STAGES Civil-Procedure

RECOLETOS NOTES
CENTRALIZED BAR OPERATIONS 2006

Remedial Law
CIVIL PROCEDURE
Jurisdiction- is the authority to hear and determine a cause or the right to act
in a case.
STAGES IN CIVIL PROCEDURE
Stage 1: Referral to the Barangay Conciliation Proceedings pursuant to RA

7160
General Rule: all cases must be referred to the lupon
Exceptions:
1. one party does not reside in the barangay
2. subject real property is located in another barangay
3. one party is a public officer
Stage 2: COMPLAINT
1. Jurisdiction
 The power and authority of a court to hear, try and decide cases.
Elements of a Valid Jurisdiction:

a. Jurisdiction over the subject matter of the
case
b. Jurisdiction over the parties
c. Jurisdiction over the res if jurisdiction over
the defendant cannot be acquired
d. Jurisdiction over the issue of the case
e. Payment of docket fees
 Lack of jurisdiction over the person of the defendant maybe waived if not
raised in a motion to dismiss or in an answer.
 Jurisdiction over the subject matter may not be waived.
General Rule: Jurisdiction over the subject matter or nature may be alleged
in any stage of the proceedings
Exception: Estoppel
Principle of Primary Jurisdiction – if the case is such that its determination

requires the expertise, specialized skills and knowledge of the proper
administrative bodies because technical matters or intricate questions of facts
are involved, then relief must first be obtained in the administrative
proceedings before a remedy will be supplied by the courts even though the
1
REMEDIAL LAW COMMITTEE
CHAIRMAN: Jennifer Felipe VICE-CHAIRMAN: Minehaha L. Liggayu MEMBERS: Rachel Lealiza,
Michelle Florez, Honey Pascual, Ricar Enriquez, Cheddar Sanchez, Michael Ken de Jesus, Dax
Maliwat, Vladimir Villacorta
RECOLETOS DE MANILA SCHOOL OF LAW
RECOLETOS NOTES
Remedial Law
matter is within the proper jurisdiction of a court. (Industrial Enterprises, Inc.
v. CA, 184 SCRA 426, 1990)
What determines jurisdiction in civil cases:

a. Allegations of the
complaint or petition
b. Law applicable at the time
of the filing of the complaint
c. In money claims, the
totality of the claims in joinder of claims or causes of action
(Totality Rule)
2. Parties (Rule 3)
Parties in Civil Actions

1. Plaintiff – the claiming party, the counter-claimant, third-party
plaintiff
2. Defendant – original defending party, the defendant in a

counterclaim, the cross-defendant, or the third-party defendant
Party Plaintiff or Defendant

1. Natural Persons
a. Must be with legal age and capacity to act
b. Husband and wife shall sue and be sued
jointly, except as provided by law. (Sec. 4, Rule 3)
c. Minor or incompetent with the assistance of
his father, mother, guardian, or if he has none, a guardian ad litem
(Sec. 5)
d. Non – resident may sue if he files a complaint
in the Philippine courts or may be sued only if it involves the
personal status of the plaintiff or the properties of the defendant
found in the Philippines
2. Juridical Persons
a. State and its political subdivisions
b. Other corporations and institutions and
entities for public interest and purpose, created by law
c. Corporations, partnerships and associations
for private interest or purpose to which the law grants a juridical
personality
General rule: Mere association of persons not possessing juridical

personality cannot sue and be sued
Exceptions:
2006 BAR OPS EXECUTIVE COMMITTEE

OVER-ALL CHAIRMAN: Abbon Loong; OVER-ALL VICE-CHAIRMAN: Tristan Babiera, Edgar Martho; VC-
SECRETARIAT: Sasquia Rabara; VC-ACADEMICS: Leamay Orencio; VC-EXTERNAL: Rheme Jabido; VC-WAYS &
MEANS: Gian Palad; JURISPRUDENCE ANALYSTS: Jiggs Domingo, Catherine Camposano; POLITICAL – Lady Jay
Gutierrez; LABOR - Crystal Embido; CIVIL – John Tiamson; TAXATION - Noel Ortega; COMMERCIAL - Edgar
Malapote; CRIMINAL –Cynthia Corpuz; REMEDIAL – Jeniffer Felipe; LEPE - Frela Pancho
RECOLETOS NOTES
Remedial Law
1. Entity without juridical capacity- when two or more persons

enter into transaction, they may be sued under the name by
which they are generally or commonly known. (Sec. 15)
2. In a class suit (Sec. 12)
d. Foreign private juridical entity can be sued.

(Sec. 12, Rule 14)
1. If regularly doing business in the
Philippines but did not get a license to do business in the
Philippines, IT CANNOT SUE.
2. If it conducts an isolated
business/transaction, not regular, it needs no license and it
CAN sue.
3. Entities authorized by law
3. Venue (Rule 4)
 The place where the action is to be commenced/instituted and tried.
It refers to the place or geographical location on which an action or
proceeding should be brought.
1. Real actions
 Court which has jurisdiction over the area where the property is
located or a portion thereof is located
2. Personal actions
 Court of the place where the plaintiff resides or where the
defendant resides or in case of a non- resident defendant where he may
be found at the election of the plaintiff
3. When rules not applicable

1. Specific rule of law provides otherwise
2. Stipulation of parties before the action is commenced
a. Mandatory – when there are restrictive or
qualifying words in the agreement indicating that venue cannot be
laid in any place other than that agreed upon by the parties
b. Permissive – No qualifying or restrictive words
in the agreement or when the agreement is couched by the words
“may”
c. Unenforceable- when the agreement on venue
is against public policy
STAGE 3: FILING THE COMPLAINT WITH THE CLERK OF COURT

 Non - payment of docket fees is a ground for dismissal of the
complaint
STAGE 4: SUMMONS (Rule 14)

3
RECOLETOS NOTES
Remedial Law
Modes of service
1. Service in person or if he refuses to receive and sign for it, by
tendering it to him
2. Substituted service
2.1 by leaving copies of the summons at the defendant’s
residence with some person of sufficient age and discretion then
residing therein
2.2 by leaving copies at defendant’s office or regular place of
business with some person in charge thereon
3. extraterritorial service
 defendant is a non- resident and is not found in the Philippines
 action affects:
a.) personal status of the plaintiff
b.) subject is property within the Philippines in which the defendant
has or claims a lien or interest
c.) relief demanded consists in excluding defendant from any
interest in the property
d.) property of defendant has been attached within the Philippines
 by leave of court
 by personal service or by publication, in which case a copy of the

summons and order of the court shall be sent by registered mail to
the last known address of the defendant, or in any matter the court
deem convenient
 purpose:
to acquire jurisdiction over the person of the defendant
 form:
summons shall be directed to the defendant, signed by the clerk of
court under seal and shall contain:
a.) the name of the court and the names of the parties to the action
b.) a direction that the defendant answer within the time fixed by the
Rules
c.) a notice that unless the defendant answers, plaintiff will take
judgment by default and may granted the relief applied for
STAGE 5: UPON RECEIPT OF SUMMONS
Defendant may opt to file any of the following:

4

RECOLETOS NOTES
Remedial Law
1. Motion to Dismiss
 Filed within the time for but before filing the answer to the complaint
asserting a claim
Grounds:
1. lack of jurisdiction over the defendant
2. lack of jurisdiction over the subject matter
3. that venue is improperly laid
4. plaintiff has no legal capacity to sue
5. litis pendencia
6. res judicata
7. failure to state a cause of action
8. claim has been paid, waived, abandoned or otherwise
extinguished
9. claim on which the action is based is unenforceable
under the statute of frauds
10. condition precedent for filing the claim has not been
complied with
2. Motion for Bill of Particulars

 filed before filing any responsive pleading
 move for a definite statement of any matter which is not averred with
sufficient definiteness or particularity to enable him properly to
prepare his responsive pleading
 if the pleading is a reply, the motion must be filed within ten days
from service thereof
3. Motion for Extension to File Responsive Pleading
4. Motion for Summary Judgment

 subject to the 10- day notice rule
 filed if the pleading, supporting affidavits, depositions, and
admissions on file, show that, except as to the award of the damages,
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law
STAGE 6: DECLARATION OF DEFAULT

 defendant fails to answer within the time allowed
 upon motion of the plaintiff
 Judgment by default
- the court shall proceed to render judgment granting the
relief as the pleading warrants unless the court requires
the claimant to submit evidence.
 party in default shall be entitled to notice of subsequent proceedings
but not to take part in the trial
 relief from order of default
5
RECOLETOS NOTES
Remedial Law
 what to file
- Motion to Lift Order of Default
 when filed
- anytime after notice but before judgment
 grounds:
1. failure to answer was due to fraud, accident, mistake or
excusable negligence and that he has a meritorious defense
Stage 7: Amendment of Pleadings

 amendments in general:
1. adding or striking out an allegation or the name of any party
2. correcting a mistake in the name of a party
3. correcting a mistaken or inadequate allegation or description
 period to amend
1. as a matter of right
- before a responsive pleading is filed
2. with leave of court
- after answer
- upon motion filed in court and with notice and hearing
Stage 8: Withdrawal of Complaint

 plaintiff must file notice of withdrawal of complaint at any time before
service of the answer or of a motion for summary judgment
 unless otherwise stated in the notice, the dismissal is without prejudice,
except that a notice operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in a competent court an
action based on or including the same claim (two dismissal rule)
 if counterclaims pleaded by defendant prior to the service upon him of
the plaintiff’s motion for dismissal, the dismissal is limited to the
complaint
 dismissal due to fault of plaintiff
- complaint may be dismissed upon motion of defendant or upon
court’s own motion if for no justifiable cause the plaintiff
o fails to appear on the date of the presentation of his evidence in
chief on the complaint
o fails to prosecute his action for an unreasonable length of time
o fails to comply with the Rules of Court or any order of the court
Stage 9: Answer
 period to plead
- within fifteen days from receipt of summons
 answer may be with counterclaim or cross claim
- crossclaim
o any claim by one party against a co- party arising out of the
transaction or occurrence that is the subject matter of either
the original action or of a counterclaim therein.
6

RECOLETOS NOTES
Remedial Law
- counterclaim
1.) compulsory counterclaim
- arises out of or is connected with the transaction or
occurrence constituting the subject matter of the
opposing party’s claim
- does not require for its adjudication the presence of
third parties
- must be within the jurisdiction of the court both as
to the amount and the nature thereof, except that in
an original action before the RTC, the counterclaim
may be considered compulsory regardless of the
amount
2.) permissive counterclaim

- does not arise out of or is not connected with the
transaction or occurrence constituting the subject
matter of the opposing party’s claim
- does not require for its adjudication the presence of
third parties
defenses set forth in the answer

1) negative defense
- is the specific denial of the material fact alleged in the
pleading of the claimant essential to his cause or causes of
action
- negative pregnant- fact is alleged with some qualifying or
modifying language and only the qualification or
modification is denied, while the fact itself is admitted
2) affirmative defense
- is an allegation of a new matter which, while
hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar
recovery by him.
Stage 10: Judgment on the Pleadings

 file motion for judgment on the pleading
 when filed:
- after receipt of an answer
 grounds:
1. answer fails to tender an issue
2. answer admits the material allegations of the adverse party’s pleading
Stage 11: Third/Fourth Party Complaint

 with leave of court
 filed by defending party
7
RECOLETOS NOTES
Remedial Law
 filed against a person not a party to the action ( third/fourth party
defendant) for contribution, indemnity, subrogation, or any other relief,
in respect of his opponent’s claim
Stage 12: Reply

 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 issue as to such new matters
 if no reply is filed, all the new matters alleged in the answer are deemed
controverted
 filed within 10 days from service of the pleading responded to
Stage 13: Pre- trial

 when conducted:
- after the last responsive pleading has been served and filed, it shall
be duty of the plaintiff to promptly move ex parte that the case be
set for hearing
 nature and purpose:

- Pre- trial is mandatory. The court shall consider the following:
1. simplification of the issues
2. the necessity or desirability of amendments to the pleadings
3. possibility of obtaining stipulations or admissions of facts and
of documents to avoid unnecessary proof
4. limitation of the number of witnesses
5. advisability of a preliminary reference of issues to the
commissioner
6. propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground be
found to exist
7. the advisability or necessity of suspending the proceedings
8. such other matters as may aid in the prompt disposition of the
action
 non- appearance of a party at pre- trial

- on the part of plaintiff
o case shall be dismissed without prejudice
- on the part of the defendant

o allow plaintiff to present evidence ex parte and the court to
render judgment on the basis thereof
- excused only if a valid cause is shown therefor or if a

representative shall appear in his behalf fully authorized in writing
1. to enter into an amicable settlement
2. to submit to alternative modes of dispute resolution
8

RECOLETOS NOTES
Remedial Law
3. to enter into stipulations or admissions of facts and

documents
- pre- trial brief

o filed and served, in such a manner as shall ensure their
receipt at least 3 days before the date of pre- trial.
- contents:
(a) A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution,
indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of
facts;
(c) The issue to be tried of resolved;
(d) The document or exhibits to be presented, stating the
purpose thereof;
(e) A manifestation of their having availed or their intention
to avail themselves of discovery procedures or referral to
commissioners; and
(f) The number and names of the witnesses, and the
substance of their respective testimonies.
Stage 14: Order of Trial

 presentation of plaintiff’s evidence in chief
 trial shall be limited to the issues stated in the pre- trial order and shall
proceed as follows:
1.) the plaintiff shall produce evidence in support of his complaint
2.) defendant shall produce evidence in support of his defense,
counterclaim, cross-claim, and third- party complaint
3.) third party defendant, if any, shall then adduce evidence in his
behalf
4.) fourth party and so forth, if any, shall then adduce evidence of
the material facts pleaded by them.
5.) parties against whom a counterclaim or crossclaim has been
pleaded shall then adduce evidence in support of their defense
6.) parties shall then present their rebutting evidence only, unless
the court allows them to adduce additional evidence upon the
original case
7.) upon submission of evidence, case submitted for decision,
unless court orders them to argue on or submit their respective
memoranda
 motion to postpone trial for absence of evidence

- granted only upon an affidavit showing: (1) the materiality of such
evidence and (2) that due diligence has been used to procure it.
9
RECOLETOS NOTES
Remedial Law
- if adverse party admits the facts to be given in evidence, even if he
objects or reserves the right to object to their admissibility, the
trial shall not be postponed
 motion to postpone trial for illness of party or counsel

- only upon an affidavit or sworn certification stating
(1) that the presence of the party or counsel at the trial is
indispensable and
(2) the character of the illness is such as to render his non-
attendance excusable
Stage 15: Demurrer to Evidence

 defendant to file motion for demurrer to evidence
 with leave of court
 when filed:
- after the plaintiff has completed the presentation of his evidence
- on what ground
o upon the facts and the law the plaintiff has shown no right
to relief
- effect:
o if motion granted:
 case is dismissed
o if motion denied:
 defendant loses his right to present evidence
o if motion granted but reversed on appeal
 defendant deemed to have waived his right to present
evidence
Stage 16: Intervention

 who may intervene:
1. person who has a legal interest in the matter in litigation
2. person who has a legal interest in the success of either party or
against both
3. person who is so situated as to be adversely affected by the
distribution or other disposition of property in the custody of
the court or of an officer thereof
 when to file
- filed anytime before rendition of judgment
 what to file
1. complaint- in- intervention
- if he asserts a claim against either or all of the original
parties
2. answer- in- intervention
10

RECOLETOS NOTES
Remedial Law
- if he unites with the defending party in resisting a claim

against the latter
Stage 17: Decision

 requisites for a valid judgment;
1. determination on the merits
2. in writing
3. personally and directly prepared by the judge
4. states clearly and distinctly the facts and the law on which it is
based
5. signed by the judge
6. filed with the clerk of court
 entry of judgment
- no appeal, motion for new trial or reconsideration is filed within
the time provided, the judgment shall be entered by the clerk of
court in the book of entries of judgments.
- the date of finality of the judgment shall be deemed to be the date
of its entry
Stage 18: Remedies before Finality of Judgment
 Appeal
A. No appeal may be taken from:
1. an order denying a motion for new trial or reconsideration
2. an order denying a petition for relief or any similar motion
seeking relief from judgment
3. an interlocutory order
4. an order disallowing or dismissing an appeal
5. an order denying a motion to set aside a judgment by
consent, confession, or compromise on the ground of
fraud, mistake, duress, or any other ground vitiating
consent
6. an order of execution
7. a judgment for or against one or more of several parties or
in separate claims, counterclaims, cross- claims, and
third- party complaints, while the main case is pending,
unless the court allows an appeal therefrom
8. an order dismissing an action without prejudice
B. Grounds for dismissal of appeal

1. failure of the record on appeal to show on its face that the
appeal was taken within the period fixed by the Rules
2. failure to file the notice of appeal or the record on appeal
within the period prescribed
3. failure of appellant to pay the docket and other lawful fees
11
RECOLETOS NOTES
Remedial Law
4. unauthorized alterations, omissions or additions in the
approved record on appeal
5. failure of appellant to serve and file the required number
of copies of his brief or memorandum within the time
prescribed
6. absence of specific assignment of errors in the appellant’s
brief or of page reference to the record as required
7. failure of the appellant to take the necessary steps for the
correction or completion of the record within the time
limited by the court in its order
8. failure of the appellant to appear at the preliminary
conference or to comply with orders, circulars or
directives of the court without justifiable cause
9. the fact that the judgment appealed from is not appealable
10. appeal from RTC to CA on pure questions of law
11. appeal by notice of appeal instead of by petition for
review from the appellate judgment of RTC
12. appeal erroneously taken to the CA
C. Modes of Appeal
1.from MTC to RTC

- file notice of appeal
- filed within 15 days from receipt of notice of the judgment
- filed with the court that rendered the judgment appealed
from
- deemed perfected upon the filing of the notice of appeal
- court loses jurisdiction over the case upon the perfection
of the appeal filed in due time and the expiration of the
time to appeal
2. from RTC to CA
- notice of appeal
o in cases decided by the RTC in the exercise of its
original jurisdiction
o filed with the court that rendered the judgment
appealed from
o filed within 15 days from notice of the judgment
appealed from
o deemed perfected upon the filing of the notice of
appeal
- petition for review

o in cases decided by the RTC in the exercise of its
appellate jurisdiction
o filed within 15 days from notice of judgment
sought to be reviewed or of the denial of
12

RECOLETOS NOTES
Remedial Law
petitioner’s motion for new trial or

reconsideration
o deemed perfected upon the filing of the petition
and payment of the corresponding docket and
other lawful fees
o RTC loses jurisdiction over the case upon the
perfection of appeal filed in due time and the
expiration of the time to appeal of other parties
3. from RTC to SC
- petition for review on certiorari
o on pure questions of law
o filed within 15 days from notice of judgment
sought to be reviewed or of the denial of
petitioner’s motion for new trial or
reconsideration
o SC may extend the time for filing but only for
justifiable reasons and for 30 days only
o dismissal of the petition
 petitioner fails to comply with any of the
requirements regarding the payment of
docket and other lawful fees, deposit for
costs, proof of service of the petition, and
the contents of and the documents which
should accompany the petition
- denial of the petition
o appeal is without merit
o appeal is prosecuted manifestly for delay
o the questions raised are too unsubstantial to
require consideration
o review discretionary
 the following may be considered by the
SC:
1. when the court a quo has decided a
question of substance, not
theretofore determined by the SC, or
has decided it in a way probably not
in accord with the law or with the
applicable decisions of the SC
2. when the court a quo has so far
departed from the accepted and
usual course of judicial proceedings,
or so far sanctioned such departure
by a lower court, as to call for an
exercise of the power of supervision
4. from CTA and other quasi- judicial agencies to CA

13
RECOLETOS NOTES
Remedial Law
- what is involved
o question of fact or law or both
- how taken
o by filing a verified petition for review
- where filed
o with the CA
- when filed
o filed within fifteen days
 from notice of the judgment, or
 from the date of the last publication of the
judgment, if publication is required by law for
its effectivity
 from the denial of petitioner’s motion for new
trial or reconsideration
5. from CA to SC
- petition for review on certiorari
o only on pure questions of law
o filed within fifteen days
 from notice of the judgment, or
 from the date of the last publication of the
judgment, if publication is required by law for
its effectivity
 from the denial of petitioner’s motion for new
trial or reconsideration
 Motion for New Trial

- grounds:
1. fraud, accident, mistake or excusable negligence
o which ordinary prudence could not have
guarded against and by reason of which such
aggrieved party has probably been impaired in
his rights
o with affidavit of merit
2. newly discovered evidence
o which could not , even with reasonable
diligence, have been discovered and produced at
the trial, and which if presented would probably
alter the result
o with affidavit of witness
- filed within the time for filing an appeal

- if granted, the original judgment is vacate and the action stands trial
de novo
- if denied, file an appeal from the judgment
 Motion for Reconsideration

14

RECOLETOS NOTES
Remedial Law
o grounds:
1. damages awarded are excessive
2. evidence is insufficient to justify the decision
3. decision is contrary to law
o filed within the time for filing an appeal
 Petition for Certiorari

- what to file
o verified petition for certiorari
- ground:
o tribunal, board, or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his
jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and appeal not available
- when filed:
a.)within 60 days from notice of judgment
b.)within 60 days from denial of the motion for new trial or
reconsideration
- where filed:
a.) in the SC
b.) in the RTC
- if petition relates to the acts or omissions of a lower
court or of a corporation, board, officer or person
c.) in the CA
- whether or not the same is in aid of its appellate
jurisdiction
- if it involves the acts or omissions of a quasi- judicial
agency, unless otherwise provided by law or the
Rules
d.) in the Sandiganbayan
- if in aid of its appellate jurisdiction
Stage 19: Remedies after Finality of Judgments
1. Petition for Relief from Judgments

- when available:
a.) when a judgment is entered or proceeding taken against
a party thru FAME
- ask that judgment be set aside
b.) when a judgment is rendered and a party thereto is
prevented by FAME from taking an appeal
- ask that the appeal be given due course
15
RECOLETOS NOTES
Remedial Law
- when filed:
o within 60 days from the time petitioner learns of the judgment
and not more than 6 months from entry of the judgment or
proceeding taken
2. Annulment of Judgment
- when available
o when the remedies of new trial, reconsideration, appeal, relief
from judgment or other appropriate remedies are no longer
available through no fault of the petitioner
- grounds:
a. extrinsic fraud
o must be filed within four years from its discovery
o cannot be a valid ground if it was availed of, or could have been
availed of, in a motion for new trial or petition for relief
o if granted, court will try the case as if a motion for new trial is
granted
b. lack of jurisdiction
o must be filed before it is barred by laches or estoppel
o if granted, court will set aside the judgment, and the case may
be refiled
3.) Petition for Certiorari

- what to file
o verified petition for certiorari
- ground:
o tribunal, board, or officer exercising judicial or quasi- judicial
functions has acted without or in excess of its or his jurisdiction
or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and appeal not available
- when filed:
a.) within 60 days from notice of judgment
b.) within 60 days from denial of the motion for new trial or
reconsideration
- where filed:
a.) in the SC
b.) in the RTC

o if petition relates to the acts or omissions of a lower court
or of a corporation, board, officer or person
c.) in the CA
16

RECOLETOS NOTES
Remedial Law
o whether or not the same is in aid of its appellate

jurisdiction
o if it involves the acts or omissions of a quasi- judicial
agency, unless otherwise provided by law or the Rules
d.) in the Sandiganbayan

o if in aid of its appellate jurisdiction
Stage 20: Execution of Judgment

 execution as a matter of right
- on motion
- judgment that disposes of the action
o upon the expiration of the period to appeal and no appeal
is perfected
- discretionary execution
o on motion of the prevailing party
o with notice to the adverse party
o filed with the court that rendered the judgment and
before it loses jurisdiction over the case
o before expiration of the period to appeal
 a final judgment or order may be executed on motion within 5 years

from the date of its entry
 after the lapse of five years and before it is barred by the statute of
limitations, the judgment may be enforced by action
 the revived judgment may also be enforced by motion within 5 years
from the date of its entry and thereafter by action before it is barred by
the statute of limitations
Provisional Remedies
-is a collateral proceeding, permitted only in connection with a regular action,
and as one of its incidents; one which is provided for present need, or for the
occasion, that is, one adapted to meet a particular exigency.
Kinds of provisional remedies:

1. preliminary attachment
o filed at the commencement of the action or at any time before entry
of judgment
o when available:
1. in an action is for the recovery of a specified amount of
money or damages where the defendant is about to depart
from the Philippines with intent to defraud the creditors
17
RECOLETOS NOTES
Remedial Law
2. in an action for money or property embezzled, fraudulently
misapplied by the defendant or converted to his own use
3. in an action to recover property unjustly or fraudulently
taken by the defendant or property that is detained,
converted, removed or disposed of to prevent its being
found or taken by the plaintiff
4. in an action against a defendant guilty of fraud in either
contracting or performing an obligation
5. in an action against a person who has removed or disposed
of his property to defraud creditors
6. in an action against a defendant who is a non- resident and
is not found in the Philippines
o requisites for the issuance of the writ of preliminary attachment:

1. case must be one of those where preliminary attachment is
proper
2. thru a motion
3. applicant must show thru an affidavit that there is no
sufficient security for the claim sought to be enforced
4. attachment bond is filed
2. preliminary injunction
o preliminary injunction is an order requiring a person, a party or
even a court or tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the pendency of an
action
o grounds:
1. that the applicant is entitled to relief demanded, and the
whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of,
or in requiring the performance of an act, either for a limited
period or perpetually
2. that the commission, continuance or non- performance of
the act complained of during the litigation would probably
work injustice to the applicant
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 probably in violation of the rights of the
applicant respecting the subject of the action and tending to
render the judgment ineffectual
3. receivership
o its purpose is to protect and preserve the rights of the parties
during the pendency of the main action
o when available:
18

RECOLETOS NOTES
Remedial Law
1. when it appears from the verified petition that the applicant

has an interest in the property or fund which is the subject
of the action and that such property or 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 that the property subject to a mortgage is in
danger of being wasted or 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
contract of mortgage
3. after judgment, to preserve the property during the pendency
of an appeal, or to dispose of it according to the judgment, or
to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or otherwise to
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 the property in
litigation
4.replevin
o a party praying for the recovery of possession of personal property
may, at the commencement of the action or at any time before
answer, apply for an order for the delivery of such property to him
o the application for replevin must be by affidavit on his ownership of
the property and the actual value thereof
o bond, double the value of the property, must be posted
5. support pende lite

o support pende lite is an amount of support provisionally fixed by
the court in favor of the person entitled thereto during the
pendency of an action for support
Special Civil Actions
1. Interpleader
- filed 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 compel them to interplead and
litigate their several claims among themselves
2. declaratory relief
- filed by whom
19
RECOLETOS NOTES
Remedial Law
o a person interested under a deed, will, contractor other
written instrument, or whose rights are affected by a statute,
executive order, ordinance, or any other governmental
regulation
- when filed
o before breach or violation of such deed, will, contract or
statute or ordinance
- where filed
o with the RTC
- purpose:
o to determine any question of construction or validity arising
and for a declaration of rights or duties
3. review of judgments of COMELEC and COAudit

- file petition for certiorari with the SC within 30 days from notice
of judgment or if a motion for new trial or reconsideration is
filed, within the time remaining, but in no case less than 5 days
from the notice of the denial of the motion
4.Certiorari, Prohibition, and Mandamus

- certiorari
o filed when a tribunal, board, or officer exercising judicial or
quasi- judicial functions has acted without or in excess of its or
his jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and appeal not available
- prohibition
o thru a verified petition and praying that the tribunal,
corporation, board, officer or person whether exercising judicial,
quasi- judicial or ministerial functions be ordered to desist from
further proceeding in the action or matter specified therein or
otherwise granting such incidental reliefs as law and justice
requires
- mandamus
o thru a verified petition
o against a tribunal, corporation, board, officer or person:
i. who unlawfully neglects the performance of an act which the
law specifically enjoins as a duty
ii. who unlawfully excludes another from the use and
enjoyment of a right or office to which such other is entitled
o praying that a judgment be rendered commanding the

respondent, immediately or at some other time to be specified
20

RECOLETOS NOTES
Remedial Law
by the court, to do the act required to be done to protect the

rights of the petitioner, and to pay damages sustained by the
petitioner by reason of the wrongful acts of the petitioner
5. quo warranto
- an action for the usurpation of a public office, position, or
franchise may be commenced by a verified petition brought in the
name of the Republic of the Philippines against:
1. a person who usurps, intrudes into, or unlawfully holds or
exercise a public office, position or franchise
2. a public officer who does or suffers an act which, by the
provision of law, constitutes a ground fro the forfeiture of his
office
3. an association which acts as a corporation within the
Philippines without being legally incorporated or without
lawful authority so to act
6. expropriation
- the right of eminent domain may be exercise by the filing of a verified
complaint which shall state with certainty the right and purpose of
expropriation, describe the real or personal property sought to be
expropriated, and join as defendants all persons owning or claiming
to own, or occupying any part or interest therein
7. foreclosure of real estate mortgage

- thru an action for foreclosure of a mortgage
- if court shall find the facts set forth in the complaint as true, it shall
render judgment for the payment of the debt due, which debt must
be paid not less than 90 days nor more than 120 days from entry of
judgment
- if obligor defaulted in payment, the property shall be sold at public
auction
- the proceeds of the sale shall be applied to the debt and if there is a
residue, the same shall be paid to junior encumbrancers
8. partition
- a person having a right to compel the partition of real estate may do
so by setting forth in his complaint the nature and extent of his title
and an adequate description of the real estate of which partition is
demanded
- join as defendants all other persons interested in the property
- may be thru an order of the court or by agreement of the parties
9. forcible entry and unlawful detainer

- filed by whom
1. by a person deprived of possession of any land or building by
force, intimidation, threat, strategy or stealth
21
RECOLETOS NOTES
Remedial Law
2. by a lessor, vendee, or other person against whom the possession
of any land or building is unlawfully withheld after the expiration
or termination of the right to hold possession, by virtue of any
contract
- filed within 1 year from the unlawful deprivation or withholding of

possession with the MTC of the place where the property is located
10. Contempt
- direct contempt
o a person guilty of misbehavior in the presence of or so near a
court as to obstruct or interrupt the proceedings before the
same, including disrespect toward the court, offensive
personalities to others, or refusal to be sworn or to answer as a
witness, or to subscribe an affidavit or deposition when lawfully
required to do so
- indirect contempt
o charge in writing against a person who is guilty of:
1. misbehavior as an officer of a court in the performance of his
official duties or in his official transactions
2. disobedience to a lawful order, writ or process of the court
3. any abuse of any unlawful interference with the processes or
proceeding of the court not constituting direct contempt
4. any improper conduct tending to impede or degrade or
obstruct the administration of justice
5. assuming to be an attorney or an officer of the court, and
acting as such without authority
6. failure to obey a subpoena
7. rescue, or attempted rescue, of a person or property in
custody of an officer by virtue of an order or process of a
court held by him
22


STAGES Civil-Procedure

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

STAGES Civil-Procedure

Uploaded by

Copyright:

Available Formats

RECOLETOS NOTES

CENTRALIZED BAR OPERATIONS 2006

STAGES IN CIVIL PROCEDURE

Stage 1: Referral to the Barangay Conciliation Proceedings pursuant to RA

General Rule: all cases must be referred to the lupon

Elements of a Valid Jurisdiction:

 Jurisdiction over the subject matter may not be waived.

Principle of Primary Jurisdiction – if the case is such that its determination

What determines jurisdiction in civil cases:

Parties in Civil Actions

2. Defendant – original defending party, the defendant in a

Party Plaintiff or Defendant

General rule: Mere association of persons not possessing juridical

2006 BAR OPS EXECUTIVE COMMITTEE

1. Entity without juridical capacity- when two or more persons

d. Foreign private juridical entity can be sued.

3. Entities authorized by law

3. When rules not applicable

STAGE 3: FILING THE COMPLAINT WITH THE CLERK OF COURT

STAGE 4: SUMMONS (Rule 14)

 by personal service or by publication, in which case a copy of the

STAGE 5: UPON RECEIPT OF SUMMONS

Defendant may opt to file any of the following:

2006 BAR OPS EXECUTIVE COMMITTEE

2. Motion for Bill of Particulars

3. Motion for Extension to File Responsive Pleading

4. Motion for Summary Judgment

STAGE 6: DECLARATION OF DEFAULT

Stage 7: Amendment of Pleadings

Stage 8: Withdrawal of Complaint

2006 BAR OPS EXECUTIVE COMMITTEE

2.) permissive counterclaim

defenses set forth in the answer

Stage 10: Judgment on the Pleadings

Stage 11: Third/Fourth Party Complaint

Stage 12: Reply

Stage 13: Pre- trial

 nature and purpose:

 non- appearance of a party at pre- trial

- on the part of the defendant

- excused only if a valid cause is shown therefor or if a

2006 BAR OPS EXECUTIVE COMMITTEE

3. to enter into stipulations or admissions of facts and

- pre- trial brief

Stage 14: Order of Trial

 motion to postpone trial for absence of evidence

 motion to postpone trial for illness of party or counsel

Stage 15: Demurrer to Evidence

Stage 16: Intervention

2006 BAR OPS EXECUTIVE COMMITTEE

- if he unites with the defending party in resisting a claim

Stage 17: Decision

Stage 18: Remedies before Finality of Judgment

B. Grounds for dismissal of appeal

1.from MTC to RTC

- petition for review

2006 BAR OPS EXECUTIVE COMMITTEE

petitioner’s motion for new trial or

4. from CTA and other quasi- judicial agencies to CA

 Motion for New Trial

- filed within the time for filing an appeal

 Motion for Reconsideration

2006 BAR OPS EXECUTIVE COMMITTEE