TERMS & PRINCIPLES 1

CIVIL PROCEDURE

GENERAL PRINCIPLES JURISDICTION

Concept of Remedial Law Jurisdiction is defined as the authority to try, hear and decide
It is a branch of public law which prescribes the procedural a case.
rules to be observed in litigations, whether civil, criminal, or
administrative, and in special proceedings, as well as the Jurisdiction Over the Parties
remedies or reliefs provided in each case. (2006 Bar Jurisdiction over the plaintiff is acquired from the moment of
Question) filing of the complaint and the payment of the prescribed
docket fees. (2008 Bar Question)
Substantive Law v. Remedial Law
Substantive Law Remedial Law Jurisdiction over the defendant is acquired either:
Part of the law which Refers to the legislation 1. By his voluntary appearance in court and his
creates, defines or regulates providing means or methods submission to its authority;
rights concerning life, liberty whereby causes of action 2. By his service of summons; or
or property or the powers of may be effectuated, wrongs 3. Other coercive process upon him.
agencies or instrumentalities redressed and relief obtained
for the administration of (a.k.a. Adjective Law). Jurisdiction Over the Subject Matter
public affairs. Jurisdiction over the subject matter is the power or authority
Creates vested rights Does not create vested rights to hear and determine cases to which the proceeding in
Prospective in application. Retroactive in application question belongs.
Cannot be enacted by the The Supreme Court is
Supreme Court. expressly empowered to Error of Jurisdiction v. Error of Judgment
promulgate procedural rules. Error or Jurisdiction Error of Judgment
(2006 Bar Question) One where the court, officer One that the court may
or quasi-judicial body acts commit in the exercise of
Doctrine of Hierarchy of Courts without or in excess of jurisdiction; it includes errors
A higher court will not entertain direct resort to it unless the jurisdiction, or with grave of procedure or mistakes in
redress desired cannot be obtained in the appropriate courts. abuse of discretion the court’s findings
The Supreme Court is a court of last resort and must so Renders a judgment void or Does not make the court’s
remain if it is to satisfactorily perform assigned to it. (1996 at least voidable decision void
Bar Question) Correctible by certiorari Correctible by appeal
There is an exercise of The court acted with
Harmless Error Rule jurisdiction in the absence of jurisdiction but committed
The harmless error rule in relation to appeals provides that jurisdiction procedural errors in the
the appellate court should not reverse a judgment as a result appreciation of the facts or
of any error or defect which does not affect the substantial the law (1989 Bar Question)
rights of the parties.
Doctrine of Primary Jurisdiction
Doctrine of non-interference or doctrine of judicial stability Courts will not resolve a controversy involving a question
GR: No court has the authority to interfere by injunction with which is within the jurisdiction of an administrative tribunal,
the judgment of another court of co-equal and coordinate especially where the question demands the exercise of sound
jurisdiction or to pass upon or scrutinize and much less administrative discretion requiring the special knowledge and
declare as unjust a judgment of another court. experience of said tribunal in determining technical and
intricate matters of fact.
Ẍ: The doctrine does not apply where a third party claimant is
involved. Exhaustion of Administrative Remedies
Before a party may be allowed to invoke the jurisdiction of
Question of Law v. Question of Fact the courts, he is expected to have exhausted all means of
Question of law is when the doubt or difference arises as to administrative redress.
what the law is on a certain set of facts, while a question of
fact is when the doubt or difference arises as to the truth or Ẍ:
falsehood of alleged facts. (2004 Bar Question) 1. Question raised is purely legal;
2. When the administrative body is in estoppels;
3. When the act complained of is patently illegal;
4. When there is need for judicial intervention;
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CIVIL PROCEDURE

5. When the respondent acted in disregard of due Jurisdiction by Estoppel

process; The active participation of a party in a case is tantamount to
6. When the respondent is the alter-ego of the recognition of that court’s jurisdiction and will bar a party
President, bear the implied or assumed approval of from impugning the court’s jurisdiction. This only applies to
the latter; exceptional circumstances.
7. When irreparable damage will be suffered;
8. When there is no other plain, speedy and adequate Totality/Aggregate Rule
remedy; Where there are several claims or causes of actions between
9. When strong public interest is involved; and the same or different parties embodied in one complaint, the
10. In quo warranto proceedings amount of the demand shall be the totality of the claims in all
causes of action irrespective of whether the causes of action
Note: The failure to exhaust administrative remedies will not arose out of the same or different transaction (Rule 2, Sec.5
affect the jurisdiction of the court because the issue is not [d]).
jurisdictional. But the case will be dismissed on the ground of
lack of cause of action. It only renders the action premature. Jurisdiction Over the Issues
It is the power of the court to try and decide issues raised in
Doctrine of Ancillary Jurisdiction the pleadings of the parties or by their agreement in a pre-
It involves the inherent or implied powers of the court to trial order or those tried by the implied consent of the
determine issues incidental to the exercise of its primary parties. It may also be conferred by waiver or failure to object
jurisdiction. to the presentation of evidence on a matter not raised in the
pleadings.
Doctrine of Adherence to Jurisdiction/Doctrine of Continuity
of Jurisdiction Jurisdiction Over the Res
GR: Jurisdiction, once attached, cannot be ousted by Refers to the court’s jurisdiction over the thing or the
subsequent happenings or events although of a character property which is the subject of the litigation.
which would have prevented jurisdiction from attaching in
the first instance, and the court retains jurisdiction until it Acquired either by:
finally disposes of the case. 1. actual or constructive seizure by the court of the
Ẍ: thing in question, thus placing it in custodia legis
1. Where a subsequent statute expressly prohibits the (e.g. attachment or garnishment); or
continued exercise of jurisdiction; 2. by provision of law which recognizes in the court the
2. Where the law penalizing an act which is punishable power to deal with the property or subject-matter
is repealed by a subsequent law; within its territorial jurisdiction (e.g. land
3. When accused is deprived of his constitutional right registration)
such as where the court fails to provide counsel for
the accused who is unable to obtain one and does
not intelligently waive his constitutional right; ACTIONS
4. Where the statute expressly provides, or is
construed to the effect that it is intended to operate
Real Actions v. Personal Actions v. Mixed Actions
as to actions pending before its enactment;
5. When the proceedings in the court acquiring Real Action Personal Action Mixed Action
jurisdiction is terminated, abandoned or declared Ownership or Personal property Both real and
void; possession of real is sought to be personal
6. Once appeal has been perfected; property is recovered or properties are
7. 7. Curative statute involved damages for involved
breach of contract
Effect of lack of jurisdiction over the subject matter or the
enforcement of a
When it appears from the pleadings or evidence on record
contract are
that the court has no jurisdiction over the subject matter, the
sought
court shall dismiss the same. (Sec. 1, Rule 9). The court may
on its own initiative object to an erroneous jurisdiction and Filed in the court Filed in the court The rules on
may ex mero motu take cognizance of lack of jurisdiction at where the where the plaintiff venue of real
any point in the case and has a clearly recognized right to property (or any or any of the actions govern
determine its own jurisdiction. portion thereof) is defendants
situated resides, at the
plaintiff’s option
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CIVIL PROCEDURE

Local Action v. Transitory Action

Local Action
Must be brought in a
particular place where the
subject property is located,
unless there is an
agreement to the contrary.
Transitory Action
Dependent on the place
where the party resides
regardless of where the
cause of action arose.
Subject to Sec. 4, Rule 4

Action in rem v. Action in personam v. Action quasi in rem

Action in rem
A proceeding to determine the
state/condition of a thing
Directed against the thing itself
Directed against the whole world
Jurisdiction over the person of the
defendant is not required.
Jusrisdiction over the res is required
through publication in a newspaper of
general circulation
Judgment is binding upon the whole
world.
1. Probate proceeding
2. Cadastral proceeding
3. Land registration proceeding
Action in personam
Nature
An action to impose responsibility or
liability upon a person directly
Scope
Directed against particular persons
Jurisdiction
Jurisdiction over the person of the
defendant is required
Effect of Judgment
Judgment is binding only upon parties
impleaded or their successors-in-interest
Examples
1. Action for specific performance
2. Action for breach of contract
3. Action for ejectment
4. Action for a sum of money; for damage
Action quasi in rem
A proceeding to subject the property of
the named defendant or his interests
therein to the obligation or lien
burdening the property.
Directed against particular persons
Jurisdiction over the person of the
defendant is not required as long as
jurisdiction over the res is acquire
Judgment will be binding only upon the
litigants, privies, successor in interest but
the judgment shall be executed against a
particular property. The RES involve will
answer the judgment.
1. Action for partition
2. Action to foreclose real estate
mortgage attachment

CAUSE OF ACTION

Cause of Action Right of Action

Definition
It is the act or omission by Remedial right or right to
which a party violates the relief granted by law to a
rights of another ( Sec. 2, party to institute an action
Rule 2 against a person who has
committed a delict or
wrong against him
Basis
Based on the allegations Basis is the plaintiff’s
of the plaintiff in the cause of action
complaint
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CIVIL PROCEDURE

Failure to state cause of Lack of cause of action the court cannot proceed proceed even in their
action without him absence because his interest
Definition is separable from that of
Insufficiency in the Failure to prove or establish indispensable party
allegations of the complaint by evidence one’s stated No valid judgment if they are The case may be determined
cause of action not joined in court but the judgment
As ground for dismissal therein will not resolve the
Raised in a motion to dismiss Raised in demurrer to entire controversy if a
under Rule 16 before a evidence under Rule 33 after necessary party is not joined
responsive pleading is filed the plaintiff has rested his
case Indigent Party/Indigency Test
Determination Indigent litigants (a) whose gross income and that of their
Determined only from the Resolved on the basis of the immediate family do not exceed an amount double the
allegations of the pleading evidence he has presented in monthly minimum wage of an employee; and (b) who do not
and not from evidentiary support of his claim own real property with a fair market value as stated in the
matters current tax declaration of more than three hundred thousand
(P300,000.00) pesos shall be exempt from payment of legal
Elements of a cause of action (1997 Bar Question) fees. (Sec. 19, Rule 141).
(a) Plaintiff’s legal right;
(b) Defendant’s correlative obligation to respect plaintiff’s Pro forma Party
right; One who is joined as a plaintiff or defendant, not because
(c) Defendant’s act/omission in violation of plaintiff’s right such party has any real interest in the subject matter or
because any relief is demanded, but merely because the
Test of Sufficiency of a Cause of Action technical rules of pleadings require the presence of such
Whether or not admitting the facts alleged, the court could party on the record.
render a valid verdict in accordance with the prayer of the
complaint. Compulsory/Mandatory and Permissive Joinder of Parties

Splitting a Cause of Action Compulsory/Mandatory Joinder of Parties

It is the act of dividing a single or indivisible cause of action
into several parts or claims and bringing several actions
thereon. It is a ground for the dismissal of others. The rule
against splitting a cause of actions aims to avoid multiplicity
of suits, conflicting decisions and unnecessary vexation and
harassment of defendants. It applies not only to complaints
but also to counterclaims and cross-claims. (1999 Bar
Questions)
Parties in interest without whom no final determination can
be had of an action shall be joined either as plaintiffs or
defendants Sec 7, Rule 3)
Permissive Joinder of Parties
Parties can be joined, as plaintiffs or defendants, in one single
complaint or may themselves maintain or be sued in separate
suits (Sec 6, Rule 3)

Rule on Joinder of Causes of Action Requisites:

The rule on joinder of causes of action is that a party may in
one pleading, assert in the alternative or otherwise, as many
causes of actions as he may have against an opposing party,
provided that the rule on joinder of parties is complied with;
the joinder shall not include special civil actions or actions by
special rules, but may include causes of action pertaining to
different venues or jurisdictions provided one cause of action
falls within the jurisdiction of a RTC and venue lies therein;
and the aggregate amount claimed shall be the test of
jurisdiction where the claims in all the causes of action are
principally for the recovery of money. (Sec 5, Rule 2)
1. Right to relief arises out of the same transaction or
series of transactions (connected with the same
subject matter of the suit);
2. There is a question of law or fact common to all the
plaintiffs or defendants; and
3. Joinder is not otherwise provided by the provisions
of the Rules on jurisdiction and venue (Sec. 6, Rule
3).
Class Suit
It is an action where one or some of the parties may sue for
the benefit of all if the requisites for said action are complied
with.

Requisites:
1. Subject matter of the controversy is one of common
or general interest to many persons;
PARTIES TO CIVIL ACTIONS (Rule 3) 2. Parties affected are so numerous that it is
Real parties in interest impracticable to bring them all before the court;
The party who stands to be benefited or injured by the 3. Parties bringing the class suit are sufficiently
judgment in the suit, or the party entitled to the avails of the numerous or representative of the class and can fully
suit Sec 2, Rule 3) protect the interests of all concerned (Sec. 12 Rule
3); and
Indispensable Parties v. Necessary Parties 4. Representatives sue or defend for the benefit of all
Indispensable Parties Necessary Parties (Sec.12, Rule 3)
Must be joined under any Should be joined whenever
and all conditions because possible, the action can
Derivative Suit v. Class Suit (2005 Bar Question)

A derivative suit is a suit in equity that is filed by a minority
shareholder in behalf of a corporation to redress wrongs
committed against it, for which the directors refuse to sue,
the real party in interest being the corporation itself. A class
suit is filed in behalf of many persons so numerous that it is
impracticable to join all as parties (Sec. 12, Rule 3).
Death of Party Litigant
Effect of Death on Party Litigant (1999 Bar Question)
1. Purely personal – the death of either of the parties
extinguishes the claim and the action is dismissed.
2. Not purely personal – claim is not extinguished and
the party should be substituted by his heirs,
executor or administrator. In case of minor heirs, the
court may appoint a guardian ad litem for them.
3. Action for recovery of money arising from contract
and the defendant dies before entry of final
judgment – it shall not be dismissed but instead shall
be allowed to continue until entry of judgment. A
favorable judgment obtained by the plaintiff shall be
enforced in the manner provided in the rules for
prosecuting claims against the estate of a deceased
person. (Sec. 20, Rule 3)
Substitution of Parties (1999 Bar Question)
Death of a party, where the claim is not extinguished by the
death of the party (e.g. cases involving property and property
rights.
VENUE (Rule 4)
Venue v. Jurisdiction (2006 Bar Question)
Jurisdiction is the power of the Court to decide a case on the
merits, while venue refers to the place where the suit may be
filed. In criminal actions, however, venue is jurisdictional.
Jurisdiction may not be conferred upon a court by consent
through waiver, but venue may be waived except in criminal
cases.
Effect on Stipulation on Venue
The parties may agree on a specific venue which could be in a
place where neither of them resides (Universal Robina Corp.
vs. Lim, 535 SCRA 95). The parties may stipulate on the venue
as long as the agreement is in writing, made before the filing
of the action, and exclusive. (Sec.4[b], Rule 4)
PLEADINGS (Rule 6-13)
Complaint
The pleading alleging the plaintiff’s cause/s of action. It
should contain a concise statement of the ultimate facts
constituting the plaintiff’s cause/s of action, not evidentiary
facts or legal conclusions. [Rule 6, Sec. 3]
Test of sufficiency of the facts alleged in the complaint
Whether or not upon the averment of facts, a valid judgment
may be properly rendered
Answer
The pleading where the defendant sets forth his
affirmative/negative defenses. It may also be the response to
a counterclaim or a cross-claim (Rule 6, Sec 4)
TERMS & PRINCIPLES 5
CIVIL PROCEDURE
Kinds of Defenses in an Answer
1) Negative Defenses– Specific denials of the material
facts alleged in the pleading of the claimant essential
to his cause of action.
Negative Pregnant - Denial pregnant with an
admission. It is a denial pregnant with the admission
of the substantial facts in the pleading responded to
which are not squarely denied. It is in effect an
admission of the averment it is directed to.
2) Affirmative Defenses – Allegations of new matters
which, while hypothetically admitting the material
allegations in the claimant’s pleading, would
nevertheless prevent/bar recovery by him. It
includes fraud, prescription, release, payment and
any other matter by way of confession and
avoidance.
Counterclaims
Any claim which a defending party may have against an
opposing party.
(a) A counterclaim is in the nature of a cross-complaint.
Although it may be alleged in the answer, it is not
part of the answer.
(b) Upon its filing, the same proceedings are had as in
the original complaint.
(c) For this reason, it must be answered 10 days from
service [Rule 11, Sec 4] (2000 Bar Question)
Compulsory Counterclaim
Requisites:
(a) It must arise out of, or be necessarily connected
with, the transaction/occurrence that is the subject
matter of the opposing party's claim;
(b) It does not require for its adjudication the presence
of 3rd parties of whom the court cannot acquire
jurisdiction;
(c) It must be within the court’s jurisdiction both as to
the amount and the nature.
(1998 Bar Question)
Cross-claims
Requirements:
1. A claim by one party against a co-party;
2. It must arise out of the subject matter of the complaint
or of the counterclaim; and
3. The cross-claimant is prejudiced by the claim against him
by the opposing party. (Sec. 8, Rule 6)
Third (fourth, etc.) Party Complaint
It is a claim that a defending party may, with leave of court,
file against a person not a party to the action for contribution,
indemnity, subrogation or any other relief, in respect of his
opponent's claim
Tests to determine whether the third-party complaint is in
respect of plaintiff’s claim
1. Whether it arises out of the same transaction on which
the plaintiff’s claim is based, or, although arising out of
another or different transaction, is connected with the
plaintiff’s claim;
2. Whether the third-party defendant would be liable to the
plaintiff or to the defendant for all or part of the
plaintiff’s claim against the original defendant; and
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CIVIL PROCEDURE

3. Whether the third-party defendant may assert any (a) Specific denial – Specifies each material allegation of
defenses which the third-party plaintiff has or may have fact the truth of which he does not admit, and sets
to the plaintiff’s claim. forth the substance of the matters upon which he
relies to support his denial. [Rule 8, Sec. 10]
(b) Denial with qualification - Specifies so much of it as
Cross-claim v. Counterclaim v. Third Party Complaint (1997, is true and material, and deny the remainder.
1999 Bar Question) (c) Specific denial for lack of knowledge/information
Cross-claim Counterclaim Third Party sufficient to form as belief as to the truth of a
Complaint material averment made in the complaint.
Against a co-party Against an Against a person (d) Specific denial under oath - Contests the
opposing party not a party to the authenticity or due execution of an actionable
action document. [Rule 8, Sec. 8]
Must arise out of May arise out of Must be in
the transaction that or be necessarily respect of the Effect of Failure to Plead
is the subject connected with opponent’s Declaration of a Party in Default (2000, 2001 Bar Question)
matter of the the transaction or (plaintiff’s) claim A party may be declared in default when he fails to answer
original action or of the subject within the time allowed therefor and upon motion of the
a counterclaim matter of the claiming party with notice to the defending party, and proof
therein opposing party’s of such failure (Sec. 3, Rule 9).
claim
(compulsory Effect of Order of Default (1999 Bar Question)
counterclaim), or The effect of an Order of Default is that the court may
it may not proceed to render judgment granting the claimant such relief
(permissive as his pleading may warrant unless the court in its discretion
counterclaim) requires the claimant to submit evidence. The party in
default cannot take part in the trial but shall be entitled to
Reply notice of subsequent proceedings (Sec. 3[a], Rule 9).
Effect of Failure to Reply (2000 Bar Question)
GR: Filing a reply is merely optional. New facts that were Amendment
alleged in the answer are deemed controverted should a Amendment as a matter of right (2003 Bar Question)
party fail to reply thereto. Substantial Amendments – once, made at any time before a
responsive pleading is served. If it is a reply, once, made at
Ẍ: Reply is required: any time within 10 days after it is served. [Rule 10, Sec. 2]
a) Where the answer is based on an actionable
document. [Rule 8, Sec. 8] Amendments by leave of court
b) Where the answer alleges the defense of usury. Substantial Amendments - If as a matter of discretion,
[Rule 8, Sec. 11] requires leave of court if:
(a) It is substantial; and
Parts of a Pleading (b) A responsive pleading has already been served. [Rule
Forum Shopping (2006 Bar Question) 10, Sec. 3]
Forum-shopping is the act of filing multiple suits involving the
same parties for the same cause of action, either Requisites for amendments by leave of court
simultaneously or successively, for the purpose of obtaining a (a) Motion filed in court;
favorable judgment (b) Notice to the adverse party;
(c) Opportunity to be heard afforded to the adverse party.
Test to determine whether there is forum shopping (2002
Bar Question) Amendments to conform to or authorize presentation of
WON in the 2 or more cases pending, there is identity of: evidence (2004 Bar Question)
(a) Parties; (a) If issues not raised by the pleadings are tried with the
(b) Rights or causes of action; express/implied consent of the parties, they shall be
(c) Relief sought. treated in all respects as if they had been raised in the
pleadings.
Effect of Willful and Deliberate Forum Shopping (2006, 2007
Bar Question) (b) Amendment of pleadings as may be necessary to cause
1. Ground for summary dismissal of the case with them to conform to the evidence and to raise these
prejudice; issues, may be made upon motion of any party, any time
2. Direct contempt and administrative sanctions. (even after judgment). But failure to amend does not
(a) Pleadings as well as remedial laws should be affect the result of the trial of these issues.
liberally construed
(b) in order that the litigant may have ample (c) If evidence is objected to at the trial on the ground that it
opportunity to prove their respective claims, is not within the issues made by the pleadings, the court
and possible denial of substantial justice, due to may allow the pleadings to be amended and shall do so
technicalities, may be avoided with liberality if the presentation of the merits of the
action and the ends of substantial justice will be
Allegations in a Pleading subserved thereby. The court may grant a continuance to
enable the amendment to be made.
Kinds of Denial (2004 Bar Question)
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CIVIL PROCEDURE

Amendments v. Supplemental Pleadings (2000 Bar  It is carried out by leaving copies of the summons at the
Question) defendant’s residence with a person of suitable age and
Amendments Supplemental Pleadings discretion residing therein, or leaving copies at the
Reason for the amendment is Grounds for the defendant’s office or regular place of business with
available at time of the 1st supplemental pleading arose some competent person in charge thereof.
pleading. after the 1st pleading was
filed Requisites: (R3ED)
Either as a matter of right or Always a matter of discretion i. Service of summons within a Reasonable time (period of
a matter of discretion 1 month and at least 2 different dates) is impossible;
Supersedes the pleading Supplements the pleading ii. The person serving the summons exerted Efforts (at
(i.e. Exists side by side with least 3 times) to locate the defendant;
the original pleading) iii. The person to whom the summons is served is of
When an amended pleading A supplemental pleading sufficient age and Discretion;
is filed, a new copy of the does not require the filing of iv. The person to whom the summon is served Resides at
entire pleading must be filed a new copy of the entire the defendant’s place of residence; and
pleading v. Pertinent facts showing the enumerated circumstances
are stated in the Return of service.

SUMMONS (Rule 14)
Purpose
1. To acquire jurisdiction over the person of the defendant;
and
2. To give notice to the defendant that an action against
him.
Issuance
Upon the filing of the complaint and the payment of the
requisite legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants
Contents
1. The name of the court and of the parties to the action
2. A direction that the defendant answer within the time
fixed by the Rules
3. A notice that unless the defendant so answers, plaintiff
will take judgment by default and may be granted the
relief applied for.
Effect of non-service
Unless there is waiver, non-service or irregular service
renders null and void all subsequent proceedings and
issuances in the action from the order of default up to and
including the judgment by default and the order of execution.
By whom served
1. Sheriff
2. Sheriff’s deputy, or
3. Other proper court officers, or
4. For justifiable reasons, by any suitable person
authorized by the court issuing the summons.
Alias Summons
Issued when the original has not produced its effect because
it is defective in form or manner of service, and when issued,
supersedes the first.
Modes of Service of Summons
1. Personal Service
a) May be made by handling a copy of summons to
him; or
b) By tendering it to him if he refuses to receive it.
2. Substituted Service
 Where personal service of summons cannot be made for
justifiable causes within a reasonable period of time.
3. Summons by Publication
In any action where the defendant is designated as an
unknown owner, or whenever his whereabouts are unknown
and cannot be ascertained by diligent inquiry, service may, by
leave of court, be effected upon by him by publication in a
newspaper of general circulation and in such places and for
such time as the court may order.
4. Extraterritorial Service
Section 15. A non-resident not found in the Philippines
named as a defendant in an action in rem or quasi in rem:
a) By personal service of summons done outside the
Philippines;
b) By publication in a newspaper of general circulation in
such places and for such time as the courts shall set. A
copy of the summons and order by the court shall be sent
by registered mail to the last known address of
defendant; or
c) By any other matter which the court may deem sufficient.
Applicable to Specific Actions: (AREA)
i. Actions that Affect the personal status of the plaintiff;
ii. Actions which Relate to, or the subject matter of which
is property within the Philippines, in which the
defendant claims a lien or interest, actual or contingent;
iii. Actions in which the relief demanded consists, wholly or
in part, in Excluding the defendant from an interest in
property located in the Philippines; and
iv. When the defendant’s property has been Attached in
the Philippines.
Section 16. A resident who is temporarily out of the
Philippines named as a defendant in any action may, with
leave of court, be the subject if extraterritorial service in the
same ways as abovementioned.
Service upon Public Corporations
 In case the defendant is the Republic of the Philippines:
- by serving upon the Solicitor General
 In case of a Province, City or Municipality, or like Public
Corporations:
- by serving on its executive head, or on such
other officer as the law or the court may direct.
Service upon a Domestic Private Juidical Entity
 To the president, managing partner, general manager,
corporate secretary, treasurer, or in-house counsel.
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CIVIL PROCEDURE

 Note: Service upon a person other than those mentioned

is invalid and does not bind the corporation. The
enumeration is exclusive.

Service upon a Foreign Private Juridical Entity

 If transacted business in the Philippines:
o service may be made in its resident agent
designated in accordance with law for that MOTIONS (Rule 15)
purpose. A motions is an application for relief other than by a pleading.

 If there be no such agent: Motions v. Pleadings: (PITAF)

o on the government official designated by
law to that effect, or on any of its officers Motion Pleading
within the Philippines. As to Purpose
The purpose of a motion is The purpose of a pleading is
 If not registered on the Philippines, or has no resident to apply for an order not to submit a claim or defense
agent, service may, with leave of court, be effected included in the judgment. for appropriate judgment.
out of the Philippines through any of the following As to being Initiatory
means: A motion cannot be A pleading may be initiatory.
1) By personal service coursed through the initiatory as they are
appropriate court in the foreign country with always made in a case
the assistance of the DFA; already filed in court.
2) By publication once in a newspaper of general As to Time of filing
circulation in the country where the May be filed even after Always filed before
defendant may be found and by serving a judgment. judgment.
copy of the summons and the court oder by- As to kinds of pleading Allowed
registered mail at the last known address of Any application for relief There are only 9 kinds of
the defendant; which is not made by way pleadings allowed by the
3) By facsimile or any recognized electronic of a pleading is a motion. Rules.
means that could generate proof service; or As to Form
4) By such means as the court may in its A motion may be oral A pleading must be written.
discretion direct. when made in open court
or in the course of a
Service upon Prisoners and Minors hearing or trial.
Prisoners:
Effected upon him by the officer having the management of Kinds of motions
such jail or institution. The jail manager is deemed deputized 1. Litigious Motions:
as a special sheriff. a) Motion for reconsideration
b) Motion to dismiss
Minors: c) Motion to declare defendant in fault
Effected upon him personally and on his legal guardian, if he d) Motion for execution
has one, and if none to his guardian ad litem whose
appointment shall be applied for by the plaintiff. If the 2. Non-litigious Motions:
defendant is a minor, service may also be made to either of a) Motion for extension of time to file answer
his parents. b) Motion for postponement
c) Motion for extension of time to file record on appeal
Proof of Service d) Motion to set case for pre-trial
1. The proof of service shall be made in writing by the server
Contents and Forms of Motion
and shall state the: (MP3)
a. Manner of service; Form:
b. Place and date of service; All motions shall be in writing except when it is made in open
c. Specify any accompanying Papers; and court or in the course of a hearing or trial
d. Name of the Person who received the summons. It
shall be sworn to if made by a person other than a Contents: (RAG)
sheriff or his deputy. a) State the Relief sought to be obtained;
b) Be accompanied by supporting Affidavits and other
2. Where service is by publication, it may be proved by the: papers when mandated by the Rules or necessary to
a. Affidavit of the printer, his foreman, principal clerk, prove the facts in the motion; and
editor, business or advertising manager to which a copy c) State the Grounds upon which the motion is based.
of the publication shall be attached; and by an
b. Affidavit showing the deposit of a copy of the Notice of Hearing
summons and order for publication in the post office, The motion which contains the notice of hearing shall be
postage prepaid, directed to the defendant by served as to ensure its receipt by the other party at least 3
registered mail to his last known address. days before the date of hearing, unless the court for good
cause sets the hearing for shorter notice. The notice of
hearing shall be addressed to all the parties concerned and

shall specify the time and date of the hearing which shall not
be later than 10 days after the filing of the motions.
Omnibus Motion Rule
Every motion that attacks a pleading. Order, judgment, or
proceeding shall include all objections then available, and all
objections not so included shall be deemed waived.
HOWEVER, the following are not deemed waived: (ReLPS)
1. Res Judicata
2. Litis Pendentia;
3. Prescription of the action; and
4. Lack of Jurisdiction over the Subject matter.
Litigated Motion
It is one which requires notice to the adverse party to afford
the latter an opportunity to resist the application.
Ex Parte Motion
is one which does not require that the parties be heard and
which the court may act upon without prejudicing the right of
the other party.
Pro Forma Motions
refers to a motion which does not satisfy the requirements of
the Rules and which will be treated as a motion intended to
delay the proceedings.
Motion for Bill of Particulars
Purpose: to seek an order from the court directing the
pleader to submit a “bill of particulars” which avers matters
with sufficient definiteness or particularly to enable the
movant to prepare his responsive pleading. Such motions
shall point out the defects complained of, the paragraphs
wherein they are contained, and the details desired.
The motion shall be filed before the responsive pleading is
filed. Reference should thus be had to the periods to file an
answer or reply laid down in Rule 11. If the pleading is a reply,
the motion must be filed within 10 days from service thereof.
Action of the Court
The court may either deny or grant the motion outright or to
allow the parties to be heard.
Compliance with the Order and Effect of Non-Compliance
If the motion is granted either in whole or in part, the
compliance therewith must be effected within 10 days from
notice of the order, unless a different period is fixed by the
court. The bill may be filed either in a separate or in an
amended pleading, serving copy thereof to the adverse party.
Effects of Non-Compliance
1. The order is not obeyed or there is insufficient
compliance, the court may order the striking out of
the pleading;
2. Or portions thereof to which the order was directed or
make such other orders as it may deem just.
Effect on the Period to File a Responsive Pleading
 The filing of a motion for a bill of particulars shall stay the
period to file the responsive pleading.
 After the service of the bill of particulars or after notice
of the denial of the motion the movant may file his
responsive pleading within the period to which he was
TERMS & PRINCIPLES 9
CIVIL PROCEDURE
entitled to at the time the motion was filed. Such period
shall not be less than 5 days in any event.
MOTION TO DISMISS (Rule 16)
Grounds: (J2VL2-RPN-CUE)
1. Lack of Jurisdiction over the defendant;
2. Lack of Jurisdiction over the subject matter of
the claim;
3. Improper Venue;
4. Plaintiff has no Legal capacity to sue;
5. Litis Pendentia;
6. Res Judicata;
7. Prescription;
8. States No cause of action;
9. Non-compliance with a Condition precedent for
filing the claim;
10. The claim is Unenforceable under the Statute of
Frauds; and
11. The claim has been paid, waived, abandoned or
otherwise Extinguised.
Resolution of Motion
After hearing, the court may:
1. Dismiss the action or claim;
2. Deny the motion; or
3. Order the amendment of the pleading.
Note: The resolution of the motion shall not be delayed for
the reason that the ground relied upon is indubitable. It shall
state clearly and distinctly the reason for the court’s action.
General Types of a Motion to Dismiss
1. Motion to Dismiss under Rule 16
2. Motion to Dismiss under Rule 17
a. Upon notice by plaintiff
b. Upon motion of plaintiff
c. Due to fault of plaintiff
3. Motion to Dismiss on demurrer to evidence after plaintiff
has rested his case under Rule 33
4. Motion to Dismiss the appeal filed either in the lower
court (Rule 41, Sec 13) or in the appellate court (Rule 50,
Sec. 1)
Remedies of the Plaintiff when the Complaint is Dismissed
1. Re-file the complaint (Rule 15, Sec.6) - Where the
dismissal is final but is without prejudice, the plaintiff
may simply re-file the action.
2. Appeal - Where the dismissal is final and it bars the re-
filing of the case, he may appeal from the order of
dismissal.
3. Petition for Certiorari - Where the dismissal is without
prejudice and the court has gravely abused its discretion
in doing so, the plaintiff may resort to certiorari under
Rule 65.
Remedies of the Defendant when the Motion is Denied
1. Appeal - As a rule, if the motion to dismiss is denied, such
order is not appealable. A motion to dismiss is an
interlocutory order. Under Rule 41, interlocutory orders
are not appealable. The defendant must file his answer
and if adverse judgment is rendered he may file an
appeal of such judgment; or
2. Petition for Certiorari - However, where the denial of the
motion to dismiss is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction, the
defendant may resort to certiorari or prohibition under
Rule 65.
 TERMS & PRINCIPLES 10
CIVIL PROCEDURE

Note: The second notice of dismissal will bar a further re-

Effect of Dismissal of the Complaint on Certain Grounds filing of the action because it will operate as an adjudication
As a general rule, the dismissal of a complaint shall be of the claim based upon the merits.
without prejudice to the re-filing of the case except those
cases covered by the bar-by-dismissal-rule. Dismissal Upon Motion by Plaintiff
Once an answer or a motion for summary judgment has been
Bar by Dismissal served on the plaintiff, the dismissal is no longer a matter of
When the dismissal is for any of the following grounds, the right will require the filing of a motion to dismiss and not a
action will be barred and may no longer be re-filed: (PURE) mere notice thereof. It will be subject to the approval of the
1. Prescription; court upon such terms and conditions as are just.
2. Unenforceability of the claim under the Statute of
Frauds; Effect on Existing Counterclaim
3. Res Judicata; or When a counterclaim has been pleaded by the defendant
4. Payment, waiver, abandonment or Extinguishment of prior to the service is upon him of the plaintiff’s motion for
the claim. dismissal, the dismissal shall be limited to the complaint. It
shall be without prejudice to the right of the defendant to
Motion to Dismiss [Rule Motion to Dismiss [Rule prosecute his counterclaim in a separate action unless within
16] 33] 15 days from notice of the motion he manifests his
(Demurrer to Evidence) preference to have the counterclaim resolved in the same
action.
As to Basis

Grounded on Preliminary Based on insufficiency of Dismissal Due to the Fault of the Plaintiff
objections evidence The court may, upon motion or motu propio, dismiss a
As to Who may File complaint even when the plaintiff has no desire to have the
same dismissed when: (APC)
May be filed by any May be filed only by the 1. Plaintiff fails to Appear for no justifiable cause on the day
defending party against defendant against the of the presentation of his evidence in chief on the
whom a claim is asserted complainant of the complaint;
in the action plaintiff 2. Plaintiff fails to Prosecute his action for an unreasonable
As to the Period to File length of time; or
Should be filed within the May be filed only after the 3. Plaintiff fails to Comply with the Rules or any order of the
time for but prior to the plaintiff has completed court.
filing of the answer of the the presentation of his
defending party to the evidence The dismissal has the effect of an adjudication upon the
pleading asserting the merits and is thus with prejudice to the re-filing of the action,
claim against him unless the court declares otherwise. However, the dismissal is
As to the Effect of Denial without prejudice to the right if the defendant to prosecute
his counterclaim in the same or in a separate action. Since the
If denied, defendant If denied, defendant may dismissal has the effect of an adjudication upon the merits of
answers, or else he may present evidence the case, appeal is the proper remedy.
be declared in default. If granted, plaintiff
If granted, plaintiff may appeals and the Order of Dismissal of Counterclaim, Cross-claim or Third-Party
appeal or if subsequent the dismissal is reversed, Complaint
case is not barred, he may the defendant loses his The same rules regarding the dismissal of actions shall also
re-file the case right to present evidence apply to the dismissal of a counterclaim, cross-claim or third-
party complaint. A notice of dismissal here shall be made
before a responsive pleading pleading or motion for summary
DISMISSAL OF ACTIONS (Rule 17) judgment is served or if there is none, before the introduction
of evidence at trial or hearing.
Dismissal upon Notice by Plaintiff: Two-Dismissal Rule
 The plaintiff, at any time before the service of an answer
or a motion for summary judgment, may file a notice of PRE-TRIAL (Rule 18)
dismissal of his complaint. Upon its filing, the court shall A mandatory conference and personal confrontation before
issue an order confirming such dismissal. the judge between the parties and their respective counsel. It
 The dismissal shall be without prejudice to the re-filing of is conducted after the last pleading has been served and filed,
the complaint except when: with the plaintiff having the duty to move ex parte that the
1. The notice of the dismissal provides that the case be set for pre-trial.
dismissal is with prejudice; or
2. The plaintiff has previously dismissed the same case Nature and Purpose
in a court of competent jurisdiction. The court shall consider the following matters in the pre-trial:
(SINAWA-PAO)
Application of the Two-Dismissal Rule 1. The possibility of an amicable Settlement or
This rule applies when the plaintiff has: (TCC) submission to alternative modes of dispute resolute;
1. Twice dismissed the action; 2. The simplification of the Issues;
2. Based on or including the same Claim; and 3. The Necessity or desirability of amendments to the
3. In a court of Competent jurisdiction. pleadings;
 TERMS & PRINCIPLES 11
CIVIL PROCEDURE

4. The possibility of obtaining stipulations or
Admissions of facts and documents to avoid
unnecessary proof;
5. The limitation of the number of Witnesses;
6. The Advisability of a preliminary reference of the
issues to a commissioner;
7. The Propriety of rendering judgment on the
pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found
to exist;
8. The Advisability or necessity of suspending the
proceedings; and
9. Such Other matters as may aid in the prompt
disposition of the case.
Note: The court shall also consider the identification and
marking of evidence as one of the purposes of pre-trial.
Is pre-trial mandatory?
Pre-trial is mandatory in all civil cases and in all criminal cases
cognizable by the Sandiganbayan, RTC, MTCC, MTC, MeTC,
and MCTC. It is likewise mandatory in both civil and criminal
cases under the Rules on Summary Procedure and Small
Claims Procedure.
Notice of Pre-Trial
The notice of pre-trial shall be served on the counsel of the
party if the latter is represented by counsel. Otherwise, the
notice shall be served on the party himself. The counsel is
charged with the duty of notifying his client of the date, time
and place of the pre-trial.
The pre-trial brief contain, among others: (SAID-DW)
1. A Statement of their willingness to enter amicable
settlement or alternative modes of disputes
resolution, indicating the desired terms thereof;
2. A summary of Admitted facts and proposed
stipulations of facts;
3. The Issues to be tried or resolved;
4. The Documents or exhibits to be represented stating
the purpose thereof;
Note: No evidence shall be allowed to be
represented and offered during the trial in support
of a party’s evidence-in-chief other than those that
had been earlier identified and pre-marked during
the pre-trial, except of allowed by the court for good
cause shown.
5. A manifestation of their having availed or their
intention to avail themselves of Discovery
procedures or referral to commissioners; and
6. The number and names of the Witnesses, and the
substance of their respective testimonies.
Failure to File a Pre-Trial Brief
The failure to file the brief shall have the same effects as the
failure to appear during pre-trial. Hence, if it is the plaintiff
who fails to file a pre-trial brief, such failure shall be cause for
dismissal of the action. If it is defendant who fails to do so,
such failure shall be cause to allow the plaintiff to present his
evidence ex parte.
Pre-Trial in a Civil Case v. Pre-Trial in a Criminal Case
Pre-Trial in Civil Cases Pre-Trial in Criminal Cases

Appearance of the Parties As to Manner of Commencement

Both parties and their counsels have the duty to appear at
Set when the plaintiff moves Ordered by the court and no
the pre-trial. The non-appearance of a party may be excused ex parte to set the case for motion to set the case for
only if a valid cause is shown therefor or if a representative pre-trial. pre-trial is required from
shall appear in his behalf fully authorized in writing to enter
either the prosecution or
into a amicable settlement, to submit to alternative modes of
the defense.
dispute resolution, and to enter into stipulations or As to Time of Commencement
admissions of facts and of documents.
The motion to set the case The pre-trial is ordered by
Failure of the Plaintiff to appear during the Pre-trial for pre-trial is made after the court after arraignment
The failure of the plaintiff to appear shall be cause for the the last pleading has been and within 30 days from the
dismissal with prejudice of the action, unless the court orders served and filed. date the court acquires
otherwise. The dismissal shall have the effect of an jurisdiction over the person
adjudication on the merits and is thus final. The remedy of of the accused.
the plaintiff is to appear the order of dismissal. As to Possibility of Entering in Amicable Settlement

Failure of the Defendant to appear during the Pre-trial Considers the possibility of Does not consider possibility
an amicable settlement of an amicable settlement
The failure of the defendant to appear shall be cause to allow
the plaintiff to present his evidence ex parte and for the court As to Form
to render judgment on the basis of the evidence presented by
the plaintiff. However, the defendant shall not be declared in A.M. No. 03-1-09 dated July All agreements or
default. The judgment may award beyond the claim prayed 12, 2004 requires the admissions made or entered
for in the complaint, as opposed to a judgment by default, proceedings during the during pre-trial shall be
where the award is limited to what has been prayed for in the preliminary conference to reduced in writing and
complaint. The order to present evidence ex parte is be recorded in the “Minutes signed by bot the accused
interlocutory and thus not appealable. The defendant may of Preliminary Conference” and counsel; otherwise,
ask for reconsideration and if the denial is with grave abuse to be signed by both parties they cannot be used against
of discretion he may file a petition for certiorari. and/or counsel. the accused.
As to Effect of Non-appearance
Pre-Trial Brief
Non-Appearance subjects Non-appearance only
The parties shall file a pre-trial brief with the court and serve
both parties to sanctions. subjects counsel or the
on the adverse party, in such a manner as shall ensure their
prosecutor to sanctions.
receipt thereof at least 3 days before the date of the pre-trial.
As to Presence of the Defendant/Accused
Contents
 TERMS & PRINCIPLES 12
CIVIL PROCEDURE

Defendant must appear Unless otherwise required Process directed to a person, requiring him to attend and to
personally unless excused by the Court, the accused testify at the hearing/trial of an action or at any investigation
for a valid cause or duly presence is not conducted by competent authority, or for the taking of his
represented by a person indispensable. The accused deposition.
with the requisite authority may waive his presence at
specified in Section 4, Rule all stages of the criminal Quashing of Subpoena
18. Otherwise, the court action, except at the Upon motion promptly made, at/before the time specified in
may allow the plaintiff to arraignment, promulgation the subpoena.
present evidence ex parte of judgment, or when
and render judgment in the required to appear for Grounds for Quashing Subpoena duces tecum
basis thereof. identification. 1. It is unreasonable and oppressive;
As to Presence of Plaintiff/Complainant 2. The relevancy of the books/documents/ things does not
appear;
Plaintiff must appeal The presence of the private
3. The person in whose behalf the subpoena is issued fails
personally unless excused offended party is not
to advance the reasonable cost of production;
for a valid cause or duly required.
4. Witness fees and kilometrage were not tendered when
represented by a person
subpoena was served.
with the requisite authority
specified in Section 4, Rule
Grounds for Quashing Subpoena ad testificandum
18. Otherwise, the action
1. That the witness is not bound thereby;
may be dismissed with
2. That witness fees and kilometrage were not tendered
prejudice, unless otherwise
when the subpoena was served.
ordered by the court.
As to Requirement of Pre-Trial Brief
Parties are required to Submission of pre-trial are
submit pre-trial briefs at not required.
least 3 days from the date pf MODES OF DISCOVERY (Rule 23-29)
pre-trial.
Discovery
Discovery is a device employed by a party to obtain
INTERVENTION (Rule 19) information about relevant matters on the case from the
A legal remedy whereby a person is permitted to become a adverse party in the preparation for trial.
party in a case, by either:
1. Joining the plaintiff; Purposes of the Rules of Discovery
2. Joining the defendant; 1. To enable a party to obtain knowledge of material
3. Asserting his right against both plaintiff and defendant, facts within the knowledge of the adverse party or of
considering that either: third parties through depositions;
a) He has a legal interest in the subject matter of the 2. To obtain knowledge of material facts or admissions
action; from the adverse party through written
b) He has legal interest in the success of either of the interrogatories;
parties 3. To obtain admissions from the adverse party
c) He has legal interest against both of the parties regarding the genuineness of relevant documents or
d) He is going to be adversely affected by the relevant matters of fact through requests for
disposition of the property in the custody of the admissions;
court (2003 Bar Question) 4. To inspect relevant documents or objects, and lands
or other property in the possession and control of
Requisites for an intervention by a non-party in an action the adverse party; and
pending in court (2000 Bar Question) 5. To determine the physical or mental condition of a
a) Legal interest in the matter in controversy; or party when such is in controversy (Koh v. IAC, 144
b) Legal interest In the success of either of the parties; SCRA 259).
or
c) Legal interest against both; or
d) So situated as to be adversely affected by a
distribution or other disposition of property in the
custody of the court or of an officer thereof.
e) Intervention will not unduly delay or prejudice the
adjudication of the rights of original parties;
f) Intervenor’s rights may not be fully protected In a
separate proceeding.

SUBPOENA (Rule 21)

Subpoena duces tecum (1997 Bar Question)
Process directed to a person, requiring him to bring with him
any books/documents/things under his control.

Subpoena ad testificandum

Deposition
Taking of testimony out of court of any person, whether party
to the action or not but at the instance of a party to the
action.
Kinds of Depositions
(a) Depositions pending action [Rule 23] – called deposition
de bene esse
(b) Depositions before action or pending appeal [Rule 24] –
called depositions in perpetuam rei memoriam
Persons before whom deposition may be taken
1. If within the Philippines:
a) Judge;
b) Notary public (Sec. 10, Rule 23); or
c) Any person authorized to administer oaths, as
stipulated by the parties in writing (Sec. 14, Rule 23).
2. If outside the Philippines:
a) On notice, before a secretary of embassy or legation,
consul-general, consul, vice-consul, or consular
agent of the Philippines (Sec. 11, Rule 23); or
b) Before such person or officer as may be appointed
by commission or letters rogatory; or
c) Any person authorized to administer oaths, as
stipulated by the parties in writing (Sec. 14, Rule 23).
Issuance of Letters Rogatory or Commission
They shall be issued only when necessary or convenient, on
application and notice, and on such terms and with such
direction as are just and appropriate (Sec. 12, Rule 23).
Procedure for Deposition before Action
1) File a verified petition in the court of the place of the
residence of any expected adverse party, entitled in the name
of the petitioner and stating:
a) That the petitioner expects to be a party to an action
in a court of the Philippines but is unable to bring it
or cause it to be brought;
b) The subject matter of the expected action and his
interest therein;
TERMS & PRINCIPLES 13
CIVIL PROCEDURE
c) The facts which he desires to establish by the
proposed testimony and his reasons for desiring to
perpetuate it;
d) The names or a description of the persons he
expects will be adverse parties and their addresses
so far as known; and
e) The names and addresses of the persons to be
examined and the substance of the testimony which
he expects to elicit, and
f) Asking for an order authorizing the taking of the
depositions of the persons sought to be examined
named in the petition for the purpose of
perpetuating their testimony.
2) Notice and service to each person named in the petition as
an expected adverse party, together with a copy of the
petition, stating that the petitioner will apply to the court, at
a time and place named therein, for the order described in
the petition.
(a) At least 20 days before the date of the hearing,
the court shall cause notice thereof to be served on
the parties and prospective deponents in the
manner provided for service of summons.
3) Order and Examination: If the court is satisfied that the
perpetuation of the testimony may prevent a failure or delay
of justice, it shall make an order designating or describing the
persons whose deposition may be taken and specifying the
subject matter of the examination and whether the
depositions shall be taken upon oral examination or written
interrogatories.
Procedure for Deposition Pending Appeal
(1) During the pendency of an appeal, the court in which the
judgment was rendered may allow the taking of
depositions of witnesses to perpetuate their testimony in
the event of further proceedings in the said court.
(2) The party who desires to perpetuate the testimony may
make a motion in the said court for leave to take the
depositions, upon the same notice and service thereof as
if the action was pending therein. The motion shall state:

(a) The names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and
(b) The reason for perpetuating their testimony.
(3) Order allowing the deposition: If the court finds that the
perpetuation of the testimony is proper to avoid a failure
or delay of justice, it may make an order allowing the
deposition to be taken.
Deposition v. Affidavit
While an affidavit is also under oath, it is distinguished from a
deposition in that it is executed ex parte without any
opportunity for the other parties to attend and cross examine
the affiant. Hence an affidavit is hearsay and inadmissible in
evidence while deposition is admissible in evidence under the
conditions and situations set forth in Section 4, Rule 23.
Interregatories of Parties
A pretrial discovery method in which written questions are
propounded by one party and served on the adverse party,
who must serve written replies thereto under oath.
Deferment of Compliance
TERMS & PRINCIPLES 14
CIVIL PROCEDURE
To avoid the implied admission, the party requested may
have the compliance of the filing and service of the sworn
statement be deferred by filing with court objections to the
request for admission.
Physical and Mental Examination Of Persons [Rule 28]
Motion Requesting Examination
Requisites:
a) The physical or mental condition of a party (NOT A
WITNESS!) is in controversy
b) Motion must be filed showing good cause
c) Notice given to the party to be examined and to all
other parties
d) Notice must specify the time, place, manner,
conditions and scope of examination
e) Notice must also specify person/s who will make the
examination
TRIAL (RULE 30)
Trial is the judicial process of investigating and determining
the legal controversies, starting with the production of
evidence by the plaintiff and ending with his closing
arguments [Acosta v. People [1962]].
Hearing
Hearing is a broader term. It is not confined to the trial and
presentation of the evidence because it actually embraces
several stages in the litigation. It includes the
pre-trial and the determination of granting or denying a
motion. [Trocio v. Labayo [1973]]
No need for trial in the following cases:
(1) Where the pleadings of the parties tender no issue at all,
a judgment on the pleadings may be directed by the
court (Rule 34);
(2) Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the court
may render a summary judgment (Rule 35);
(3) Where the parties have entered into a compromise or an
amicable settlement either during the pre-trial or while
the trial is in progress (Rule 18; Art. 2028, NCC);
(4) Where the complaint has been dismissed with prejudice
(Sec. 5, Rule 16; Sec. 3, Rule17; Sec. 5, Rule 7);
(5) Where the parties agree in writing, upon the facts
involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
introduction of evidence. If, however, there is no
agreement as to all the facts in the case, trial may be
held only as to the disputed facts (Sec. 6, Rule 30);
(6) Where the civil case falls under the operation of the
Rules on Summary Procedure (Rule 17); and 7. When the
case falls under the Rule on Small Claims.

Requisites of Motion to Postpone Trial
(1) For absence of evidence [Sec. 3, Rule 30] – Motion
accompanied by affidavit showing:
a) That the materiality or relevancy of the evidence;
and
b) That diligent efforts had been exerted to procure the
evidence
(2) For illness of party or counsel [Sec. 4, Rule 30] – Motion
accompanied by affidavit or sworn certification showing:
a) The presence of such party or counsel at the trial is
indispensable; and
b) That the character of his illness is such as to render
his non-attendance excusable
Reverse Order
The defendant presents evidence ahead of the plaintiff, when
the defendant relies in his Answer only upon an affirmative
defense.
Consolidation or Severance of Hearing or Trial (Rule 31)
Consolidation is a procedural device, granted to the court as
an aid in deciding how case in its docket are to be tried, so
that the business of the court may be dispatched
expeditiously while providing justice to the parties.
Requisites:
1) actions which involves a common question of law
2) there must be at least 2 actions pending before same
court
3) if filed with different courts, an authorization from
Supreme Court is necessary
Kinds of Consolidation
4) Quasi-consolidation – where all, except one, of several
actions are stayed until one is tried, in which case, the
judgment in the one trial is conclusive as to others; not
actually consolidation but referred to as such
TERMS & PRINCIPLES 15
CIVIL PROCEDURE
5) Actual consolidation – where several actions are
combined into one, lose their separate identity, and
become one single action in which judgment is rendered
6) Consolidation for Trial – where several actions are
ordered to be tried together, but each retains its
separate character, and requires the entry of separate
judgment
Three Ways of Consolidating Cases
a. by recasting the cases already instituted
b. by consolidation proper or by consolidating
existing cases
c. by test-case method
Severance (Separate) Trials
The court, in furtherance of convenience or to avoid
prejudice, may order a separate trial of any claim, cross-
claim, counterclaim, or third party complaint, or of any
separate issue or of any number of claims, cross-claims,
counterclaim, third party complaints or issue
Trial by Commissioners (Rule 32)
Commissioner
A person to whom a case pending in court is referred, for him
to take testimony, hear the parties and report thereon to the
court, and upon whose report, if confirmed, judgment is
rendered
General Rule: Trial by commissioner depends largely upon
the discretion of the court.
Ẍ: In the following instances, appointment of a commissioner
is necessary:
1. Expropriation [Rule 67]
2. Partition [Rule 69]
3. Settlement of Estate of a Deceased Person in case of
contested claims; and
4. Submission of Accounting by executors or
administrators
Kinds of Trial by Commissioners
1) Reference by consent of both parties.
The court may order any or all of the issues in a case to be
referred to a commissioner by written consent of both
parties.
2) Reference ordered on motion
The court may direct reference to a commissioner, upon
application of a party or upon its own motion, in the ff. cases:
a) When trial of an issue of fact requires examination of
long account;
b) When taking of an account is necessary;
c) When question of fact, other than upon pleadings,
arises upon motion or otherwise, in any stage, or for
carrying a judgment into effect.
Powers of Commissioner
1. Exercise power to regulate the proceeding before him
2. Do all acts and take all measures necessary or proper for
the efficient performance of his duties
3. Issue subpoena and subpoenas duces tecum
4. Swear witnesses
5. Rule upon the admissibility of evidence, unless otherwise
provided in the order of reference
Demurrer to Evidence (Rule 33)

A species of motion to dismiss that may be invoked based on
insufficiency of evidence [i.e. upon the facts and the law the
plaintiff has shown no right to relief. [Sec. 1, Rule 33]
It is invoked after the plaintiff has presented all the evidence
available to him.
Judgment on Demurrer to Evidence
Judgment rendered by the court dismissing a case upon
motion of defendant, made after plaintiff has rested his case,
on the ground that upon the facts presented and the law on
the matter, plaintiff has not shown any right to relief.
Waiver of Right to Present Evidence
If the order granting the demurrer is reversed on appeal, the
defendant loses his right to present evidence.
(3) Judgment upon the merits - It is one that is rendered after
(4) Clarificatory judgment - It is rendered to clarify an ambiguous
(5) Judgment nunc pro tunc - Literally, “now for then”. It is a
TERMS & PRINCIPLES 16
CIVIL PROCEDURE
JUDGEMENT AND FINAL ORDERS (Rules 34-36)
Judgments in General
The final ruling by a court of competent jurisdiction regarding
the rights and obligations of the parties, or other matters
submitted to it in an action or proceeding
Requisites of a Valid Judgment [Sec 1, Rule 36; Sec 14, Art 8,
1987 Constitution]
[AJOEWS]
a) Court/tribunal must be with authority to hear and
determine the matter before it;
b) Court must have jurisdiction over the parties and the
subject matter;
c) Parties must have been given an opportunity to adduce
evidence in their behalf;
d) Evidence must have been considered by the tribunal in
deciding the case; [Acosta v. COMELEC (1998)]
e) Judgment must be in writing, personally and directly
prepared by the judge;
Note: A verbal judgment is, under the law, ineffective.
[Corpus v. Sandiganbayan (2004)]
f) Judgment must state clearly the facts and the law upon
which the decision is based, signed by the judge and filed
with the clerk of court. [Rule 35, Sec. 1]
Kinds of Judgment
(1) Judgment upon compromise - It is one conferred on the
basis of a compromise agreement entered into between
the parties. It is immediately executory in the absence of
a motion to set aside on the ground of FAME.
(2) Judgment upon confession - It is one rendered by the
court when a party expressly agrees to the other party’s
claim or acknowledges the validity of the claim against
him.
a. Judgment by cognovit actionem – After service,
the defendant, instead of entering a plea,
acknowledged and confessed that the plaintiff’s
cause of action was just and rightful.
b. Judgment by confession relicta verificatione –
After pleading and before trial, the defendant
both: (a) confessed the plaintiff’s cause of
action; and (b) withdrew his plea or other
allegations, whereupon judgment was entered
against him without proceeding to trial.
consideration of the evidence submitted by the parties during
the trial of the case. A judgment is “on the merits” when it
amounts to a legal declaration of the respective rights and
duties of the parties, based upon the disclosed facts
judgment or one difficult to comply with.
judgment intended to enter into the record the acts which
had already been done, but which do not appear in the
records. [Lichauco v. Tan Pho (1923)]

(6) Judgment sin perjuicio - It may refer to a dismissal of a case
without prejudice to it being re-filed.
(7) Conditional judgment - It is one the effectivity of which
depends upon the occurrence or non-occurrence of an event.
Such a judgment is generally void because of the absence of a
disposition [Cu-Unjieng v. Mabalacat Sugar Co. (1940)]
(8) Several judgment - It is one rendered by a court against one
or more defendants and not against all of them, leaving the
action to proceed against the others. [Rule 36, Sec. 4] It is
proper when the liability of each party is clearly separate and
distinct from his co-parties such that the claims against each
of them could have been the subject of separate suits, and
the judgment for or against one of them will not necessarily
affect the other.
(9) Separate judgment - It is one rendered disposing of a claim
among several others presented in a case, after a
determination of the issues material to a particular claim and
all counterclaims arising out of the transaction or occurrence
that is the subject matter of said claim. [Rule 36, Sec. 5] It is
proper when more than one claim for relief is presented in an
action for the determination as to the issues material to the
claim has been made.
(10) Promulgation - The process by which a decision is published,
officially announced, made known to the public or delivered
to the clerk of court for filing, coupled with notice to the
parties or their counsel.
(11) Memorandum decision - A decision of the appellate court
which adopts the findings and conclusions of the TC. (a) A
judgment is considered rendered upon the filing of the signed
decision. (b) This includes an amended decision because an
amended decision is a distinct and separate judgment and
must follow the established procedural rule.
Judgment without trial (1996 Bar Question)
Trial is not necessary in the following instances:
1. Judgment on the Pleadings [Rule 34]
2. Summary Judgment [Rule 35]
3. Upon compromise or amicable settlement, either
during pre-trial or during trial [Rule 18; Art. 2028,
Civil Code]
4. Dismissal with prejudice [Sec. 5, Rule 16; Sec. 3, Rule
17; Sec. 5, last par., Rule 7]
5. Under the Rules on Summary Procedure
6. Agreed statement of facts [Sec. 6, Rule 30]
Contents of a Judgment/Parts of a Judgment
a. Body, Ratio decidendi, or Opinion of the court – It
contains the findings of facts and conclusions of law;
b. Fallo, or Disposition of the case – It is the dispositive
part of the judgment that actually settles and declares
the rights and obligations of the parties, finally,
definitively, and authoritatively .The part of the
judgment that is subject to execution [Riano]
c. Signature of the judge.
Distinction between Judgment and Opinion of the Court
(2006 Bar Question)
a) A judgment (or FALLO) must be distinguished from an
opinion.
TERMS & PRINCIPLES 17
CIVIL PROCEDURE
b) The latter is the informal expression of the views of the
court and cannot prevail against its final order or
decision.
c) While the two may be combined in one instrument, the
opinion forms no part of the judgment.
d) So there is a distinction between the findings and
conclusions of a court and its judgment.
e) While they may constitute its decision and amount to a
rendition of a judgment they are not the judgment itself.
f) They amount to nothing more than an order for
judgment, which, of course, must be distinguished from
the judgment.
Obiter dictum
It is an opinion expressed by a court, which is not necessary
to the decision of the case before it. It is neither enforceable
as a relief nor a source of a judicially actionable claim.
Judgment on the Pleadings [Rule 34] (1999, 2005 Bar
Questions)
A judgment rendered by the court if the answer fails to
tender an issue, or otherwise admits the material allegations
of the adverse party’s pleading. It is rendered without a trial,
or even without a pre-trial
Grounds for Judgment on the Pleadings [Sec. 1, Rule 34]
(1) The answer fails to tender an issue because of:
(a) General denial of the material allegations of the
complaint;
(b) Insufficient denial of the material allegations of
the complaint; or
(2) The answer otherwise admits material allegations of the
adverse party’s pleading
Judgment on the Pleadings is not proper in the following
cases:
1. Declaration of Nullity of Marriage
2. Annulment of marriage; and
3. Legal Separation
4. Unliquidated damages; claims for such damages must be
alleged and proved
5. Admission refers only to allegations of fact and not
conclusions of law
6. Insufficiency of facts; proper remedy is amendment

Summary Judgments (Rule 35)
A judgment which the court may render before trial, but after
both parties have pleaded, upon application by one party
supported by affidavits, depositions, or other documents,
with notice upon the adverse party who may file an
opposition supported also by such documents, should the
court find, after summarily hearing both parties with their
respective proofs, that there exists no genuine issue between
them. [Herrera]
Genuine Issue
An issue of fact which calls for the presentation of evidence
as distinguished from a sham, fictitious, contrived, or false
claim
Requisites of Summary Judgment (2015 Bar Question)
1. The motion shall be served at least 10 days before the
time specified for the hearing. The adverse party may
serve opposing affidavits, depositions, or admissions at
least 3 days before the hearing;
2. Except for the amount of damages, there must be no
genuine issue as to any material fact; and
3. The party presenting the motion for summary judgment
must be entitled to a judgment as a matter of law.
Interlocutory Order (2006 Bar Question)
It is an order which decides some point or matter between
the commencement and end of the suit but is not the final
decision on the whole controversy. It leaves something to be
done by the court before the case is finally decided on the
merits.
Partial summary judgment (2004 Bar Question)
Applies when for some reason there can be no full summary
judgment. Trial should deal only with the facts not yet
specified or established.
TERMS & PRINCIPLES 18
CIVIL PROCEDURE
Affidavits and Attachments
Form of affidavits and supporting papers [Rule 35, Sec. 5]
a) Made on personal knowledge
b) Shall set forth such facts as would be admissible in
evidence
c) Shall show affirmatively that the affiant is competent
to testify to the matters stated therein.
Attachments [Rule 35, Sec. 5]
Certified true copies of all papers or parts thereof referred to
in the affidavit shall be attached thereto OR served
therewith.
Affidavits in bad faith [Rule 35, Sec. 5]
Affidavits presented under this Rule which appear to the
court at any time as presented in bad faith or solely for the
purpose of delay
Judgment, Final Orders and Entry Thereof (Rule 36)
Rendition of Judgment (2004 Bar Question)
Rendition of judgment is the filing of the same with the clerk
of court. Even if the judgment has already been put in writing
and signed, it is still subject to amendment if it has not yet
been filed with the clerk of court; and before its filing, it does
not yet constitute the real judgment of the court
Form of Judgment [Rule 36, Sec. 1]
(a) In writing
(b) Personally and directly prepared by the judge
(c) Stating clearly & distinctly the facts and the law on
which it is based
(d) Signed by the judged
(e) Filed with the clerk of court.
Promulgation
It is the process by which a decision is published, officially
announced, made known to the public or delivered to the
clerk of court for filing, coupled with notice to the parties or
their counsel.
Preparation of a judgment (2004 Bar Question)
A judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the clerk of
the court (Sec. 1, Rule 36).
Interpretation of the Judgment
Where the judgment is difficult to execute because of
ambiguity in its terms, the remedy of the party is to file a
motion for clarificatory judgment and not to assail the
judgment as void.
Entry of Judgment
The entry of judgment refers to the physical act performed by
the clerk of court in entering the dispositive portion of the
judgment in the book of entries of judgment after the same
has become final and executory.
Date of finality of the judgment = Date of its entry in the book
 TERMS & PRINCIPLES 19
CIVIL PROCEDURE

Amendments to Judgment (2008 Bar Question)
The power to amend judgments is inherent to the court
before judgment becomes final and executory.
General rule: The court cannot amend the judgment once it
has become final and executory.
Ẍ:
a) To make corrections of clerical errors, not
substantial amendments, as by an amendment non
pro tunc;
b) To clarify an ambiguity which is borne out by and
justifiable in the context of the decision;
c) In judgments for support, which can always be
amended from time to time.
Finality of Judgment
a) Upon lapse of the reglementary period to appeal,
with no appeal perfected within such period, the
decision becomes final and executor (Sec. 1, Rule 39;
Banco de Brasil v. CA, G.R. Nos. 121576-78, June 16,
2000)
b) Upon lapse of the reglementary period to file an MR,
decision rendered by the SC becomes final and
executory.
Effect of void judgments (Doctrine of Total Nullity)
A void judgment is in legal effect no judgment. By it no rights
are divested, no rights can be obtained. Being worthless in
itself, all proceeding founded upon it are equally worthless. It
neither binds nor bars any one. All acts performed under it
and all claims flowing out of it are void.
Effect of a judgment or final order of a tribunal of a foreign
country having jurisdiction to render the judgment or final
order (2007 Bar Question)
a) If the judgment is on a specific thing, the judgment is
conclusive upon the title to the thing; and
b) If the judgment is against a person, the judgment is
presumptive evidence of a right as between the
parties and their successor in interest by a
subsequent title.

POST-JUDGEMNT REMEDIES (Rule 37)

1. Before a judgment becomes final and executory, the
aggrieved party or losing party may avail of the following
remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal.

2. After the judgment becomes executory, the aggrieved

party or losing party may avail of the following:
Doctrine of Immutability of Judgments
a. Petition for relief from judgment;
A judgment that has attained finality can no longer be b. Action to annul judgment;
disturbed c. Certiorari; and
d. Collateral attack of a judgment.
Under the doctrine of finality or immutability of judgment, a
decision that has acquired finality becomes immutable and
Motion for a New Trial Motion for Reconsideration
unalterable, and may no longer be modified in any respect,
Grounds: fraud, accident, Grounds: damages awarded
even if the modification is meant to correct erroneous
mistake or excusable are excessive, that the
conclusions of fact and law, and whether it be made by the
negligence or newly evidence is insufficient to
court that rendered it or by the Highest Court of the land. Any
discovered evidence which justify the decision or final
act which violates this principle must immediately be struck
could not, with reasonable order, or that the decision or
down
diligence, have been final order is contrary to law.
discovered and produced at
Ẍ:
the trial, and which if
Which are usually applied to serve substantial justice,
presented would probably
particularly in the following instances:
alter the result.
1. the correction of clerical errors;
Second motion may be Second motion from the
2. the so-called nunc pro tunc entries which cause no
allowed so long as based on same party is prohibited (The
prejudice to any party;
grounds not existing at the prohibition applies only to
3. void judgments; and
time the first motion was final order or judgments;
4. whenever circumstances transpire after the finality
made. hence, it is allowed in
of the decision, rendering its execution unjust and
interlocutory orders).
inequitable
If a new trial is granted, the If the court finds that the
original judgment or final excessive damages have
Legislative facts v. Adjudicative facts (2004 Bar Question)
order is vacated. The case been awarded or that the
Legislative facts refer to facts mentioned in a statute or in an
stands for trial de novo and judgment or final order is
explanatory note, while adjudicative facts are facts found in a
will be tried anew. contrary to the evidence or
court decision
law, it may amend such
judgment or final order

Available even on appeal but
only on the ground of newly
discovered evidence.
Both are prohibited motions under Summary Procedure
Rule 45 v. Rule 65 (1999, 2008 Bar Question)
Rule 45
Issue Raised
Questions of Law
Against What Court Action Directed
Review of the judgment,
award or final order on the
merit
Reglementary Period
Must be filed within the
reglementary period for
appeal.
Effect on the Proceedings Below
Judgment, award or order
appealed from is stayed by
the Appeal
Parties Involved
Original Parties to the action
accordingly.
Available against the
judgments or final orders of
both the trial and appellate
courts.
Rule 65
Grave abuse of discretion
amounting to lack or excess
of jurisdiction
Directed Against an
Interlocutory Order of the
court prior to appeal from
the judgment, or where
there is no appeal or any
other plain speedy and
adequate remedy
Not later than 60 days from
notice of the judgment, order
or resolution sought to be
assailed
No effect (i.e., proceedings
below continue) unless a writ
of preliminary injunction or a
temporary restraining order
has been issued
The parties are the aggrieved
TERMS & PRINCIPLES 20
CIVIL PROCEDURE
remain the same during party against the lower
appeal (albeit with the court/Quasijudicial agency
corresponding appellation of and the prevailing parties,
appellant and appellee), the who thereby respectively
lower court or quasi-judicial become the petitioner and
agency is not to be the respondents.
impleaded.
Requirement of Motion for Reconsideration
For purposes of appeal, MR is MR is a CONDITION
not required PRECEDENT subject only to
certain exceptions.
Exercise of Jurisdiction
The Appellate Court Higher Court exercises
exercises its appellate original jurisdiction under its
jurisdiction and power of power of control and
review supervision over the
proceedings of lower courts.
Interlocutory Order (2006 Bar Question)
An interlocutory order is an order which decides some point
or matter between the commencement and end of the suit
but it is not the final decision on the whole controversy. It
leaves something to be done by the court before the case is
finally decided on the merits.
Modes of Appeal (2002 Bar Question)
The modes of appeal to the Supreme Court are:
1. appeal by certiorari on pure questions of law under
Rule 45 through a petition for review on certiorari;
and
2. ordinary appeal in criminal cases through a notice of
appeal from convictions imposing reclusion perpetua
or life imprisonment or where a lesser penalty is
involved but for offenses committed on the same
occasion or which arose out of the same occurrence
that gave rise to the more serious offense (Sec. 3,
Rule 122). Convictions imposing the death penalty
are elevated through automatic review.
Distinguish the two (2) modes of appeal from the judgment
of the Regional Trial Court to the Court of Appeals (2009
Bar)
In cases decided by the Regional Trial Courts in the exercise
of their original jurisdiction, appeals to the Court of Appeals
shall be ordinary appeal by filing written notice of appeal
indicating the parties to the appeal; specifying the
judgment/final order or part thereof appealed from;
specifying the court to which the appeal is being taken; and
stating the material dates showing the timeliness of the
appeal. The notice of appeal shall be filed with the RTC which
rendered the judgment appealed from and copy thereof shall
be served upon the adverse party within 15 days from notice
of judgment or final order appealed from. But if the case
admits of multiple appeals or is a special proceeding, a record
on appeal is required aside from the written notice of appeal
to perfect the appeal, in which case the period for appeal and
notice upon the adverse party is not only 15 days but 30 days
from notice of judgment or final order appealed from. The
full amount of the appellate court docket fee and other lawful
fees required must also be paid within the period for taking
an appeal, to the clerk of the court which rendered the
judgment or final order appealed from (Secs. 4 and 5, Rule
41). The periods of 15 or 30 days above-stated are non-
extendible.
In cases decided by the Regional Trial Court in the exercise of
its appellate jurisdiction, appeal to the Court of Appeals shall

be by filing a verified petition for review with the Court of
Appeals and furnishing the RTC and the adverse party with
copy thereof, within 15 days from notice of judgment or final
order appealed from. Within the same period for appeal, the
docket fee and other lawful fees required with the deposit for
cost should be paid. The 15-day period maybe extended for
15 days and another 15 days for compelling reasons.
Requisites of newly discovered evidence (Berry Rule)
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and
produced at the trial with reasonable diligence; and
3. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight that if
admitted would probably change the judgment (CIR v. A.
Soriano Corporation, G.R. No. 113703, January 31, 1997).
Fresh Period Rule/Neypes Rule
To standardize the appeal periods provided in the Rules and
to afford litigants fair opportunity to appeal their cases, the
Court deems it practical to allow a fresh period of 15 days
within which to file the notice of appeal, counted from the
receipt of the order dismissing a motion for new trial or
motion for reconsideration (Neypes v. CA, G.R. No. 141524,
September 14, 2005).
Collateral Attack of Judgments
Remedies from a Void Judgment (2004 Bar Question)
What is a void judgment?
A void judgment is no judgment at all. It cannot be the source
of any right nor the creator of any obligation. All acts
performed pursuant to it and all claims emanating from it
have no legal effect. Hence, it can never become final and any
writ of execution based on it is void.
How do you attack a void judgment?
It may be assailed anytime, collaterally or in a direct action or
by resisting such judgment or final order in any action or
proceeding whenever it is invoked, unless barred by laches.
What are your remedies?
If the reglementary period for appeal has not yet lapsed,
some remedies are New Trial and Reconsideration. Appeal,
Petition for Relief, and Other Appropriate Remedies such as
Certiorari may also be used.
If the appropriate remedies are no longer available without
the fault of the petitioner, the equitable and extraordinary
remedy of Petition for Annulment of Judgment may be
resorted to.
When all else fails, there is jurisprudence to the effect that a
patently void judgment may be dealt with by a Main Action
for Injunction.
EXECUTION, SATISFACTION AND EFFECTS OF JUDGEMENTS
Modes of Execution of Judgment
a. Execution by motion-if the enforcement of the
judgment is sought within 5 years from the date of
its entry; and
b. Execution by independent action -if the five year
period has elapsed and before it is barred by statute
of limitations (Sec. 6, Rule 39)
TERMS & PRINCIPLES 21
CIVIL PROCEDURE
Rule on Discretionary Execution/Execution Pending Appeal
(2002 Bar Question)
GR: The court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order execution
pending appeal (Asked in the 2002 Bar Exam). It is the
execution of a judgment or final order before it attains
finality. The court which rendered the decision can grant an
execution pending appeal if it still retains jurisdiction over the
case and is in possession of the records at the time of the
filing of the motion; otherwise, the motion shall be acted
upon by the appellate court. To be valid, there should be a
good reason to justify the execution of the judgment pending
appeal, the same to be stated In the order granting it.
Ẍ: This rule, however, is inapplicable in the case of the Court
of Appeals.
Effect of Foreign Judgments (2005 Bar Questions)
a) In case of a judgment or final order upon a specific thing,
the judgment or final order, is conclusive upon the title
to the thing [Rule 39, Sec. 48]
b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a
c) right as between the parties and their successors in
interest by a subsequent title [Rule 39, Sec. 48]
d) In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact [Rule 39, Sec. 48]
e) Such limitation on the review of foreign judgment is
adopted in all legal systems to avoid repetitive litigation
on claims and issues, prevent harassment of the parties
and avoid undue imposition on the courts.
f) This policy of preclusion rests on principles of comity,
utility and convenience of nations.
g) As a generally accepted principle of international law, it
is part of the law of the Philippines by virtue of the
Incorporation Clause [Section 2, Article II of the 1987
Constitution]