ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER 3.

Special Proceedings – remedy by which a party seeks to establish a status, a ri ght, or a particular fact. CIVIL PROCEDURE CLASSIFICATION OF ACTIONS (A) As to nature ORDINARY ACTION Governed by rules. CIVIL ordinary SPECIAL CIVIL ACTION Also gove rned by ordinary rules but SUBJECT to specific rules prescribed (Rules 62 to 71) . Special features not found in ordinary civil actions. RULE 1 GENERAL PROVISIONS Section 1. Title of the Rules The Rules of Court are n ot penal statutes. They cannot be given retroactive effect. They can, however, b e made applicable to cases pending at the time of their passage and therefore ar e retroactive in that sense. Under the 1987 Constitution, the rule-making power of the Supreme Court has the following limitations: 1. It must provide a simplif ied and inexpensive procedure for the speedy disposition of cases; 2. Uniform fo r all courts of the same grade; and 3. Shall not diminish, increase or modify su bstantive rights (Art: VIII Section 5[5]). Section 2. In what courts applicable Section 3. Cases governed ACTION CLAIM An ordinary suit in a A right possessed b y one court of justice. against another. One party prosecutes The moment said cl aim is another for the filed before a court, the enforcement or claim is convert ed into an protection of a right or action or suit. QuickT the prevention or red ress ime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. o f a wrong. APPLICABILITY: 1. Civil Action – one by which a party sues another for the enforcement or protection of a right or the prevention or redress of a wrong . 2. Criminal Action – one by which the Stake prosecutes a person for an act or om ission punishable by law. Formal demand of one’s legal rights in a court of justice in the manner prescribed by the court for by the law. (B) As to object ACTION IN REM Direct against the thing itself. Jurisdiction over the person of t he defendant is NOT required. ACTION IN PERSONAM Directed against particular per sona Jurisdiction over the person of the defendant IS required. ACTION QUASI IN REM Directed against particular persons. Jurisdiction over the person of the def endant is NOT required as long as jurisdiction over the res is acquired. A proce eding to subject the interest of a named defendant over a particular property to an obligation or lien burdening it. A proceeding to determine the state or condition of a thing. An action to impose a responsibility or liability upon a person directly. Judgment is binding on the whole world. Ex. Probate proceeding; cadastral proceeding. Judgment is binding only upon parties impleaded or their successors in interest. Ex. Action for specific performance; action for breach of contract. Judgment binding upon particular persons. Ex. An action for partition; action to foreclose real estate mortgage. —Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Ly nn C. Miciano, Ma. Cecillia G. Natividad; Understudies: Neliza Macapayag, Benjam in C. Yan—

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The distinction is important in determining whether or not jurisdiction over the persons of the defendant is required. (C) As to cause REAL ACTION PERSONAL ACTI ON Ownership or Personal possession of property is real property is sought to be involved. recovered or where damages for breach of contract are sought. Founded on Founded on privity of real privity of estate. contract. Filed in the Filed i n the court where the court where the property or any plaintiff or any part ther eof is of the situated defendants resides, at the option of the plaintiff Ex. Ac cion Ex. Action for a reinvidicatoria sum of money. MIXED ACTION Both real and p ersonal properties are involved. The Rules of Court are applicable by analogy or in a suppletory character and whenever practicable and convenient. Section 5. C ommencement of action A civil action is commencement by: 1. The FILING OF THE CO MPLAINT (when an additional defendant is impleaded in a later pleading, the acti on is commenced with regard to him on the date of the filing of such LATER PLEAD ING); and Cabrera v. Tiano 8 SCRA 54 (1963) Civil actions are deemed commenced f rom the date of the filing and docketing of the complaint, without taking into a ccount the issuance and service of summons 2. The PAYMENT OF DOCKET FEES (determ ined not only in the amount of the claim but also by the amount of damages). NOT E: The amount of damages should be specified not only in the body of pleading bu t also in the prayer. Ex. Accion publicana with a claim for damages The court ma y allow the payment of the deficient docket fee within a reasonable period but n ot beyond the applicable prescriptive or reglementary period. An action can be c ommenced by filing the complaint by registered mail. In which case, it is the da te of mailing that is considered as the date of filing and not the date of the r eceipt thereof by the clerk of court. Section 6. Construction GENERAL RULE: Libe ral construction EXCEPTIONS: 1. reglementary periods; 2. rule on forum shopping. Founded both. on The rules on venue of real actions shall govern. The distinction is significant in determining the venue of an action. (D)As to p lace of filing LOCAL ACTION TRANSITORY ACTION Must be brought in a Dependent on the place particular place where the party resides where the subject regardless of where the property is located, cause of action arose subjec unless there is a n to Section 4, Rule 4. agreement to the contrary (Section 4, Rule 4). Ex. Actio n to recover QuickTime™ and a to recover sum Ex. Action decompressor real property . TIFF (Uncompressed) this picture. of money are needed to see Section 4. In wha t cases not applicable RULE 2 CAUSE OF ACTION Section 1. Ordinary Civil Actions, basis of NOT APPLICABLE TO: 1. Election Cases; 2. Land registration/cadastral cases; 3. N aturalization; 4. Insolvency proceedings; 5. Other cases not provided in the Rul es of Court. Section 2. Cause of action defined CAUSE OF ACTION – is the act or omission by whi ch a party violates the right of another. Page 4 of 289

Page 5 of 289 . must be instituted by t he PROPER PARTY. Res judicata (Rul e 16. The plaintiff can always file separate actions for each cause of action. if the renunciation goes into the whole contract . for the RIGHT OF ACTION Remedial right or right to relief granted by law to a party to institute an action against a person who has committed a delict or wrong against him. Section 5. B. Act or omission of the defendant in VIOLATION of the plaintiff’s legal right. estoppel. Section 1 [e]). A matter of right and depends on substantive law. EXCEPTION: A contract to do several things at several times is divisible.. or appropriate wrongful act.226 (1930) DOCTRINE OF ANTICIPATORY BREACH An UNQUALIFIED and POSITIVE REFUSAL to perform a contract. but also to Remedies against splitting a single cause of action: A. PURPOSE: To avoid multiplicity of suits and unnecessary vexation and harassment of defendants. (Rule 16. The essential requisites of a right of action: 1. Joinder of causes of action Joinder of causes of action is purely permissive.g. directly involved measure are needed to see be availed of by in the action. Affected by defenses. v. co mmitted by the defendant. Applies NOT only to comp laints counterclaims and cross-claims. CORRELATIVE OBLIGATION of the defendant to respect plaintiff’s right. promissory not p ayable in several installments so long as there is no acceleration clause) Bloss om & Co. and 3. affirmat ive Section 3. CAUSE OF ACTION Delict or wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff. Manila Gas Corp. An answer alleging either as affirmative defense. and judgment for a single breach of a continuing contract is not a bar to a suit for a subsequent breach. or 2. Section 1 [f]). and 3. 2. legal form of contractor award or relief QuickTime™ and a property wh ich is of action coercive TIFF (Uncompressed) decompressor which maythis picture . Splitting a caus e of action. (e.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The essential requisite of a cause of action 1. The reason a ction. Not affe cted by affirmative defenses (fraud. prescription.). LEGAL RIGHT of the plaintiff. protection. etc. A matter of procedure and depends on the pleadings filed by the parties. with re spect to favor as which the consequence controversy has of the delict arisen. Com pliance with all the CONDITONS PRECEDENT. It is NOT ALLOWED. 55 Phil. be treated as a complete breach which will entitle the injured party to bring his action at once. RIGHT OF ACTION – right of a person to bring and prosecute action to obtain judgment. One suit for a single cause of action Section 4. effect of SPLITTING OF CAUSE OF ACTION – is the act of dividing a sin gle or indivisible cause of action into several parts or claims and bringing sev eral actions thereon. The remedy or means afforded or the consequent relief. wh ich the the plaintiff as concerning which plaintiff prays the means to the wrong has the court to obtain the been done and render in his desired relief. RELIEF REMED Y SUBJECT MATTER The procedure The thing The redress. Section 6) GENERAL RULE: A contract embraces only one cause of action even if it contains several stipulations. The r emedial right given to a person because of the occurrence of the alleged facts. though the performan ce thereof is not yet due. Action. The formal statement of the operative facts that gives rise to remedial right. There must be a GOOD CAUSE. Litis pendentia (Rule 16. may.. Motion to dismiss on the ground of: 1. 2.

or 3 . Misjoinder of causes of action Not a ground for dismissal of an actio n. the aggregate amount claimed shall be the test of jurisdiction. . 2. 3. Th e original plaintiff becoming a defendant to original defendant’s counterclaim. Who may be parties. Where the claims in the causes of action are principally for recovery of m oney. INDISPENSABLE PARTIES Must be joined under an y and all conditions. 2. SPLITTING OF A JOINDER OF CAUSES CAUSE OF ACTION OF ACTION There is a single cause Contemplate several of action. their presence being a sine qua non for the exercise of ju dicial power. parties. Rule 3). No valid judgment if indispensable party is not joined. Where the causes of action are between the same parties but pertain to different venues or jurisdiction is with the Regional Trial Court. (Totality Rule) NOTE: The following are the elements for a joinder of parties (Section 5. The joinder shall not include special and actions or actions governed by special rules. provided that: a. I t causes ENCOURAGED. embodied in the same complaint. PROHIBITED. DEFENDANT . Rule 3). causes of action. RULE 3 PARTIES TO CIVIL ACTIONS Section 1. substantive law prevails over pr ocedural laws. An entity authorized by law. One of the cau ses of action falls within the jurisdiction of the RTC.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REQUISITES FOR JOINDER OF CAUSES OF ACTION: 1. PLAINTIFF – one having an interest in the matter of the action or in obtaining the relief demanded. It multiplicity of suits and minimizes multiplicity of doub le vexation on the suits and inconvenience QuickTime™ and a TIFF (Uncompressed) de compressor part of the defendant ed to seeonpicture. Parties in interest REAL PARTY IN INTEREST – the party who stands to be benefited or injured by the judgment in the suit or the party e ntitled to the avails of the suit. the are need this Section 6. A juridical person. The te rm defendant may include: 1. the action can proceed even in their absence. 4. An unwilling plaintiff or one who should be joined as plaintiff but refuses to give his consent thereto (Section 10. irrespectiv e of whether the causes of action arose out of the same or different transaction . The case may be determined in court but the judgment therein will not resolve the entire controversy if a necessary party is not joined. an d 3. The party joining the causes of a ction must comply with the rules on joinder of parties.A common question of law TOTALITY RULE UNDER BP 129 [Section 33(1)] Where there are several claims or causes of actions between the same or different parties. A misjoined case of action may be severed and proceeded with separately. NECESSARY PARTIES Should be joined whenever possible. the amount of the demand shall be the totality of the claims in all causes of action.A right to relief in respect to or arising out of the same transactio n or series of transaction and . plaintiff and def endant PARTIES TO A CIVIL ACTION 1. and b. A natural person 2.one claiming an int erest in the controversy or the subject thereof adverse to the plaintiff. NOTE: We will follow the totality rule in BP 129 because it is elementary in s tatutory construction that in case of conflict. One necessary to a complete determination or settlement of the questions in volved therein: Section 2. They are those with such an interest in the There is no sanction against non-joinder of separate causes of action since a plaintiff needs only a single cause of act ion to maintain an action. venue lies thereo n. They are thos e whose presence is necessary to Page 6 of 289 .

5. Rule 3 of the Rules of Court requ ires that an action must be brought in the name but not necessarily by the real party in interest. Requisites of permissive joinder of parties: 1. are nee ded to see as parties QuickTime™ and a Section 4. Necessary (or proper) parties – those who are not indispensable but ought to be jo ined as parties if complete relief is to be accorded as to those already parties . Permissive joinder of parties PERMISSIVE JOINDER . it may order the inclusion of the omitted necessary pa rty if jurisdiction over his person may be obtained by ordering plaintiff to fil e an amended complaint impleading the necessary party therein as co-defendant. of for a complete determination or settlement of the claim subject of the acti on (may or may not be joined) 3. being sufficient that his incompetency be alleged in the corresponding pleadings. executors. CLASSIFICATIO N OF PARTIES IN INTEREST: 1. Non-joinder of necessary parties to be pleaded Duty of a pleader whenever a necessary party is not joined or implea ded: 1. guardians. Necessary p arty JOINT DEBTORS – indispensable party in a suit against him but necessary party in a suit against his co-debtor. Unwilling co-plaintiff Tuason v. SERIE S OF TRANSACTIONS – transactions connected with the same subject matter of the sui t. A person NEED NOT be judicially declar ed incompetent. N OTE: The failure to comply with the court’s order to include or join a necessary p arty without justifiable cause shall be deemed a waiver of the claim against suc h party.. There is a question of law or fact common to all the plaintiffs or defendants. Section 10. Bolanos 95 Phil 06 (1954) Section 2. or administrators. and 2. Such joinder is not othe rwise prescribed by the provisions of the rules on jurisdiction and venue. and 3. Compulsory joinder of Indispensable parties Section 8.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 controversy that a final would necessarily affect their rights so that the court cannot proceed without their presence. 4. the practice is for an attorney in fact to bring the action. a suit may be brought by or against a minor or incompetent but with the a ssistance of his parents or his guardian. Indispensable parties-those without whom and final determination can be had of an action (must be joined under all conditions). Spouses as parties Section 5. Representative parties – those acting in fiduciar y capacity such as trustees. i. adjudicate the whole controversy but who se interests are so far separable that a final decree can be made in their absen ce without affecting them. Right to relief arises out of t he same transaction or series of transactions. TIFF (Uncompressed) decompressor Section 3.e. Pro forma parties.those who are required to be joined as c o-parties in suits by or against another party as may be provided by the applica ble substantive law or procedural rule such as in the case of spouses under Sect ion 4. Section 9. it Page 7 of 289 . Minor or incompetent Under the present rules. The benefi ciary shall be included in the title of the case and shall be deemed to be real part in interest. 2. Quasi parties – those in whose behalf a class or representative suit is brought. State the name of the necessary party. In fact. if known. Representative this picture. Section 7. Section 6. to file the complaint in the name of the plaintiff.the rule on permissive joinder of parties is that they can be joined in one single complaint or may themselves maintain or be sued in separate suits. 2. State why said n ecessary arty is omitted in the pleading Should the court find the reason for th e omission unmeritorious.

are needed to see this picture. Section 11. or upon the Page 8 of 289 . he may be made a defendant and the reason therefore shall be stated in the co mplaint. implying that if the p arties are numerous and it is impracticable to bring them to court.e. There are two or more persons not organized as a juridical en tity. 4. but they cannot sue under such name. There is a defendant 2. 3. heir. (This is an instance when a person may intervene as a matter of right. Community of inter ests. Objections to misjoinder cannot be raised for the first time on app eal. Misjoinder and non-joinder of parties Neither misjoinder no r non-joinder of parties is a ground for dismissal of the action NOTE: Objection s to defects in parties should be made at the earliest opportunity. Identifying description may be used. Class suit CLASS SUIT An action where one or more may sue for the benefit of all. not a mere additional defendant. Parties bringing the class suit are SUFFICIENTLY NUMEROUS AND REPRESENTATIVE of the class and can fully QuickTime™ protect the TIFF (Uncompresse d)alland a interests of decompressor concerned. he may join any OR all of them in t he alternative. or other designation. NOTE: An action does not become a class suit merely b ecause it is designated as such in the pleadings. Section 15. The representative sues or defends for the benefit of all. Defendant is the defendant b eing sued. The s ervice of summons may be effected upon all the defendants by serving upon any of them. defendant Unknown identity or n ame of REQUISITES: 1. The non joinder of an indispensable or a necessary party is not by itself i pso facto a ground for the dismissal of the action. the mo ment such defect becomes apparent.) CLASS SU IT There is one single action pertaining to numerous persons. 5. devisee.. although a right to relief against one may be inconsistent with a right to relief against the other. 2. Section 12. A wrong or delict is committed ag ainst a third person in the course of such transaction. and 3. Ficti tious name may be used because of ignorance of defendant’s true name an said ignor ance is alleged in the complaint. PERMISSIVE JOINDER OF PARTIES There are multiple causes of action separate ly belonging to several perons. 4. The action must howeve r be converted into an action in rem or quasi by attaching the defendant’s propert y in the Philippines. Alternative Defendants Where the plaintiff is uncertain against who of several persons he is entitled to relief. NOTE: Persons associated in an entity without juridical personality may be sued under the name by which they are generally or commonly known. NOTE: Service of summons upon a defe ndant whose identify is unknown may be made by publication in a newspaper of gen eral circulation in accordance with Section 14of Rule 14. 2. sued a s unknown owner. NOTE: Any party in interest shall have the right to intervene to protect his individual interest. i. and 6.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 If the consent of any party who should be joined as plaintiff can not be obtaine d. Entity without juridical personality as defend ant REQUISITES: 1. Amendment to the pleadi ng when identify of true name is discovered. Section 14. His identity or name is unknown. Su bject matter of the controversy is one of common or GENERAL INTEREST to many per sons. The persons are so NUMEROUS that it is impracticable to join them all a s parties. The court should order the j oinder of such party and non compliance with the said order would be a ground to the dismissal of the action (Feria. 2001). by a MOTION TO STRIKE THE NAMES OF THE PARTIE S impleaded. REQUISITES OF A CLASS SUIT: 1. Whether the suit is or is not a class suit depends upon the attending facts. one or more may sue for their benefit. Section 13. They enter into a transaction. and 3.

Rule 14). express or implied. within 30 days after the successor takes office. Enforcement of client on such properties and. However. It is satisfactorily shown to the court by any party. Transfer of Interest NOTE: The transfer of interest that is obviously referred to in this section is a transfer that occur s during the pendency of the action. OR INT EREST thereon. In case of minor heirs. 2. The party or offic er affected has been given REASONABLE NOTICE of the application therefore and ac corded an opportunity to be heard. the remaining plaintiffs can process ed with their own cause of action. 8. and 3. AROSE FROM CONTRACT. 3. the action survives and may be continued by against the incompet ent incapacitated assisted by his legal guardian or guardian ad litem who is his legal representative. the court may appoint a guardian ad litem for them. Section 19.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 person in charge of the office or place of business maintained under such name ( Sec. Section 18. H ence. 5. 2. Death or separation of a party who is a public officer REQUISITES : 1. The action must primarily be for RECOVERY OF MONEY. The case wil l be dismissed if the interest of plaintiff is transferred to defendant UNLESS t here are several plaintiffs. the there is a SUBSTANTIAL NEED for continuin g or maintaining the action. Section 20. Recover for an injury to person or property by reason of tort or delict committed by the deceased. DEBT. OR OTHERWISE CEASES to hold office. Sect ion 21. duty of counsel This provision applies where the claim is NO T thereby extinguished as in cases involving property and property rights such a s: 1. e xecution shall not issue in favor of the winning party. The deceased shall be su bstituted by his legal representatives in the manner provided for in Section 16 of Rule 3 and the action continues until the entry of final judgment. 2. It should be filed as a claim against the estate of the decedent without need of proving the claim. Death of party. INSTANCES WHERE SUBSTITUTION OF PARTIES IS PROPER: A. in which case. In this case. Page 9 of 289 . Action on contractual money claim s REQUISITES 1. Section 17. and his predecessor. Indigent party B. 3. subject of the action. the heirs will be substituted for the deceased OR if no legal representative is named then the court will order the opposing party to procure the appointment of an execut or or administrator for the estate of the deceased. The transferor would no longer be the real party in interest if the transfer is made before the commencement of the suit. Incompetency or Incapacity In case a party becomes incompetent or incapacitated. G ENERAL RULE: The rule does not consider the transferee an indispensable party. Section 16. 4. the death of the de fendant will not result in the dismissal of the action. C. That the successor ADOPTS ORCONTINUES OR THREATE NS TO ADOPT OR CONTINUE QuickTime™ and a TIFF (Uncompressed) decompressor the acti on of are needed to see this picture. The substitute defendant need not be summoned. The ORDER OF SUBSTITUTION shall be se rved upon the parties substituted for the court to acquire jurisdiction over the substitute party. Defendant dies BEFORE THE ENTRY OF FINAL JUDGMENT in the cou rt in which the action was pending NOTE: Under this section. EXCEPTION: When th e substitution by or joinder of the transferee is ordered by court. The claim. the action may proceed without the need to implead him. Public officer is a PARTY TO AN ACTION in his official capacity. he either DIES. During the pendency of the action. RESIGNS. Recovery of real and personal property against the estate. D.

Section 3. or 2. He need not be a pauper to entitle him to litigate in forma pauperis While the authority to litigate as an indigent party may be gr anted upon an ex parte application and hearing. May be changed by the written agreement of the parties. If one is authorized to litiga te as an indigent. Notice to the Solicitor General In the absence of qualifying or restrictive words. Banco 30 SCRA 187 (1969) TIFF (Uncompressed) decompressor are needed to see this picture. and 3. Procedural. file it in any of the two places. Executed by the parties before the filing o f the action. such authority shall include: 1. VENUE OF PERSONAL ACTIONS: 1. Means of waiving venue: 1. Failure to object via motion to dismiss. meaning the personal.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Indigent – one who has no money or property sufficient and available for food. Venue of actions against non-residents RULE 4 VENUE OF ACTIONS VENUE – the place trial or geographical location in which an action or proceeding should be brought. it may be contested by the adver se party at any time before judgment is rendered. actual. v. if the properties are the object of the s ame transaction. Section 22. The part ies have validly agreed in writing before the filing of the action in the exclus ive venue thereof (Section 4). An exemption from the payment of transcript of stenographic notes. Were the defendant or any of the pr incipal defendants resides. In the case of a non-resident defendant. Where the plaintiff or any of the principal plaintiffs resides. 2. 2. Section 2.e. Examples of qualifying or restrictive words: ‘’Only’’ ‘’Solely’’ ‘’Exclusively in this court’’ Secti f real actions The venue is the place where the real property or any portion the reof is located. or 4. actual r esidence or place of abode. If property is located at the boundaries of two places: File ca se in either place at the option of the plaintiff. or physical habitation of a person. Polytrade Corp. V oluntary submission to the court where the case is filed. The rule on VENUE IS NOT APPLICABLE in cases: 1. If they are the subjects o f two distinct transactions. Venue of personal actions Raymond v. 2. NOTE: ALL AT THE ELECTI ON OF THE PLAINTIFF. an action for damages arising from libel). Cannot be the subject of the agreement of the parties. she lter. A valid written agreement. J urisdiction over the subject matter over the nature of the action is conferred b y law and cannot be waived. Maybe waived JURISDICTION Power of the court to hear and decide a case. Where a specific rule or law pr ovides otherwise (i. Substantive. 2. 2. VENUE Place where the action is insti tuted. Exclusive nature of the venue. and basic necessities. QuickTime™ and a REQUISITES FOR VENUE TO BE EXCLUSI VE: 1. Affirmative relief sought in the court where the case is filed. separate actions should be filed in each place unle ss property joined. Laches. the a ction may be brought in the place where he may be found. If case involves two properti es located in two different places: 1. Page 10 of 289 . venue stipulation is merely permissive meaning that the s tipulated venue is in addition to the venue provided for in the rules. An exemption from the paymen t of docket fees. 3. Court of App eals 166 SCRA 50 (1988) RESIDENCE –should be viewed or understood in its popular s ense. or 3.

An exception is provided in Section 4 of the Rule on summary Procedure. Defendant entitle to decision based on his counterclaim. Any prop erty of said defendant located in the Philippines – venue: where the property or a ny portion thereof is situated or found. When Rule not applicable Preliminary conference within 30 days after last answer is filed RULES ON SUMMARY PROCEDURE SUMMARY PROCEDURE IN CIVIL CASES Filing of verified complaint with the MTC Court may summon the defendant Court may dismiss the case outright Within 10 days from receipt of summons defendant answers incorporating compulsor y counterclaims or crossclaim & serves a copy on plaintiff If Defendant fails to answer in 10 days—the court motu propio or on plaintiffs own motion. Meaning of terms QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. b. complaint may be dismisse d. (). 2. IAC 195 SCRA 641 (1991) The Court may not motu proprio dismiss a complaint on the ground of i mproper venue. court issues rec ord of preliminary conference Within 10 days from receipt of order submission by the parties of affidavits and position papers Rendition of judgment within 30 days from receipt of last affidavit or within 15 days after last clarificatory paper Page 11 of 289 . plaintiff entitled to judgment based on compl aint and what is proved therein Within 5 days after conference. in ci vil cases governed by the Rule on Summary Procedure Section 2.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. If sole defendant fails to appear. and b. All crossclaim dismi ssed RULE 5 UNIFORM PROCEDURE IN TRIAL COURT Section 1. may render judgment based on facts alleged in the complaint without pre judice to RULE 9 Sec 3 (c) Answer to counterclaim and crossclaim within 10 days If plaintiff fails to appear n preliminary conference. for personal actions – where the plaint iff resides. for real actions – where the property is located. Personal status of plaintiff – venue: where plaintiff resides. 2. Uniform Procedure The procedu re in the MTC shall be the dame as in the RTC. Section 4. NON-RESIDENT FOUND IN THE PHILIPPINESa. where a particular pro vision expressly or impliedly applies only to either of said courts or. The Supreme Court has the power to orde r a change of venue to prevent miscarriage of justice. except: 1. NON-RESID ENT NOT FOUND IN THE PHILIPPINES – An action may be filed only when the case invol ves: a. Dacoycoy v.

Book III. Peti tion for certiorari. Offenses punishable by imprisonment exceeding 1 year or a fine exceeding P5. CASES NOT COVERED BY THE KATARUNGANG PAMBARANGAY LAW (SUBSTANTIVE EXCEPTIONS): 1. 3. Third party complaints. NOTE: While a motion to declare the de fendant in default is prohibited by the rules on summary procedure. Judgments of inferior courts in cases governed by summary procedure are applicab le to the RTC. they shall submi t: 1. Offenses where there is no private offended part y (i. motu proprio r efer the case concerned to the lupon for amicable settlement. 4. 12. Dilatory motion s for postponement. What the rules proscribe is a motion to dismiss that would stop the running of the period to file an answer and cause undue delay. mandamus. Motion to declare defendant in default. 5. 7. and 2. the plaintif f may nevertheless file a motion to render judgment as may be warranted when the defendant fails to file an answer. or any other paper. and 2. 7. Petition for relief from judgment. Th e filing of a prohibited pleading will not suspend the period to file an answer or to appeal Heirs of Olivas v. 11. 5. 9. and b. EXCEPT: a. RA 7160) No complaint petition. The affidavits of their witnesses. Interventions. or proceeding involving any matter within the authority of the lupon shall be fired or instit uted directly in court or any other government office for adjudication UNLESS 1. 6. at any time before trial. a nd other TRIAL PROCEDURE IN CIVIL CASES No testimonial evidence is required nor cross examination of witnesses allowed. the parties ther eto agree to submit their differences to amicable settlement by an appropriate l upon. 10. or prohibition against any interlocutory order is sued by the court. genocide). Such other classes of disputes which the President may determine in the interest of justice. All that is required is that within (10) days from receipt by the parties of the court’s pre-trial order. affidavits. Flor 161 SCRA 393 (1988) Although a motion to di smiss is a prohibited pleading. Where one party is the government or any subdivision or instrumentality thereof. 4. Where the dispute involves real properties located indiffe rent cities or municipalities UNLESS the parties thereto agree to submit their d ifferences to amicable settlement by an appropriate lupon. Memorandum. together with TIFF (Uncompressed) decompressor are needed to see this picture.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 their position papers setting forth the law and the facts relied upon by them. The issuance of the pre-trial order is an im portant part of the summary procedure because it is its receipt by the parties t hat begins the ten0day period to submit the affidavitsQuickTime™ and a evidence.00. There has been CONFRONTATION BETWEEN THE PARTIES before the lupon chairman or p angkat. its filing after the answer had already been sub mitted does not constitute a pleading prohibited by the summary rules. Motion for a new trial or for reconsideration of a judgment or for reo pening of trial. Other evidence on the factual is sues set forth in the pre-trial order. The court may. are IMMEDIATELY EXECUTORY.000. 3. including ejectment cases. where such barangay units adjoin each other. Where one party is a public officer or employee. The decision of the RTC (on appeal) in civil cases under this rul e. 2. non criminal cases Page 12 of 289 . and the disputer relates to the performance of hi s official functions. That no conciliation or settlement has been reached OR unless the settlement has been repudiated by the parties thereto. Motion to d ismiss the complaint or to quash the complaint or information except on the grou nd of lack of jurisdiction over the subject matter or failure to comply with pri or barangay conciliation (referral to the Lupon). KATARUNGANG PAMBARANGAY LAW (Title One. 8. 2. 6. 8. Reply. P ROHIBITED PLEADINGS / MOTIONS UNDER THE RULE ON SUMMARY PROCEDURE 1. Disputes involving parties who actually reside in barangays of different cities or municipalities. action. Motion for a bill of partic ulars. Motion for extension o f time to file pleadings.e.

deli very of personal property. 9. Where the person has otherwise been deprived of pe rsonal liberty calling for HABEAS CORPUS proceeding. 4. 2. Where the ACTIONS are co upled with provisional remedies such as preliminary injunction. CARL disputes. E scayo 171 SCRA 442)). Disputes involving real property or any interest therein – where real property or larger portion thereof i s situated. violence. 2. and 9. Where the accused is under po lice CUSTODY or detention. Section 2.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 not falling within the authority of the latter. 4. Complaint. Such repudiation s hall be sufficient basis for the issuance of the certification for filing a comp laint in court or any government office for adjudication. 7 . or ar bitration. Pleading s defined PLEADINGS – the written statements of the respective claims and defenses of the parties submitted to the court for appropriated judgment. Disputes between residents of the same barangay shall be brought for settleme nt before lupon of said barangay. 2. Actions to ANNUL JUDGMENT upon a compromise (Sanchez v. and support pendente lite. Cannot be initiatory as they are always m ade in a case already filed in court. Pleadings allowed 1. PLEADING The purpose is to submit a claim or defens e for appropriate judgment. 5. May be filed even after judgment. there are motions that actually seek judgment like a motion for j udgment on pleadings (Rule34) and motion for summary judgment (Rule 35). Counterclaim. 3. Disputes arising at the WORKPLACE where the contending parties ar e employed or at the INSTITUTION where such parties are enrolled for study – in th e barangay where such workplace or institution located. or intimidation. 3. Disputes involving the TRADITIONS of indigenous cultural community. 6. THE PARTIES MAY GO DIRECTLY TO COURT IN T HE FOLLOWING INSTANCES (PROCEDURAL EXCEPTIONS): 1. 15 8 SCRA 459) The parties may at any stage of the proceeding AGREE IN WRITING to h ave the matter in dispute DECIDED by ARBITRATION either the LUPONG BARANGAT or P ANGKAT. Tupac. Residents of different barangays within the same city or municipality – in the barangay where the respondent or any of the re spondents reside at the election of the complainant. RULES ON VENUE UNDER T HE KATARUNGAN PAMBARANAGAY LAW QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. conciliation. Such interruption shall not exceed 60 days from the time of the filing of t he complaint with the punong barangay. the prescriptive periods for offenses and cause of action under exist ing laws shall be interrupted upon filing or the complaint with the punong baran gay. 1. Any CLASS OF DISPUTE which the President may determine in the interest of justice or upon recommendation of the secretary of Justice. May be initiatory Always filed before judgment Only 9 kinds of pleading are allowed by the rules MOTION The purpose is to apply for an order not included in the judgment. NOTE: HOWEVER. PROCEDURE IN REGIONAL TRIAL COURTS RULE 6 KINDS OF PLEADINGS Section 1. While the dispute is under mediation. Many kin ds of motion are allowed. Where the action may ot herwise be barred by the STATUTE OF LIMITATIONS. attachment. Where one of the parties is a juridical entity. NOTE: A motion to dismiss is not pleading. and 8. Page 13 of 289 . The settlement and arbitration agreement may be repudiated on the ground that consent is vitiated by fraud. LABOR Disputes (Montaya v. In such case arbitrational hearings shall follow order of adjudicative t rials.

For this reason. Enumeration is not exclusive Section 3. An allegation that a contract is valid or void is a mere conclusion of law.allegation of anew matter which. statements of law. Counterclaim COUNTERCLAIM – any claim which a defending party may have against an opposing party. Page 14 of 289 . 8. 3. COMPULSORY COUNTERCLAIM One which arises out of or is necessarily connected with the transaction or occu rrence that is the subject matter of PERMISSIVE COUNTERCLAIM It does not arise o ut of nor is it necessarily connected with the subject matter of the opposing pa rty’s claim. What are NOT ultimate facts: 1. it must be answered within ten (10) days from serv ice. Section7. NEGATIVE DEFENSES . it is not par t of the answer. Evidentiary or immaterial facts. 2 kinds of defenses that may be set forth in the answer: 1. 2. both as to the amount and nature thereof. Answer ANSWER – the pleading where the de fendant sets forth his affirmative or negative defenses. 2. Bacalan 135 SCRA 340 (1985) If a c ounterclaim is filed in the MTC in excess of its jurisdictional amount. Nature of counterclaim: A counterclaim is in the natu re of a cross-complaint. 5. 6. Agustin v. Ajax International 22 SCRA 996 (1968) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the cl aims and file a separate action to collect the balance. Answer. Insufficient denial or denial amounting to admissions: 1. not eviden tly facts or legal conclusions. Compulsory Counterclaim A counterclaim before the MTC must be wit hin the jurisdiction of said court. Defenses QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. a nd any other matter by way of confession and avoidance. It should contain a concise statem ent of the ultimate facts constituting the plaintiff’s cause of action. Counter-counterclaim. AFFIRMATIVE DEFENSES . Complaint-in-interventi on. Although it may be alleged in the answer. would nevertheless prevent or bar re covery by him. It may likewise be the response to a counterclaim on a cross claim. Section 4. 2. 4. the same proceedings are had as in the origina l complaint. Legal conclusions. prescription. Section 5.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. Third-party Complaint. while hypothetically admitting the material a llegations in the pleading of the claimant. or 2. A fact is essential if it cannot be stricken out with out leaving the statement of the cause of action insufficient. 9. or incorrect inferences or conclusions from facts state d. TEST OF SUFFICIEN CY OF THE FACTS ALLEGED IN THE COMPLAINT: Determine whether upon the averment of facts. 4. a valid judgment may be properly rendered. 7. General denial.s pecific denial of the material facts or facts alleged in the pleading of the cla imant essential to his cause of action. inferences and arguments. Section 6. Affirmative defenses include fraud. Permissive NOTE: In an original action before the RTC. Co unterclaims may either be: 1. Cross-claim. Upon its filing. Rule 6). Denial in the form of a negative pregnant. The details of probative matter or particulars of evidence. ULTIMATE FACTS – essential facts constituting the plaintiff’s cause of action. conclusions or inferen ces of facts not stated. the counterclaim may be considered compulsory regardless of the amount (Section 7. release payment. Reply. Complaint COMPLAINT – is the pleading alle ging the plaintiff’s cause or causes of action. the exce ss is considered waived Calo v. Compulsory. Counter-Cross claim.

Reply Page 15 of 289 . (Section 9. Must be in respect of the opponent’s claim (Plai ntiff). It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. EXCEPTION: If it is a counterclaim which either matured or was acquired by party after ser ving his answer. the defendant can be declared in default. default. Section 10. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. 2. or it may not. Counter-counterclaims and counter cross-claims Counter-Counterclaims – is a claim asserted against an original counterclaimant Counter-Crossclaims – is a claim filed against an original cross-claimant. the transaction or occurrence th at is the subject matter of the opposing party’s claim. must choose only the needed to see decompressor are same time. he on remedy. It is barred it not set up in the action. in w hich case it is called a permissive counterclaim. It is NOT barred even if not set up in the ac tion. If he decide to file must a motion dismiss . The dismissal f the complaint carries with it the dismissa l of a cross-claim which is purely defensive. Cross Claim Against a coparty Must arise out of the transacti on that is the subject matter of the original action or of a counterclaim therei n Counterclaim Against an opposing party. In this case. If th e court cannot acquire jurisdiction over third parties whose presence is necessa ry for the adjudication of said cross-claim. Need not answered. he will lose his counterclaim. Rule 11) NOTE: the filing of a motion to dismiss and the setting up of a compulsory counterclaim are incompatible reme dies. but not a cross-claim seeking an a ffirmative relief. otherwise. to be no 1. it is called a compulsory counterclaim.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the opposing party’s claim. When. It must arise out of. it is outside the jurisdiction of the court. principally because the issued raised in the counterclaim are deemed automatically joined by the all egations of the complaint. it is barred except: 1. Cross-claim REQUIREMENTS FOR A CROSS-CLAIM: Section 9. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Section 8. May arise out of or be necessarily con nected with the transaction or that is the subject matter of the opposing party’s claim in which case. Must be answered. Goyola 35 SCRA 557 (1970) A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default . It must arise out of the subject matter of the com plaint or of the counterclaim. The cross-claimant is prejudiced by the cl aim against him by the opposing party. REQUISITES OF A COMPULSORY COUNTER CLAIM: 1. GENERAL RULE: A compulsory counterclaim not set up in the answer is deemed barred. Gojo v. It must be within the jurisdiction of the court. but if he opts to s et up his counterclaim. the cross-claim is c onsidered permissive. he may so plead his ground for dismissal as an affirmati ve defense in his answer. or 2. 2. In which case. A claim by one party against a co-party. If it is not set up in the action. it may be pleaded by filing a supplemental answer or pleading before judgment. or be necessarily connected with. 3. 3rd party Complaint Against a person not a party to the action. and 3. In the event that a defending party has around forQuickTime™ and a and a com pulsory dismissal counterclaim at TIFF (Uncompressed) this picture.

The name of the court. Bringing New Parties Distinguish from a 3rd party complai nt: A 3rd party complaint is proper when not one of the third party defendants t herein is a party to the main action. The docket number if assigned. subrogation or any other relief.). or although arising out of another or different transaction.party complaint with the same purpose and funct ion. It s designation. Initiative is with a nonparty who seeks to join th e action. regardless of the amount involved as a third party complaint is merely auxiliary to and is a continuation of the m an action. Signature and address Th e signature of the counsel is a certification: 1. EXCEPTION: Reply is required Where the answer is based o n an ACTIONABLE DOCUMENT (Sec. Whether theare needed to see this picture. then the other necessa ry parties may be brought in under this section. Ther e could also be a fourth. The relief prayed for: and 4. and 3. the court may. file against a person not a party to the action for contribution. in respect of his opponent’s claim. is c onnected with the plaintiff’s claim. etc. information or belief. third party defendant may assert any defenses which the third-party plaintiff has or may have to plaintiff’s claim Summons on third. However. Central Surety & Insurance 25 SCRA 641 (1968) . and QuickTime™ and a TIFF (Uncompressed) decom pressor 3. NOTE: An UNSIGNED PLEAD ING produces no legal effect. The Body PARTS OF A PLE ADING The Caption contains the following: 1. 2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or part of the plaintiff’s cl aim against the original defendant. fourth etc-party defendant must be served for the court to obtain jurisdiction over his person. If one or more of the defendants in a coun terclaim or cross-claim is already a party to the action. The Body sets forth: 1. 2.) Section 11. RULE 7 PARTS OF A PLEADING Section 1. Third (fourth. Initiative is with the person already a party to the action.par ty complaint THIRD – PARTY COMPLAINT – a claim that a defending party may. since he is not an original party. etc. The allegation of the party’s claims and defenses. and 3. Repu blic v. there is good grou nd to support it. CO MPLAINT IN INTERVENTION Same. New facts that were alleged in the answer are deemed controverted should a part y fail o reply thereto. EFFECT OF FAILURE TO REPLY GENERAL RULE: Filing a reply is merely optional. It is not interposed for delay. The title of the action. THIRD-PARTY COMPLAINT Brings into the action a third person who was not ori ginally a party. allow s uch deficiency to be remedied if it shall appear that the same was due to inadve rtence and not intended for delay. with leav e of court.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 REPLY – the response of the plaintiff to the defendant’s answer the function of whic h is to deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matt ers. The date of the pleading Section 3. Page 16 of 289 TESTS to determine whether the third-party complaint is in respect of plaintiff’s claim: 1. That to the best of his knowledge. 8. Section 12. it also has jurisdiction over the third party complaint. 2. That he has read the pleading. . Caption Section 2. Rule 8. Whether it arises out of the same transaction on which the plaintiff’s c laim is based. in demnity. in its discretion. 2. Where the trial court has jurisdiction over the main case. NOTE: A third party complaint is no proper in an action for declarato ry relief. 3.

In general Every pl eading shall contain in a methodical and logical form a plain. involving the same parties. If the ultimate facts are NOT alleged. RULE 8 MANNER OF MAKING ALLEGATIONS IN A PLEADING Section 1. to ask the courts to rule on the same or related causes and/or to grant the same or substantially the same relief. (b) rights or causes of action. and (c) relief sought. as well as a cause for administrative sanctions. Alternative causes of action or defense PLAINTIFFS Alternative allega tions – cases where the facts essential to the plaintiff’s cause are within the know ledge of the defendant.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 DISCIPLINARY ACTION ON COUNSEL IN THE FOLLOWING CASES: 1. Required ONLY for complaints or initiatory pleadings such as permissive counterclaim. ULTIMATE FACTS – those which directly form the bases of the right sought to b e enforced or the defense relied upon. Verification Pleadings need NO T be verified EXCEPT when otherwise provided by the law or rules. Indirect Contempt 2. Without prejudice to the filing administrative and crimi nal actions of EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING: 1. Test to determine the presence of forumshopping: Whether in the two (or more) cases pending. cross-claim. Section 5. and 2. That the allegations therein are true and correct of his personal knowledge or b ased on authentic documents. omitting the statement of mere evidentiary fa cts. or 4. without prejudice. Shall be ground for summary dismissal of the case with prejudice. concise and direc t statement of the ultimate facts. yet the plaintiff is so imperfectly informed that he can’t state them with certainty Plaintiff should state the DEFENDANT Defendant may st ate hypothetical allegations (affirmative defense) Defendant . etc. Surla 294 SCRA 382 ( 1998) Certificate of non-forum shopping is not required in a compulsory counterc laim. unless otherwise provided upon motion and after h earing EFFECT OF SUMBISSION FO FALSE CERTIFICATION OR NON-COMPLIANCE WITH THE UN DERTAKINGS THEREIN: QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. COMPLAINT Filed by plaintiff ANSWER Filed by defendant Must contain a direct statement of the ultimate facts. 2. omitting statement of mer e evidentiary facts If defense relied is based on law. UST Hospital v. The certificate is to be executed by petitioner. Failing to pr omptly report a change of his address. EVIDENTIARY FACTS – those which are neces sary to prove the ultimate fact or which furnish evidence of the existence of so me other facts. 2. HOW A PLEADING IS VERIFIED By an affidavit that the affiant: 1. Direct contempt. there is identity of (a) parties. 1. either simult aneously or successively. Deliberately signing a pleading in violation of the Rules . Section 4. and not by counsel. as well as its applicability to him Section 2. th e cause of action would be insufficient. A counterclaim is not an initiatory pleading EFFECT OF FAILURE TO COMPLY: Not curable by mere amendment of the pleading but shall be cause for dismissal o f the case. Certification against forum-shopping FOR UM SHOPPING – consists of filing multiple suits in different courts. 3. cite the pertinent legal provisions thereof. Has read the pleading. Alleging scandalous or indecent matter in the pleading. Deliberately filing an unsigned pleading.

may also Page 17 of 289 .

NOTE: a party desiring to raise an issue as to the legal existence or capacity of any party to sue or be sued in a representative capacity shall do so by SPECIFIC DENIAL which shall include supporting particulars within the pleade r’s knowledge. it is sufficient to aver the decision or judgment without setting fort h matter showing jurisdiction to render it. etc. it will be dismissed for lack of cause of action) 2. otherwise. (BUT there must still be an allegation tha t the specific condition precedent has been complied with. if the defendant wants to rais e an issue of his legal capacity to be sued. 5. boards.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 facts within his knowledge with certainty.e. 4. Official document or act. Fraud. -foreign corporation must also aver its capacity to sue or be sued -Example of what the defendant must plead: -if the de fendant wants to raise an issue as to the plaintiff’s legal capacity to sue. on ground of l ack of cause of action. but to plead in alternative the doubt ful facts which are wholly within the defendant’s knowledge and call upon the defe ndant to make full disclosure of these facts Plaintiff may state alternative cau ses of action. Judgment The jurisdiction of the court a quo is presumed. Inconsistency does not operate as waiver or withdraw of defe nse in another portion of his answer It is sufficient that each is consistent wi th itself The defendant may move for a bill of particulars when the allegations of fraud. Conditions Precedent Pleading must state conditions precedent to the cause of action. tribunals. i. he sh ould file a motion to dismiss on that ground or set it up as affirmative defense in the answer Page 18 of 289 . the court may simply di smiss the complaint. even on appeal. be they compatible with each other or not plead as many defenses and counterclaims he may have -on the other hand. are merely conclusions of law. compliance with conciliation proces s at the barangay level. 6. Section 4. IN SUMMARY: FACTS THAT MAY BE AVERRE D GENERALLY: 1. or officers. failure to compromise. Malice. Legal existence of an orga nization. 3. Conditions precedent. FACTS THAT MUST BE AVERRED PA RTICULARLY: Circumstances showing fraud or mistake in all averments of fraud or mistake. condition of the mind F raud or mistake must be stated with particularity while malice or intent must be averred generally. it may still be a gro und for dismissal on reason of non-compliance with condition precedent. and are without statement of the f acts to which such terms have reference. he should question the jurisdiction of the court over his person Section 5. A par ty desiring to raise the issue of lack of capacity to sue must do so by specific denial. however. but can be sued) has license to do business in the and a c ountry or is not doing QuickTime™ TIFF (Uncompressed) decompressor business are ne ededcountry in the to see this picture. knowledge. intent. If after the granting the motion for bi ll of particulars. Section 6. mistake. or other condition of the mind. (no need to show jurisdiction) 7. Capacity to sue or be sued. the plaintiff still refuses to do so. -Example of what must be pleaded: -that a foreign corporation (generall y not allowed to sue. NOTE: Compliance with conciliation process is a conditio n precedent but not a jurisdictional requirement. Capaci ty to sue or be sued in a representative capacity. Failure to state the conditions precedent will make the complaint defective and vulnerable to dismissal. Action or defense based on document Section 3. Section 7. Ju dgments of domestic or foreign courts. Capacity Facts showing the capacity to sue and be sued must be averred.

OR b. By setting forth said document verbatim in the pleading. that it was duly delivered. as in the case of an agent signing for h is principal. Defenses not waived despite specifically deny under oath: 1. T he document need not be formally offered in evidence. By setting forth the substance of suc h document in the pleading and attaching said document thereto as an exhibit (co ntents of the document annexed are controlling. Demand letter An actionable document is the main object of the act ion. or 2. How to c ontest such document HOW TO CONTEST AN ACTIONABLE DOCUMENT: 1. 7. The corporation was not authorized under its charter to sign th e instrument. Two permissible w ays of pleading an actionable document: 1. 9. ex. Forgery in th e signature. Estopped. Where the actionable document is properly alleged. ex.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Applies to a cause of action or defense that relies on written document. Fraud. 2. GENUINENESS means nothing more than that the instrument is not spurious. counter feit. Minority or imbec ility failure to The aforementioned defenses are not inconsistent with the genuineness and due ex ecution of the document. even if in writing (ex letters. and 2. Payment. that if signed by somebody else such represent ative had the authority to do so. but. Want or illegality of consideration. such IMPLIED ADMISSION IS DEEMED WAIVE D if the party asserting the same has allowed the adverse party to present evide nce contrary to the contents of such document without objection Section 9 Offici al document or act Section 10 Specific Denial Page 19 of 289 . 5. it was not in words and figures exactly as set out in the pleading. 4. Promissory note. 4. or 5. attach an origi nal or copy of the document as an exhibit 3. BUT the following defenses are waived: 1. written contract ACTIONABLE DOCUMENT – written instrument upon which the action or defense is based. the failure to specifically deny under oath the same results in. DUE EX ECUTION mean that the document was signed voluntarily and knowingly by the party whose signature appears thereon. it was in words and figures exactly as set out in the pleadings. EXCEPT th an an oath is not required: a. 2. Duress. Mistake. Unauthorized signature. QuickTime™ and a 1. mail) they have no place in a pleading A non-actionab le document is some other extraneous document which is not the main object of th e action. At the time the document was signed. What to do? 1. When compliance with an order for an inspection was refused. Hodges 38 SCRA 159 (1971) Failure to specifically deny under oath the genuin eness and due execution of an actionable document generally implies an admission of the same by the other party. Statute of Limitations. 3. and that the forma lities were complied. However. or of different import on its face from the one executed by the party or t hat the party whose signature it hears has signed it and that at the time it was signed. By specific denia l under oath. The admission of thedecompressor genuineness and due TIFF (Unc ompressed) are needed to see this picture. Want of delivery. present the substance of the document in the pleading 2. do not put evidence yet. Com promise. 2. in case of variance in the subst ance of the document set forth in the pleading and in the document attached). 6. 8. 3. When the adverse party was not a party to the ins trument. By setting forth what is claimed to be the facts. Section 8. Central Surety v. deed of mortgage. execution of said document.

Allegations as to he amount of unliquidated damages. ORDER OF DEFAULT Issued by the court. Section 3 .appealable EXCEPTIONS: 1. Interlocutorynot appea lable JUDGMENT BY DEFAULT Rendered by the court following a default order or aft er it received. RULE 9 EFFECT OF FAILURE TO PLEAD Section 1. declaration of DEFAULT – the failure of the defendant to answer within the proper period. Section12. NEGATIVE PREGNANT – a form of denial which at the same time involves an affirmative implication favorable to the opposing part y. A SUPPLEMENTAL ANSWER is proper if the counte rclaim or cross-clam matures or is acquired after the answer is filed. whenever practicable. Part admission and part denial. St riking out of pleading or matter contained therein Allegations of merely evident iary or immaterial facts may be expunged from the pleading or may be stricken ou t on motion. NOT specifically EXCEPTIONS: 1. Default. There must be NOTICE to the defendant by serving upon him a copy of s uch motion. Lack of jurisdiction over th e subject matter Litis pendentia. it is in effect. 3. to the knowledge of the cou rt. or Crossclaim not set-up barred An A MENDED ANSWER is proper if the counterclaim or cross claim already existed at th e time the original answer was filed.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 THREE WAYS OF MAKING A SPECIFIC DENIAL: 1. It is not his failure to appear nor failure to present eviden ce. WHERE NO DEFAU LTS ARE ALLOWED: Page 20 of 289 . setting forth the substance of the matters relied upo n for such denial. 2. and 4. 3. Section 11. Tijam v. 2. These def enses may be raised at any stage of the proceedings even for the first time on a ppeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches. and 3. Res Judicata Prescription of the action. ex parte. Conclusion of law. Allegation not specifically denied deemed admitted GENERAL RULE: allegations denied are deemed admitted. By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading. Defendant FAILS TO ANSWER within the time allowed therefore. Section 2. it was not set up. 2. There must be a MOTION to declare the defendant in d efault. an admission of the averment to pregnant with an admission o f the substantial facts in the pleading responded to. so plain and necessarily within the defendant’s knowledge that his averment of ignorance must be palpable untrue. NOTE: this does not apply where th e fact as to which want of knowledge is asserted is. Allegatio ns immaterial as to the cause of action. but due to oversight. Sibonghanoy 23 SCRA 29 (1968) The court shall dismiss the claim if any of these grounds appears from the pleadings or the evidence on record. plaintiff’s evidence. or exc usable neglect. 4. 2. REQUISITES FOR A DECLARATION OF DEFAULT: 1. on plaintiff’s motion for failure of the defendant to failure his responsive pleading seasonably. inadvertence. and 3. There must be PROOF of such failure to answer. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Compulsory Counterclaim. By specifically denying the averment and. Defenses and objections not pleaded GENERAL RULE: Defenses and objections not raised in MOTION TODISMISS or in the ANSWER are deemed waived. Final .

The answer interposes a com mon defense. within 10 days after it was SERVED. Ame ndments as a matter of right Amendment is a matter of right before a responsive pleading is SERVED. in which case. If the defen dant was declared in default upon an original complaint. and 6. and Failure to file a motion for new trial/ denial of said motion Perfect appeal fro m said judgment by default within the balance of said 15/30 day period Page 21 of 289 . Correcting a mistake in the name of a party. Florendo 154 SCRA 610 (1987) A defendant d eclared in default cannot take part in the trial. 2. AND 2 . it may be done without leave of court. If the amendment is substantial. Legal Sep aration. Service of final orders and judgments Cavili v. and 5. PARTIAL DEFAULT: 1. S uch rights can only be exercised ONCE. 4. Subsequent proceedings. Special civil actions of certiorari. Section 2. A responsive pleading had already been served. NOTE: a motion to dismiss is not a responsive pleading. Motion to declare him in default. Adding an allegation of a party. Amendments by leav e of court Leave of court is required: 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. Order declaring him in default. prohibition and mandamus where com ment instead of an answer is required to be filed 5. EFFECT OF PARTIAL DEFAULT: The court will try the case against ALL defendants upon the answer of some EXCEPT where the defense is personal to the o ne who answered. 2. Declaration of nullity of marriage. 3. or in case of a REPLY. 2. Requisites: 1. hence the def endant was entitled to file the answer to the amended complaint as to which he w as not in default. it will not benefit those who did not answer. and 4. Annulment of marriage. 2. Amendments in general Pleadings may be amended: 1. RE MEDIES FROM JUDGMENT BY DEFAULT Judgment by default TIFF (Uncompressed) decompressor Motion for new trial or to see this picture. 3. Correcting a mistake in the name of a par ty. Some of the defending parties answer and the others fall to do so. 3 . Striking out the name of a party. 4. Adding the name of a party. The default asserting a claim states a co mmon cause of action against several defending parties. RULE 10 AMENDED AND SUPPLEMENTAL Section 1. re consideration at any time are needed after service of judgment by default and wi thin 15/30 days therefrom QuickTime™ and a Failure to appeal without defendants fault Petition for relief from judgment wit hin 60 days from notice of the judgment but within 6 months from entry thereof A nnulment of Judgment under RULE 47 EXTENT OF RELIEF TO BE AWARDED IN A JUDGMENT B DEFAULT: Shall not exceed the amo unt OR be different in kind from that prayed for NOR award unliquidated damages. and 3. an amendme nt AFTER the denial of a motion to dismiss is still considered as a matter of ri ght. Subsequent amendments should be made only by leave of court even if the other party has not yet served a responsive plead ing. There must be a motion filed in court. Summary procedure EFFECT OF AN ORDER OF DEFAULT: entitled to notice of 1. Hence. but he cannot be disqualified from testifying as a witness in favor of non-defaulting defendants. 2. Notice to the adverse party. the filing of the amend ed complaint resulted in the withdrawal of the original complaint. Correcting a mist ake or inadequate allegation or description in any other respect. Section 3. As such.

In case the defendant is a foreign private juridical entity . CA 229 SC RA 627) AMENDED PLEADING SUPPLEMENTAL PLEADING Refers to facts arising after the filing of the original pleading. and 3. Answer of a defendant foreign private juridical entity Answer to a compl aint 1. Supplemental pleadings SUPPLEMENTAL PLEADINGS – is one which sets forth transactions. Section 7. 3. or events which have happene d since the date of the filing of the complaint. Opportunity to be heard afforded to the adverse party. original pleading.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. occurrences.sor are needed to responsive ple ading has yet been filed. Take the place of the Taken together with the original pleading. p. Pleadings may be amended to co nform to the evidence. Amendment is intended to confer jurisdiction to t he court. a. Amendment to cure a premature or non-existing cause of action. An amended pleadings supersedes the pleading that it amends. (Regalado. Formal Amendments Section 5. Admissions in the superseded pleading can still be received in evidence against the pleader. Can be made as a matter Always with leave of QuickTime™ and a TIFF (Uncompressed) cour t decompres of right as when nosee this picture. anew does not require the filing copy of the entire of a new copy of the pl eading must be filed. When an amended A supplemental pleading pleading is fi led. 3. it has n o resident agent nor agent nor officer – in which case service of summons is to be made on the proper government office which will then send a copy by registered mail to the home office of the foreign private corporation – within 30 days after receipt of summons by the home office of the foreign private entity. In case of service of summons by publication – within the time specified in the order gran ting leave to serve summons by Refers to facts existing at the time of the commencement of the action. When cause of action. 2 002. Section 6. Instances when amendme nt by leave of court may not be allowed: 1. NOTE: Some authors are of the opinion that adm issions in superseded pleadings need not be offered in evidence pursuant to Sect ion 4 of Rule 129. if it has a resident agent. They shall be treated as if raised in the pleading.193) RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS Section 1. Amendment for purposes of delay. NOTE: The cause of action state d in the supplemental complaint must be the same as that stated in the court sho uld not admit the supplemental complaint (Asset Privatization Trust v. if it has no resident agent. UNLESS a different period is fi xed by the court. NOTE: Admission in a superseded pleading is an EXTRAJUDICAL ADMISSION and may be proved by the party relying thereon by formal offer in evidence. and 4. 2. Amen dment to conform to or authorize presentation of evidence When issues NOT RAISED in the pleadings are tried with the express implied consent of parties 1. Failure to amend does not affect the result of the trial of these issues. Filing of amended pleadings Page 22 of 289 . EFFECT OF AMENDED PLEADING 1. Answer to the complaint Sec tion 2. Within 15 days after service of summons. 2. but it has an agent or officer in the Philippin es – within 15 days after service of summons to said agent or officer. b.within 15 days after service of summons to him. c. Section 4. 3. 2. 2. defense or the ory of the case is changed. entire pleading. Claims or defenses alleged ther ein but not incorporated or reiterated in the amended pleading are deemed waived .

Galeon v. In the filing of an amended complaint is a matter of r ight—within 15 days from service of amended complaint 2. amended third (fourth. it must be filed within the period granted by the R ules (Rule 11) for the filing of a responsive pleading. The court may extend the time to file the pleadings but may not shorten them. to file his answer. the court may fix a different period for QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. and amended complaint-in-intervention) If no new answer is filed. inadvertence. which shall NOT be less than 60 days after notice (rule 14. Galeon 60 SCRA 234 (1976) An action canno t be dismissed on the ground that the complaint is vague or indefinite. hence. When applied for. and 3. 60 days from service of summons. RULE 12 BILL OF PARTICULARS BILL OF PARTICULARS – a more definite statement of any matter which is not averred with sufficient definiteness or particularity. Omitted counterclaim or cross-claim Count erclaims or cross-claims omitted through oversight. The defects complained of: 2. purpose A co unterclaim or cross-claim must be answered within 10 days from service. Answe r to amended pleadings 1. Existing counterclaim or cross-claim Section 9. O n such terms as may be just. he also has 15. answering the supplemental complaint in lieu of the10-day reglementary period. The paragraphs wherein contained. Counterclaim or crossclaim arising after answer Section 10. the f iling of supplemental complaint requires leave of court. unlike the for mer. Hence. in case of a non-resident defendant on whom extraterritorial service of summons is made. However. as the case may be.)-party complaint The third party defendant is s erved with summons just like the original defendant. the period to answer should be at least 60 days. There must be a motion. PURPOSE: to aid in the preparati on of a responsive pleading. With service of such motion to other party. Answer to supplemental complaint Answer to a supplemental co mplaint must be filed within 10 days from notice of the order admitting the same . NOTE: The rule shall apply to the answer to an amen ded counterclaim. Section 5. Section 4. Section 7. they are Page 23 of 289 . S ection 8.party compla int. 30.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 publication. or excusable n eglect or when justice requires may be set up by the pleader BEFORE JUDGMENT. Extension of time to plead REQUISITES: 1. 2. Answer to counterclaim or cross-claim Section 1. The reme dy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. If the filing of an amend ed complain is NOT a matter of right—within 10 days counted from notice of the cou rt order admitting the same. and 3. Th e details desired. Section 15) 4. As in the case of the filing of an amended pleading with leave of court. Section 11. Reply A reply may be filed within 10 days from service of the pleading respo nded to. Le ave of court is necessary. Answer to third (fourth. The motion shall point o ut: 1. answer to original pleading shall be deemed as answer to the amended pleading. Section 3. Section 6. etc. etc.. The motion for bill of particulars shall be filed before resp onding to a pleading. amended cross-claim.

If his motion is denied. Action by court The court may either: 1. unless service thereof on the party himself was ordered by the court or the technical defect was waived. Effect of non-compliance Effect of non-compliance: 1. Deny: or 2. counted from service of the order denying his motion. 2. Manner of Filing FILING – act of presenting the pleasing or other paper to the clerk of court Manner of filing 1. may order the striking out of the pleading or the portion thereof to which the order is directed. Section 4. Section 3) Section 5. (Rule 12. Where party is represented by more than one counsel of record. hi answer will be stricken off and his counterclaim dismissed. service of notice on any of the latter is sufficient. Personal Service. or Page 24 of 289 . his complaint may be dismissed with prejudice UNLESS otherwise order ed by the court. Rule 17. defined FILI NG OF PLEADINGS -Act of presenting the pleading or other paper to the clerk of c ourt a) personally to the clerk of court b) sending them by registered mail SERV ICE OF PLEADINGS Act providing a party with a copy of the pleading or paper conc erned -judgment. make such order as it may deem just. and he will be declared in default upon motion of the plaintiff. Section 6. If defendant fails to obey. Section 2. in whole or in part. n otice may be made either upon both or either of them MODES OF SERVICE a) persona lly b) mail c) substituted service Section 3. he shall have not less than 5 days to file his responsive pleading. serving a copy there of on the adverse party. Section 1. Section 4. It becomes part of the pleading sought to be clarified. NOTE: If ether case. 4. Grant it outrigh t: or 3. Section 3) 3. except: 1) when he has no counsel 2) when counsel of record can’t be located 3) when party himself is directed by court to show cause (ex. (Rule 12. JUDGMENTS AND OTHER PAPERS Note: This r ule is not arranged per section but per topic. If the order i s not obeyed or in case of insufficient compliance therewith. If the motion is granted. Section4. Filing and service. Sec. the court: a. he will still have s uch balance of the reglementary period to file his responsive pleading. Section3. Stay of period to file responsive pl eading QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. Coverage Notice given to a party who is represented by counsel is a nullity. the movant can wait until the bill of particulars is served on him by the opposing p arty and then he will have the balance of the reglementary period within which t o file his responsive pleading. Bill a part of pleading RULE 13 FILING AND SERVICE OF PLEADINGS. pleadings and orders are served to counsel. Compliance wit h order EFFECTS OF MOTION 1. 2. or b. if the plaintiff fai ls to obey. Allow the parties the opportunity to be heard. Contempt) -if represented by 2 counsels. The bill of particulars m ay be filed either in a separate or in an amended pleading. Rule 17. Rule 9.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 2.

Section 5. 7. Demand. This simply means that defendant’s a nswer can’t be filed at once to the Page 25 of 289 . a QuickTime™ and TIFF (Uncompressed) d 9. the date of actual receipt by the court of such pleading and not the date of delivery to the private carrier. 5. If registry service is not available in the locality of eithe r sender or addressee. RESOLUTIONS a) personal service b) registered mail c) publication a) personal service b) registered mail c) ordinary mail Promulgation of decision in criminal cases = reading of judgment Promulgation of decision in civil cases = date when the copy was served on the counsel by regis tered mail 3 KINDS OF SERVICE: PERSONAL SERVICE BY SERVICE MAIL Depositing Deliv er copy in the personally: 1) party or post office. Written Motion. Judgment. or counsel residence. Pleadings subsequent to original complaint and written motions should first be served on the parties before they are filed with court. Notice. Rule 14) Section 4. and not through other mean s of transmission. Substituted Service SUBSTITUTED SERVICE Delivering copy to th e clerk of court with proof of failure of both personal and service by mail (dif ferent from substituted service under Sec. the date of actual receipt is t he one counted clerk of court. Appearance. 10. Inc. v. Pleading subsequent to the complaint. 4. with 2 ) by leaving it instructions of in his office return to with clerk or sender if person undelivered having within 10 days charged thereof 3) leaving it at the re sidence of either. with a person of sufficient age and discretion residing there in Section 6. PERSONALLY TO THE CLERK OF COURT Clerk of court endorse the d ate and hour of the filing SENDING THEM BY REGISTERED MAIL Date of mailing shall be considered as the date of filing Registered mail only -reason: government po stal service enjoys the presumption of regularity -date of mailing = date of fil ing Private letter couriers -not recognized because you can’t apply the presumptio n of regularity to private entity -nevertheless. 3. is deemed to be the date of the filing of that pleading. Similar papers Papers sub sequent to complaint must be filed with court and served upon parties. FINAL ORDE RS. Resoluti on. Benguet Electric Co operative. 7 . Papers required to be filed and served 1. signed by him –only then can you file an answer with proof of service . NLRC 209 SCRA 55 (1992) If a private carrier is availed of by the party. Personal Service PERSONAL SERVICE. to see thiecompressor are needed or s picture. Service by mail Section 8. Registered mail Filing by mail should be through the registry service which i s made by deposit of the pleading in the post office.Actual delivery of the processe s to him (includes service at the residence or his attorney) Section 7.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. 2. because you must first serve a copy thereof to th e plaintiff. Order. Offer of judgment. Modes of Service SERVICE OF PAPERS SERVICE OF JUDGMENTS. 8. 6. service may be done by ordinary mail.

b. and c. and 2. Action affects the title or the righ t of possession of the real property. service may be done by ordinary mail. Proof of service by registered mail: 1. 1. or if he has no office. or c. If filed TIFF (Uncompressed) decom pressor proved by the by registered mall: are needed to see this picture. PERSONAL SERVICE (SECTION 6) a. Complete ness of Service Service is completed when: Personal Registered service mail Upon actual Upon actual delivery receipt by the addressee or 5 days from the date he received 1st notice from postmaster -1st notice from postmaster needs conclusiv e proof Ordinary mail Upon expiration of 10 days after mailing SERVICE. Wr itten admission of the party served. Notice of lis pendens LIS PENDENS – a notice o f a pendency of the action between the parties involving title to or right of po ssession over real property. and 6 p. of either sender or addres see. SUBSTITUTED SERVICE (SECTION 8) De livering the copy to the clerk of court with proof of failure of both personal a nd service by mail. 2. Registry receipt issue d by the mailing office Section 14. or b. if known. or 2. 2. 3. or if his office is unknown. Affirmative relief is claimed. Delivering personally a copy to t he party or his counsel. and. Official return of the server. Leaving a copy in counsel’s office with his clerk o r with a person having charge thereof. Final Orders or Resolutions Service by publicati on = only when he absconds and defendant’s address is unknown Section 10.m. Leaving the copy between 8 a. With in structions to the postmaster to return the mail to the sender after 10 days if u ndelivered. Affidavit of the party serving. Priorities in modes of service and filing Personal service is p referred and written explanation is needed why such was not taken Service by reg istered mail may be done if the distance from the court to the adverse party is considered Section 12. Page 26 of 289 . Section 13 Proof of Service Proof of personal service: 1. Affidavit of maller showing compliance of Section 7 Rule 13. With postage fully paid. place and manner of service .Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 9 Service of Judgments. containing the date. If it is not in the record. REQUISITES: 1. The date and place of depositing the mail in the post office in a se aled envelope addressed to the court. regist ry receipt and the affidavit of the person who did the mailing with a full state ment of: a. If filed personally: pro ved by the written or stamped acknowledgement of its filing by the clerk of cour t on a copy of the same: or QuickTime™ and a 2. Proof of service by ordinary mail: Affidavit of the person mailing showing com pliance of Section 7 Rule 13. SERVICE BY MAIL (SECTION 7) If no registry service is available in the locality. Proof of filing Filing is proved by its existence in the record of the case.m. and Completeness begins the running of the period for filing of the responsive plead ings Section 11. at the party’s or counsel’s residence. with a person of sufficient age and discretion then residing therein—if no is person found in his office. or 3.Act of p roviding a party with a copy of the pleading of paper concerned SUMMARY OF MODES OF SERVICE 1.

or 3. 4. case. Payment of the requisite legal fees. v. One Peng v. nonservice or irregular service of summons renders nu ll and void all subsequent proceedings and issuances in the action from the orde r of default up to and Section 5. . 2. by any suitable pers on authorized by the court issuing the summons. The defendant may also reco rd a notice of lis pendens when he claims an affirmative relief in his answer. Sheriff’s deputy. Dom ingo 44 Phil 680 (1923) But where the defendant was declared in default on the o riginal complaint and the plaintiff subsequently filed an amended complaint. including the judgment by default and the order of executio n. Where upon the death of the original defendant his infant heirs are made parties. PURPOSE OF SUMMONS: 1. Notice shall contain the name of the parties and the object of the action or defense an a description of the property affected thereby. Action in rem (AFP Mutual Benefit Association . NOTE: In these instances. Return EFFECT OF NON-SERVICE: Unless the defendant voluntary submits to the jurisdiction of the court. Sectio n 1. Sheriff. To acquire juris diction over the person of QuickTime™ and a the TIFF (Uncompressed) this picture. as the original complaint was deemed withdrawn upon such amendment. Other proper court officers. summons must be served upon him. Upon the filing of the comp laint. 327 SCRA 203) NOTE: This serves as a w arning to all persons. and 3. and defendantsee decompressor in a civil are needed to 2. 2. prospective purchasers or encumbrancers of the property i n litigation to keep their hands off the property in litigation unless they are prepared to gamble on the result of the proceedings. or 4. Section 2. N otice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere filing of a bond by the party on whose title the notice is annotated. It s not necessary to protect the rights of the party who cause d it to be recorded. Issuance of Alias Summons ALIAS SUMMONS – is one issued when the original has not produced its effect because of a defect in Page 27 of 289 RULE 14 SUMMONS Minucher v. SUMMONS – is the writ by which he defendant is not ified of the action brought against him. In cases of substitution of the deceased under Section16 of Rule 3. To give notice t o the defendant than an action has been commenced against him (right to due proc ess). CA. AND 2. the service of the deceased under Section 16 of Rule 3. or 2. Clerk to issue summons Summons to be issued: 1. For justifiable reasons. new summons must served on the defendant on the amended complaint. Custodio 1 SCRA 780 (1961) Where the defendant has already been s erved with summons on the original complaint. Contents Section 3 . EXCEPTION: 1. The notice is for the purpose of molesting the adve rse party. GENERAL RULE: When an additi onal defendant is joined. Enumeration is EXCLUSIVE Section 4. Inc. as section 14 provides that such cancellation may be authorized ONLY upon order of court a fter proper showing that: 1. By whom served Summons may be served by: 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. When th e administrator of a deceased party defendant substitutes the deceased. CA 214 SCRA 242 (1992) Jurisdiction over the person of the defendant in a civil case is acquired either by his VOLUNTARY APPEARANCE or SERVICE OF SUMMONS upon him. no further summons is required on the amended complaint if it does not introduce new cause of action Atkins v.

Publication (Section 14) Requi sites: 1. superseded the first writ. unless they are his legal guardians In any event. By handling a copy of summons to him. Residents t emporarily outside the Philippines MODES OF SERVICE OF SUMMONS: A. and 3. Spouses Venturanza v. or in-house couns el. Melencio -Herrera 38 SCRA 369 (1971) In action in personam where the defendant cannot be served with summons personal or by substituted service. treasurer. there mus t be leave of court Section 11. Se ction 6. B. it is necessary to establis h the following: 1. Substituted Service (Sectio n 7) For substituted service of summons to be valid. the case must first be c onverted into an in rem or quasi in rem action by attaching the property of the defendant found in the Philippines before summons can be served by publication. Service upon entity without juridical personality Section 9. OR of he refuses to receive it. Service juridical entity upon domestic private Section 12. incompetents Service upon minors and Citizen Surety v. The action is in rem or quasi in rem. Service upon a person of sufficient QuickTime™ and a Tage and discretio n residing in the IFF (Uncompressed) decompressor are needed to see this picture . the sheriff’s return must show that an effort or attempt was exerted to personally serve the summons on the defendant and that the same had failed. 2. and when issued. same place as defendant OR some competent person in charge of his office or re gular place of business. 2. if the minor or incompetent has no legal guardian the plaintiff must obtain the appointment of a guardian ad litem for him. The impossibility of the personal service of summons within a person reasonable time. Service in person on defendant Section 7. Service in pe rson on defendant (Section 6) 1. general manager. the action shall be archived but shall not be dismi ssed. By tendering it to him. The efforts exerted to locate the person to be serv ed. corporate secretary. or also upon either of his parents In case of incompetents: by serving on him personally AND upon his legal guardian. 2. SERVICE ENTITIES OF SUMMONS ON DIFFERENT C. Substituted Service Section 8 . mana ging partner. Page 28 of 289 . Service upon prisoner (S ection 9) Serve on officer having management of the jail or prisoner (warden) Se rvice upon domestic private juridical entity (Section 11) To the president. Defendant’s identity and wherea bouts are unknown and cannot be ascertained or diligent inquiry and 3. Extraterritorial Service Section 16. Service upon defendant whose identity or wher eabouts are unknown Section 15. Service on entity without juridical personality (Section 8) Upon any or all the defendants being sued under common name. Service up on public corporations Section 14. Service upon pris oner Section 10. CA 156 SCRA 305 (1987) In substit uted service.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 form or in the manner of service. If no property can be found. but not upon his parents. or person in charge of the office Servi ce upon minors and incompetents (Section 10) In case of minors: by serving upon the minor regardless of age. Service upon foreign private juridical entity Section 13. AND upon his legal guardian.

defendant does not reside or is not found the Philippines. by his agent authorized to do so. The enumeration is EXCLUSIVE. or if none. The fact that defendant did not actually receive the summons did not invalidated the service of such summons. serve by publication in a newspaper of general circulation. Voluntary Appearance Any form of appearance in court. The ac tion must be an action in rem or quasi in rem. personal service out o f the Philippines as under extraterritorial service. c) any other manner the court may deem sufficient Service upon a resident temporarily outside the Philippines (Section 16) Substituted service or with leave of court. in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defen dant. Proof of Service by Publication Section 20 . is equivalent to service of summons EXCEPT where such appearance is precisely to object to the jurisdiction of the c ourt over the person of the defendant. city or municipality. or like public corporations: by serving on its executive head or on such other officer or offi cers as the law or the court may direct Extraterritorial Service (Section 15) Re quisites 1. It either: a) affects the persona l status of plaintiff. Maximo 22 SCRA 1070 (1968) Summons is validly served if it is left with some person of suitable age and discretion then residing in the defendant’s residence. on government official designated by law. Motion. or any officer or agen t of the corporation within the Philippines Service upon public corporations (Se ction 13) In case defendant is the Republic of the Philippines: by serving upon the Solicitor General In case of province . or by attorney. b) relates to the subject which is property within the Ph ilippines in which defendant has a lien or interest. c) demands a relief which c onsists wholly or in part in excluding the defendant from any interest in any pr operty within the Philippines.is an application for relief other then by a pleading KINDS OF MOTIONS Page 29 of 289 . Proof of Service Section 19. 2. Service upon foreign private juridical entity (Section 12) Serve on resident age nt. or RULE 15 MOTIONS Section 1. serve outside QuickTi me™ and a the Philippine by personal TIFF (Uncompressed) decompressor are needed t o see this picture. or d) property of defendant has been attached in the Philippines 3. Section 17. even if defendant was a broad at that time. defined Motion . by the defendant. service. NOTE: 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. Mode of Service a) with leave of court. Leave of Court Sec tion 18.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 NOTE: Service upon a person other than those mentioned is invalid and does not b ind the corporation. Service upon an unknown def endant or whose whereabouts are unknown (Section 14) with leave of court. by pub lication in a newspaper of general circulation Montalban v. or b) with leave of court.

Omnibus Motion Omnibus Motion Rule – A motion attacking a pleading.e. Urgent motions. motion to dismiss) d. c. (Upon the plaintiff’s own motion) Page 30 of 289 .5 and 6 of this Rule (requirements 4-5) is a mere scrap of paper. Contents Section 10. Motion for leave Contents: 1. and 3. PROOF OF SERVICE. Motion for summary judgm ent. 3. GENERAL judgment. NOTIC E OF HEARING shall be addressed to all parties concerned not later than 10 days from the filing of the motion. Motions for summary judgment which must be served at least 10 days be fore its hearing. Section 2. Mot ion Day Friday afternoon Section 8. (Section 5) EXCEPTIONS: 1. SPECIAL motion – motion address ed to the discretion of the court. shall be accompanied by sup porting affidavits and other papers. It does not interrupt the reglementary period for the filing of the requisite pleading. HEARING OF MOTION set by the applicant. Motion and notice of hearing must be served at least 3 DAYS BEFORE THE DA TE OF HEARING. EXCEPTIONS: Those made in OP EN COURT or in the COURSE OF HEARING or TRIAL. Section 3. motion for ex tension of time to file pleadings) b. order judgment or proceeding shall include all objections then available. it must be in WRITING. Section2 Rule 17. If required by th e Rules or necessary to prove facts alleged therein. Hearing of Motion Section 5.(Section 6) EXCEPTIONS TO THE 3 DAYNOTICE RULE: 1. Not ice of Hearing Section 6. It is subject to the omnibus motion rule since it is a motion that attacks a pleading. 2. LITIGATED motion – one made with notice to the adverse party to give an opportunity to oppose. and 4. Motion for judgment on demurrer to evidence.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. motion OF COURSE – where the movant is entit led to the relief or remedy sought as a matter of discretion on the part of the court. RULE: A motion cannot pray for 4. 3. it must raise all objections available at the time of the filing thereof. Motions agreed upo n by the parties to be heard on shorter notice or jointly submitted by the parti es. 2. (Section 4) and 5. Those cases where the court may dismiss a case motu proprio (Section 1. The relief sough t to be obtained. Form RULE 16 MOTION TO DISMISS A MOTION TO DISMISS is NOT a responsive pleading. It i s not a pleading at all. motion EX PARTE – made without the presence or a notification to the other part y because the question generally presented is not debatable. Proof of Service Necessary QuickTime™ REQUISITES OF A MOTIONand a NOT TIFF (Uncompressed) decompressor MADE I N OPEN are needed to see this picture. (i. GENERAL RULE: A court may not motu propio dismi ss a case unless a motion to that effect is filed by a party thereto. Ex parte motions. Objections not included shall be deemed waived except the defens e referred in Section 1 Section9. Rul e 9).e. Motion for judgment on the pleadings. EXCEPTIONS : 1. Motion must be i n writing GENERAL RULE: Motions must be in writing. 3. Section 7. 2. The ground upon which it is based. 2. NOTE: Any motion that does not comply with Sections 4. Section 4. Hence. (i. 2. COURT OR IN THE COURSE OF HEARING OR TRIA L: 1.

such as in a judgment on the pleadings (Rule 34) . the defendant loses his right to present evidence. If denied. Prescription. Motion to dismiss under Rule 17. prior to to see decompressor the plaintiff has are needed the filing of the answer com pleted the of the defending party presentation of his to the pleading evidence. Upon notice by plaintiff. Motion to dismiss before answer under Rule 16. PRESCRIPTION Concerned with the fact of delay. NOTE: There could b e res judicata without a trial. Motion to dismiss called a demurer to evi dence after plaintiff has completed the presentation of his evidence under Rule 33. Not based on fixed time Page 31 of 289 Grounded on preliminary objections. would amount to res judicata in the other c ase. Previous final judgment. defendant If denied. REQUISITES OF RES JUDICATA 1. A matter of equity. Litis pendentia. If granted appeals and the order . The identity in the two cases should be such that any judgment that may be rendered in one. There is substantial identity in the cause of action and re lief sought. REQUISITES OF LITIS PENDENTIA 1. A matter of time. However. MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) Based on insufficiency of evidence. 2. Based on fixed time. 5. asserting the claim against him. Non-compliance with a condition pre cedent for filing claim. of subject matter and of cause of action between the first and second actions. 9. Should be filed within kTime™ and a filed only after May be Quic the time for but TIFF (Uncompressed) this picture. LACHES Concerned with the effect o f delay. the relief being founded on the same facts. Failure to state a cause of action. St atutory. Improper venue. 7. Grounds 1. 2. no legal capacity to sue. Res j udicata. Upon motion by pl aintiff. plaintiff def ault. 10. Due to fault of plaintiff. 4. 8. waived. 6.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. There must be identity of parties. abandoned. or else he may present evidence may be declared in if granted. a summary judgment (Rule 35). No jurisdiction over the subject matter of the ca lm. 4. and 3. May be filed by any defending party against whom a claim is asserted in the action. PRESCRIPTION A motion to dismiss on the ground of prescription will be give n due course only if the complaint shows on its face that the action has already prescribed. he may refile the case. It hypoth etically admits the allegations stated in the complaint. or an order of dismissal under Section 3 of Rule 17. 11. No jurisdiction over the per son of the defending party. rega rdless of which party is successful. Claim or dem and has been paid. Juris diction over the subject matter and the parties by the court rendering it. plaintiff may app eal or if subsequent case is not barred. the admission extends ONLY to material and relevant allegations. Ju dgment upon the merits. Applies at law. 3. Dismissal of an appeal Section 1. Motion to dismiss may be filed in either suit. defendant answe rs. 4. not necessarily in the one i nstituted first. 2. 3. NOTE: a motion to dismiss generally partakes the nature of a demurrer. Non-statutory Applies in equity. May be filed only by the defendant against the complaint of the plaintiff. Identify of parties or at least such parties representing the same interests in both actions. 1991 Revised Rule on Summary Procedure) TYPES OF DISMISSAL OF ACTION: 1. Rule on Summary Procedure (Section 4. of the dismissa l is reversed. 3. 2. Claim is un enforceable under the Statute of Frauds. or otherwise extinguished.

Amend the pleading. A preliminary hearing mat be had thereon. Section 2. 3. b. Dismissal upon notice by plaintiff Page 32 of 289 .D 1508 (Katarungang Pambarangay Law) may result to dismissal of the case on the ground on non-compliance with a cond ition precedent. NON-COMPLIANCE WITH A CONDITION PRECEDENT Non-compliance with P. RULE 17 DIMISSAL OF ACTIONS Section 1. Section 6. EXCEPTION: if the court acts without or in excess of jurisdiction or with grave abuse of discretion in denying the motion. are needed to see this picture. he should allege the grounds of a motion to dismiss as affirmative defen ses in his answer with a counterclaim. The ordinar y procedure is for the defendant to file hi answer and go to trial and if the de cision is adverse. the remedy of the plaintiff is APPEAL. EFFECTS OF ACTION ON MTD Order granting motion to dismiss is fi nal order (without prejudice) Order granting motion to dismiss (with prejudice) Order denying the motion to dismiss is interlocutory REMEDY Refile the complaint . The latter means that there is insufficiency in the factual basis of the action. Res judicata. he should NOT file a motion to dismiss. Section 5. GENERAL RULE: an order denying a motion to dismiss is interlocutory. and in the event the complaint too dismissed. I nstead. of Sec. counted from his receipt o th e denial order. 2 . The 2nd par. may be pleaded as affirmative defenses and a preliminar y hearing may be had thereon in the discretion of the court. Time to plead Def endant is granted only the balance of the reglementary period to which he was en titled at the time he filed his motion to dismiss. FAILURE TO STATE A CAUSE OFACTION and NOT LACK ORAB SENCE OFCAUSE OF ACTION is the ground for a motion to dismiss. The former means there is insufficiency in the allegations in the pleading. Resolution of Moti on The court may order: a. Hearing of Motion Section 3. I NCLUDING IMPROPER VENUE. Appeal Certiorari and prohibition if there is grave abuse of discretion amount ing to lack or excess of jurisdiction under rule 65 Section 4. Extinguishment of the claim or demand. In these instances. NOTE: if the defend ant would want to file a counterclaim. he can appeal from the judgment and assign as error the denia l of the motion to dismiss. The dismissal of the action.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 COMPLAINT STATES NO CAUSE OF ACTION When the ground for dismissal is that the co mplaint states no cause of action. and 4. or c . Effect of dism issal GENERAL RULE: the action or claim may be re-filed EXCEPTION: the action ca nnot be re-filed if it was dismissed on any of these grounds: 1. but not less than 5 days in any event. any of the grounds for dismissal provided for in rule 16. such fact can be determined only from the fac ts alleged in the complaint. Unenforceabilit y under the Statue of Frauds. CERTIORAR I or PROHIBITON QuickTime™ and a TIFF (Uncompressed) decompressor lies. 6 clearly provides that the dismissal of the c omplaint without prejudice to the prosecution of the counterclaim. the defendant can PROSECUTE his c ounterclaim. Deny the motion. Pleading grounds as affirmative defenses If no motion to dis miss had been filed. Prescription.

Section 3. Cabrera 93 Ph il. It is merely a wai ver of his right to cross-examine and to object to the admissibility of evidence Complaint may be dismissed 1. TIFF remedies of decompressor These alternative (Uncompressed) this picture. Plaintiff fails to prosecute his action for an unr easonable length of time. or 2. Dismissal upon motion of plaint iff Under this section. without pr ejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint. EXCEPT: 1. Dismissal is without prejudice to the right of th e defendant to prosecute his counterclaim in a separate action unless w/in 15 da ys from notice SECTION 3 Dismissal is not procured by plaintiff though justified by causes imputable to him. A motion for summary judgment. The answer. Dismissal under this rule is WITHOUT PREJUDICE. In this case. To have the same reso lved in the same action. 2. Dismissal due to fault of plaintiff CAUSES FOR DISMISSAL 1. the dismissal of the complaint is subject to the DISCRET ION of the court and upon such terms and conditions as may be just. 2. or 2. Plaintiff fails to appear for no justifiable cause on the date of the presentation of his evidence in chief on the complaint. Su ch dismissal shall be without prejudice to the right of the defendant to either: 1. Upon the cour t’s own motion. Plaintiff fails to comply with thes e Rules or any order of the court.the defendant are are needed to see available to him REGARDLESS OFWHETHER HIS COUNTE RCLAIM IS COMPULSORY OR PERMISSIVE. When otherwise stated in the motion to dismiss. unless otherwise declared by the court. Dismissal is a matter of evidence. GENERAL RULE : Such dismissal is WITHOUT PREJUDICE. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction (TWO-DISMISSAL RULE) Serrano v. Where the notice of dismiss al so provides. Page 33 of 289 . The approval of t he court is necessary in the dismissal or compromise of a class suit. Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA).Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Dismissal is effected not by motion but by mere NOTICE of dismissal which is a m atter of right BEFORE the SERVICE of: 1. OR 2. EXCEPTION: 1. When stated to be with prejudice in the order of the court. (NOLLEPRODEQU!) 3. Upon motion of the defendant. defendant must manifest such preference t o the trial court within 15 days from notice to him of plaintiff’s motion to dismi ss. Ytoriaga 80 SCRA 100 (1977) The plaintiff’s failure to appear at the tr ial after he has presented his evidence and rested his case DOES NOT WARRANT the dismissal of the case on the ground of failure to prosecute. Dismissal is a matter of procedure. Dismissal is without prejudice to the right of the defendant to prosecute his co unterclaim on the same separate action. an adjudication on the merits. where such notice is premised on the fact of payment b y the defendant of the claim involved Section 2. Prosecute his counterclaim in a separate action. Jalover v. SECTION 2 Dismissal is at the instance of the plaintiff. 774 (1953) The dismissal is still with prejudice even if the notice of dismi ssal does not so provide. If a counter claim has been pleaded by the defendant PRIOR TO THE SERVICE upon hum of the pla intiff’s motion for dismissal. QuickTime™ and a 2. The rule requires a COURT ORDER confirming the dismissal. the dismissal shall be limited to the complaint.

The possibility of obtaining STIPULATIONS or ADMISSION S of facts and documents to avoid unnecessary proof. If a representative shal l appear in his behalf fully authorized in writing to: a. If a valid cause is shown therefore. Section 6. Sarmiento v. Enter into an amicable settlement. Section 3. Notice of Pre-trial Section 4. unless otherwise ordered by the court. Section 7. Submit alternative modes of dispute resolution. v. The SIMPLICATION OF ISSUES. the court must close the pre-trial and proceed with the trial of the case. c. Dismissal of counterclaim. Enter into st ipulations or admissions of facts and of documents. Record of pre-trial The contents of the PRE-TRIAL ord er shall control the subsequent course of the action. Section 5. with prejudice. Section 4. Nature and purpose The court shall consider: 1. Section 2. of the number of Page 34 of 289 . The advisability or necessity of SUSPENDING THE PROCEEDINGS. Juan 120 SCRA 403 (1983) The “last pleading” need not be liter ally construed as the actual filing of the last pleading. f acts or evidence. Section 1. 8. Whether of facts or evidence. UNLESS modified before tri al to prevent manifest injustice. When conducted The plaintiff should promptly file a motion ex parte that the case be set for pre-trial. 3. The necessity or desirability of AMENDM ENTS TO THE PLEADINGS. cross-claim or third party complaint 6. EFFECT OF NON-APPEARANCE OF DEFENDANT: Cause the plaintiff to present evidence ex parte a nd for the court to render judgment on the basis thereof. whether of of securing picture. The advisability of a PRELIMINARY REFERENCE of issues to a commissi oner. the expiration of the period for filing the last pleading is sufficient . b. 7. Effect of failure to appear EFFECT OF NON-APPEARANCE OF PLAINTIFF: Cause for dismissal of the action. For purposes of the pr e-trial. The limitation WITNESSES. and 9. When the parties are unable to arrive at a stipulation of ag reed facts. Filoil Marketing Corp. Pre-trial b rief Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial. 2. 160 SCRA 133 (1988) QuickTime™ and a TIFF (Uncompressed) decompressor The process are needed to see this admissions. or summary judgmen t. but must be complemented by a showi ng of valid cause for the non-appearance of the party himself. is essentially voluntary. 5.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the motion he manifests his intention to have his counterclaim resolved in th e same action. NOTE: the mere presentation of such written authority is not sufficient. and this he must do upon the service and filing of the last p leading. Appearance of parties When non-appearance of a party may be excused: 1. is ess entially voluntary. Such OT HER MATTERS as may aid in the prompt disposition of the case. The property of RENDERING JUDGMENT on the pleadings. 2. or of dismissing the action should a valid ground therefore be found to exist . 4. RULE 18 PRE-TRIAL PRE-TRIAL – a mandatory conference and personal confrontation be fore the judge between he parties and their respective counsel. D y Pac & Co. The possibility of an AMICABLE SETTLEMENT or of a submission to alternative modes of dispute resol ution.

FACTORS TO BE CONSIDERED BY THE COURT 1 . and 2. Schedule of trial If plaintiff is absent. One who has an interest against both parties or 4. the court may dismiss the ca se The interest which entitles a person to intervene in a suit must be on the matte r in litigation and of such direct and immediate character that the intervenor w ill either gain or lose by the direct legal operation and effect of the judgment . a motion to intervene is barred. S ection 3. INTERVENTION An ancillary action Proper in any of the four situations mentione d in this Rule. One who has legal interest in the matter in liti gation Page 35 of 289 . Who may intervene 1. Whether the intervention will unduly delay or prejudice the adjudication of th e rights of the original parties. court may hear evidence of plaintiff ex parte PRE-TRIAL No settlement Amicable Settlement Failure to appear Agreements made by parties. INTERPLEADER An original action Presupposes that the plaintiff h as no interest in the subject matter of the action or has an interest therein wh ich in whole or in part is not disputed by the other parties to the action.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 A party is deemed to have waived the delimitations in a pre-trial order if he fa iled to object to the introduction of evidence on an issue outside of the pre-tr ial order. Time to intervene The motion to intervene must be filed at any time b efore the rendition of judgment by the trial court. QuickTime™ and a Section 2. Defe ndants are being sued precisely to implead them. TRIAL Court renders If evidence is sufficient to prove plaintiff’s cause of action or defendant’s counte rclaim. Complaint-in-intervention if intervenor a sserts a claim against either or all of the original parties. 2. Answer-in-inter vention Section 1.is a legal proceeding by which a third person is permitted by th e court to become a party by intervening in a pending action after meeting the c onditions and requirement set by the Rules of Court TIFF (Uncompressed) decompressor NOTE: Intervention is see this picture. Pleadings-in-intervention 1. The remedy of the movant is to file a separate action. Whether the in intervenor’s rights may be fully protected in a separate proceeding. when so required to attend. an inde pendent never are needed to proceeding but is ancillary and supplemental to an e xisting litigation. Hence the final dismissal of the principal action results in to dismissal of said ancillary action. Amendments to pleading. 2. One who is so situated as to be a dversely affected by distribution of other disposition of property in the custod y of the court or of an officer thereof. court rules in favor of either one or dismisses the case Defendants are already original parties to the pending suit RULE 19 INTERVENTION Intervention . NOTE: After rendition of jud gment. as well as in cross-examining the witness in regard to said evidence. If defendant is absent. One who has a legal interest in the success of either of the parties 3. even if the judgment itself recognizes t he right of the movant.

(Rule 136. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation pending within the Philippines. for the taking of h is deposition. Subpoena and subpoena duces tecum TWO KINDS OF SUBPO ENA 1. or 4. RULE 21 SUBPOENA Section 1. (Section 1) 2.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 if intervenor unites with the defendant in resisting a claim against the latter 1. a proper re medy is motion to vacate or set aside the subpoena. (Section 2) A subpoena is signe d by the Clerk of Court. the name of the court and 2. the judge or offi cer shall examine and study carefully such application to determine whether the same is made for a valid purpose. The officer or body authorized by law to do so in connection with its investigations conducted by said officer or body . the title of the action or investigation 3. the remedy of the party is Certiorari. (Section 3) Page 36 of 289 Section 4. reclusion perpetua or life imprisonment and (2) who is confined in any penal i nstitution shall be brought outside the penal institution for appearance or atte ndance in any court unless authorized by the Supreme Court. (and) shall be directed to the perso n required to attend. Form and Contents WHO ISSUES A SUBPOENA . RULE 20 CALENDAR OF CASES Section 1. The court before whom witness is required to attend. (Section 3) FORM AND CONTENTS OF A SUBPOENA DUCES TECUM 1. the name of the court and 2. (Section 2) The depo sition of a prisoner confined in prison may be taken only by leave of court on s uch terms as the court prescribes. Calendar of cases Section 2. Subpoena duces tecum – process directed to a person which requires him to b ring with him a. By who issued Section 3. at the hearing or the trial of an action. (and) shall be directed to the person required to attend. Answer to a complaint-in-intervention Within 15 days from notice of t he order admitting the same REMEDIES FOR THE DENIAL OF INTERVENTION 1. Assignment of cases. documents or things demanded which must appear to the court prima facie relevant. Appeal 2. Philippine Vegetable O il 39 Phil 60 (1918) If a subpoena duces tecum is improperly issued. The court of the plac e where the deposition is to be taken. or c. IF SUBPOENA IS ISSUED TO A P RISONER When application for a subpoena to a prisoner is made. TIFF (Uncompressed) decompressor conducted by at any investigatio n are needed to see this picture. documents. 2. It must contain a reasona ble description of the books. (Section1) Section 2. if there is grave abuse of discretion If there is improper granting o f intervention. 3. Section1) FORM AND CONTENTS OF A SU BPOENA AD TESTIFICANDUM A subpoena shall state: 1. or c. b. any books. (Rule 23. (Section 2) No prisoner (1) sentenced to death . 4. Mandamus. Subpoena ad testificandum – process directed to a person requiring him to attend and to testify a. Section 4) Liebnow v. other things under his control. competent authority. the title of the action or investigation 3. or Qui ckTime™ and a b.

docume nts or things demanded if subpoena duces tecum 3. in cases where the money deposited or invested is the subject matter of the litigation. upon order of a competent court in cases of bribery or dereliction of duty of public officials. the Comprehensive Dangerous Drugs Act of 2002 and hijacking. Witness fees and kilometrage allow ed by the Rules were not tendered when the subpoena was served. 1. violations of QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture. the original shall be exhibited and a copy thereof delivered to t he person on whom it is served. for the court to acquire jurisdiction and for the issues t o be joined SUMMONS Order to answer complaint a Served on the defendant Does not need tender of kilometrage and other fees Notic e of the date of the hearing of which he is required to attend May be issued mor e than once at anytime Page 37 of 289 . or 3. The relevancy of the books. (Section 6 SUBPOENA An order to appear and testify or to produce books and documents May be served to a nonparty Needs tender of kilometrage. b. (Section 4) 2. The witness is not bound thereby When is witness not bound? if witnes s resides more than 100 km from the place where he is to travel by the ordinary course of travel. the fees for one day’s attendance and the kilometrage allowed by these rules EXCEPT THAT. Quashing a Subpoena GROUNDS FOR QUASHING A SUBPOENA 1.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. this is subject to the provisi ons of Section11 of the Anti-Money Laundering Act which gives the Anti-Money Lau ndering Council the right to examine any particular deposit or investment upon o rder of any competent court in cases of violation of the AMLA but there is no ne ed for court order if such violation of the AMLA is related to kidnapping for ra nsom. or The perso n in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. 2. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. Service HOW IS SERVICE OF A SUBPOENA MADE? Service of a subpoena shall be made in the same manner as personal or substituted service of summons. if subpoena ad testifican dum. b. the tender need not be made. However. tendering to him a. documents or things does not appear. at or be fore the time specified therein c. if (grounds) It is unreasonable and oppressiv e. upon motion promptly made and. or 2. in any event. a written permission of the depositor. Subpoena ad testif icandum a. if he is a detention prisoner and no permission is obtained fr om the court in which his case is pending. when a subpoena is issued by or on behalf of the Republic of the Ph ilippines or an officer or agency thereof. in cases of impeachm ent. Subpoena for deposition Section 6. The witness fees and kilometrage allowed by the Rules w ere not tendered when the subpoena was served. cos t of production fees and attendance Notifies party that a complaint against him has been filed and that he should file an answer within a given period Issued on ly once at the start. Subpoena duces tecum The court may a. (Section 4) Sect ion 2 of RA 1405 provides in summary that bank deposits can only be examined whe n there is: 1. or 4. if su bpoena duces tecum. Section 5. fees for one’s days attendance subject to the same exception a s a subpoena ad testificandum the reasonable cost of producing the books. b.

Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Violation: default Violation: contempt indirect 2. the extension should be counted fro m the last day which is a Saturday. (Section 7) Section8. Sunday or a nonworking legal holiday in the plac e where the court sits. There are two instances: 1. (Section 9) ARE THERE ANY EXCEPTIONS TO COMPELLIN G ATTENDANCE OF WITNESSES ISSUED A QuickTime™ and a TIFF (Uncompressed) decompress or SUBPOENA AND FROM BEING HELD IN are needed to see this picture. 200 0) Page 38 of 289 . In case of a failure of a witness to attend. 1. or Legal Holiday and a Mot ion for Extension Filed on Next Working Day is Granted. A person present in court before a judicial officer may be re quired to testify as if he were in attendance upon a subpoena issued by such cou rt or officer. you exclude that day in the computation of the period and so the allowable period would be 11 days. or a legal holiday. if the witness reside s more than 100 kilometers from his residence to the place where he is to testif y by the ordinary course of travel (known as viatory right. Sunday. (Re: Computation o f Time when the Last Day Falls on a Saturday. the first day (or the day of the act or event from which the designated period is to run) shall b e excluded while the last day (the date of performance) shall be included. Since the motion to dismiss filed interrupts the period to file the answer. How to compute time HOW I S TIME COMPUTED? In computing any period of time prescribed or allowed by these Rules. the allowable period after such interruption shall start to r un after notice of the cessation of the cause of such interruption. Effect of Interruption WHAT IS THE EFFECT OF INTERRUPTION? If peri od is interrupted. to a detention prisoner if no permission of the court in which his case is pending is obtained. proof of the failure of the witness. proof of the service thereof and 2. Personal Appearance in court CAN A PERSON PRESENT IN COURT BE REQUIRE D TO TESTIFY? YES. or legal holiday. Compelling Attendance Section 9. the court or judge issuing the subpoena. may issue a warrant to the sheriff of the province. Sunday. No. (Section 8) If the failure to attend was willful and withou t just cause. w hat is the balance of his allowable period? ANSWER: 11 days. CONTEMPT OR P UNISHED FOR DISOBEDIENCE? YES. Whe n the last day of the period falls on a Saturday. A. it shall be deemed as contempt of the court fro m which the subpoena is issued (Section 9) What if the subpoena was not issued b y the court? The disobedience to the subpoena shall be punished in accordance wi th the applicable law or Rule. to arrest the witness and bring him before the court or officer where his att endance is required. (Section 1) Section 2. 00-2-14-SC. or his deput y. upon: 1. Contempt C AN THE COURT COMPEL THE ATTENDANCE OF A PERSON TO WHOM A SUBPOENA HAS BEEN ISSUE D? YES. the cost of the warrant and seizure of such witness shall be pa id by the witness (Section 8) 2. (Section 10) Section 7. time shall not run until the next working day. or by order of the court. QUESTION: If the defendant files a motion to dismiss on the fifth day. or RULE 22 COMPUTATION OF TIME Section 1.M. If th e last day falls on a Saturday. applicable only in c ivil cases). The day of t he act that caused the interruption shall be excluded in the computation of the period. and a party is granted an extension of time. or by any applicable statute. a Sunday.

Physical and ment al examination of persons (Rule 28) LIMITATIONS TO MODES OF DISCOVERY 1. at a later date. or things (Rule 27) 6. 1999) PURPOSES OF TAKING DEPOSITI ONS 1. or things in his possession or power. 92 (1994)] PURPOSE OF THE MODES OF DISCOVERY 1.M. as a device for ascertaining the facts relative t o those issues 3. however. No. Aug. Irrelevant 4. Privil eged matters Using of the modes of discovery is highly encouraged by the court. It is a pre-trial discovery device by which one party (through h is or her attorney) asks oral questions of the other party or of a witness for t he other party.” (Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures. 2. 03-1-09-SC. The witness (including a party) is examined while his memory is fresh: b. Webb. in order to maintain the right or title of the party asking it. 2004) RULE 23 DEPOSITIONS PENDING ACTIONS DEPOSITION – is the testimony of a witness tak en upon oral examination or written interrogatories. and intended to be used in preparation and upon the trial of a civil or crimin al prosecution. but in p ursuance of a commission to take testimony issued by a court. It is of great assistance in ascertaining the truth and in checking and p reventing perjury. 238 SCRA 88. Ltd. (Rule 35) BILL OF PA RTICULARS To make ultimate facts more definite. Admission by adverse party (Rule 26) 5.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 MODES OF DISCOVERY (RULES 23-29) DISCOVERY – disclosure of facts resting in the kn owledge of the defendant. subject to the inquiry. not to supply evidentiary matter s To prepare for responsive pleading MODES OF DISCOVERY To discover evidentiary facts To prepare for (abbreviates trial) trial and request for admission by adve rse party under Rule 26 or at their discretion make use of depositions under Rul e 23 or other measures under Rule 27 and 28 within 5 days from the filing of the answer shall be served upon the defendant together with the summons and upon th e plaintiff. MODES OF DISCOVERY UNDER THE RULES OF COURT 1. When it ca n be shown that the examination is being conducted in such a manner as to QuickT ime™ and annoy. When it can be shown that the examination is being conducted in bad faith 2. A . (People v. c. CA. The witness (including a party) is gen erally not coached in preparation for a pre-trial oral examination with the resu lt that his testimony is likely to be more spontaneous. Denial of Bills of Particulars does not bar the use of the Modes of Discovery. Interrogatories to parties (Rule 25) 4. or as production of deeds. and reduced to writing and duly authenticated . Depositions before action or pending appeal (Rule 24) 3. Depositions pend ing action (Rule 23) 2. readily manufacture tes timony in contradiction to his deposition. I t is cumulative. The reasons for this are: a. Production or inspection of documents. not in open court. writings. “A copy of the order of the court requiring the parties to avail of interrogatorie s to parties under Rule 25 Page 39 of 289 . in a suit or proceeding.. or under a general law or court rule on the subject. 16. Where the examination is upon written interrogatories. to support a motion for summary judgment. A party or witness whose deposition has been taken at a n early stage in the litigation cannot. v. to narrow and clarify basic issues between the parties. 312 SCRA 573. 3. or aoppress the person are needed to see this picture. [Insular Life Assurance Co. TIFF (Uncompressed) decompressor embarrass. it appears that some lawyers furnish the witness with copies of the interrogatories and thereby enable him to prepare hi s answers in advance.

Depositions upon Written Interrogatories (Secs. a general description sufficient to identify him or the particular cl ass or group to which he belongs. his deposition is available. For deposition upon written interrogatories a.R. It expedites the disposal of litigation. when may be t aken QuickTime™ and WHAT TO FILETIFF(SECTION 1) aressor (Uncompressed) decomp are neede d to see this picture. WHEN MAY DEPOSITIONS BE TAKEN? 1. except with great difficulty and sometimes not a t all. After an answer has been served. so that if a witness unexpectedly dies or becomes una vailable at the trial. I f unknown. the name and address of each person to be examined. Section 7) Th e party must make a motion for leave to take deposition in the court which rende red judgment and give notice in writing to every other party to the action 2. G. (Fortune v. thereby encouraging settlements out of court. if known. 4. It educates the parties in advance of trial as to the real value of their claims and defenses.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 d. (R ule 24. 108119 . It makes available in a simple. and sham claims and defenses. 1-14) Section 1. IAC. 2. Section 3) At least 20 days before the date of the hearing. For a deposition upon oral examination (Section 15) a. Depositions on Oral Examinations (Secs. fraudulent. convenient. The name or desc riptive title and address of the officer before whom the deposition is to be tak en Proof of service of a notice to take a deposition as provided in Sections 15 and 25 of Rule 23 shall constitute sufficient authorization for the issuance of subpoenas for the persons named in Page 40 of 289 . 7. the court may for cause shown enlarge or shorten the time) and b. and narrows a nd simplifies the issues to be tried. the court shall cause notic e thereof to be served on the parties and prospective deponents in the manner pr ovided for service of summons. Notice to take Oral Deposition or Written Interrogato ries (Without Leave of Court) CONTENTS OF THE NOTICE 1. the time and place for the taking of the deposition (upon motion of any party u pon whom the notice is served. 15-2 4) 2. It facilitat es both the preparation and trial of the cases. saves the time of the courts. It is an effective means of detecting and exposing false. 25-28) GENERAL PROVISIONS ON DEPOSITIONS (Secs. Depositions in Perpetuam Rei Memoriam – those taken to perpetuat e evidence for purposes of an anticipated action or further proceedings in a cas e on appeal KINDS OF DEPOSITIONS 1. prevents delays. Motion to Take Oral Deposition or Written Interrogatories (By Leave of Court) 2. Section 15) Deposition the petitioner shall serve a notice befor e upon each person named in the action petition as an expected adverse party. thereby expediting the trial. It safeguards against surprise at the trial. Testimony is preserved. together with a copy of the petition stating the time and place. After jurisdiction has been obtained over any defendan t or over property which is the subject of the action but before answer. Depositions pending action. No. 6. Deposition De Bene Esse – taken for purposes of pending action 2. and clears the docket of many cases by settlements and dismissals which otherwise would have to be tr ied. and often inexpensive way facts which otherw ise could not have been proved. Deposition pending appeal (Rule 24. The names and address of the person who is to answer and b. 3. 1. 5. 1994) NOTICE AND SERVICE Deposition a party desiring to take a deposition pend ing shall give reasonable notice in writing action to every other party to the a ction (Rule 23.

Party offering the deposition has been unable to procure the attendance of the witnes s by subpoena. 16 and 18) Section 3 . it may be used in an action involving the same subject matter. however. description. not restricte d by protective order or motion to limit examination (Secs. candidate voted for except in an election case 2. or is out of the Philippines. DEPOSITION AFFIDAVIT Written testimony of witness Mere sworn written in course of judicial statements proceedings. the deponent may be examined rega rding ANY MATTER (should concur) 1. The clerk shall not. (Cross reference to Rule 24 Section 6 and 7) For depositions before action . the list of privileged communication is no t exclusive. upon hearing of a motion. infirmity.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 said notice by the clerk of court of the place in which the deposition is to be taken. Examination and cross-examination may proceed as permitted at the trial under Sections 3 to 18 of Rule 132. condition. nature. in advance of t rial and hearing QuickTime™ and a TIFF (Uncompressed) decompressor parte Opportuni ty for neededcross. Section 1) Any part or all of a deposition. privileged communication ( Rule 130. Section 24) husband and wife attorney and client doctor and patient pu blic officer priest and confessant b. that such exceptional circumstanc es exist as to make it desirable. Scope of Exa mination WHAT IS THE SCOPE OF EXAMINATION? Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule. in the interest of justice. and with due regar d to the importance of presenting the testimony of witnesses orally in open cour t. res ult of census. (Rule 23 . to cont radict or impeach the deponent’s testimony as a witness b. issue a subpoena duces tecum to any such pe rson without an order of the court. before action and pending ap peal. or imprisonment. not privileged a. or tangible things and the identity and loc ation of persons having knowledge of relevant facts (Section 2) 3. Secti on 6) For depositions pending action or pending appeal.pictEx statements are to see this ure. m ay be used against any party who was present or represented during the taking of the deposition or who had notice thereof in accordance with any one of the foll owing provisions: 1. (Rule 24. non-disclosure of trade secrets. custody. which is admissible in evidence. documents. whether relating to the claim or defense of any other party. Page 41 of 289 . Section 5) Section 2. Witness is unable to testify because of age. sickness. examination without f ormal interrogation and cross-examination Can be competent Not admissible in tes timonial evidence evidence except in cases governed by the Rule on Summary Proce dure Section 4. or an interlocutory proceeding. relevant to the subject of the pending action. Ex : secrecy of bank deposits. including the existence. Use of depositions WHAT ARE THE USES OF DEPOSITIONS? Rule 23 Sec tion 4 is applicable in depositions pending action. Witness resides at a distance more than 100 k m from place of trial or hearing. deposition of a witness – may be used by any party a. depositions may be used at the trial. UNLESS it appear s that absence of witness is procured by party offering the deposition. to allow the deposition to be used. a nd location of any books. (Rule 21. or upon application and notice. for any purpose if the court finds that: Witness is dead.

and any party may introduce any other parts. (Cross reference to Rule 24 Section 6 and 7) Substitution of parties does not affect the right to use depositions previously taken. when an act ion has been dismissed and another action involving the same subject is afterwar d brought between the same parties or their representatives or successors in int erest. Rebutting depositions WHAT IS THE EFFECT OF TAKING DEPOSITIONS? A party shall not be deemed to make a person his own witness for any purpose by taking h is deposition. (Section 9) Sect ion 7. adverse party may require that all of it which is relevant to the part introduced be introduced. consular agent of the Philippines. you do not make the deponent automatically your witness. director. In foreign countries a . vice-consul. If only part of the deposition is introduced. Persons before who depositions may be ta ken in foreign countries BEFORE WHOM MAY DEPOSITIONS BE TAKEN 1. or managing agent of a public or private corporation – ma y be used by an adverse party for any purpose 3. (Se ction 4) Where the witness is available to testify and the situation is not one of those excepted under Section 4. Before such person or officer as may be appointed by commission or under letters rogat ory Page 42 of 289 . Any person authorized to administer oat hs if the parties so stipulate in writing (Section 10) 2. (Section 6) And it is al so at trial or hearing when any party mayQuickTime™ and a relevant evidence rebut any TIFF (Uncompressed) decompressor are needed to see this picture. Effect of using depositions Sec tion 9. Notary public c. and. Why is an ambassador not inc luded? Because an ambassador is only concerned with political matters. Any Judge b. cons ul. contained i n a deposition whether introduced by him or by any other party. his deposition is inadmissible in evidence an d he should be made to testify. Effect of Substitution of Parties WHAT IS THE EFFECT OF SUBSTITUTION OF PARTIES TO DEPOSITIONS PREVIOUSLY TAKEN? Rule 23 Section 5 is applicable in depositions pending action. Persons before who depositions may be t aken within the Philippines Section 11. Deposition of an officer of a corporation (p ar. BUT: the introdu ction in evidence of the deposition or any part thereof makes the deponent the w itness of the party introducing the deposition (Section 8) EXCEPTIONS to Section 8: 1. deposition of any party. before a secretary of any embassy or legation. Section 10. Section5. Deposition of your opponen t does not make him your witness 3.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefore. b. Effect of taking depositions ] Section 8.(b) Section4) Defendant may present witness even if it was the plaintiff who took the witness’s deposition. Obj ections to admissibility WHEN ARE OBJECTIONS TO ADMISSIBILITY OF DEPOSITION MADE ? Objection may be made at the trial or hearing to receive in evidence any depos ition or part thereof for any reason which would require the exclusion of the ev idence if the witness were then present and testifying. On notice. consul-general. (Section 7) Deposition is a mode of discovery and so it is possib le that you will not use the deposition as part of your evidence and so by takin g depositions. (Section 5) Section 6. before action and pend ing appeal. Deposition is used to impeach or contradict 2. A party may refuse to present witness even if his deposition was taken. or anyone who at the time of taking the deposition w as an officer. Within the Phil ippines a.

GROUNDS FOR NOT TAKING A DEPOSITION 1. Commission or letters rogatory COMMISSION LETTERS ROGATORY Issued on ly when necessary or convenient. Employee ofQuickTime™ and a party’s counsel TIFF financiallyd ecompressor (Uncompressed) interested in the action 6. a witness who is within the jurisdiction of the judge or court to whom such l etter is addressed Applicable rules of procedure are those of the requesting cou rt Resorted to if permission of the foreign country is given Leave of court is n ot necessary. This is implic it in the provisions of the Rules of Court cited by appellants themselves. 1 July 1993 The right of a party t o take depositions as means of discovery is not exactly absolute. it may be taken only at Page 43 of 289 . (Secti on 11) Autographics. Em ployee of any party 3. to protect a party or witness from annoyance. Relative within the same degree o f any party’s counsel 5. Inc. Section 15. v. Counsel of any party 4. Disqualification by interest WHO ARE DISQUALIFIED TO TAKE DEPOSITION S? 1. embarrassment or opposition (Secti on 16 and 18) The court in which the action is pending Makes an order that: 1. or oppress the deponent or party The court in which the action is pending or the RT C of the place where the deposition is being taken Orders the officer conducting the examination to Section 12. these provisions expressly authoriz e the court to either prevent the taking of a deposition or stop one that is alr eady being taken. deposition shall not be taken 2. embarrass. In such instances. Any person authorized to administer oaths if the parties so stipulate. Depositions upon oral examination. secti ons 16 and 18 of Rule 24. CA. and on such terms an d with such direction as are just and appropriate An instrument issued by Instru ment sent in the the court of justice or name and by authority of tribunal to au thorize a a judge or court to person to take another judge or court depositions or to do any requesting the latter to other act by authority of custody examine upon such court or tribunal interrogatories filed in a case pending in the forme r. not relevant (Section 1) 2. on motion or petition of any party or of the deponent and upon a showing that the examination is being c onducted in bad faith or in such manner as unreasonably to annoy. Orders for the protection of parties and deponents PROTECTIO N ORDERS OF PARTIES AND DEPONENTS (Section 16 and Section 28) After notice is se rved for taking a deposition upon motion seasonably made by any party or by the person to be examined and for good cause shown (which means it will be done befo re the taking of the deposition) MOTION TO TERMINATE OR LIMIT EXAMINATION (Secti on 18) At any time during the taking of the deposition. GR No.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 c. Anyoneare needed to see t his picture. Relative within 6th degree of consanguinity or affinity of any party 2. notice.95863. Applicable rules of procedure are those of the foreign court reque sted to act Resorted to if the execution of the commission is refused in the for eign country Leave of court is necessary. time an d place Section 16. on application and notice. Section 13.

require ment to pay such costs or expenses as the court may deem reasonable Section 17. 10. the officer shall sign it and state on the record the facts of the wa iver or of the illness or absence of the witness or the fact Page 44 of 289 3. If the deposition is not signed by th e witness. In lieu of p articipating in the oral examination. who shall propound them to the witness and record the answers verbatim. or that the parties shall simultaneously file specified documents or information enclosed in a seal ed envelope to be opened as directed by the court. Furnishing Copies PROCEDURE FOR TAKING ORAL DEPOSITION S 1. or that it shall not be taken before the officer designated in the notice (Section 28) any other order which justice requires to protect the party or witness from annoyance. Certification and filing by officer Section 21. All objections made at the time of the examination to the qualifications of the officer taking the deposition. 7. Submission to witness. parties served with notice of taking a dep osition may transmit written interrogatories to the officers. oath. objections (Section 17) The officer before who m the deposition is to be taken shall put the witness on oath and shall personal ly. Not ice of Filing Section 22. or to the manner of tak ing it. and any ot her objection to the proceedings. signing Section 20. objections Section 18. embarrassment. the court may QuickTime™ and a TIFF (Uncompressed) decompressor impose u pon either party or upon the witness the are needed to see this picture. Upon demand of t he objecting party or deponent. Submission to witness. Section 19. 9. Motion to . shall be noted by the officer upon the deposit ion. 4. 6. it shall be resum ed only upon order of the court in which the action is pending. Evidence objected to shall be taken subject to the objections. signing (Section 19) When the testimony is fully transcribed. developments. Record of examination. unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. the depos ition shall be submitted to the witness for examination and shall be read to or by him unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shal l be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. or to the evidence presented. or to the conduct of any party. The testimony shall be taken stenographically unless the parties agree otherwise. or research need not be disclosed. oath. In granting or refusing su ch order. 5. or may limit the scope and manner of the taking of the deposition. changes. or by some one acting under his direction and in his presence. examination Record of Examination. 2. or oppression cease forthwith from taking the deposition. the deposition shall be opened only by order of the court that secret processes. record the te stimony of the witness. changes. the taking of the deposition shall be suspended for the time necessary to make a notice for an order.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 some designated place other than that stated in the notice it may be taken only on written interrogatories or only upon oral examination certain matters shall n ot be inquired into the scope of the examination shall be held with no one prese nt except the parties to the action and their officers or counsel that after bei ng sealed. The deposition shall then be signed by the witness. 8. If the order made under Section 18 terminates the examination.

terminate or limit .

Section 23. (Section 26) 5 . unless a motion to suppress is f iled. Within 3 days after being served with redirect interrog atories. including reasonable attorney’s fees. 4. within 10 days thereafter. in the manner provided by sections 17. the party so served with the notice may serve cross-interrogatories upon the party proposing to take the deposition. (Se ction 23) Section 24. the party proposing to take the depositio n may serve re-direct interrogatories upon a party who has served cross-interrog atories. After servic e of notice. Within 5 days thereafter. When a deposition upon interrogatories is filed. Certification and filing by off icer (Section 20) The officer shall certify on the deposition that the witness w as duly sworn to by him and that the deposition is a true record of the testimon y given by the witness. SUBPOENA UPON THE WITNESS? If another party attend s in person or by counsel because he expects the deposition of that witness to b e taken and the witness fails to attend because of the failure of the party givi ng notice to serve a subpoena upon the witness. Failure to attend of party giving notice WHAT HAPPENS IF A PARTY GIVING THE NOTICE OF THE TAKING OF THE DE POSITION FAILS TO ATTEND AND PROCEED WITH THE TAKING OF DEPOSITION? If the party giving the notice fails to attend and proceed therewith and another attends in person or by counsel pursuant to the notice. Noti ce of filing (Section 21) The officer taking the deposition shall give prompt no tice of its filing to all the parties. to take the testimony of the witness in response to the interrogatories and to prepare. and may furnish copies to them o r to the deponent upon payment of reasonable charges therefore. interrogatories Deposition upon wri tten service of notice and Section 26. (Section 27) Sec tion 29. As to d isqualification of officer – waived unless made before the taking of the depositio n begins or as soon thereafter as Page 45 of 289 . He shall then securely seal the deposition in an envelop e endorsed with the title of the action and marked “Deposition of (here insert the name of witness)” and shall promptly file it with the court in which the action i s pending or send it by registered mail to the clerk thereof for filing. then the same consequence as abo ve. a party may serve recross-interrogatories upon the party proposing to t ake the deposition. Failure of party giving notice to serve subpoena HOW ABOUT IF THEQuickTime™ and FAILS TO SERVE A PARTY a TIFF (Uncompressed) decompressor ar e needed to see this picture. As to notice – waived unless written objection is promptly served upon the party giving the notice 2. 5. and 20 of th is Rule. Effect of errors and irregularities in depositions WHAT ARE THE EFFECTS OF ERRORS AND IRREGULARITIES IN THE DEPOSITIONS? 1. (Se ction 24) 2. 19. the court may order the party givin g the notice to pay such other party the amount of the reasonable expenses incur red by him and his counsel in so attend. Notice of filing and furnishing copies Section 28. Orders for the protection of parties an deponents PROCEDURE FOR DEPOSITION UPON WRITTEN INTERROGATORIES 1. the court holds that the reasons given for the refusal to sign require rej ection of the deposition in whole or in part. if any. and the deposition may be used fully as though signed.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of the refusal to sign together with the reason given therefore. attaching thereto the copy of the said notice and the interrogatories received by him. the officer taking it shall p romptly give notice thereof to all the parties. the officer shall furnish a copy of the de position to any party or to the deponent. Furnishing copies (Section 22) Upon pa yment of reasonable charges therefor. (Section 24) 3. A copy of the notice and copies of all inter rogatories served shall be delivered to the officer designated in the notice who shall proceed promptly. Officers to take responses and prepare record Section 27. (Section 24) Section 25 interrogatories. certify. (Section 24) 4. and file or mail the deposition. 3.

contents of which are: The petition shall be entitled in th e name of the petitioner and shall show: 1. 27 Nov 1998 A trial court has no discre tion to determine what the consequences of a party s refusal to allow or make di scovery should be. the reason for perpetuating their testimon y (Section 7) What to file? a verified petition. 3. sealed. subject are neede o se e his interest therein. G. As to form of written interrogatories w aived unless served in writing upon the party propounding them within the time a llowed for serving succeeding cross or other interrogatories and within 3 days a fter the service of the last interrogatories authorized. transmitted. and 3. As to manner of prepara tion . Object ions to cross interrogatories can made within 5 days. the names and addre sses of the persons to be examined and 2. Objections to re-direct interrogatories can made within 3 days. 2. signed. (Section 29) RULES ON OBJEC TIONS 1.errors as to manner in which the testimony is transcribed or the depositi on is prepared. Objections to direct interrogatories can made within 10 days. the facts which he desires to establish by the propos ed testimony and his reasons for desiring to perpetuate it. or with due diligence might have been. No. in oath or affi rmation.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the disqualification becomes known or could be discovered with reasonable dilige nce As to competency or relevancy of evidence . and it is grave abuse of discretion for the Court to refuse to recognize and observe the effect s of that refusal as mandated by law. removed. 131466. 3. or in conduct of parties. 4. 4. ascertained. in the form of questions and answers. the substance of the testimony which h e expects to elicit from each. and 5. the names or a de scription of the persons he expects will be adverse parties and their addresses so far as known. be be be be 3. contents of which are: 1.Errors occurring at the oral examination in the manner of taking the deposition.NOT waived by failure to make th em before or during the taking of the deposition. indorsed. unless ground is one which mig ht have been obviated or removed if presented at that time As to oral examinatio n and other particulars . RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL Who apply? can DEPOSITIONS B EFORE ACTION A person who desires to perpetuate his own testimony or that of ano ther person regarding any matter that may be cognizable in any court of the Phil ippines (Section 1) DEPOSITIONS PENDING APPEAL Any person can perpetuate their t estimony for use in the event of further proceedings in the said court (Section 7) motion upon notice and service. the names and addresses of the persons to be examined an d the substance of the   . filed or other wise dealt with by the officer are waived unless a motion to suppress the deposi tion or some part of it is made with reasonable promptness after such defect is. it is the law which makes that determination. d tthe this picture. Hon. QuickTime™ and a TIFF (Uncompressed) decompressor matter of the expected action and 2. 4. certified. and errors of any kind which might be obviate d. Diman v. that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to brin g it or cause it to be brought. Alumbres. 5. Objections to re-cross interrogatori es can made within 3 days. 6.R. cured if promptly prosecuted are waived unless reasonable objection is made at the taking of the deposition.

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(Section 1. i ncluding the Court of Appeals in proper cases. Depositions before action is only applicable in ci vil cases. with notice as in cas e of a motion. des ignate or describe the persons whose deposition may be taken and 2. If an answer has NOT YET BEEN served. before the taking of an app eal if the time therefore has not expired (Section 7) If the court finds that th e perpetuation of the testimony is proper to avoid a failure or delay of justice . (Section 4 & 7) INTERR OGATORIES Disclosure of matters of proof May be made part of the records as evid ence BILL OF PARTICULARS Disclosure only of matters which define the issues Beco me a part of the pleadings RULE 25 NTERROGATORIES TO PARTIES Section 1 Interrogatories to parties. Section 4) Section 2. which shall: 1. (Section 3) 15 days to answ er. which shall be set at an early time. If an appeal has been taken from a judgment of a court. service thereof WHO CAN APPLY? ANY PARTY desiring to elicit material and relevant facts FROM ANY ADVERSE PARTY shall file and serve upon the latter written interrogator ies to be answered by the party served. Quic kTime™ and a you need leave TIFF (Uncompressed) this picture. Answer to interrogatories WHAT IS THE FORM OF AN ANSWER TO INTERROGAT ORIES? 1. you still have 5 days to fil e an answer. partnership or association. (Section 2) Section 3. (Rule 129. answered fully in writing and 2. (Section 1 & 2) in the court of the place of the residence of any expected adverse party ( Section 1) Before the action. specify whether the depositions shall b e taken upon oral examination or written interrogatories. shall ask for an order au thorizing the petitioner to take the depositions of the persons to be examined n amed in the petition for the purpose of perpetuating their testimony. specify the subject matter of the examination and 3.Civil Procedure Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 testimony which he expects to elicit from each. so that the answers may constitute judicial admissions. 10 days to object. (Section 1) DO YOU NEED LEAVE OF COURT FOR WRITTEN INTERROGATORIES? DEPENDS. signed and sworn to by the person mak ing them. answer HAS BEEN of c ourt. Page 47 of 289 . and answers shall be deferred until the objections are resolved. Where to apply? When to file? Court order and examination the court in which the judgment was rendered (Section 7) At any time before judg ment becomes final: 1. In case objection is denied. If the person served is a private or pub lic corporation. as practicable. then it will be answered by any off icer competent to testify in its behalf. and 6.tobutdecompressor if the are needed see served. it may make an order allowing the depositions to be taken. Objections to interrogatories WHEN DO YOU MAKE OBJECTIONS TO INTERROGATORIES? Objections to any interrogatories may be presente d to the court within ten (10) days after service thereof. then you do not need leave of court. cross refer to Rule 23 Section 1) Interrogatories and the answers thereto should be filed in court and served on adverse parties. or 2.

Scope and use of interroga tories Section 6. for good cause shown and 2. whose purpose is to establish said party’s cause of action or defense . Under this rule. Request for admission Purpose of written request for admission To exp edite trial and relieve the parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable in quiry What request may include: 1. or copied there in. serve more than one set of interrogatories to be answered by the SAME party. recross. Section 5) 15 days to answer unless extended or reduced by the RULE 26 ADMISSION BY ADVERSE PARTY Intervention by the Court With intervention of the of fice who is authorized to take the deposition court No intervention since interr ogatories are directed to the party himself Section 1. Number of interrogatories HOW MANY INTERROGATORIES CAN YOU FILE? No p arty may. compelled by the adverse party to give testim ony in open court. without leave of court.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 4. (Section 4) Section 5. Admission of the genuineness of any material and relevant document described in and exhibited with the request 2. Admission o f the truth of any material and relevant matter of fact set forth in the request 3. cross. particularly the adverse party Same (Rule 25. or documents described in and exhibited with the request. UNLESS thereafter allowed by the court 1. If not denied under oath in accordanc e with Section 2. Court of Appeals 164 SC RA 668 (1998) A request for admission is not intended to merely reproduce or rei terate the allegations of the requesting party’s pleading but should set forth rel evant evidentiary matters of fact. You just serve QUESTIONS Any person. Section 5) Same ( Rule 25. redirect. Distinguished from Written Interrogatories Page 48 of Procedure Deponents Coverage Uses Interrogatories . its genuineness it deemed admitted. Effect of failure to serve written interrogatories WHAT IS THE EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES? A party not served with wri tten interrogatories may not be 1. a matter of fact not related to any documents may be presen ted to the other party for admission or denial Distinguished from Rule on Action able Documents A request for admission is proper when the genuineness of an evid entiary document is sought to be admitted. Po v. the original or a copy should be attached to the complaint. to prevent a failure of just ice (Section 6) WHAT IS THE EFFECT TO FAILURE TO ANSWER INTERROGATORIES? Case ma y be dismissed or a judgment by default may be given Depositions under Written u pon Written Interrogatories (Rule 23) Direct. If the document is actiona ble. Section 4 No fixed time Interrogatories to Parti es (Rule 25) File and serve questions and the party has to answer them Only a pa rty to the case. or 2. either party or witness Any matter as long as relev ant and not privileged Rule 23. to give a deposition pending appeal. and its genuineness and due execution is deemed impliedly admitted unless sp ecifically denied under oath by the adverse party.

Section 3. If an adverse party denies a fact within his personal knowledge. Section 5. Objections on the ground of irrelevancy or impropriety of the matter re quested shall be promptly submitted to the court for resolution. or control Contents of the Order a. Documents should not be privileged 2. control. The amendment of the comp laint per se cannot set aside the legal affects of the request for admission sin ce its materiality has not been affected by the amendment. Section 4. Motion for production or inspec tion. Rule only applicable to: a pen ding action and the documents or things subject of the motion must be only those within the possession. If facts are admitted or deemed admitte d. Implied admission The motion for extension of time to answer the requ est for admission should be served on the adverse party but need not be set for hearing. Withdrawal. a party may present evidence regarding said fact even if he failed to file a request for adm ission. order Purpose of the rule This rule is not intended for use as a dragnet o r any fishing expedition. Effect of failu re to make a reply to a request for admission Each of the matters of which an ad mission is requested is deemed admitted.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WRITTEN INTERROGATORIES Adverse party or witness NOT required to deny or admit a nything Written request must be filed in court and served on the adverse party M ust be objected within 10 days (Rule 25) REQUEST FOR ADMISSSION Adverse party on ly Required to admit or deny something Written request must be filed in court an d served on the adverse party Must be objected within 15 days RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1. Shall specify the time. or custody of a party Limitations of the Order 1. This rule is also not intended to open all of a party’s records to other party on vague chance than they might contain some material rel evant to some theory advanced by the other party. Remedy of the party File a motion to be relieved of the consequences of the implied admission. Effect of failure to file and serve request for admissio n. Page 49 of . Ma y prescribe such terms and conditions which are just. Paragraph (b) applies to R eal/Personal property Distinguished from Subpoena Duces Tecum PRODUCTION OR SUBP OENA DUCES INSPECTION OF TECUM DOCUMENTS OR THINGS Essentially a mode of Means o f compelling discovery production of evidence The Rules is limited to the May be directed to a parties to the action person whether a party or not The order und er this Rule May be issued upon an is issued only upon motion ex parte applicati on with notice to the adverse party Section 2. and which are in his (the party ordered) possession. Effect of admission Use of the admission An admission under this section is for the purpos e of the pending action only and cannot be used in other proceedings. place and manner of making the inspection and taking copies AND b. party may move for summary judgment. Documents constitute or contain evidenc e material to any matter involved in the action. custody.

Section 2. Complete other matters 2. including attorney’s fees (if it finds the application to be without substantial justification) Where to file for the order to compel RULE 2 3 Depositions pending actions – application for an order must be filed with the co urt of the place where the deposition is being taken RULE 25 Interrogatories to parties – application for an order must be filed with the court where the action i s pending Remedies 1. the same are not covered by the physi cian-patient privilege. place. ma nner. In a petition for guardianship on the ground of insanity. Rule 130 – Since the results of the e xamination are intended to be made public. What is good cause When the ends of justice so require and the examination may be made without danger to the party’s life or health or the infli ction upon him of serious pain. Examples of Mental or Physical Condition of a party in controversy: 1. includi ng the attorney’s fees (if it finds the refusal to answer without substantial just ification) ii. the physical condition of the plaintiff in controversy 2. RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Section 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 1. The court may then order: i. and shall specify the time. Refusal to answer. Section 4. Ref usal to answer If a party or other deponent refuses to answer any question upon oral examination. The Court must fi rst determine whether a physical examination is necessary. The defendant seeking physical examination of a plaintiff has no absolute right to choose his own physician. The refusing p arty or his counsel to pay the expenses incurred in obtaining the order. . the mental condition of the ward is in controversy Section 24(b). Adjourn 3. NOT witnesses. Other consequences Other consequences If a party/officer or managing agent of a party refuses to obey an order requiring him: Page 50 of . In an action to recover damage s for personal injury. and upon notice to the part y to be examined and to all other parties. Apply to court for or der Section 2. The proponent or his counsel to pay the expenses incurred in oppo sing the application. The proponent may apply to the cou rt for an order to compel an answer. Section 3. Report of findings Discretion of Cour t The Court exercises full discretion in regulating physical and mental examinat ions of a party to a controversy. Waiver of privilege. then determine the ph ysician who shall conduct the examination. conditions and scope of the examination and the person or persons by whom it is to be made. the examination may be completed on other matters or adjourned as the proponent of the question may prefer. When examination m ay be ordered This applies only to parties. Order for examination The order for examinati on may be made only: on motion for good cause shown. Contempt of court Contempt of court: If a party or other witness: refuses to be sworn or refuses to answer any question after being directed to d o so by the court of the place in which the deposition is being taken Section 3.

Judgment by Confession 5. including attorney’s fees. Judgment on Compromise 4. after being served with a proper notic e. Expenses against the Republic of the Philippines RULE 30 TRIAL TRIAL It is the judicial process of investigating and determining the legal controversies. Facts will be dee med established (Section3 par. order him to pay reasonable expenses incurred by the oth er. That the matters regarding which the questions were asked. or fails to serve answers to interrogatories submitted under Rule 25 after pr oper service of such interrogatories. may: strik e out all or any part of any pleading of that party. (Section1) 3. c. Contempt (Section2) 4.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. Insular Life Assuarance Co. Pay expenses Arr est (Section3 par. To submit to a physical or mental examination The cou rt may order: a. th e court may: a..(c)) Section 4. however. Strike out all or any part of any pleading of that party. Ltd. v. The dismissal of the action or p arts thereof d. or t he character of the land or the thing. SANCTIONS: 1. The court on motion and notice. Affect disposition of the case (Section3 par. and in its discretion. they are not contemplated. To produce a thing for inspection or to per mit entry upon property c. A decision should not be made without trial EXCEPTIONS: 1. CA 238 SCRA 88 (1994) The matter of how. Judgment with Prejudice (Rule 17) Page 51 of . The prohibition of the disobedient party to present evidence. Enter a judgment by default against that party. Rendering judgment by default against the disobedient party OR e . For wh ile the modes of discovery are intended to attain the resolution of litigations with great expediency. In lieu of any of the foregoing orders or in addition thereto. starting with the production of evidence by the plainti ff and ending with his closing arguments GENERAL RULE: There should be a trial w hen an issue exists. Dis miss the action or any part thereof. includin g attorney’s fees. b. Section 6. or the physical and mental condition of t he party be taken to be established. ultimately to be of i njustice.(a)) 5. and when. Order that party to pay reasonable expenses incurred. Prohibiting from introducing evidence (Sec tion3 par. Summary Judgment (Rule 35) 3. Judgment on the Pleading (Rule 34) 2. EXCEPT an order to submit to a physical or mental examination. E xpenses on refusal to admit Failure of party to attend or serve answer If a part y or an officer or managing agent of a party willfully: fails to appear before t he officer who is to take his deposition. The arrest of any party or agent EXCEPT in disobeying an order to submit to a physical or mental examination If a party refuses to attend or serve answers. OR/AND d.(d)) 2. or dismiss the action or pr oceeding or any part thereof. the above sanctions should be applied is on e that primarily rests on the sound discretion of the court where the case pends .(b)) 6. The disallowance of the disobedient part y’s claims c. or enter a judgment by default against that party. NOTE: Orders enumerated above are NOT exclusive. The st riking out of the pleadings or parts thereof d. an order directing the arrest of any party or agent of a party for disobeying an y of such orders. To answer designated questions b. b. having always in mind the paramount and overriding interest of justice.

That th e character of his illness is such as to render non-attendance excusable. 1. continues with hearing After presentation of evidence. a reverse order of trial is proper Se ction 6. Adjournments and postponements Section 3 . Order of trial Plaintiff presents evidence in support of his complaint If the adverse party admits the facts for which evidence is to be presented.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. Requisites of motion to postpone trial for illness of party or counsel REQUISITES An affidavit showing that: 1. and (2) due dilig ence in procuring it.oral arguments. Requisites of motion to postpone trial for absence of evidence There must be a n affidavit showing: (1) materiality or relevance of evidence. and 2. 2. Notice of trial Notice at least 5 days before the trial date is a par t of procedural due process. Agreed statement of facts This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial.submission of memoranda DECISION Reverse Order of Trial In this situation. such as Page 52 of . such Defendant presents evidence to support his defense/counterclaim/c ross-claim/thi rd party complaint Defendant files: demurrer to evidence Section 5. Such stipulations are binding unless relief therefrom is permitted by the court on good cause shown. if any Cou rt grants motion: renders dismissal Court denies motion. That th e presence of the party or counsel at the trial is indispensable. Rebuttal evidence by parties Third party defendant presents evidence. Section 2. the defendant presents evidence ahead of the plaintiff When Reverse Order of Trial Proper If the defendant in his/her answer relies upon an affirmative defense. The parties may also stipulate verbally in op en court. the trial will not be postponed. Section 4.

cross-claims. or 2. counterclaims. PURPOSE To avoid multiplicity of suits. or an agreement in writing by the parties. clear congested dockets. prevent delay. and 2. REQUSITES ON VALID DELEGATION OF POWER TO RECEIVE (a) The delegation may be made only in defaults or ex parte hearings . 3 WAYS OF CONSOLIDATING CASES: 1. cros sclaim. EVERY CIVIL ACTION OR PROCEEDING SHALL B E SUSPENDED 1. etc. (TEST-CASE METHOD) Section 2. But counsel cannot stipulate on what their respective EVIDENCE c onsists of and ask that judgment be rendered on the basis of such stipulation. au thorization from the SC is necessary. and 3. T he actions are pending before the same court. By recas ting the cases already instituted. Ge nerally. Actions which involves a common question of law or fact. together with the objections to be resolved by the court. or issu es which may be separately tried. Separate trials on any claim. before the comm encement of the action or proceeding. Statement of judge Section 8. third-party complaints. By consolidating the existing cases and holding only one hear ing and rendering only one decision. REQUISITES FOR CON SOLIDATION: 1. Section 7. dele gation to clerk of court GENERAL RULE: The judge must himself personally receive and resolve the evidence of the parties. guard against oppression or abuse. OR 2. By hearing only the principal case a nd suspending the hearing on the others until judgment has been rendered in the principal case. the case which was appealed later and bearing the higher docket number is consolidated with the case having the lower docket number. 2. SEVERANCE Page 53 of . offered to discuss a possible compromise b ut the other party refused the offer. Judge to receive evidence.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 error or fraud. If it appears that one of the parties. If filed with different branches of the same RTC and one of such cases has not been partially tried. Section 9. If willingness to discuss a possible compromise is expressed by o ne or both parties. conducting only one hearing and rendering onl y one decision. RULE 31 CONSOLIDATION OR SEVERANCE CONSOLIDATION Involves several actions having a common question of law or fact which may be jointly tried. (c) Said cl erk shall have no power to rule on objections to any question or to admission of evidence or exhibits. (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar. Contemplates a single action having a number of claims. N OTE: Stipulations of facts are not permitted in actions for ANNULMENT OF MARRIAG E and for LEGAL SEPARATION. • If filed with different courts. Section 1. and (d) He shall submit his report and transcripts of the proceedings. simplify th e work of the Trial Court and save unnecessary costs and expenses. Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also authorized. Co nsolidation GENERAL RULE: Consolidation is discretionary upon the court. Suspension of actions ART. 2030 OF THE CIVIL CODE. within 1 0 days from the termination of the hearing. EXCEPTI ONS: Consolidation becomes a matter of duty when: 1. If the cases are pending be fore the same judge.

Refusal of witn ess to obey subpoena issued by Commissioner Disobedience to a subpoena issued by the commissioner is deemed contempt of the court which appointed the latter. Oath of Commis sioner before he enters into his duties Section 5. Taking of an account is necessary for the information of the court before judgment or for carrying a judgment order i nto effect 3. judgment is rendered. Question of fact. Unless otherwise provided in the order of ref erence. Trial requires exami nation of a long account of either side 2. in his discretion. giving notice t o the absent party or his counsel of the adjournment. the commissioner may proceed ex parte or. he may rule upon the admissibility of evidence Section 4. or to do or perf orm particular acts. It can be waived by consent of the parties expressly or impliedly. arises upon motio n or otherwise. in any stage of the case Section 3. Report of Commissioner Secti on 10. or to receive and report evidence only 2. Commissioner shall avoid delays Section 9. Proceedings before Commission er Section 6. for him to take testimony. powers o f the Commissioner Order may specify or limit the powers of the Commissioner. if confirmed. Section 2 . Section 7. Swear witnesses 5. UNLESS they were made before the Commissioner. Objections to the report based upon grounds which were available to the parties during the proceedings before the Commissioner shall not be considered by the c ourt. it may render separate judgments on each claim. Section 1. Notice to parties of the filing of report UPON FILING OF THE REPORT OF TH E COMMISSIONER: 1. an auditor and an examiner. Se ction 8. Report only upon particular issues. Section 13. Compensation of Commissioner RULE 32 TRIAL BY COMMISSIONER COMMISSIONER A person to whom a case pending in co urt is referred. 3. AND 2. Failure of parties to appear before Commissioner If a party fails to appear at the time and place appointed. The partie s shall be allowed 10 days within which to object to the findings of the report. Reference to Commissioner by consent of both parties Reference to a commissioner may be had by the written c onsent of both parties. and upon whose report. Exercise the powe r to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duti es Page 54 of . PO WERS OF THE COMMISSIONER 1. other than upon the pleadings. Cases when reference by motion of one of the parties or motu proprio SITUATION S WHEN REFERENCE TO A COMMISSIONER MAY BE MADE ON MOTION 1. Hearing upon re port Section 12. An irregularity in the appointment of a commissioner mus t be seasonably raised in the trial court where the defect could still be remedi ed. only questions of law shall thereaf ter be considered. hear the parties and report thereon to the court. adjourn the proceedings to a future day. Issue subpoenas and subpoenas duces tecum 4. Section 11.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 When the separate trial of claims is conducted by the court under this section. Stipulations as to findings When the parties stipulate that a c ommissioner’s findings of fact shall be final. Order of reference. include s a referee. The parties shall be notified by the clerk.

If court denies the demurrer: a. it w ill decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 accused could present his evidence if the demurrer is denied. Rule 36 (that judgment should state clearly and distinctly the facts and the law on which it is based). If the motion is granted. If the motion is denied. made after Page 55 of . If the court finds the prosecution’s evidence insufficient. Denial is interlocutory. if demurrer was with leave. If the motion is denied. the requirement in Section 1. accused can no longer present hi s evidence and submits the case for decision based on the prosecution’s evidence. no res judicata in dismissal due to demurrer. if demurrer was with leave. It may be used on any of those enumerated in Rule 16. if the demurrer was without leave. If the motion is granted. If plaintiff appeals and judgment is reversed by the appellate court. Order of the court is an ADJUDICATION ON THE MERITS. Judgment of acquittal is not appealable. the complaint may be re -filed. 1. the defendant may present his evidence. If court denies demurrer. JUDGMENT ON DEMURRER TO EVIDENCE It is a judgment rendered by the court d ismissing a case upon motion of the defendant. The judgment of dismissal is appealable by the plain tiff. Demurrer to evidence DEMURRER TO EVIDENC E It is presented after the plaintiff has rested its case. defendant will present h is evidence. will not apply. the complaint is dismissed and depending on the ground. the plaintiff has shown no right to r elief. accused can no longer present hi s evidence and submits the case for decision based on the prosecution’s evidence. it will grant the demurrer by rendering judgment acquitting accused. The remedy o f the plaintiff is to APPEAL. defendant will present his evidence. The ground is based o n insufficiency of evidence. Movant is deemed to have waived his right to present evidence. defendant may file his responsive pleading. Movant shall have the right to present his evidence. it will grant the demurrer b y dismissing the complaint. RULE 33 DEMURRER TO EVIDENCE Section 1. double jeo pardy sets in. CRIMINAL CASES May be filed with or without leave of court. hence. CIVIL CASES Defendant need not ask for leave of court. accused may present evidence b. The den ial is NOT appealable. the complaint is dismissed. if the demurrer was without leave. If court denies the demurrer: a. accused may present evidence b. If the court finds plaintiff’s evidence insufficient. 2 SCENARIOS: MOTION DENIED MOTION GRANTED BUT REVERSED ON APPEAL MOTION TO DISMISS Presented before a responsive pleading (answer) is made by the defendant. Rule 36 should be complied with. If court denies demurrer. Sec. The decision of t he appellate court will be based only on the evidence of the plaintiff. Leave of court is ne cessary so that the DEMURRER TO EVIDENCE It is made by the defendant after the plaintiff has complet ed the presentation of his evidence where the defendant moves for dismissal on t he ground that upon the facts and the law. as the d efendant loses his right to have the case remanded for reception of his evidence .

Annulment of marriage 3. Legal separation JUDGMENT ON THE PLEADINGS The defendant answered. general denial of the material a llegations of the complaint. MOTION FOR JUDGMENT ON THE PLEADINGS Filed by the plaintiff if the answer raises no issue. Answer fails to tender an issue because of: a.” or to recover a debt or a liquidated demand for money. and for legal separatio n since Section 1 refers to actions “to recover upon a claim. the pleadings alone. Although Rule does not specifically provide. and patently unsubstantial so as no t to constitute a genuine issue for trial.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 plaintiff has rested his case. it may render such judgment motu prop rio. insufficient denial of the material allegations of the complaint or 2. cross-claim or third-party comp laint. RULE 34 JUDGMENT ON THE PLEADINGS JUDGMENT ON THE PLEADINGS It is a judgment ren dered by the court dismissing a case upon motion of the defendant. Filed by defendant to a complaint. fictitious. the court finds t hat a judgment on the pleadings is proper. Section 1. or to obtain a declaratory rel ief. or “to obtain declaratory relief”. Decision is based on the allegations in the pleadings. but did not tender an issue or admitted the material allegations in the complaint. plaintiff has not shown any right to relief . also unavailable in actions fo r annulment of a and declaration of nullity of marriage. plaintiff waives his claim for unli quidated damages. May be asked for by a party seeking t o recover upon a claim. MOTION TO DISMISS Decision is based on the evidence presented. Answer admits material allegations of the adverse party’s p leading. Page 56 of Evidence is received. . counterclaim. Claim for such damages must be alleged and proved. made after pl aintiff has rested his case. counterclaim. When judgment on the pleadings is proper A judgment on the pleading s must be on motion of the claimant. plaintiff has not shown any right to reli ef. GROUNDS: 1. GENUINE ISSUE It is an iss ue of fact which calls for the presentation of evidence as distinguished from an issue which is sham. a motion to dismiss should be filed and no a motion for judgment on the pleading. crossclaim. If the complaint states no cause of action. Declaration of nullity of marriage 2. By moving for judgment on the pleading. if at pre-trial. However. on the ground that upon the facts presented by th e plaintiff and the law on the matter. b. How Suy Chin g 91 Phil 456 (1952) One who prays for judgment on the pleadings without offerin g proof as to the truth of his own allegations and without giving the opposing p arty an opportunity to introduce evidence. contrived. must be understood to ADMIT all MATER IAL and RELEVANT ALLEGATIONS of the opposing party and to rest his motion for ju dgment on those allegations taken together with such of his own as are admitted in the pleadings. RULE 35 SUMMARY JUDGMENTS SUMMARY JUDGMENT One granted by the court for the prom pt disposition of civil actions wherein it clearly appears that there exists no genuine issue or controversy as to any material fact. Evidence is not received as the same is based on JUDGMENT BY DEFAULT The defendant did not file an answer. Falcasantos v. ACTIONS WHERE THE MATERIAL FACTS ALLEGED IN THE COMPLAINT MUST ALWAYS B E PROVED 1. on the ground that upon the facts presented by the plaintiff and the law on the matter.

further adjudge the offending party or counsel guilty of contempt. contriv ed. Form of af fidavits and supporting papers Section 6. or solely for the purpose of delay. 10-day notice required. are sham. 2. and b. Available to plaintiff . admissions. except as to the amount of damages. including attorney’s fees. After the hearing. T he answer fails to tender an issue or there is an admission of material allegati ons. as distinguished f rom an issue which is sham. JUDGMENT ON THE PLEADINGS Based solely on the pleadings Generally available only to the plaintiff.e. 4. an issue of fact th e resolution of which calls for the presentation of evidence. SUMMARY JUDGMENT Based on the p leadings. there is no genuine issue as to any material fact. Affidavits in bad faith Should it appe ar to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are presented in bad faith. there is no g enuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Case not fully adjudicated on motion. There is no genuine issue between the parties. Velasco v.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 1. This is intended to ex pedite or promptly dispose of cases where the facts appear undisputed and certai n from the pleading’ admissions and affidavits. Motion and proceedings thereon. Page 57 of . Section 3. summary judgment is not proper. supporting affidavits. except damages which must always be p roved. Affidavits made on personal knowledge. set-up in bad faith. Castillo 156 SC RA 753 (2000) Where the pleadings under a genuine issue i. and patently unsubstantial. or patently unsubsta ntial. after hearing. if presentation is required. Th e trial shall be conducted on the controverted facts only. On the merits. c.e. depositions. Section 2. 3-day notice required. Available to both plaintiff a nd defendant. BASES OF SUMMARY JUDGMENT 1. the judgment sought shall be rendered forthwith if the pleadings. May be interlocutory or No issues as no answer is filed by the defending party. Mallilin v. fictitious. and affidavits. Section 4. It may. all intended to show that: a. Depositions of the adverse party or a third party under Rule 23 3. Vergar a v. there may be issues but thes e are irrelevant. set-up in bad faith. Summary judgment for claimant May be filed at any time after the plea ding in answer thereto has been served. th e court shall forthwith order the offending party or counsel to pay to the other party the amount of reasonable expenses which the filing of the affidavits caus ed him to incur. or admissions a t least 3 days before the hearing. Admissions of the adverse party under Rule 26. The adverse party may serve opposing affidavits. and admissions on file. show that. Answers to interrogatories under Rule 25. i. 3-day notice rule applie s. depositions. the movant is entitled to a judgment as a matter of law. Section 5. The motion shall be served at least 10 days before the time specified for the hearin g. depositions. On the merits. CA 156 SCRA 753 (2005) Trial c ourts are authorized to grant relief by summary judgment. JUDGMENT BY DEFAULT (Rule 9) Based on the complaint and evidence. Summary judgment for defendin g party May be file at any time. contrived. a summary judgment may still b e rendered if the issues tendered are NOT genuine. This rule does not vest in the cou rt summary jurisdiction to try the issue on pleadings and affidavits but gives t he court limited authority to enter summary judgment only if it clearly appears that there is no genuine issue of material fact. Suelto 156 SCRA 753 (1987) Even if the answer does tender an issue. and the refore a judgment on the pleadings is NOT proper. unless the defendant presents a counterclaim.

officially announced. The judgment or final order shall b e entered by the clerk in the book of entries of judgments if no appeal or motio n for new trial or reconsideration is filed within 15 days. and 3. Must state clearly and dis tinctly the facts and the law on which it I based. Opinion of the court (findings of fact and conclusions of l aw) 2. The power to amend a judgment is inherent to the court before judgm ent becomes final and executory. 2. relief from judgment. To clarify an ambiguity which is borne out by and justifiable in the context of the decisi on. before finality 1. DATE OF FINALITY OF JUDGMENT/ORDER Date of the finality of the judgment or final order shall be deemed to be the date of its entry. coupled with notice to the parties or their counsel. after finality 1. as by an amendment nunc pro tunc. To make corrections of clerical err ors. It should contain a di spositive and should be signed by the judge and filed with the clerk of court PA RTS OF A JUDGMENT 1. personally and directly prepared by the judge. NOTE: Attack of judgment maybe direct or col lateral Direct attack a. it can always be amended from time to time. It should be in writi ng. Rule 47 RULE 36 JUDGMENTS. JUDGMENT NON PRO TUNC A judgment intended to ente r into the records acts which had already been done. but which do not appear in the records. In judgments for support. Disposition of the case (dispositive portion) 3. NOTE: A JUDGMENT is considered RENDERED: the filing of the signed d ecision constitutes the rendition of a judgment. 2. or the dispositive pa rt of the decision while the opinion gives the grounds for the decision. Where the judgment is void. Available only in actions to recover a debt.appeal b. RULE OF IMMUTABILITY OF JUDGMENT A final judgme nt cannot be modified. EXCEPTIONS: 1. annulment of j udgment. A judgment based on a compromise otherwise known as JUDIC IAL COMPROMISE has the force of law and is conclusive between parties. or 4. Judgment is the result. 3. Signature of the judge J UDGMENT UPON THE MERITS Judgment rendered after consideration of the evidence su bmitted by the parties during the trial of the case.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 on the merits. not substantial amendments. MEMORAN DUM DECISION The judgment or final resolution of the appellate court may adopt b y reference the findings of facts and conclusions of law contained in the decisi on of the trial court. It is NOT appealable. This includes an amended decisi on because an amended decision is a distinct and separate judgment and must foll ow the established procedural rule. Available in any action except annulment of marriage or legal separation cases. Available in any action except annulment of marriage or legal separation cases. Rule 38 2. The process by which a decision is publi shed. Section 1. upon matters submitted to it in an action or proceeding. made known to the public or delivered to the clerk o f court for filing. even if the purpose is to correct perceived erroneous con clusions of the facts or law. FINAL ORDERS AND ENTRY THEREOF JUDGMENT Final consideration a nd determination by a court of the rights of the parties.motion for new trial or reconsiderati on 2. Rendition of judgments and final orders REQUISITES OF A JUDGMENT 1. PROMULGATION Page 58 of . or for a liquidated sum of money or for declaratory relief.

and the Page 59 of . If no appeal is taken or did not avail of remedies. Section 5. Action shall proceed as to other claims. Several judgments SEVERAL JUDGMENT Judgment rendered by a court against one or more several defendants and not against all of them leaving the action to proceed against the others.grants new trial REMEDIES AGAINST JUDGMENTS OR FINAL ORDERS Before finality of judgment or final order: 1. and 3. The date of finality of the judgment or final order shall be deemed t o be the date of its entry if no appeal or MNT or MR The date of finality of the judgment or final order shall be the date of its entry. which terminate s such claim. Judgment for or against one or more of several parties Section 4. and 3. if known. Accepts decision without further contest Within 15 days from notice of judgment: Motion for reconsideration. Appeal Aft er Finality of the judgment or final order: 1. Petition for Certiorari Losing party may appeal within the remaining period Section 2.modifies decision. made at any stage. or 2. 2. Section 6.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 judgment for or against one of them will not necessarily affect the other. Section 3. upon a determination of the is sues material to a particular claim and all counterclaims arising out of the tra nsaction or occurrence which is the subject matter of the claim. Motion for Reconsideration. Motion for New Trial. Sever al judgments is proper where the liability of each party is clearly separable an d distinct from his coparties such that the claims against each of them could ha ve been the subject of separate suits. Separate judgments P ROMULGATION OF JUDGMENT Court Renders Decision Losing Party Filing appeal within 15 days from notice of judgment SEPARATE JUDGMENT Judgment rendered to dispose of one of the several claims for relief presented in an action. Relief from Judgment or Final Ord er. It is not proper in actions against solidary debtors. Annulment of Judgment. or motion fo r new trial It is proper when more than one claim for relief is presented in an action and a determination as to the issues material to the claim has been made. judgment becomes final and e xecutory Court maintains decision Court grants motion: 1. 2. Judgment against entity wit hout juridical personality The judgment shall set out their individual or proper names. The action shall proceed as to the remaining claims.

) duly authenticated documents to be introduced Required: 1. it may amend such judgment or final order accordingly If denied. MOTION FOR A NEW TRIAL The grounds are: 1. (b. Must point out specifically the conclusion of judgment. affidavit of mer it setting forth the particular facts claimed to constitute a meritorious cause of action. the motion for new trial or reconsideration is co nsidered PRO-FORMA or merely a scrap of scratch paper and will not toll the regl ementary period for appeal Second motion may be allowed If a new trial is grante d the trial court will set aside the judgment or final order Second motion from same party is prohibited If the court finds that excessive damages have been awa rded or that the judgment or final order is contrary to the evidence or law. and which if pr esented would probably alter the result Required: 1. Accident. 2. 4. 3. or new evidence is introduc ed. in case of newly discovered evidence. or both steps are taken.) affidavit of new witnes ses. Grounds of and period for filing motion for new trial or reconsiderat ion NEW TRIAL It is the rehearing of a case already decided by the court but bef ore the judgment rendered thereon becomes final and executory. whereby errors of law or irregularities are expunged from the record. must be in writing 2. or 3. The evidence is insufficient to justify the decision or final order. Absent the requirements above. Order denying motion for new trial Second motion for new trial based on grounds not existing or available when 1st motion was filed Appeal from the judgment or final order and assign as one of the errors the deni al of the motion for new trial Order denying a motion for new trial is not appealable Section 1. not appealable. will have to wait for the judgment and appeal therefr om GROUNDS: MOTION FOR NEW TRIAL Page 60 of . have discovered and produced at the trial. Mistake or Excusable Negligence (FAME). 2. with MOTION FOR RECONSIDERATION The grounds are: 1 . Newly discove red evidence which could not. The damages awarded are excessive. The decision or final order is contrary to la w. not appealable. Fraud (E xtrinsic).Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 reasonable diligence. express reference to testimonial or documentary evidence or to provisions of law RULE 37 NEW TRIAL OR RECONSIDERATION Filed within 15 days from notice of judgmen t and resolved by the court within 30 days from submission for resolution. wi ll have to wait for the judgment and appeal therefrom If denied. (a. or 2. affid avit of the existence of FAME and newly discovered evidence.

Extrinsic fraud connotes any fraudulent scheme executed by the prevailing party outside the trial against the missing p arty who because of such fraud is prevented from presenting his side of the case . MISTA KE – generally refers to mistakes of fact or law where. Parti al new trial or reconsideration when issues severable Section 8. or 2. NOTE: New trial. but the recorded evidence taken upon the former trial so far as the same is material and compete nt to establish the issues. Contents of motion for new trial or reconsideration and notice thereof A moti on suspends or tolls the running of the reglementary period except when it is pr o-forma. the defenda nt was mislead in the case. Effec t of granting of motion for new trial When motion is granted. Luca s v. Damages awarded are excessive 2. or for reopening of trial. a second motion is allowed but must be b ased on a ground not existing or available when the first motion was made. which may be filed during the remainder of the 15-day period. Section 3. Evidence is insufficien t to justify the decision or final order 3. 2. set aside judg ment or final order and grant new trial 2. however. Fraud. and is merely intended to delay the proceedings or if t here is no affidavit of merit.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. REQUSITES TO BE CONSIDERED AS NEWLY DISCOVERED EVIDENCE 1. stay the enforcement of such judgment Section 9. making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions. If presented. e. applies only wher e the judgment sought to be reconsidered is one rendered on the merits. no second motio n is allowed.g. in good faith. the original judgm ent is thereby vacated and the action stands for trial de novo. however. or excusable negligence (FAME). Could not have been discovered and produced at trial despite t he exercise of reasonable diligence 3. Second motion for new trial Section 6. This rule." Section7. ACCIDENT – an event that takes place without one’s foresight or expectation. GROUNDS FOR MOTION FOR RECONSIDERATION 1. Resolution of motion Section 5. Newly discovered evidence FRAUD – Must be extrinsic fraud. Fabros 324 SCRA 1 (2000) A Motion for new trial. Action upon motion for new trial or reconsideration The Court may either:: 1. or for reconsideration of a judgment. Effect of order for partial new trial EFFECTS OF AN ORDER FOR PARTIAL NEW TRIAL 1. Decision is contrary to law Section 2. Remedy against order denying a motion for new trial or reconsideration is appeal from the judgment Page 61 of . it does not point out specifically the findings or conclusions of the judgment as are contrary to law. accident. "The mot ion prohibited by this Section is that which seeks reconsideration of the judgme nt rendered by the court after trial on the merits of the case. EXCUSABLE NEGLIGENCE – depends upon the circumstances of the case. PRO-FORMA MOTION It is that which does not comply with Rule 15 and Rule 37. is a prohibited pleading under Section 19 of the Revised Rule on Summary Procedure. shall be used at the new trial taking the same. mistake. enter a judg ment or final order as to the rest of the issues. Discover ed after trial 2. amend such judgment or final order accordingly Section 4. could probably alter the re sult of the action Otherwise it is called forgotten evidence. NOTE: Motion for reconsideration. deny the motion for new trial or moti on for reconsideration 3.

such that the defective notice of hearing on petitioner’s motion for reconsideration was due to the day-long brownouts that plagued the metropolis. CA 326 SCRA 768 (2000) In view of the peculiar circumstance of this case. ORDERS. contents and verification Filed within 60 d ays after learning of judgment Page 62 of . court shall order adverse parties to answer within 15 days fr om receipt. Proceedings after answer is filed TWO HEARI NGS: RULE 38 RELIEF FROM JUDGMENTS. Judgment or final order entered against a party by FAME. RELIEF FROM JUDGMENT Judgm ent is final within 60 days after petitioner learns of the judgment to be set as ide and within 6 months after such judgment is entered. Section 5. order. the losing party must never have had a chance to controvert the adverse p arty’s evidence. The two r emedies are exclusive of one another. and 3. Basco v. Judgment or final order is rendered and party has been prevented by FAME from taking an appeal For fraud to be extr insic. It must be supported by affidavit s howing the FAME relied upon. Time for filing petition. More on equity FAME only Relief from judgment/order on other proceeding A legal right FAME + Newly Discovered Evidence Judgment on final order Section 3. Petition for relief from judgment. However. Such injunction shall not operate to discha rge or extinguish any lien which the adverse party may have acquired upon the pr operty of the petitioner. An affidavit of merit serves as the jurisdictional basis f or the court to entertain a petition for relief. The affidavit of merit accompanying the peti tion must also show facts constituting the petitioner’s good or substantial cause of action or defense. NEW TRIAL/ RECONSIDERATION Must be fi led within the appeal period. court shall issue an order requiring adverse parties to file answer within 15 days from receipt of t he notice. Section 4. The petition for relief must be verified. Petition for re lief from denial of appeal GROUNDS FOR PETITION FOR RELIEF 1. or other proceedings Section 2. Uniform procedure for relief from judgments of MTC and RTC After petition is filed. if granted against denial of appe al. court shall give due course to appeal. it is not a fatal defe ct to warrant denial of the petition so long as the facts required to be set out also appear in the verified petition. Preliminary Injunction is granted upon filing of the petitioner of the BOND in favor of adverse party. or 2. counsel’s failure to specify the date and time for hearing of petitioner’s motion fo r reconsideration should rightly be deemed excusable negligence. Party who has filed a timely motion for n ew trial cannot file a petition for relief after the former is denied. court shall hear the petition. Prel iminary injunction pending proceedings PURPOSE This is to preserve the rights of the parties. 2. If granted. After answer is filed or expiration of period therefore. OR OTHER PROCEEDINGS Section 1. Section 6.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Not more than 6 months after such judgment FORM AND CONTENTS OF THE PETITION 1. Order to file an answer If peti tion is sufficient in form and substance to justify relief. Judgment not yet final. judgment set aside and court shall proceed as if timely motion for new trial has been granted.

Conditional judgments 3. Execution upon judgments or final orders WHEN EXECUTION IS A MATTER O F RIGHT 1. 6. receivers hip. no further action can be had Page 63 of . Writ of execution varies judgment. remedy is certiorari under Rule 65. Forcible entry and detainer 2. When appeal has been duly perfected and resolved. or obtaine d through fraud 3. Execution of judgment not a matter of right Execution of judgment a matte r of right JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE EXPI RATION OF TIME TO APPEAL 1. 3. Upon filing of a petition for relief from judgment 2. or determine t he rights of parties Still subject to appeal FINAL AND EXECUTORY JUDGMENTS Becom es final & excecutory by operation of law After lapse of period to appeal and no appeal was perfected. Upon judgment or order that disposes of the action or p roceeding. Execution is sought against property exempt from execution 5. the appellate court may. on motion. accounting and support 3. def ective in substance. When relief sought may be the allowance of an appeal after the expiration of the period to appeal. adjudicate. 3.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 (a) Hearing to determine whether the judgment be set aside (b) If in the affirma tive. Con troversy has never been submitted to the judgment of the court. Incomplet e judgments GENERAL RULE: Trial Court has a ministerial duty to order execution of final and executory judgments. On motion. leaves room for interpretation. Sin perjuico judgments (judgment. WHEN EXECUTION OF FINAL AND EXECUTOR Y JUDGMENT MAY BE ENJOINED 1. When relief sought may be the staying of immediate exe cution due to FAME. SATISFACTION AND EFFECT OF JUDGMENTS JUDGMENTS THAT ARE NOT APPEALABLE: 1. issued against the wrong party. It cannot refuse execution and is compellable by Mandamus. If the court of origin refuses to iss ue a writ of execution. Change in the situation of the parties which makes t he execution inequitable or unjust. w/o any stated facts in support of the conclusion) 2. Procedure where the denial of an appeal is set as ide The lower court shall be required to give due course to the appeal and to el evate the record of the appealed cases as if a timely and proper appeal had been made. 2. FINAL JUDGMENTS Dispose of. or resolution of qu asi-judicial agencies appealable to CA INTERLOCUTORY ORDER EXECUTED Support pend ente lite THAT MAY BE RULE 39 EXECUTION. 4. a hearing on the merits of the case WHEN TRIAL ON THE MERITS NOT NECESSARY 1. direct the court of origin to issue the writ. On equitable grounds Section 1. writ has been issued w/o authority. Attack against a judgment which is void for lack of jurisdiction. Section 7. judgment debtor has been pa id or otherwise satisfied. 2. In the above exce ptions. Injunction. Writ of execution improvidently issued. 2. by f iling a motion with the court of origin submitting true copies of the final judg ment or final order sought to be enforced. EXCEPTIONS: 1. final order. Terms of the judgment not clear . Upon expiration of the period to appeal therefrom and no appeal ha s been duly perfected. 4. Award. judgment.

or 3. there is inquiry on whether there is good reason for execution SEPARATE/PARTIAL JUDGME NTS Rendered at any stage of the action regarding a particular claim. clerical errors or mistakes. 2) Good reasons for issuing execution.to make a present record of an order w/c the court rendered at a previous term but. • e.g. Execution of several. and 3) Th e good reasons must be stated in a special order. Execution pending appeal (a) While t rial court has jurisdiction over the case and is in possession of either the ori ginal record or record on appeal. leading the action to proceed against others DISCRETIONARY EXECUTION May issue before the lapse of period to appeal Discretionary upon the court. In cases falling under the (6) exceptions above Judgment novated by a subsequ ent agreement cannot be executed. award of ownership does n ot necessarily include possession Section 2. CLERICAL ERROR Errors not the result of exercise of judicial functions May be modified. agreement entered into by the parties oth er than terms of payment Judgment for support is not final in a sense that it ca nnot be modified. corrected even after judgment h as become final and executory JUDICIAL ERROR Mistake relates to something the co urt did not consider or pass on. wi th notice to the adverse party. the trial jud ge may not rightfully determine the same 3) Mere posting of a bond Award for act ual and compensatory damages may be ordered executed pending appeal. or considered and erroneously decided Cannot be modified must be done in another case/suit (b) When trial court has lost jurisd iction but has not transmitted records of the case to the appellate court. Examples of good reasons 1) Wh ere education of a person to be supported would unduly be delayed 2) The immedia te execution of an order to support is valid 3) The judgment debtor is insolvent . A final and executory judgment can no longer be amended by adding thereto relief not originally included e. Discretionary execution WHEN ISSUAN CE OF WRIT OF EXECUTION IS DISCRETIONARY 1. to enter nunc pro tunc orders . except when a co-defendant is solvent and his liability is subsidiary What are not good reasons: 1) the mere fact that a claim is not secured. GENERAL RULE: Final and executory judgment cannot be amended or modified • Any amendment w/c substantially affects a final and executory judgm ent is null and void for lack of jurisdiction EXCEPTION: JUDGMENT MAY BE MODIFIE D AS TO: 1. (c) W hen trial court has lost jurisdiction and has transmitted records motion for exe cution pending appeal with appellate court 2. by inadverten ce has not been entered.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 4. leaving th e action to proceed as to the remaining claims EXECUTION AS A MATTER OF RIGHT Is sued when period to appeal has already lapsed and no appeal has been perfected M inisterial duty of the provided there are no supervening events REQUISITES FOR EXECUTION PENDING APPEAL 1) On motion by the prevailing party. separate or partial judgments SEVERAL JUDGMENTS Rendered against one or more of several defe ndants. Page 64 of 2. w/o any allegat ion that the defendant is insolvent or is about to dispose of his properties 2) Where the reason given is that an appeal is frivolous or dilatory. to clarify ambiguity. . • Support depends not only on the varying conditions affecting t he ability of the obligor to pay. but also upon the ever-changing needs of the b eneficiary himself.g. but not mor al and exemplary damages.

not other things like damage to property pending the appeal. and 5. title of 3rd party is protected. The supersedeas bond guarantees satisfaction of the ju dgment in case of affirmance on appeal. or 2) B y filing another action w/in 10 years from entry Lifespan of writ of execution= 5 years A revived judgment is again enforceable by motion w/in 5 years and there after. Accounting. Page 65 of .judgment has been paid .execution levied on wrong party Sale of a creditor to himself in a public sale Sale to a creditor. Aside from the supersedeas bond. enforceable afte r their rendition and shall not be stayed by an appeal. Injunction.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Moral and exemplary damages depends on actual result of the appeal Execution pen ding appeal is not applicable in land registration proceedings Section 3. not from the date of entry REVIVAL OF A JOINT AND SEVERAL JUDGMENT A judgment rendered again st several defendants. Effect of reversal of executed judgment The trial court may. 4. an aggrieved party may fil e a special civil action of certiorari under Rule 65 against the order granting execution pending appeal where the same is not founded upon good reasons. except when there is want of jurisdiction over the subject matter He may be required to surrender the property Creditor may be required to account f or the value received by virtue of the sale to the 3rd party. 2. jointly and severally. unless otherwise ordered by the trial court: 1.execution u pon a void judgment . by another action w/in 10 years from finality of the revived judgment. He can be required to restore the excess realized upon the execution over and above the amount finally awarded Sale is not affected by reversal. Such other judgments declared to be immediately executory unless otherwis e ordered by the trial court. Stay o f discretionary judgment Stay of execution may be allowed at the discretion of t he court by filing a supersedeas bond SUPERSEDEAS BOND It is one filed by a peti tioner and approved by the court before judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be af firmed wholly or in part. t he 5 year/10 year period must be counted from the end of such term. modificati on. Support. Effects of reversal. Section 5. but subsequen tly sold to a 3rd party Section 6. A final and executory j udgment or order may be executed: 1) On motion. issue restitution or reparation in an event of a reversal after a petition for relief under Rule 38. or 2) has filed a supersedeas bond. unless writ of execution is absolutely void. Section 4. title of 3rd person is protected. Receivership. Judgments not stayed by an appeal The following judgments are immediately executory. Execution by motion or by independent action. This r emedy may be availed of notwithstanding the fact that 1) he has appealed from th e judgment. 3. where: . can be revived against one of them only. no t the original judgment EXECUTION OF A JUDGMENT BY COMPROMISE WITH A TERM If a c ompromise agreement w/ a term suspends the enforceability of a final judgment. COMPLETE SPECIFIC RESTITUTION Sale by sheriff to a 3rd person REVERSAL Modif ied judgment Creditor may not be compelled to make specific restitution. or annulment of judgment u nder Rule 47 is granted How restitution is made. w/in 5 years from entry. on motion.

for m. otherwise it is null and void. DEATH OF A OBLIGEE Execution will issue in any c ase Upon application of his executor. or successorin-interest Dea th Before Levy: 1. Section 1 JURISDICTION TO ENFORCE JUDGMENT Continues even after judgment has become final. 2) When the 5 year period is interrupted or suspended by agreement of the parties 3) When the judgment creditor institutes supplementa ry proceedings to the execution 4) When delays are caused by judgment obligor’s ow n initiatives and for her advantage A valid execution issued and levied w/in the 5 year period may be enforced by sale even after the lapse of the said period T he levy is the essential act by which the property is set apart for satisfaction of judgment However. administrator. Page 66 of . or profits due as of the date of issuance of the writ. costs. A judgment of foreclosure of mortgage is enforceable by execution against the executor or administrator whether the j udgment obligor died before or after entry of judgment.e. Issuance. Action for a sum of money – execution will NOT issue.may still be enforced by motion even after the 5 year period 2) Specia l proceedings . before or after entry. Section 6 This section applies when a party dies after ren dition of judgment. at the election of the plain tiff. Action for recovery of real or personal property or any lien . Execution in case of death of party. real action where the property is located DEFENSES AVAILABLE IN AN ACTION FOR ENFORCEMENT OF JUDGMENT prescription satisfaction of claim counterclaims JUR ISDICTION TO CHANGE.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 WHEN 5/10 YEAR PERIOD SUSPENDED 1) When the enforceability of a final decision i s suspended by the court. The writ of execution must conform to the judgment to be executed. ALTER. In this case. the judgment obligee should file claim against the estate of the jud gment obligor under Rule 86. aside from the principa l obligation Special sheriffs for the service of writ of execution are not autho rized by law. the execution sale must take place w/in the 10 year period WHEN 5 AND 10 YEAR PERIODS NOT APPLICABLE 1) Judgment for support .g.does not pr escribe . Against his executor. The court never loses juri sdiction to enforce such. and contents of a writ of execution. for purposes of execution and enforcement Governed by Rule 39. land registration proceedings NOTE: An action for support d oes not prescribe and may still be enforced by motion even after the lapse of 5 year period since the obligation is a continuing one. MODIFY JUDGMENT Terminates when the judgment becomes final Governed by Rule 39.execution will issue 2. VENUE OF ACTION FOR ENFORCEMENT OF JUDGMENT personal a ction where plaintiff resides or defendant resides. rents . administrator. Death After Levy: execution will issue since the pr operty is already separated from the estate of the deceased and is deemed in cus todia legis. Section 8. or successorin-interest An app eal is the remedy for an order denying the issuance of a writ of execution. DEATH OF A OBLIGOR Section 7. The motion for execution and the writ of execution must state specifically the amount of interest. damages.

and restore possession to judgment obligee. defective in substance. or other specific acts. The officer shall levy upon properties of the judgment obligor not otherwise exempt from execution Judgment obligor exercises option to chose w /c property levied upon. satisfaction by levy LEVY An act by which an officer sets apart or appropr iates a part or whole of the property of the judgment debtor for purposes of the execution sale. title.g. EXCEPTIONS: 1) Usufruct 2) Ascertainable interest in real es tate as mortgagor. Immediate payment on demand ‐ judgment obligor shall pay in cash. to the sheriff. subject to liens and encumbr ances then existing. demolish. not capable of manual delivery in the possession or control of 3rd parties Notice served on 3rd party (garnishee) ‐ GENERAL RULE: All property belonging to judgment obligor not exempt from executi on may be attached. 3) execution sought to be enforced against property exempt from execution. 2) change in the situation of the parties making execution inequitable and unjus t. 4) controversy has never been submitted to the judgment of the court. certif ied bank check payable to the judgment obligee.officer shall demand person to peaceably vacate p roperty w/in 3 working days. ‐ The sheriff may levy on debts due to debtor. mortgagee. vesting title . or other credits. or if not present.if pa rty fails to comply within the time specified. Execution of judgments for money.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 GROUNDS FOR QUASHING A WRIT OF EXECUTION: 1) writ of execution varies judgment. The on execution creates a lien in favor of the judgment obligee over the right. financial interests. 6) writ of exe cution is improvidently issued. or otherwise 3) Unused balance of an overdraft acc ount (credit not subject to garnishment) Levy on personal property may be actual or constructive e. otherwi se officer shall oust such persons 4) Removal of improvements on property subjec t of execution . or writ issued without authority Section 9. levy on a barge by registration w/ Philippine Coast Guard (constructive) Section 10.Real or personal property situated w/in the Philippines: court in lieu of conveyance may give order divesting titl e and may vest it in others 2) Sale of real or personal property 3) Delivery or restitution of real property . commissions a nd other personal property. officer shall levy 1st on personal pr operty. or remove improvements exc ept upon special order of the court . and interest of the judgmen t obligor in such property at the time of the levy. Execution of judgments for specific act SPECIFIC ACTS 1) Conveyance. 3. then on real property The sheriff shall sell only property sufficient to satisfy the judgment and other lawful fees. or any other form of payment acc eptable to the latter ‐ payment made to the judgment obligee or his representative . judgment debt has been paid. how enforced 3 WAYS TO ENFORCE A JUDGMENT FOR MONEY 1. if not exercised. or if ‐ not practicable. royalties. the court may direct the act to b e done at the cost of the disobedient party . including bank deposits. issued against the wrong party. 5) terms of judgment are not clear and there remains room for interpretation. garnishment of debts and credits Page 67 of GARNISHMENT An act of appropriation by the court when property of debtor is in t he hands of third persons. delivery of deeds. to a fiduciary accou nt 2.officer shall not destroy.

cows. or homestead. A demolition o rder from the court is required to effect removal of an improvement constructed by the defeated party. 3. shelter . and farm imp lements of agricultural lessees. vacate the property – the sheriff must oust the party. 8th ed. F. or livelihood 3) 3 horses. It requires the performance of any other act than payment of money. except for debts incurred for food. RA 8293) 11) Bonds issued under RA 1000 (NASSCO v. pp. Page 68 of . Se ction 239. However. wages.3. CA 458) 2) Prope rty taken over by Alien Property Administration (Section 9[f]. after judgment obligor failed to remove the sa me 5) Delivery of personal property officer shall take possession of the same an d deliver it to the judgment oblige • Failure to comply with specific acts under R ule 39 Sec. clothing. subject to limitations (Section21. defeated party is given reasonable period to look for anot her place. NCC) 9) Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24. deliver – the sheriff will take possession and deliver i t to the winning party. comply – the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if t he required party performed it • No time limit w/in which an order of demolition s hould be carried out. Remedial Law Compendium Vol. 447-448). Effect of Levy on execution as to third persons Section 13. with l imitations (RA 4917) 8) Labor wages. ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD but writ of execution must be served w/in 5 years order of demolition ancillary to writ C ertiorari is available if requirements for issuance of order of demolition are n ot followed Section 11. 2. CIR L-17874 31 A ugust 1963) (Regalado. if a party re fuses to: 1. benefits. US Trading With T he Enemy Act) 3) Savings of national prisoners deposited with the Postal Savings Bank (Act 2489) 4) Backpay of pre-war civilian employees (RA 304) 5) Philippine Government backpay to guerillas (RA 897) 6) Produce.. privileges. 1708. Execution of special judgment SPECIAL JUDGMENT A special judgment is one that can be complied with only by the judgment obligor himself. carabaos. RA 6389) 7) Benefits from private retirement systems of companies and establishments. employment. except jewelry 5) household furniture and utensils ne cessary for housekeeping ≤ P100K 6) Provisions for individual or family use suffic ient for 4 months 7) Professional libraries and equipment 8) One fishing boat an d accessories ≤ P100K used in livelihood 9) Salaries. land necessar ily used in connection therewith 2) ordinary tools and implements used in trade. or earnings as are ne cessary for support of family w/in 4 months preceding levy 10) Lettered gravesto nes 11) Monies. 65. or annuities accruing out of any life insu rance 12) Properties specially exempt from execution OTHER PROPERTIES SPECIALLY EXEMPT FROM EXECUTION 1) Property mortgaged to DBP (Section 26. and medical attendance (Art. or the sale or delivery of real or personal property Failure to comply with special judgmen t under Section 11 is punishable as contempt by imprisonment Section 12. 1. and 177) 10) Copyrights and o ther rights in intellectual property under the former copright law (PD 49 cf. work animals. Property exempt from execut ion PROPERTIES EXEMPT FROM EXECUTION 1) family home.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 special order issued upon motion. 10 is not necessarily punishable by contempt. or other beast of burden necessarily used in his ordinary occupation 4) necessary clothing and articles for ordinary personal use.

File a separate action fo r damages against the sheriff (if no bond filed) 3.000: notice posted in 3 public notice posted in 3 places for 20 days public pl aces for such time as may be reasonable considering the . or before the property is sold under execution WHAT IS THE PROCEDU RE FOR A 3RD PARTY CLAIM 3rd party should make an affidavit of his title thereto . or right of possession thereof. Vindicate his claim in a separate action .sheriff not liable for damages if bo nd is filed 2.In all cases.000: Publicati on once a week for 2 character & condition consecutive weeks and of the property . at least 3 days before the sale.amoun t of bond not less than value of property .based on the ground that 3rd party claim is frivolous or plainly spur ious REMEDY OF THE 3RD PARTY 1.claim must be w/in 120 days from filing of bond Page 69 of . File a claim for damages aga inst the bond . Proc eedings where property claimed by third persons 3RD PARTY CLAIM A claim by any p erson other than the judgment debtor or his agent on property levied on executio n PURPOSE OF 3RD PARTY CLAIM 1) To recover property levied on by sheriff (althou gh 3rd party can vindicate claim in a separate action) 2) To hold sheriff liable for damages for the taking or keeping of such property WHEN TO FILE A 3RD PARTY CLAIM At any time. The sheriff may or may not requir e the judgment obligee to file a bond. except as provided in paragraph (a) hereof where notice shall be given at any time.If > 50. Sheriff a nd creditor are joint tortfeasors 2. and should serve such affidavit upon the sheri ff and a copy thereof to the judgment obligee. Return of writ of execution Writ of execution is returnable to the c ourt after judgment it satisfied Sheriff shall report to the court w/in 30 days after receipt and every 30 days until the judgment is satisfied in full Lifetime of writ of execution – 5 years from entry of judgment The rules do not provide an y lifetime for a writ of attachment unlike writ of execution Section 15. EFFECTS OF AN EXECUTION SALE WITHOUT THE REQUIRED NOTICE 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 14. Liable in solidum because liability is join t and solidary Want of notice does not invalidate the execution sale where purch aser is innocent and no collusion appears (buyer in good faith) Section 16.other personal notice posted in 3 public property: notice places for 20 days posted in 3 public places for not less than 5 days . Notice of sale of property on execution REQUISITES FOR REQUISITES FOR NOTICE OF SALE OF NOTICE OF SALE OF PERSONAL REAL PROPERTY PROPERTY . written notic e of the sale shall be given to the judgment obligor.If ≤ 5 0.perishable property: . so as long as the sheriff has the possession of the property levied upon. File a claim for damages against 3rd party in the same or separat e action . INDEMNITY BOND FILED Action for damages b rought against the principal and sureties on the bond Sheriff not liable for dam ages Sheriff bound to keep property on behalf of judgment obligee NO INDEMNITY B OND FILED Action for damages may be brought against sheriff himself Sheriff liab le for damages Sheriff not bound to keep property under levy REMEDY OF THE CREDITOR 1. File a bond to indemnify 3rd party complainant .no in tervention allowed since judgment final & executory 2.

notice posted in 3 public places) What is the liability? 1.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 The sheriff is at complete liberty to suspend or not to suspend execution if the judgment creditor does not file a bond. Adjournment = waiver of publication of another notice requirement Section 2 3. Conveyance to purchaser of personal property capable of manual delivery After purchaser pays the purchase price. or removing or d efacing notice PERSONS LIABLE UNDER SECTION 17 1) Officer selling without notice 2) Any person willfully removing or defacing notice posted (e. No sale if judgment and cost s paid If judgment obligor paid the amount of judgment NO writ of execution may be issued or implemented. at a public auction 2. the sheriff acts at his own risk if he keeps the property (can be liabl e for damages). Section 19. Penalty for selling without notice. Shocking ina dequacy of price may be ground for setting aside sale Who has jurisdiction to se t aside execution sale? Court w/c rendered judgment that became final and execut ory has exclusive jurisdiction After sufficient property has been sold to satisf y the execution. Refusal of purchas er to pay Section 21. when it appears that a larger sum would have been realized from a sale in parce ls. a sale of less than whole would be sufficient to satisfy debt Mere ina dequacy of price is not material if there is a right of redemption. the sheriff must deliver the property capabl e of manual delivery to the purchaser If desired the sheriff shall execute and d eliver a certificate of sale No right of redemption in sales of personal propert y on execution Page 70 of . or 2. who issued the writ of execution Officer conducting sale. punitive damages to any person inj ured thereby = P5000. Without an indemni ty bond. Adjournment of Sale If both obligee and obligor agree in writing. who may di rect manner and order of sale All sales of property under execution must be made : 1. actual damages Section 18. sal e may be adjourned from day to day if it becomes necessary to o so for lack of t ime. sa le may be adjourned to any date and time agreed upon Without such agreement. How property sold on execution. 2. or his deputy EFFECT OF SALE OF REAL PROPERTY IN MASS GENERAL RULE: Valid EXCEPTION: 1.g. Judgment obligee as purchaser Officer may sell again the p roperty to the highest bidder refusing purchaser may be liable for amount of los s occasioned by such refusal Refusing purchaser may be punished for contempt Off icer may reject subsequent bid of refusing purchaser If judgment obligee is the successful bidder BID ≤ JUDGMENT IF BID > JUDGMENT Judgment obligee not required t o pay bid Judgment obligee required to pay excess Section 22. The judgment creditor cannot be compell ed to file a bond because he is at complete liberty to do so. to the highest bidder 3. Section 20. unless otherwis e directed by the judgment or order of the court. no more sale shall be made and any excess shall be promptly del ivered to the judgment obligor or his authorized representative. Section 17. to start at the exact time fixed in the notice Sale of real properties must be made in the province where t he same are situated Purpose is to obtain the best price PERSONS PROHIBITED FROM BUYING Judge.

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 24. Conveyance to purchaser of personal property not capable of manual d elivery For personal property not capable of manual delivery, the officer must e xecute and deliver to purchaser certificate of sale (symbolic delivery) Section 25. Conveyance of real property; certificate thereof given to purchaser and file d with registry of deeds CERTIFICATE OF SALE MUST CONTAIN 1) Description of real property sold; 2) Price paid (per lot) 3) Whole price paid 4) Statement of righ t of redemption 1 year from date of registration of certificate of sale ORDINARY SALE ON EXECUTION Need not be confirmed Right of redemption Purchaser a cquires upon expiration redemption period title of EXECUTION IN JUDICIAL FORECLO SURE OF MORTGAGE Needs judicial confirmation No right of redemption (except wher e mortgagee is a bank) Purchaser acquires title after judicial confirmation of s ale 2. Real Property – there is a right of redemption WHO MAY REDEEM? JUDGMENT DEBTOR Judgment obligor, or his successor in interest (e.g. transferee, assignee, heirs, joint debtors) When? Within 1 year from the date of registrati on of the certificate of sale REDEMPTIONER One who has a lien by virtue of anoth er attachment, judgment, or mortgage on property SUBSEQUENT to the lien under wh ich the property was sold When? 1. Within 1 year from the date of registration o f the certificate of sale; or 2. Within 60 days from the last redemption by anot her redemptioner. A surety is NOT a successor in interest By paying the debt, he stands in the pla ce of the creditor, not obligor Right of redemption cannot be levied on by judgm ent creditor The judgment debtor may, of course, legally sell his right of redem ption Section 28. Time and manner of, and amounts payable on, successive redempt ions; notice to be given and filed PERIOD OF REDEMPTION JUDGMENT REDEMPTIONER OB LIGOR Judgment Obligor 1st redemptioner has 1 year to has 1 year from redeem reg istration of 2nd redemptioner has 60 to redeem after 1st redemption certificate of sale 3rd redemptioner has 60 days after 2nd, etc. Once he redeems, Further re demption allowed, no further even after lapse of 1 year, as redemption is long a s each redemption is allowed made w/in 60 days after the last Payment – how and to whom made Tender of redemption money may be made to purchaser or sheriff If ten der to sheriff – duty to accept Medium of payment Cash, although Sec. 9, Rule 39 a llows certified bank check If check is dishonored, redemption invalid If check b ecame stale for not being presented, through no fault of redemptioner, redemptio n valid Page 71 of Purchaser acquires only right, title, interest and claim of judgment obligor. Pu rchaser of property registered under Torrens system acquires the same free from liens or encumbrances not noted thereon. Auction sale retroacts to date of levy E.g. a 3rd party claim was filed after the levy. The fact that the 3rd party cla im was presented 1 day before the execution sale is immaterial. If the levy is v alid, the sale is also valid. The auction sale retroacts to the date of the levy . The purchaser is not entitled to possession during the period of redemption. S ection 26. Certificate of sale where property claimed by 3rd person The certific ate of sale to be issued shall make express mention of the existence of such thi rd-party claim. Section 27. Who may redeem real property so sold RIGHT OF REDEMP TION: 1. Personal Property – None; sale is absolute

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Amounts Payable On Redemption JUDGMENT REDEMPTIONER OBLIGOR If he redeems from t he If he redeems from the purchaser: purchaser: - Same as - Purchase judgment ob ligor price + 1% - Amount of lien, If interest + purchaser also assessment credi tor w/ prior or taxes lien If he redeems from If he redeems from redemptioner Same as judgment obligor redemptioner - Redemption - Amount of liens held by las t redemptioner prior to price + 2% his own, w/ interest interest + assessment or taxes If based on Mortgage or other lien, must serve: - memorandum of record, o r any assignment, AND - affidavit, showing amount due on lien Failure to produce proof by redemptioner is waived by refusal on other grounds. Validity of redemp tion not affected by failure to present proof If person to whom redemption was o ffered accepts without requiring proof – redemption valid Section 31. Manner of us ing premises pending redemption; waste restrained During the period pending the redemption, the court issues an order to restrain the commission of waste on the property by injunction. WHAT IS NOT COMMISSION OF WASTE 1) Use in the same a ma nner previously used; 2) Use in the ordinary course of husbandry; 3) Make necess ary repairs to buildings thereon Section 32. Rents, earnings and income of prope rty pending redemption During the period of redemption, all rents, expenses, inc ome and fruits derived still belong to the debtor. During the period of redempti on, the purchaser or redemptioner is not entitled to: 1. possession 2. receive t he rents, earnings, and income of property sold on execution; 3. reimbursement f or improvements Section 33. Deed and possession to be given at expiration of red emption period; by whom executed or given Upon expiration when no redemption has been made within 1 year, purchaser is entitled to conveyance and possession of property. Upon expiration when no redemption has been made within 6 months, last redemptioner is entitled to conveyance and possession of property. Within 1 yea r purchaser acquires only the rights, title, interest and claim of judgment obli gor to property. After 1 year, the purchaser now has his own right and Page 72 of Section 29. Effect of redemption by judgment obligor, and a certificate to be de livered and recorded thereupon; to whom payments on redemption made If judgment obligor redeems, no further redemption is allowed. The Person to whom redemption was made must execute and deliver to the judgment obligor a certificate of rede mption. Payments may be made redemptioner, or sheriff. to the purchaser, Redemption can be paid in other forms than cash. The rule is construed liberally in allowing redemption (aid rather than to defeat the right) and it has been al lowed to in the case of a cashier’s check, certified bank checks, and even checks. A formal offer to redeem is not necessary where the right to redeem is exercise d through the filing of a complaint to redeem in the courts, within the period t o redeem. Section 30. Proof required of redemptioner PROOF REQUIRED JUDGMENT OR FINAL ORDER No proof required Right of redemption appears on record REDEMPTIONER If based on judgment or final order: - must serve copy of judgment or final ord er, certified by clerk of court

Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 acquires right to the property. It is at this time that the writ of possession i s issued. Writ of possession may be enforced against judgment obligor, successor s-in-interest - but NOT against persons whose right possession is adverse to the latter 5) Sec. 40 – order to apply to obligor’s property in the hands of another, i nvestigate income, expenses, earnings order fix monthly payments 6) Sec. 41 – appo int receiver 7) Sec. 42 – sale of debtor’s interest in real estate 8) Sec. 43 – if gar nishee denies debt, court may order creditor to institute action against such pe rson to pay debt Section 37. Examination of obligor of judgment obligor Any pers on or corporation who has property of the debtor, or is indebted to the debtor c ourt may order such person to be examined to bind the credits due to debtor CITA TION The garnishee becomes a forced intervenor, requiring him to pay his debt no t to the judgment debtor but to the creditor (a form of involuntary novation). S ection 38. Enforcement of attendance and conduct of examination A party or other person may be compelled by an order of subpoena, to attend before the court or commissioner to testify as provided in Sections 36 & 37. Failure to obey such or der or subpoena may be punished for contempt. Section 39. Obligor may pay execut ion against obligee Persons indebted to the debtor may pay sheriff. PROCEEDINGS SUPPLEMENTARY TO EXECUTION The proceedings are to aid judgment creditors in disc overy of debtor’s property and its application to the satisfaction of judgment. It is to compel the disclosure of any property that is not exempt from execution 1 ) Sec. 36 – examination of judgment obligor’s property 2) Sec. 37 – examination of jud gment obligor’s debtor (garnishee) 3) Sec. 38 – enforcement of attendance and conduc t of examination (punishable by contempt) 4) Sec. 39 – judgment obligor’s debtor may pay sheriff Sheriff’s receipt shall mean a discharge for the amount paid and shal l be credited by the obligee on execution Section 40. Order for application of p roperty and income to satisfaction of judgment. Court may order property of judg ment obligor, or money due him, in the hands of either himself or another, to be applied to the satisfaction of the judgment Investigation of income and expense s if it appears earnings more than necessary for support of family court may ord er that he pay judgment in fixed monthly installments otherwise contempt Page 73 of of Section 34. Recovery of price if sale not effective; revival of judgment If purc haser fails to recover possession, evicted, judgment reversed, property exempt f rom execution, or 3rd party vindicated claim, purchaser may, on motion or in a s eparate action: 1) recover from creditor price paid w/ interest, or so much w/c is not returned to judgment obligor; or 2) have original judgment revived for wh ole price w/ interest Section 35. Right to contribution or reimbursement If prop erty is executed against several persons, and more than due proportion has been satisfied one who pays may compel contribution from the others If surety pays pr incipal he may compel repayment from the Section 36. Examination of judgment obligor when judgment unsatisfied Upon retur n of writ of execution, and judgment is still unsatisfied, the creditor may ask the court to require the debtor to appear and his property or income be examined

authorize judgment obligee to institute action against person or cor poration for recovery of such interest or debt.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 41. and order entry of satisfaction of judgment . TENDER OF PAYMENT OF JUDGMENT TENDER OF PAYMENT OF CONTRACTUAL DEBT .surety should notify principal and request hi m to join in defense.Court may direct money to be paid to the court. When principal bound by judgment against surety SURETY SUED ALONE principal also bound by judgment . may p unish disobedience of such order as for contempt. surety must still file separate action for reimbursement b ut principal can no longer set up defenses w/c he could have set up in the origi nal action . But. Debtor who voluntary satisfies judgment loses right to appeal. Court cannot make a finding th at 3rd person has in his possession property belonging to judgment debtor or is indebted to him and to order said person to pay amount to judgment creditor Exec ution may issue only upon an incontrovertible showing that 3rd party holds prope rty of judgment obligor or is indebted to him Section 44. If Judgment obligor has interest in real estate (as mortgagor or mortgagee. not necessary to make consignation . or 3. Entry of satisfaction with or without admission Judgment obligee is obliged to execute and acknowledge admission of sa tisfaction of judgment only if judgment obligor demands ENTRY OF SATISFACTION OF JUDGMENT-WHEN MADE 1) upon return of execution satisfied 2) upon filing of admi ssion of satisfaction by creditor 3) upon indorsement of such admission 4) upon order of the court Creditor who compels satisfaction of judgment loses right of appeal. Sale of ascertainable interest of judgment oblig or in real estate.If tender refused. claims an interest in property adverse to him or denies debt Co urt may: 1. forbid transfer or other disp osition of such interest or debt w/in 120 days from notice of order. must consign payment w/ court Section 46. Entry of satisfaction of judgment by clerk of court Section 45. Person or corporation having property of obligor or indebted to him. Appointment of receiver The sheriff is not a proper person to be app ointed as receiver.If tender refused. 2.judgment may be rendered against them jointly & severally .if principal not notified.principal has no cause of action against surety The principal is bound by the same judgment from the time he has notice of the a ction or proceeding and Page 74 of . Proceedings when indebtedness denied or anot her person claims property. Section 42. the debtor who is compelled to pay does NOT lose right to appeal.surety should file cross-claim for reimbursem ent PRINCIPA L SUED ALONE . or otherwise) Receiver may be ordered to sell and convey real est ate or interest therein Section 43. he may set up defenses in a subsequent a ction PRINCIPAL AND SURETY JOINTLY SUED .

Refers to same action. the judgme nt may be repelled by evidence of want of jurisdiction. in all other actions or suits in the same or any other judicial tribu nal. Test to determine IDENTITY OF CAUSE OF ACTION Wh ether the same evidence would sustain both causes of action NOTE: Res Judicata a pplies only between adverse parties in a former suit. JUDGMENT OR FINAL ORDER Against A specific thing Pro bate of a will or administration of the estate of a deceased person In respect t o the personal. fraud . It is based on the pr inciple that parties should not litigate the same matter more than once.judgment merely an estoppel only as to th ose matters in issue or controverted Paragraph (b) refers to as “bar by former judgment or Res Judicata in judgments IN PERSONAM RES JUDICATA It is a matter adjudged.Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 has been given an opportunity at the surety’s request. 2) Against a person – presumptive evidence of a right as between the parties and t heir successors in interest by a subsequent title. SM only Section 48. ENFORCEMENT OF FOREIGN JUDGMENTS By filing an action based on said judgment. not only to matters presented. However. RES JUDICAT A OR BAR BY FORMER JUDGMENT . notice. an existing final judgment or de cree rendered on the merits is conclusive upon the rights of the parties or thei r privies. political. or relationship of the person CONCLUSIVENESS OF JUDGMENT Issues are actua lly 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. and cause of action b etween first and second action. SM. 4) Identity of parties. foreign judgment is presumed to be valid and bin ding. collusion. or clear mistake of law or fact. but as to any other admissible matter w/c might have been presented . to join the defense. Page 75 of .Refers to another action between same parties but involves different claim . or legal condition or status of a particular person E FFECT: CONCLUSIVE AS TO the title of the thing Will or administration.identity of parties. NOT between co-parties Par agraph (c) is known as “conclusiveness of judgment” or preclusion of issues or rule of AUTER ACTION PENDANT . EFFECT OF A FOREIGN ORD ER OR TRIBUNAL: 1) Against a specific thing – conclusive upon title to the thing. Effect of foreign judgments or final orders. REQUISI TES OF RES JUDICATA 1) Former judgment or order must be final and executory. 3) Former judgment or or der was on merits. 2) Court has jurisdiction over subject matter and parties. In both instances.Absolute bar to subsequent action . RECOGNITION OF A FOREIGN JUDGMENT Raise the foreign judgment as res judica ta in the defense (not in a separate action). Paragraph (a) refers to rule on Res Ju dicata in judgments IN REM. Sectio n 47. only prima facie evidence of the death of the testator or intestate Condition. subject matter. claim or demand . on the points and matters in issue in the first suit.identity of parties. cause of action ESTOPPEL BY JUDGMENT OR CONCLUSIVENESS BY JUDGMENT . s tatus. Effect of judgment or final orders.there is finality as to the claim or demand in contro versy.

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