court shall render judgment for the
807
sum found in arrears from either party and award costs as justice requires. The judgment is
APPEALABLE to the appropriate Regional Trial Court, which shall decide the case on the basis of the
entire record of the proceedings in the court of origin and such memoranda or brief as may be
808
submitted or required

Note the ruling in the case of Azcuna Jr. vs. CA, GR No. 116665, March 20, 1996 allowing recovery
of liquidated damages.

13. If judgment is rendered against the defendant, the execution shall issue immediately upon
motion, unless an appeal has been perfected AND the defendant to stay execution files a sufficient
809
supersedeas bond if there are rentals in arrears , approved by the court and executed in favor of
the defendant to pay rents, damages and costs accruing down to the time of the judgment appealed
from, AND UNLESS, during the pendency of the appeal, he deposits with the appellate court the
amount of the rent due from time to time under the contract or the reasonable value for use and
th 810
occupation adjudged by the court on or before the 10 day of each succeeding month or period.

Note that there is no necessity for a motion for the court to fix the supersedeas bond as the amount of
the same can be ascertained from the judgment. Also, if the records of the case have already been
transmitted to the appellate court, the supersedeas bond may be filed with the appellate court.811

14. The judgment of the appellate court shall however be subject to immediate execution without
812
prejudice to a further appeal

SALIENT PORTIONS OF KATARUNGANG PAMBARANGAY LAW

All DISPUTES require conciliation except in the following: (1) where one party is the government or
any subdivision or instrumentality thereof (2) where one party is a public officer or employee, and the
dispute relates to the performance of his official functions (3) offenses punishable by imprisonment
exceeding 1 year or a fine exceeding P 5000.00 (4) offenses where there is no private offended party
(5) where the dispute is brought by or against a corporation, partnership or juridical entity (6) where
the dispute involves real properties located in different cities or municipalities UNLESS the parties
agree to submit their differences to amicable settlement by an appropriate lupon (7) where dispute

805
Supra, Section 11, Rule 70, Article
806
Supra, Sections 16 and 18, Rule 70
807
Supra, Section 17, Rule 70
808
Supra, Section 18, Rule 70
809
Supra, Section 8, Rule 70 and De Laureano v. Adil, 72 SCRA 146
810
Supra, Section 19, Rule 70
811
Chua v Court of Appeals, 286 SCRA 437
812
Supra, Section 21, Rule 70
122
involves parties who actually reside in barangays of different cities or municipalities, EXCEPT when
the barangays actually adjoin each other and the parties agree to submit their differences to amicable
settlement by an appropriate lupon (8) such other classes of disputes which the President may
determine in the interest of justice or upon recommendation by the Secretary of Justice (Section 408,
PD 1508). (9) disputes arising from the implementation of the CARP (10) Employer-Employee
disputes (11) action to annul a judgment upon a compromise. Note however that while no petition,
complaint, action or proceeding within the authority of the lupon shall be filed directly with the court or
any government office for adjudication UNLESS there has been a confrontation before the lupon
chairman or pangkat, and that no conciliation or settlement has been reached as certified by the
lupon secretary or pangkat secretary, or unless the settlement has been repudiated within 10 days
from its date by a statement sworn before the punong barangay to the effect that his consent is
vitiated by fraud violence or intimidation ( Section 418, PD 1508), the following cases may be filed
directly: (1) accused in under detention (2) person has otherwise been deprived of personal liberty
calling for habeas corpus proceedings (3) when action is coupled with a provisional remedy (4) where
action may otherwise be barred by prescription (Section 412, PD 1508)

The proper VENUE for conciliation is as follows: (1) if between persons actually residing in the same
barangay-before the lupon of the said barangay (2) if between actual residents of different barangays
within the same city of municipality- before the lupon where the respondent resides, if there be
several respondents- before the lupon where anyone of them resides at the election of the
complainant (3) if involving real property or any interest therein- the barangay lupon where the
property or larger portion is located (4) if arising in the workplace where the contending parties are
employed or at the institution where such parties are enrolled for study- before the lupon of the
barangay where the workplace or institution is located. Any OBJECTIONS TO VENUE shall be raised
before the Punong Barangay, otherwise they are waived. Legal questions may be submitted to the
Secretary of Justice or his duly designated representative whose ruling thereon shall be binding.

The procedure for settlement is (1) initiation of complaint, orally or in writing, to the lupon chairman of
the barangay (2) mediation by lupon chairman on the next working day from receipt of the complaint,
failing in which within 15 days from the first meeting, he shall forthwith set a date for the constitution
of the pangkat (3) the pangkat shall convene not later than 3 days from constitution to hear the
parties and explore the possibility of an amicable settlement within 15 days from the day it convenes,
which period is extendible for another 15 days, except in clearly meritorious cases. Note however,
that while prescription does not run upon filing of the complaint and shall resume only upon receipt of
the complaint or certificate of repudiation, or certification to file action, the interruption shall not
exceed 60 days from filing of the complaint with the punong barangay. (Section 410, PD 1508)

The FORM of the amicable settlement shall be in writing, in a language/dialect known to the parties,
signed by them and attested by the lupon/pangkat chairman (Section 411, PD 1508). This shall have
the force and effect of a final judgment of a court upon expiration of 10 days from date thereof unless
repudiation has been made or a petition to nullify the award has been filed before the proper court.
This does not apply to cases already pending but subsequently referred to the lupon for amicable
settlement under the last paragraph of Section 408,as the same is submitted back to the court to
serve as basis for rendition of judgment. (Section 416, PD 1508). The award or settlement may be
enforced by execution by the lupon within 6 months from the date of the settlement. After the lapse of
the said period, by action in the appropriate city of municipal court. (Section 417, PD 1508)

Note however that if a settlement is not complied with, the injured party may bring an action against
the offending party to recover the original amount of his claim, thereby rescinding the compromise
under Article 2041 of the Civil Code which was held to qualify Article 2037 of the Civil Code as to the
effect of a compromise being considered as constituting res judicata.813

REVISED RULE ON
SUMMARY PROCEDURE

813
Chavez v Court of Appeals, GR 159411, March 18, 2005
123
RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991 PROVIDING FOR THE
REVISED RULE ON SUMMARY PROCEDURE FOR METROPOLITAN TRIAL COURTS,
MUNICIPAL TRIAL COURTS IN CITIES, MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT
TRIAL COURTS.

Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) and to achieve an
expeditious and inexpensive determination of the cases referred to herein, the Court Resolved to
promulgate the following Revised Rule on Summary Procedure:

APPLICABILITY

SECTION 1. Scope: - This rule shall govern the summary procedure in the Metropolitan Trial Courts
in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in the following cases
falling within their jurisdiction:

A. Civil Cases:

(1) All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered. Where attorney’s fees are awarded, the same shall not
exceed twenty thousand pesos (P20,000).

(2) All other cases, except probate proceedings, where the total amount of plaintiff’s claim does
not exceed one hundred thousand pesos (P100,000) or, two hundred thousand pesos (P200,000) in
Metropolitan Manila, exclusive of interest and costs. (As amended by A.M. No. 02-11-09-SC, dated
Nov. 12, 2002; this amended took effect on November 25, 2002)

B. Criminal Cases:

(1) Violations of traffic laws, rules and regulations;


(2) Violations of the rental law;
(3) Violations of municipal or city
ordinances;
814
(4) Violations of Batas Pambansa Blg 22
(5) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (P1,000), or
both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising
therefrom: Provided, however, That in offenses involving damage to property through criminal
negligence, this Rule shall govern where the imposable fine does not exceed ten thousand pesos
(P10,000).

This rule shall not apply to a civil case where the plaintiff’s cause of action is pleaded in the same
complaint with another cause of action subject to the ordinary procedure; nor to a criminal case where
the offense charged is necessarily related to another criminal case subject to ordinary procedure.

SEC. 2. Determination of applicability. – Upon the filing of a civil or criminal action, the court shall
issue an order declaring whether or not the case shall be governed by this Rule.

A patently erroneous determination to avoid the application of the Rule of Summary Procedure is a
ground for disciplinary action.

II

CIVIL CASES

SEC. 3. Pleadings. –

A. Pleadings, allowed. – The only pleadings allowed to be filed are the complaints, compulsory
counterclaims and cross-claims pleaded in the answer, and the answers thereto.

124
814
A.M. 00-11-01-SC, April 15, 2003

125
B. Verification. – All pleadings shall be verified.

SEC. A. Duty of court. – After the court determines that the case falls under summary procedure, it
may, from an examination of the allegations therein and such evidence as may be attached thereto,
dismiss the case outright on any of the grounds apparent therefrom for the dismissal of a civil action.

If no ground for dismissal is found, it shall forthwith issue summons which shall state that the
summary procedure under this Rule shall apply.

NOTE: That any of the grounds for dismissal under Rule 16 apply although no motion to dismiss can
be filed except on the grounds of lack of jurisdiction and non-compliance with the requirement on
conciliation.

NOTE: That the prohibition as to the filing of a motion to dismiss exists prior to the filing of an answer
but a dismissal grounded on any of the causes stated in Rule 16 can only be effected prior to the
issuance of the court of summons and not after an answer has been filed (Heirs of Ricardo Olivas vs.
Flor, 161 SCRA 393)

SEC. 5. Answer. – W ithin ten (10) days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses
not pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter.
Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred.
The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from
service of the answer in which they are pleaded.

SEC. 6. Effect of failure to answer. – Should the defendant fail to answer the complaint within the
period above provided, the court, motu proprio, or on motion of the plaintiff, shall render judgment as
may be prayed for therein: Provided, however, That the court may in its discretion reduce the amount
of damages and attorney’s fees claimed for being excessive or otherwise unconscionable. This is
without prejudice to the applicability of Section 4, Rule 18 of the Rules of Court, if there are two or
more defendants.

NOTE: Rendition by the court of judgment on account of failure to file an answer or to appear during
the preliminary conference may not require a motion (Sordan vs. De Guzman, A.M. No. MTJ-00-
1296, October 5, 2000)

SEC. 7. Preliminary conference; appearance of parties. – Not later than thirty (30) days after the
last answer is filed, a preliminary conference shall be held. The rules on pre-trial in ordinary cases
shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.

The failure of the plaintiff to appear in the preliminary conference shall be a cause for the dismissal
of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to
judgment on his counterclaim in accordance with Section 6 hereof. All cross-claims shall be
dismissed.

If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in accordance with
Section 6 hereof. This Rule shall not apply where one of two or more defendants sued under a
common cause of action who had pleaded a common defense shall appear at the preliminary
conference.

SEC. 8. Record of preliminary conference. – W ithin five (5) days after the termination of the
preliminary conference, the court shall issue an order stating the matters taken up therein, including
but not limited to:

(a) Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;

(b) The stipulations or admissions entered into by the parties;

126
(c) Whether, on the basis of the pleadings and the stipulations and admissions made by the parties,
judgment may be rendered without the need of further proceedings, in which event the judgment shall
be rendered within thirty (30) days from issuance of the order;

(d) A clear specification of material facts which remain controverted; and

(e) Such other matters intended to expedite the disposition of the case.

SEC. 9. Submission of affidavits and position papers. – Within ten (10) days from receipt of the
order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses
and other evidence on the factual issues defined in the order, together with their position papers
setting forth the law and the facts relied upon by them.

SEC. 10. Rendition of judgment. – W ithin thirty (30) days after receipt of the last affidavits and
position papers, or the expiration of the period for filing the same, the court shall render judgment.

However, should the court find it necessary to clarify certain material facts, it may, during the said
period, issue an order specifying the matters to be clarified, and require the parties to submit
affidavits or other evidence on the said matters within ten (10) days from receipt of said order.
Judgment shall be rendered within fifteen (15) days after the receipt of the last clarificatory affidavits,
or the expiration of the period for filing the same.

The court shall not resort to the clarificatory procedure to gain time for the rendition of the judgment.

NOTE: That hearings are not necessary unless for the purpose of clarifying certain material facts.

III

CRIMINAL CASES

Sec. 11. How commenced. – The filing of criminal cases falling within the scope of this Rule shall
be either by complaint or by information; Provided, however, That in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by information, except when the offense
cannot be prosecuted de officio.

The complaint or information shall be accompanied by the affidavits of the complainant and of his
witnesses in such number of copies as there are accused plus two (2) copies of the court’s files. If
this requirement is not complied with within five (5) days from date of filing, the case may be
dismissed.

Sec. 12 Duty of court. –

(a) If commenced by complaint. – On the basis of the complaint and the affidavits and other
evidence accompanying the same, the court may dismiss the case outright for being patently without
basis or merit and order the release of the accused if in custody.
(b) If commenced by information. – When the case is commenced by information, or is not
dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together
with copies of the affidavits and other evidence submitted by the prosecution, shall require the
accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in
his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days from
receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the
counter-affidavits of the defense.

Sec. 13 Arraignment and trial. – Should the court, upon a consideration of the complaint or
information and the affidavits submitted by both parties, find no cause or ground to hold the accused
for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment
and trial.

If the accused is in custody for the crime charged, he shall be immediately arraigned and if he enters
a plea of guilty, he shall forthwith be sentenced.
127
Sec. 14 Preliminary conference. – Before conducting the trial, the court shall call the parties to a
preliminary conference during which a stipulation of facts may be entered into, or the propriety of
allowing the accused to enter a plea of guilty to a lesser offense may be considered, or such other
matters may be taken up to clarify the issues and to ensure a speedy disposition of the case.
However, no admission by the accused shall be used against him unless reduced to writing and
signed by the accused and his counsel. A refusal or failure to stipulate shall not prejudice the
accused.

Sec. 15 Procedure of trial. – At the trial, the affidavits submitted by the parties shall constitute the
direct testimonies of the witnesses who executed the same. Witnesses who testified may be
subjected to cross-examination, redirect or re-cross-examination. Should the affiant fail to testify, his
affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the
adverse party may utilize the same for any admissible purpose.

Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit was
previously submitted to the court in accordance with Section 12 hereof.

However, should a party desire to present additional affidavits or counter-affidavits as part of his
direct evidence, he shall so manifest during the preliminary conference, stating the purpose thereof.
If allowed by the court, the additional affidavits of the prosecution or the counter-affidavits of the
defense shall be submitted to the court and served on the adverse party not later than three (3) days
after the termination of the preliminary conference. If the additional affidavits are presented by the
prosecution, the accused may file his counter-affidavits and serve the same on the prosecution within
three (3) days from such service.

Sec. 16. Arrest of accused. – The court shall not order the arrest of the accused except for failure to
appear whenever required. Release of the person arrested shall either be on bail or on recognizance
by a responsible citizen acceptable to the court.

Sec. 17 Judgment. – Where a trial has been conducted, the court shall promulgate the judgment not
later than thirty (30) days after the termination of trial.

COMMON PROVISIONS

SEC. 18 Referral to Lupon. – Cases requiring referral to the Lupon for conciliation under the
provisions of Presidential Decree No. 1508 where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be revived only after such requirement
shall have been complied with. This provision shall not apply to criminal cases where the accused
was arrested without a warrant.

SEC. 19. Prohibited pleadings and motions. – The following pleadings, motions, or petitions shall
not be allowed in the cases covered by this Rule:

(a) Motion to dismiss the complaint or to quash the complaint or information except on the ground
of lack of jurisdiction over the subject matter, or failure to comply with the preceding section;

(b) Motion for a bill of particulars;

(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;

NOTES: A motion for reconsideration can be filed when the case is already pending before the
appellate court. (Jakihaca vs.Aquino, 181 SCRA 67). A motion for reconsideration of rulings or
pertaining to other incidents, NOT OF THE JUDGMENT, is allowed ( Lucas vs. Fabros, 324 SCRA 1)

(e) Motion for extension of time to file pleadings, affidavits or any other paper;

(f) Memoranda;
128
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

NOTE: If motion is well grounded, it may be allowed.

(j) Reply;

(k) Third-party complaints; and

(l) Interventions.

SEC. 20. Affidavits. – The affidavits required to be submitted under this Rule shall state only facts
of direct personal knowledge of the affiants which are admissible in evidence, and shall show their
competence to testify to the matters stated therein.

A violation of this requirement may subject the party or the counsel who submits the same to
disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from
the record.

SEC. 21. Appeal. – The judgment or final order shall be appealable to the appropriate regional trial
court which shall decide the same in accordance with Section 22 of Batas Pambansa Blg. 129. The
decision of the regional trial court in civil cases governed by this Rule, including forcible entry and
unlawful detainer, shall be immediately executory, without prejudice to a further appeal that may be
taken therefrom.

NOTE: That immediate execution requires proof that the losing party has been served with notice of
judgment (Dy vs. CA, 191 SCRA 585) and that notice of the motion for execution to the adverse party
is required ( Limpo vs. CA, 333 SCRA 575)

SEC. 22. Applicability of the regular rules. – The regular procedure prescribed in the Rules of Court
shall apply to the special cases herein provided for in a suppletory capacity insofar as they are not
inconsistent herewith.

SEC. 23. Effectivity. – This revised Rule on Summary Procedure shall be effective on November
15, 1991.

RULE 71 – CONTEMPT

WHAT IS CONTEMPT

Willful disobedience or open disrespect of the orders, authority, or dignity of a court or judge acting in
judicial capacity by disruptive language or conduct or by failure to obey the orders of the court

KINDS OF CONTEMPT

1. DIRECT CONTEMPT – consists of misbehaviour in the presence of or so near a court as to


obstruct or interfere with the proceedings before the same, it includes, disrespect, offensive
personalities against others, refusal to be sworn or answer as a witness, or to subscribe to an
affidavit/deposition when lawfully required to do so.

This kind of contempt may be SUMMARILY ADJUDGED and be punished by a fine not exceeding P
2,000.00 or imprisonment of not exceeding 10 days or BOTH if it be by a Regional Trial Court or a
fine not exceeding P 200.00 or imprisonment not exceeding 1 day or BOTH if it be by a Municipal
Trial Court.

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The remedy therefrom is certiorari/ prohibition, in which case the judgment is suspended pending
the petition provided the petitioner files a bond fixed by the court which rendered the judgment and
conditioned that he will abide by and perform the judgment should the petition be decided against
815
him.

1.1 It is direct contempt if a pleading contains derogatory, offensive or malicious statements


against a particular judge when submitted in the same court where the judge is presiding. If submitted
816
elsewhere, it is indirect contempt.

2. INDIRECT CONTEMPT – consists of (a) Misbehavior of an officer of a court in the performance of


his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the act of a person who, after being dispossessed or
ejected from any real property by the judgment or process of any court of competent jurisdiction,
enters or attempts or induces another to enter into or upon such real property for the purpose of
executing acts of ownership or possession, or in any manner disturbs the possession given to the
person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule; (d)
Any improper conduct tending, directly or indirectly to impede, obstruct, or degrade the administration
of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without
authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a
person or property in the custody of an officer by virtue of an order or process of a court held by him.

But nothing in this section shall be so construed as to prevent the court from issuing process to bring
817
the respondent into court, or from holding him in custody pending such proceedings.

2.1 This kind of contempt may be initiated motu propio by the court against which the contempt
was committed by an order or any formal charge requiring the respondent to show cause why he
should not be punished for contempt. In other cases, it shall be commenced by verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and upon
FULL COMPLIANCE WITH REQUIREMENTS FOR FILING INITIATORY PLEADINGS in the court
concerned. If the charges are related to the principal action pending before the court, the petition shall
so allege such fact but it shall be DOCKETED, HEARD AND DECIDED SEPARATELY, unless the
court in its discretion orders consolidation of the charge and principal action for joint hearing and
818
decision.

2.2 The charge shall be filed in the Regional Trial Court if the contempt is committed against it or
a court of equal or higher rank or against an officer appointed by it. If against a lower court, it may be
filed in the Regional Trial Court in the place where the lower court sits or in such lower court, subject
819
to appeal to the Regional Trial Court.

This kind of contempt is punishable by a fine not exceeding P 30,000.00 or imprisonment not
exceeding 6 months or both, if committed against a Regional Trial Court. If against a Municipal Trial
Court, by a fine not exceeding P 5,000.00 or imprisonment not exceeding 1 month. If it consists in a
violation of a writ of injunction, TRO or status quo order, he may also be ordered to make complete
restitution. A writ of execution may be issued to enforce a fine.820 If it consists in refusal or omission
to do an act within his power to perform, he may be imprisoned by order of the court until it is
performed.821

2.3 A judgment for indirect contempt is appealable to the Regional Trial Court, but execution shall
not be suspended without the filing of a bond.822

2.4 An order dismissing a contempt charge or exoneration from such, is not appealable.823

815
Supra, Sections 1 and 2, Rule 71
816
Ang v Castro, 136 SCRA 453
817
Supra, Section 3, Rule 71
818
Supra, Section 4, Rule 71
819
Supra, Section 5, Rule 71
820
Supra, Section 7, Rule 71
821
Supra, Section 8, Rule 71
822
Supra, Section 11, Rule 71
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OTHERS

1. If no hearings are held forthwith and the respondent has been taken into custody, he may be
released upon payment of a bond, but if he fails to appear on the hearing of the charge, he may be
ordered arrested and the bond forfeited.824

2. If already imprisoned, the court may discharge the respondent if public interest will not be
prejudiced by the release.825

APPLICABILITY OF THE RULE

The rules apply to persons, entities, bodies or agencies exercising quasi-judicial powers or shall have
suppletory effect to their rules. The RTC of the place where the contempt is committed shall have
jurisdiction.826

DEFINING CRIMINAL AND CIVIL CONTEMPT

It is criminal contempt when the purpose is to vindicate the authority of the court and protect its
outraged dignity. It is civil contempt when there is failure to do something ordered by the court to be
done for the benefit of another party.827

In fact, it has been declared that the motion for extension of time within which a party may plead is
not a litigated motion where notice to the adverse party is necessary to afford the latter an opportunity
to resist the application, but an ex parte motion made to the court in behalf of one or the other of the
parties to the action, in the absence and usually without the knowledge of the other party or parties.
(Commercial Union Assurance Company Limited, et. al. vs. Lepanto Consolidated Mining Company,
et. al., L-43342. October 30, 1978, 86 SCRA 79, 95-96; Amante vs. Sunga, et. al., L-40491, May 28,
1975, 64 SCRA 192, 195)

Therefore, as long as it is filed within the period sought to be extended, a request for extension of
time may be filed ex parte and granted without the usual formalities applicable to motions in general.
(Moya vs. Barton, 76 Phil. 831)

823
In Re, Mison, Jr, 33 SCRA 30
824
Supra, Sections 6 and 9, Rule 71
825
Supra, Section 10, Rule 71
826
Supra, Section 12, Rule 71
827
Yasay v Recto, 313 SCRA 739
130