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CIVIL PROCEDURE REVIEWERMar 5
CIVIL PROCEDURE REVIEWERMar 5
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CIVIL PROCEDURE
RULE 14 SUMMONS
1. Contents of summons
a. Signed by the clerk under the seal of the court
b. Name of the court and that parties to the action
c. Direction that the defendant answer within the time fixed by these rules
d. Notice that unless defendant so answers, plaintiff will take judgment by default
2. Kinds of service of summons:
a. PERSONAL:
i. Handing a copy to the defendant in person; OR
ii. If he refuses to receive and sign for it, by tendering it to him
b. SUBSTITUTED:
i. Leave copies at his residence, with person of suitable age and discretion residing therein; OR
ii. Leave copies at defendant’s office/regular place of business, with competent person in charge thereof.
c. By publication
3. By whom served:
a. Sheriff
b. Other proper court officer
c. Any suitable person specially authorized by the judge
4. When extraterritorial service allowed:
a. Defendant is a non-resident and is not found in the Philippines and action affects plaintiff’s personal status
b. Subject of action is property within the Philippines in which the defendant has or claims a lien or interest
c. Where relief demanded consists in whole or in part in excluding the defendant from any interest in such
property
d. When property of defendant has been attached within the Philippines
5. Kinds of extra territorial service
a. Personal service
b. Publication and summons sent by registered mail to last known address
c. Any other matter the court may deem sufficient
6. When service by publication in a newspaper of general publication allowed:
a. Identity of defendant unknown
b. Whereabouts of defendant unknown and cannot be ascertained by diligent inquiry
(a) and (b), applies to ANY action, even actions in personam
c. Defendant is non-resident and the suit is quasi in rem
d. Defendant is temporarily out of the country and the suit is quasi in rem
7. Service upon private domestic juridical entity – refers to corporation, partnership, or association organized under Phil.
Laws with a juridical personality:
a. President
b. Managing partner
c. General manager
d. Corporate secretary
e. Treasurer
f. In-house counsel
8. Service upon private foreign juridical entity transacting business in the Phils:
a. Resident agent designated in accord with Law
b. If no such agent, on government official designated by law OR
c. On any of its officers or agents within the Phils
NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND PROCESSES ON THE SEC.
9. Newspaper of general circulation (RA 4883, PD 1079)
a. Published for the dissemination of local news and general information
b. Has a bona fide subscription list of subscribers
c. Published at regular intervals
d. Not published for nor devoted to the interest of a particular group of persons
e. Must have been regularly published for at least 2 years before the date of the publication in question.
Mere filing of an answer per se should not be automatically treated as a voluntary appearance by the defendant for
the purpose of sumons. It should be noted that when the appearance of the defendant is precisely to object to the
jurisdiction of the court over his person, it cannot be considered as an appearance in court.
RULE 15 MOTIONS
1. All motions must be in writing except:
a. Those made in open court; OR
b. Those made in the course of a hearing or trial.
2. Exceptions to the three-day notice rule:
a. Ex parte motion
b. Urgent motion
c. When court sets hearing on shorter notice for good cause
d. Motion for summary judgment (must be served at least 10 days before the hearing)
A prudent judge would, in the absence of the opposing party in the hearing of a motion, inquire from the other party
or inquire from the records the proof of the service of notice rather than proceed with the hearing. He should not rely
on a party’s undertaking to notify the adverse party of a scheduled hearing. The judge must demand what the rule
requires, i.e., proof of such notice on the adverse party. Otherwise, a contentious motion should be considered a mere
scrap of paper which should not have even been received for filing.
Subsequent service of the motion on the adverse party may be considered substantial compliance with the Rule 15, §
6. Failure to attach to the motion proof of service thereof to the adverse party is not fatal when the adverse party had
actually received a copy of the motion and was in fact present in court when the motion was heard.
RULE 18 PRE-TRIAL
1. What to consider in pre-trial (with notice to counsel or party without counsel)
a. Possibility of amicable settlement or arbitration
b. Simplification of the issues
c. Amendments to the pleadings
d. Stipulations or admissions of facts and documents
e. Limitation of number of witnesses
f. Preliminary reference of issues to a commissioner
g. Propriety of judgment on the pleadings, summary judgments, or dismissal of action
h. Other matters for the prompt disposition of the action
2. It is the duty of the plaintiff to move ex parte for the setting of the case for pre-trial. However, if plaintiff answers the
defendant’s counterclaim, it will be the latter’s duty to set the pre-trial.
3. Failure of plaintiff to appear shall be cause for dismissal of the action. Non-appearance of defendant is cause to allow
plaintiff to present evidence ex parte and the court to render judgment on basis thereof.
4. Non-appearance of party excused only if:
a. A valid cause is shown therefor OR
b. If representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to
submit to alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of
documents,
5. Must file pre-trial brief so as to ensure that other party receives it at least 3 days before pre-trial. Failure to file brief
has same effects as failure to appear at pre-trial.
6. Proceedings recorded, and court shall issue an order reciting in detail matters taken up.
RULE 19 INTERVENTION
1. Grounds for intervention
a. Legal interest in the matter in litigation
b. Interest in the success of either or both parties or interest against both
c. Party is so situated as to be adversely affected by the distribution of the court
d. Disposition of property in the custody of the court or of an officer thereof.
2. Motion may be filed at any time before rendition of judgment.
3. Answer to complaint-in-intervention must be filed within 15 days from notice of court admitting the complaint.
4. Motion for intervention will be granted if it will not unduly delay or prejudice adjudication of rights or original parties
and if the intervenor’s rights may be fully protected in separate proceedings.
5. Complaint in intervention is merely collateral to the principal action. Hence, it will be dismissed if main action is
dismissed.
6. A complaint in intervention that seeks affirmative relief prevents a plaintiff from taking a voluntary dismissal of the
main action. Such a case is not subject to dismissal upon intervenor’s petition showing him to be entitled to affirmative
relief. The petition will be preserved and heard regardless of the disposition of the main action.
RULE 21 SUBPOENA
1. Subpoena issued by:
a. The court before whom witness is required to attend;
b. The court of the place where the deposition is to be taken;
c. The officer or body authorized by law to do so in connection with its investigations;
d. Any Justice of the SC or CA in any case or investigation pending within the Phils
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment and who is confined in any penal institution
shall be brought outside said institution for appearance or attendance in any court unless authorized by the SC.
3. Grounds for quashing subpoena duces tecum
a. It is unreasonable or oppressive
b. The articles sought to be produced do not appear to be relevant
c. Person asking for subpoena does not advance cost of production
4. Ground for quashing subpoena ad testificandum
a. The witness is not bound thereby – if witness resides more than 100 km from the place where he is to travel by
the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in which his
case is pending
This is known as the “viatory right” of the witness; NOTE, however, that the right is available only in CIVIL cases
b. Witness fees and kilometrage allowed by rules not tendered when subpoena served.
5. Service of subpoena made in the same manner as personal or substituted service of summons.
6. Person present in court before a judicial officer may be required to testify as if he were in attendance upon a
subpoena.
7. Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of
the court from which subpoena issued.
RULE 30 TRIAL
1. Order of trial
Trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:
a. The plaintiff shall adduce evidence in support of his complaint;
b. The defendant shall adduce evidence in support of his defense, counterclaim, cross-claim, and third-party
complaint;
c. The 3rd-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim, and 4th party
complaint;
d. The 4th party and so forth, if any, shall adduce evidence of the material facts pleaded by them;
e. The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support
of their defense, in the order to be prescribed by the court;
f. The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the
furtherance of justice, permits them to adduce evidence upon their original case; and
g. Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the
parties to argue or to submit their respective memoranda or any further pleadings.
2. Judge should personally receive evidence EXCEPT that in default or ex parte hearings and in any case where the
parties so agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member of the
bar. The clerk shall have no power to rule on objections to any question or to the admission of exhibits, which objections
shall be resolved by the court upon submission of his report and the transcripts within 10 days from the termination of
the hearing.
RULE 31 CONSOLIDATION OR SEVERANCE
1. CONSOLIDATION – the court may order a joint hearing or trial of any or all matters in issue when actions involving a
common question of law or fact are pending before the court.
2. BUT the court may order a separate trial of any claim, cross-claim, counterclaim, or third-party complaint, in
furtherance of convenience or in the interest of justice.
10. Failure to pay appellate docket fees within the reglamentary period is ground for dismissal of appeal.
11. General Rule: An ordinary appeal stays the execution of a judgment
Exceptions: a. Decisions of quasi-judicial body appealed to the CA
b. Executions pending appeal
c. Cases covered by Summary Procedure
RULE 51 JUDGMENT
1. Memorandum decisions are permitted in the CA.
2. After judgment or final resolution of the CA and dissenting or separate opinions if any, are signed by the Justices
taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause
true copies to be served upon parties or counsel.
3. Date when judgment or final resolution becomes executory shall be deemed as date of entry.
PROVISIONAL REMEDIES
Provisional remedies (ancillary/auxiliary)
Writs and processes available during the pendency of the action which may be resorted to by a litigant to
preserve and protect rights and interests therein pending rendition, and for the purpose of ultimately affecting a final
judgment in the case.
PROVISIONAL - constituting temporary measures availed of during the pendency of the action.
ANCILLIARY - incidents in and dependent on the result of the main action.
RULE 59 RECEIVERSHIP
1. When receiver may be appointed:
a. Party has an interest in the property or fund subject of the action and such is in danger of being lost, removed,
or materially injured;
b. Action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially
injured and that its value is probably insufficient to discharge the mortgage debt, OR that the parties have stipulated in
the contract of mortgage;
c. After judgment, to preserve the property during the pendency of the appeal, or to dispose of it, or to aid in
execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy
judgment, or to carry out the judgment.
d. When appointing one is the most convenient and feasible means to preserve, administer, or dispose of the
property in litigation.
2. When receivership may be denied/lifted
a. Appointment sought is without sufficient cause;
b. Adverse party files sufficient bond for damages;
c. Applicant or receiver’s bond is insufficient.
3. Both the applicant for the receivership and the receiver appointed must file separate bonds.
4. In claims against the bond, it shall be filed, ascertained and granted under the same procedure as Section 20,
Rule 57, whether is be damages against the applicant’s bond for the unlawful appointment of the receiver or for
enforcing the liability of the sureties of the receiver’s bond by reason of the receiver’s management (in the latter case,
no longer need to file a separate action).
RULE 60 REPLEVIN
1. Replevin
a. Available only where the principal relief sought in the action is the recovery of possession of personal property;
b. Can be sought only where the defendant is in the actual or constructive possession of the personal property
involved.
c. Extends only to personal property capable of manual delivery;
d. Available to recover personal property even if the same is NOT being concealed, removed, or disposed of;
e. Cannot be availed of if property is in custodia legis, as where is it under attachment, or was seized under a
search warrant or distrained for tax assessment.
2. Defendant entitled to return of property taken under writ if:
a. He seasonably posts redelivery bond
b. Plaintiff’s bond is insufficient or defective
c. Property is not delivered to plaintiff for any reason.
Replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to
surrender the possession of the disputed property pending trial of the action. Thus, surety not liable for payment of
judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts
committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaintiff.
SPECIAL CIVIL ACTIONS
1. Types of Special Civil Actions
a. Mandamus
b. Interpleader
c. Certiorari
d. Contempt
e. Prohibition
f. Eminent Domain
g. Declaratory Relief
h. Quo warranto
i. Partition of real estate
j. Foreclosure of mortgage
k. Unlawful detainer
l. Forcible Entry
RULE 62 INTERPLEADER
1. Interpleader
a. Original action
b. Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest therein
which, in whole or part, is not disputed by the other parties to the action;
c. Complaint in interpleader must be answered 15 days from service of summons
RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS
AND THE COMMISSION ON AUDIT
For petition for review of judgments and final orders of the COMELEC and COA – period to file is 30 days to be
counted from notice of the judgment or final order or resolution sought to be reviewed and not from the receipt of the
denial of the Motion for Reconsideration; the period to file petition is merely interrupted by the filing of the Motion for
Reconsideration and continues to run again for the remaining period which shall not be less than 5 days from notice of
denial.
2. Prohibition
a. Purpose – to prevent the commission or carrying out of an act;
b. Act sought to be controlled – discretionary and ministerial acts;
c. Respondent – one who exercises judicial or non-judicial functions.
3. Mandamus
a. Purpose – to compel the performance of the act desired;
b. Act sought to be controlled – ministerial act;
c. Respondent – one who performs judicial or non-judicial functions.
4. When SC allows the writ of certiorari even when appeal is available and proper:
a. Appeal does not constitute a speedy and adequate remedy;
b. Orders were issued either in excess of or without jurisdiction;
c. For certain special considerations, such as public welfare or policy;
d. Where in criminal actions, the court rejects rebuttal evidence for the prosecution, as in acquittal;
e. Where the order is a patent nullity;
f. Where the decision in the certiorari case will avoid future litigation.
5. Cases where Motion for Reconsideration is NOT condition precedent for certiorari:
a. Order is a patent nullity;
b. Questions raised in the certiorari proceeding were duly raised and passed upon by the lower court, or are the
same as those raised and passed upon in the lower court;
c. Urgent necessity for the resolution of the question and any further delay would prejudice the interests of the
government;
d. Under the circumstances, a motion for recon would be useless;
e. Petitioner was deprived of due process and there is extreme urgency for relief;
f. Where in a criminal case, relief from order or arrest is urgent and the granting of such relief by the trial court is
improbable;
g. Proceedings in the lower court are null for lack of due process;
h. Proceeding was ex parte or in which petitioner had no opportunity to object;
i. Issue raised is one purely of law or where public interest is involved.
6. The period for filing any of the 3 actions is not later than 60 days from notice of judgment, order, or resolution sought
to be reviewed.
In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the 60-
day period shall be counted from notice of the denial of said motion. (SC Circular 56-2000, effective September 1, 2000)
No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding
15 days. (SC Circular 56-2000)
RULE 66 QUO WARRANTO
1. Quo Warranto distinguished from Election Contest:
Quo Warranto Election Contest
Basis is that occupant is disqualified from holding office by reason of ineligibility or disloyalty Challenge rights of a
person to hold office on the ground of irregularities in the conduct of the election
If successful, respondent is ousted but petitioner shall not automatically assume the office vacated Successful
protestant will assume office if he had obtained plurality of valid votes
RULE 67 EXPROPRIATION
1. In expropriation, the complaint must be verified.
2. The defendant can only file an answer instead of a motion to dismiss
3. The final order of expropriation is appealable, but the lower court may determine the just compensation to be
paid.
The power of eminent domain is exercised by the filing of a complaint which shall join as defendants all persons
owning or claiming to own, or occupying, any party of the expropriated land or interest therein. If a known owner is not
joined as defendant, he is entitled to intervene in the proceedings; or if he is joined but not served with process and the
proceeding is already closed before he came to know of the condemnation, he may maintain an independent suit for
damages.
RULE 71 CONTEMPT
1. Criminal contempt
a. Purpose is to vindicate public authority;
b. Conduct directed against the dignity or authority of the court.
2. Civil Contempt
a. Purpose is to protect and enforce civil rights and remedies for the litigants;
b. Failure to do something ordered by the court for the benefit of a party.
3. Direct Contempt (contempt in facie curiae)
a. Committed in the presence of or so near a court or judge;
b. Punished summarily without hearing;
c. No appeal may be taken but the party adjudged in contempt may avail himself of actions of certiorari or
prohibition which shall stay the execution of the judgment, provided a bond fixed by the court is filed.
4. Indirect Contempt
a. Not committed in the presence of the court;
b. Punished only after hearing – complaint in writing or motion or party or order of court requiring person to
appear and explain, opportunity to appear and show cause.