CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y.
2015-2016
RULE 30 – TRIAL
SEC 1. NOTICE OF TRIAL
Section 1. Notice of Trial. – Upon entry of a case in the trial calendar, the clerk
shall notify the parties of the date of its trial calendar, the clerk shall notify the
parties of the date of its trial in such manner as shall ensure his receipt of that
notice at least five (5) days before such date.
NOTICE OF TRIAL
After the pre-trial, the clerk of court will set the dates of trial. This is
where the reception of evidence of the plaintiff and the defendant takes
place. Upon its entry in the trial calendar, the clerk of court will send out
notices to the parties, at least 5 before the initial trial.
Montie: In actual practice, this is not observed because during the pre-trial, the
parties already agreed on the date of trial. Thus, there is no more need for the
clerk of court to send out notices to the parties. So it is not actually right to say
that the clerk of court sets the dates for trial. It is actually the parties themselves
that decide.
Expediente
Parties are in fact asked to sign the expediente – the records of the case
at the back. Here, the dates are set forth and when the parties have
signed, that is already sufficient notice to them.
Q. What is the difference between trial and hearing?
A. Trial – Refers to that stage where the parties will present
respective evidence in order to support their respective claims and
defenses. In here, the plaintiff will present his evidence in chief
then defendant will present their defense in chief.
B. Hearing – More general because it applies to all other proceedings
before the court in connection to the case. Example: When you file
motion to dismiss, the court will set it for hearing. It is not a trial,
the court will just hear your motion.
Montie: To simplify: Hearing is not trial because trial is only confined to the
presentation of evidence in chief of both parties.
SEC 2. ADJOURNMENTS AND POSTPONEMENTS
Section 2. Adjournments and postponements. – A court may adjourn a trial from
day to day, and to any stated time, as the expeditious and convenient transaction
of business may require, but shall have no power to adjourn a trial for a longer
period than one month for each adjournment, nor more than three months in all,
except when authorized in writing by the Court Administrator, Supreme Court.
ADJOURNMENTS AND POSTPONEMENTS
When the presentation of evidence cannot be done in just one day, you
can file for adjournment.
Rules in adjournment
A. It should not exceed one month
B. In no case it shall it exceed 3 successive adjournments
Except: With written authority of the court administrator of
Supreme Court.
Montie: So mananghid mo if you want it beyond 3 months successive
resetting of adjournment.
TN: In actual practice, this is not followed by almost all, if not all courts
because of their very clogged dockets.
SEC 3-4. REQUISITES OF MOTION TO POSTPONE TRIAL
Section 3. Requisites of motion to postpone trial for absence of evidence. – A
motion to postpone trial on the ground of absence of evidence can be granted only
upon affidavit showing the materiality or relevancy of such evidence, and that due
diligence has been used to procure it. But if the adverse party admits the facts to
be given in evidence, even if he objects or reserves the right to object to their
admissibility, the trial shall not be postponed.
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Section 4. Requisites of motion to postpone trial for illness of party or counsel. –
A motion to postpone a trial on the ground of illness of a party of counsel may be
granted if it appears upon affidavit or sworn certification that the presence of such
party or counsel at the trial is indispensable and that the character of his illness is
such as to render his non-attendance excusable.
Q. If you case is scheduled for trial that day, can you ask for
postponement?
Yes, if there is a valid ground for postponement.
1. Absence of evidence
2. Illness of a party or counsel
ABSENCE OF EVIDENCE
When on that particular date, the witness or evidence you want to
present is not yet available.
Evidence would either be:
A. Testimonial – witness is not available
B. Documentary – the documents you want to present is not yet
available
Formalities to follow
The motion must be accompanied by an affidavit stating the fact that
the evidence that will be presented are material and relevant.
The motion must state the nature of the evidence
The rule requires that when you ask for postponement based on this
ground, you must state in your motion for postponement the nature of
the evidence to be presented. Because the other party may just admit
the existence of the said evidence. In which case, there is no more need
to postpone.
Q. May the court deny the motion for postponement?
Yes. The court may deny your motion for postponement if the adverse
party will admit the existence of the evidence.
Important: What the other party is admitting is the existence of the
evidence only. It is without waiving the right to object to the admissibility
of that document or evidence when formally offered.
ILLNESS OF THE PARTY OR COUNSEL
A. Illness of the party
The presence of a party in the case is not always necessary. Thus,
to justify the postponement, the presence of the ill party must be
indispensable.
When is the presence of a party indispensable in a case?
When it is the party’s turn to testify. If not, as when he has already
finished testifying, his illness cannot be a valid ground for
postponement.
B. Illness of a counsel
Presence of counsel is always necessary. Thus, his illness can be a
ground for postponement.
Medical certificate required
The motion for postponement must be accompanied by a medical
certificate. Under the new rules, it must be subscribed and sworn to
before a notary public. Thus, a doctor who issues a medical certificate
in support for a request for postponement must swear before a notary
public that he is telling the truth. If proven otherwise – both the doctor
and the party may be held liable for perjury.
Instances where the medical certificate can be dispensed with
When the illness occurred on the day of the hearing, where a sense of
urgency is involved. Here, procurement of a medical certificate is no
longer practical.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
Examples:
1. On the way to court, naligsan si party – pangayuan pagihapon nmu
medical certificate?
2. When counsel woke up in the morning, 200 degrees ang fever.
Hahaha
3. Or when naa na sa courtroom, ang Atty kalibangon kay gi diarrhea
TN: Here, the court will just tell the counsel to present the medical
certificate next time.
Request for postponement need not be in writing
It may be done via telephone.
SEC 5. ORDER OF TRIAL
ORDER OF TRIAL
1. Plaintiff shall adduce evidence in support of his complaint.
a. Here plaintiff will present all evidence by formal offer of
exhibit. Normally the court wants it in writing and the purpose
must be stated.
b. Then defendant will comment on the formal offer of exhibit.
c. And the court will rule on the formal offer of exhibit
TN: Only after the court will rule on the formal offer of exhibit that
the defendants can adduce evidence.
2. Defendant shall then adduce evidence in support of his
defense.
3. The third party defendant, if any, shall adduce evidence.
a. He will present his evidence in chief, then his counter claim.
b. Then the plaintiff will present an answer to the counter claim.
4. The fourth party defendant, and so forth, if any.
5. 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.
6. The parties may then adduce rebutting evidence.
Rebuttal Evidence – that evidence that the plaintiff is allowed to
present in order to rebut the evidences presented by the
defendant.
A. In here, the plaintiff is not allowed to present evidence that is
already part of the evidence in chief.
Except: If there are newly discovered evidence or forgotten
evidences that is essential and not presented in the evidence
in chief.
B. The defendant is also allowed to present a rebuttal – The Sur-
Rebuttal.
7. 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.
Memoranda must be submitted before 30 days. With or without
memoranda – the case is deemed submitted for decision
If the court will require the parties to submit memoranda:
a. Must be written
b. Convince the court why your client should win
c. You can cite the evidences you have or you can destroy the
other party’s evidences.
Montie: Memorandum is not necessary but is important because some
judges will just copy the memorandum and make it as the decision. So
submit na lang jud.
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Important: The foregoing order of trial applies only to regularly
controverted claims. (Yu v. Magpayo)
REVERSE TRIAL
Now as you notice in trial, it is always the plaintiff who will present
evidence first. However, there are instances where the defendant
presents evidence first. We call this reverse trial.
Yu v. Magpayo
This case is about a collection of money. The defendant filed an answer
claiming that he has already paid. Thus, there is no more need for the
plaintiff to prove that the defendant indeed borrowed money from him.
The only issue now being, whether defendant has paid or not. Thus, the
burden of proof is now shifted. It is the defendant who will present
evidence first.
Reverse trial is akin to trial of criminal cases
Just like in a criminal case of murder where the defense used is self-
defense. Since the killing was admitted by the accused, there is no more
need for the prosecution to prove the same. The only issue now being
whether the killing was justified or not. Thus, the burden of proof is
shifted to the accused. It is now the accused who will present evidence
first and prove the self-defense.
SEC 6. AGREED STATEMENT OF FACTS
Section 6. Agreed statement of facts. – The parties to any action may 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.
STIPULATION OF FACTS
This is where the facts are already admitted by both parties. There is no
need for the court to stipulate the facts. The only thing the court will do
is to apply the law based on the facts presented. There is no need for
hearing because you do not prove to the court what law is applicable. It
is the court’s duty.
GR: The court will not decide the case without first conduct a hearing.
XPNs: When the parties have already agreed on the facts of the case.
Q. When is the only time hearing is needed?
If there is a dispute on the facts. Hearing is necessary only for the
purpose of determining the facts of the case. Thus, if the facts are
already agreed upon by the parties – no need for hearing. The issue
now has become purely legal.
Q. What will happen on appeal?
You cannot anymore attack the factual findings of the court since the
same was based on the parties’ stipulations.
Q. When is stipulation of facts not permitted?
Stipulation of facts is not permitted in Annulment of Marriage,
Declaration of Nullity of Marriage, Legal Separation, etc. These cases are
not subject to compromises.
SEC 7. STATEMENT OF THE JUDGE
Section 7. Statement of the Judge. – During the hearing or trial of a case any
statement made by the judge with reference to the case, or to any of the parties,
witnesses or counsel, shall be made of record in the stenographic notes.
STATEMENT OF THE JUDGE
All statements of a judge in a trial must always be put on record. Off-
the-record statements are not allowed anymore.
Everything that the judge says in court must be recorded by the
stenographer. So, when a party loses and appeals the case, he can use
the judge’s bias statements, if any.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
SEC 8. SUSPENSION OF ACTIONS
Section 7. Suspension of actions. The suspension of actions shall be governed by
the provisions of the Civil Code.
SUSPENSION OF ACTIONS
Article 2030 of the Civil Code provides that civil actions or proceedings
may be suspended if:
1. Willingness to discuss possible compromise is expressed by one or
both parties.
2. It appears that one of the parties, before the commencement of
the action or proceeding, offered to discuss a possible compromise
but the other party refused the offer.
It is the policy of the court to encourage the parties to amicably settle.
Hence, the judge can suspend the proceedings based on the two
grounds above.
SEC 9. DELEGATION OF RECEPTION OF EVIDENCE
Section 8. Delegation of reception of evidence to clerk of court. The judge of the
court where the case is pending shall personally receive the evidence to be
adduced by the parties. However, in default or ex parte hearings, and in any case
where the parties 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 of court 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 ten (10) days from termination
of the hearing.
Q. Who shall receive evidence?
GR: It is the Judge who will receive evidence.
XPN: When the judge delegates the reception of evidence to his clerk of
court, subject to some conditions:
1. Defendant has already been declared in default
2. The parties agree in writing
3. The clerk of court is a lawyer
DELEGATION TO CLERK OF COURT
1. Defendant is already in default or in ex parte hearing.
a. When a defendant is declared in default – it is not really
necessary to conduct a hearing especially when it is just a
simple case. The court will just decide the case right away.
b. But if the case is more complicated, the judge can ask for
the evidence of the plaintiff. In which case, he can delegate
the reception of evidence to the clerk of court.
2. The parties agree in writing
3. The clerk of court is a lawyer
TN: Not all clerks of court are lawyers. Only RTC clerks of courts are
lawyers. However, the clerk of court has no authority to rule on
objections. During the reception, he will just make a report.
NHA v. CA
The reception of evidence in an ex-parte hearing may be delegated by
the judge to his clerk of court, provided that the latter is a lawyer.
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RULE 31 – CONSOLIDATION OR SEVERANCE
SEC 1. CONSOLIDATION
Section 1. Consolidation. — When actions involving a common question of law or
fact are pending before the court, it may order a joint hearing or trial of any or all
the matters in issue in the actions; it may order all the actions consolidated, and
it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
CONSOLIDATION OF CASES
When actions involving common questions of law or fact are pending
before the court, the court may order a joint hearing or trial.
Important: The rule on consolidation of cases generally applies only to
cases pending before the same court, not to cases pending in different
areas of the same court or different courts. (PAL v. Teodoro)
Guide:
A. Same court – same territorial jurisdiction. (i.e. all cases were filed in RTC
Cebu or in any of its branches – may be consolidated)
B. Areas of the same court – RTC Cebu and RTC Bogo (Both are RTC courts but
different territorial jurisdictions – cannot be consolidated)
C. Different courts – MTC and RTC (cannot be consolidated)
Difference between consolidation & joinder of parties
A. Joinder of parties – they all agree to join their causes of action or
upon the initiative of the parties themselves.
B. Consolidation – it is upon the initiative of the adverse party. Here,
there are several parties, the common defendant wanted to join all
those cases, only when all those cases are pending before the same
court.
Example:
You borrowed money from me in several occasions evidenced by several
promissory notes. Each failure to pay one note is one cause of action.
You failed to pay all 5 notes, and so I filed 5 cases against you. If all
these 5 cases are filed in the same court – RTC Cebu, the court may
order consolidation of the cases and hold a joint trial.
Examples:
Cases filed in different areas of the same court
Bus Accident – 5 passengers injured. Each has a cause of action.
Because this is a personal action, they can sue the operator in the place
of plaintiff or defendant at their own instance. They all filed in different
courts. They may have the same questions of facts and law. But they
cannot be consolidated because it has been filed in different courts.
Montie: If all the passengers are residents of Cebu City and all of them filed the
case before RTC Cebu, then the cases can be consolidated. If however, one of the
passengers is a resident of Bogo and filed his case in RTC Bogo, that case cannot
be consolidated with the cases in Cebu because while RTC Cebu and RTC Bogo
refer to the same RTC court, both however have different territorial jurisdictions.
Cases filed in a multi-sala court
What if the cases were filed in different branches of RTC of Cebu, can
they be consolidated?
Yes. Because the branches are treated as one court only. RTC of Cebu
has more or less 20 branches – all these branches have the same
territorial jurisdiction.
Q. To which court will the cases be consolidated?
The cases will be consolidated with the case bearing the lowest docket
number. This is because the case filed first has a lower docket number.
Three ways of consolidating cases
1. By recasting the cases already instituted, conducting only one
hearing and rendering only one decision.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
2. By consolidating the existing cases and holding only one hearing
and rendering only one decision
3. By hearing only the principal case and suspending the hearing on
the others until judgment has been rendered in the principal case.
Q. Is consolidation of criminal and civil cases allowed?
Yes, but the quantum of evidence differs.
Canos v. Peralta
Consolidation of criminal and civil cases is allowed, but the degree of
proof will differ. Here, the case was reckless imprudence resulting to
physical injuries and with damages. The criminal case and the
independent civil action were filed in the same court.
But because different quantum of evidence is needed, the court will
resolve:
A. Criminal case – Proof beyond reasonable doubt
B. Civil case – Mere preponderance of evidence
SEC 2. SEPARATE TRIALS
Section 2. 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, counterclaims, third-party complaints or issues.
SEVERANCE OR SEPARATE TRIAL
In furtherance of convenience or to avoid prejudice, the court my order
a separate trial of any claim, cross claim, courter-claim or third party
complaint – only if the court believes that there is reason to do so.
Montie: This is the opposite of consolidation.
RULE 32 – TRIAL BY COMMISSIONER
SEC 1-2. REFERENCE TO COMMISSIONER
Section 1. Reference by consent. — By written consent of both parties, the court
may order any or all of the issues in a case to be referred to a commissioner to be
agreed upon by the parties or to be appointed by the court. As used in these Rules,
the word "commissioner" includes a referee, an auditor and an examiner.
Section 2. Reference ordered on motion. — When the parties do not consent, the
court may, upon the application of either or of its own motion, direct a reference
to a commissioner in the following cases:
1. When the trial of an issue of fact requires the examination of a long account
on either side, in which case the commissioner may be directed to hear and
report upon the whole issue or any specific question involved therein.
2. When the taking of an account is necessary for the information of the court
before judgment, or for carrying a judgment or order into effect.
3. When a question of fact, other than upon the pleadings, arises upon motion
or otherwise, in any stage of a case, or for carrying a judgment or order into
effect.
Trial by Commissioner
A trial by commissioner happens when there are issues in the case that
are beyond the expertise and competence of the judge. The job of the
commissioner is to help the judge in finding the factual issues of the
case.
REFERENCE TO A COMMISSIONER
A. Reference by consent of the parties
When both parties agree to refer the case to a commissioner
B. Reference ordered on motion
When the parties do not consent, reference may be ordered by the
judge upon motion or application of either party, or the judge can
refer the case upon its own motion, or moto proprio.
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Examples:
1. Geodetic engineer – Dispute on boundaries of the land or partition
of land.
2. Accountant – Conflict between two business partners, accusing
each other of malversation. This requires the examination of the
books of accounts of the business.
3. Land Appraiser – Expropriation and determining the fair market
value of the property.
SEC 3. ORDER OF REFERENCE; POWERS OF COMMISSIONER
Section 3. Order of reference; powers of the commissioner. — When a reference
is made, the clerk shall forthwith furnish the commissioner with a copy of the order
of reference. The order may specify or limit the powers of the commissioner, and
may direct him to report only upon particular issues, or to do or perform particular
acts, or to receive and report evidence only and may fix the date for beginning
and closing the hearings and for the filing of his report.
Subject to other specifications and limitations stated in the order, the commissioner
has and shall exercise the power to regulate the proceedings in every hearing
before him and to do all acts and take all measures necessary or proper for the
efficient performance of his duties under the order. He may issue subpoenas and
subpoenas duces tecum, swear witnesses, and unless otherwise provided in the
order of reference, he may rule upon the admissibility of evidence. The trial or
hearing before him shall proceed in all respects as it would if held before the court.
POWERS OF THE COMMISSIONER
A Commissioner is like an alter ego of the judge. He is very powerful.
He acts like a judge in determining the factual issues of the case.
A. To regulate the proceedings in every hearing before him
B. To do all acts and take all measures necessary or proper for the
efficient performance of his duties under the order
C. To issue subpoenas and subpoenas duces tecum
D. Swear the witnesses
E. May rule upon the admissibility of evidence, unless otherwise
provided in the order of reference.
Reference Order
An Order of Reference or Reference Order must be issued by the court
to refer the case to a commissioner. It contains the parameters of the
powers of the Commissioner.
PROCEEDINGS BEFORE THE COMMISSIONER
Section 4. Oath of Commissioner. Before entering upon his duties the
commissioner shall be sworn to a faithful and honest performance thereof.
Section 5. Proceedings before commissioner. — Upon receipt of the order of
reference and unless otherwise provided therein, the commissioner shall forthwith
set a time and place for the first meeting of the parties or their counsel to be held
within ten (10) days after the date of the order of reference and shall notify the
parties or their counsel.
Section 6. Failure of parties to appear before commissioner . — If a party fails to
appear at the time and place appointed, the commissioner may proceed ex parte
or, in his discretion, adjourn the proceedings to a future day, giving notice to the
absent party or his counsel of the adjournment.
Section 7. Refusal of witness. — The refusal of a witness to obey a subpoena
issued by the commissioner or to give evidence before him, shall be deemed a
contempt of the court which appointed the commissioner.
Section 8. Commissioner shall avoid delays. — It is the duty of the commissioner
to proceed with all reasonable diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring the commissioner to
expedite the proceedings and to make his report.
Commissioner must take an oath
Before the commissioner assumes his power as such, he must take an
oath before the judge that he will perform his duties and functions
faithfully and in accordance with law.
Duty upon receipt of order of reference
From the time the Commissioner receives the order of reference from
the court, he must call a meeting of the parties and their counsel within
10 days, and immediately start the hearing of the case.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
Commissioner must conduct a hearing
The Commissioner must conduct a hearing. It is the essence of due
hearing, thus cannot be dispensed with. He must listen to the evidence
of both parties before he will decide and make his findings and
recommend to the court.
Q. Can the commissioner dispense with the hearing? Can he just rely on
the affidavits filed by the parties?
No. There will be no basis of his report if he will not conduct a hearing.
A finding or recommendation by the commissioner to the judge without
a hearing is null and void.
If the judge approves such recommendation notwithstanding the
absence of hearing, the same can be questioned by certiorari via Rule
65 for grave abuse of discretion.
Aljem’s Corp. v. CA
The commissioner must conduct a hearing. The requirement for him to
hold a hearing cannot be dispensed with as this is the essence of due
process.
Jaca v. Davao Lumber
When the commissioner did not hold hearing in violation of Sec 3 of
Rule, it is error for the trial court to issue an order approving said
commissioner’s report over the objection of the aggrieved party.
Effect of refusal of the witness to obey the subpoena
Refusal of the witness to obey the subpoena issued by the commissioner
or to give evidence before him, shall be deemed a contempt of the court
which appointed the commissioner. But the Commissioner has no
contumacy powers. He has to report to the judge and the judge is the
one who will cite the witness in contempt.
Important: Commissioner is considered as the alter ego of the judge.
He has the power to issue a subpoena, but he does not have the power
to order an arrest of the witness. If the party did not obey the subpoena,
he can ask the help of the judge to order the arrest.
The Commissioner shall avoid delays
The commissioner shall avoid delay. Thus, if the Commissioner is dilly-
dallying with the proceedings, either party may apply to the court for an
order requiring the commissioner to expedite the proceedings and to
make his report.
REPORT OF COMMISSIONER
Section 9. Report of commissioner. — Upon the completion of the trial or hearing
or proceeding before the commissioner, he shall file with the court his report in
writing upon the matters submitted to him by the order of reference. When his
powers are not specified or limited, he shall set forth his findings of fact and
conclusions of law in his report. He shall attach thereto all exhibits, affidavits,
depositions, papers and the transcript, if any, of the testimonial evidence
presented before him.
Section 10. Notice to parties of the filing of report. — Upon the filing of the report,
the parties shall be notified by the clerk, and they shall be allowed ten (10) days
within which to signify grounds of objections to the findings of the report, if they
so desire. Objections to the report based upon grounds which were available to
the parties during the proceedings before the commissioner, other than objections
to the findings and conclusions therein, set forth, shall not be considered by the
court unless they were made before the commissioner.
Section 11. Hearing upon report. — Upon the expiration of the period of ten (10)
days referred to in the preceding section, the report shall be set for hearing, after
which the court shall issue an order adopting, modifying, or rejecting the report in
whole or in part, or recommitting it with instructions, or requiring the parties to
present further evidence before the commissioner or the court.
Section 12. Stipulations as to findings. — When the parties stipulate that a
commissioner's findings of fact shall be final, only questions of law shall thereafter
be considered.
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COMMISSIONER’S REPORT
Procedure:
A. Upon completion of hearing, the commissioner must file his report
in court stating his findings of facts and conclusion of law.
B. The clerk shall notify the parties of the filing of the report and they
are given ten (10) days to file their comment or opposition thereto.
C. After ten (10) days, the court will set the report for hearing and
thereafter issue an order adopting, modifying or rejecting it.
Important: Commissioner’s report is not binding on the courts.
The commissioner can make a report and it will be the basis for the
decision of the court. However, the court is not bound – it may or
may not follow the commissioner’s report. It is the court’s
prerogative. They are there to help, it does not mean that their
findings are binding to the parties.
Take note:
The parties, however, may stipulate beforehand that the commissioner’s
finding of facts shall be final. Thus, only questions of law shall thereafter
be considered.
SEC 13. COMPENSATION OF COMMISSIONER
Section 13. Compensation of commissioner. — The court shall allow the
commissioner such reasonable compensation as the circumstances of the case
warrant, to be taxed as costs against the defeated party, or apportioned, as justice
requires.
COMPENSATION OF COMMISSION
The Commissioner is entitled to compensation.
Q. Who shall pay?
A. If the Commissioner was requested by both – they shall share in
the compensation. Thus, if the Commissioner says payment is 20k,
the parties will pay 10k each.
B. If the parties did not agree – chargeable to the losing party. The
court can order the losing party to reimburse the winning party of
the payment.
RULE 33 – DEMURRER TO EVIDENCE
SEC 1. DEMURRER TO EVIDENCE
Section 1. Demurrer to evidence. After the plaintiff has completed the
presentation of his evidence, the defendant may move for dismissal on the ground
that upon the facts and the law the plaintiff has shown no right to relief. If his
motion is denied, he shall have the right to present evidence. If the motion is
granted but on appeal the order of dismissal is reversed, he shall be deemed to
have waived the right to present evidence.
DEFINITION
Demurrer to evidence is a motion to dismiss filed after the plaintiff
finished presenting his evidence on the ground of insufficiency of
evidence.
Leave of court is required.
Demurrer to evidence in civil cases always needs leave of court.
Distinguished from Rule 16 or Motion to Dismiss
A. Motion to dismiss in Rule 16 – is based on 10 grounds. It is a
preliminary objection. You objected without even filing an answer.
B. Demurrer to evidence – is a motion to dismiss filed only after the
plaintiff has rested his case in court. After he presented all his
evidence that is the time you can file demurrer to evidence. The
only ground for demurrer to evidence is the insufficiency of
evidence.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016

Montie: If the defendant believes that the plaintiff did not prove his causes of
action against him, why should he present evidence? Remember that in civil cases, RULE 34 – JUDGMENT ON THE PLEADING
the plaintiff should not depend on the weakness of the defendant but rely on the
strength of his evidence. It is the plaintiff who has the burden of proof, except in SEC 1. JUDGMENT ON THE PLEADINGS
instances of reverse trial. So if the evidence of the plaintiff is weak, file a demurrer
on the basis of insufficiency of evidence. Section 1. Judgment on the pleadings. — Where an answer fails to tender an
issue, or otherwise admits the material allegations of the adverse party's pleading,
the court may; on motion of that party, direct judgment on such pleading.
DEMURRER IN CIVIL CASES However, in actions for declaration of nullity or annulment of marriage or for legal
separation, the material facts alleged in the complaint shall always be proved.
DEMURRER TO EVIDENCE IN CIVIL CASES
JUDGMENT ON THE PLEADING
Motion for leave of court is required.
Rules 34 and Rule 35 are like brothers. They are called “twin rules”.
If you want to file a demurrer to evidence in civil cases, motion for leave
Here, the court will rule on the case based simply on the pleadings filed
of court is required.
by the parties, even without conducting a trial. Trial on the merits of the
case is not necessary.
Effects of the grant or denial of demurrer of evidence
Grounds for a judgment on the pleading
A. If granted – The case is dismissed. If however, the plaintiff
A. Where an answer fails to tender an issue, or
appeals and the decision is reversed on appeal, the defendant
B. Otherwise admits the material allegations on the adverse party’s
shall be deemed to have waived the right to present evidence. In
pleading.
which case, the CA will decide the case based solely on the
plaintiff’s evidence. (Important)
Examples:
TN: If granted, the dismissal is considered an adjudication of the Answer fails to tender an issue
merits of the case, hence, the remedy is appeal. When the defendant, in his answer did not controvert specifically the
material averments on the plaintiff’s pleading. Relate with Rule 8 on
B. If denied – The defendant can still present evidence. specific denial.
Remedy of defendant: If denied, the order of denial is a merely
Admission of material allegations
an interlocutory order, thus appeal is not the remedy. Certiorari
A filed a simple case of collection against B. B filed an answer, admitting
may be availed if there is gave abuse of discretion on the court.
that he indeed borrowed money from A, only that he has no money to
pay off the loan yet.
DEMURRER IN CRIMINAL CASES
Montie: Here, B admitted the material allegations on the pleading of A. Having
DEMURRER TO EVIDENCE IN CRIMINAL CASES no money is not a valid defense. So A can now ask the judge to decide the case
It is also a motion to dismiss on the ground of insufficiency of the now. – A judgment on the pleading.
evidence. But in criminal case, the burden of proof lies in the hands of
the prosecution. The quantum of evidence required is proof of guilt Q. How is it done?
beyond reasonable doubt. In case of doubt, the accused is acquitted. A. By motion of the plaintiff
B. By the court’s own volition or motu proprio if the court during pre-
Leave of court is not required, but necessary trial finds the same to be proper.
Leave of court to file a demurrer to evidence is not required, but it is Montie: Remember that one of the purpose of pre-trial is to determine the
necessary. Otherwise, you will lose your right to present evidence. propriety of the issues of the case. If the court find no issues at all, then the
court may render judgment on the pleading even without the motion of the
Effect of denial of demurrer to evidence plaintiff.
A. If with leave of court – The accused can still present evidence.
B. If without leave of court – Accused loses his right to present EFFECTS OF FILING JUDGMENT ON PLEADINGS:
evidence. Plaintiff is deemed to have admitted all relevant allegations of facts in
the defendant’s answer.
Montie: After prosecution rested his case, if you think the evidence is insufficient,
you can file demurrer to evidence, but you have to file a motion for leave of court Exceptions:
first, so that if the demurrer is denied – you can still present evidence. Otherwise,
if you file demurrer right away, you lose your right to present evidence. A. Plaintiff is not deemed to have admitted the irrelevant allegations
in the defendant’s answer
Demurrer to evidence Demurrer to evidence
in civil cases in criminal cases B. Defendant is not deemed to have admitted the allegations of
unliquidated damages in the plaintiff’s complaint.
Leave if court is required With or without leave of court
Exception: Actual damages supported by receipts.
Effect of demurrer is denied:
Effect if demurrer is denied: If with leave of court Important: Allegations do not include allegations on unliquidated
The accused can still present Accused can still present evidence. damages – it must be proved. Examples of unliquidated damages: moral
evidence damages, exemplary damages, etc. If liquidated – it can be awarded.
If without leave of court
Accused can no longer present
evidence. WHEN NOT PROPER
Judgment on the pleading is not allowed in the following actions:
Effect of demurrer is granted Effect if demurrer is granted A. Declaration of nullity of marriage
The case is dismissed. However, if The case is dismissed.
B. Annulment of marriage
reversed on appeal, defendant is
deemed to have waived his right to C. Legal Separation
present evidence.

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CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
RULE 35 – SUMMARY JUDGMENT
SUMMARY JUDGMENT
Important: Summary judgment is proper only when there is clearly no
genuine issue as to any material fact in the action. In here, there is an
issue raised but is not genuine or not true. If there is any question or
controversy upon any questions of fact, there should be a trial on the
merits. (Arcanas v. Nagum)
Example: A filed a simple collection case against B. B lied. B did not
pay because his mom abroad has not sent money yet. However, to delay
the case, B alleged that he has already paid. So there is now an issue,
that is whether B has paid or not.
Now, A knows very well that B’s answer is a lie. So A can challenge the
defendant by way of summary judgment. He will file a motion for
summary judgment supported by affidavits, deposition or admissions
subscribed and sworn to before notary public.
Here, A is challenging B to do the same, to file a counter affidavit. Now
if B wants to file a counter-affidavit, it must likewise be notarized.
Effect:
A. If proven that B really did not pay – he will be liable for perjury
B. If he will not execute the same – klaro na kaayo namakak.
Judgment on the pleadings v. Summary judgment
Judgment on the pleadings Summary judgment
There is an issue, but not
There is no issue
genuine
There is no need for There is a need for
supporting affidavits supporting affidavits
It must be served at least 3 Served at least 10 days
days before the hearing before the hearing
SEC 1-2. SUMMARY JUDGMENT
Section 1. Summary judgment for claimant. — A party seeking to recover upon a
claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been served, move with supporting
affidavits, depositions or admissions for a summary judgment in his favor upon all
or any part thereof.
Section 2. Summary judgment for defending party. — A party against whom a
claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may,
at any time, move with supporting affidavits, depositions or admissions for a
summary judgment in his favor as to all or any part thereof.
Q. Can there be partial summary judgment?
Yes. The Rules authorizes the rendition of partial summary judgment.
Such judgment is interlocutory in nature and is not a final and
appealable judgment. The appeal from such partial judgment should be
taken together with the judgment in the entire case after trial shall have
been conducted.
SEC 3. MOTION AND PROCEEDINGS THEREON
Section 3. Motion and proceedings thereon. — The motion shall be served at least
ten (10) days before the time specified for the hearing. The adverse party may
serve opposing affidavits, depositions, or admissions at least three (3) days before
the hearing. After the hearing, the judgment sought shall be rendered forthwith if
the pleadings, supporting affidavits, depositions, and admissions on file, show that,
except as to the amount of damages, there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.
HOW IS IT DONE
By the filing of a motion for summary judgment with supporting
affidavits, depositions or admissions. The motion shall be served at least
ten (10) days before the time specified for hearing.
Montie: This is one exception to the 3-day notice rule. A motion for summary
judgment – must be at least 10 days.
7|U N I V E R S I T Y O F S A N C A R L O S
SEC 4. CASE NOT FULLY ADJUDICATED ON MOTION
Section 4. Case not fully adjudicated on motion. — If on motion under this Rule,
judgment is not rendered upon the whole case or for all the reliefs sought and a
trial is necessary, the court at the hearing of the motion, by examining the
pleadings and the evidence before it and by interrogating counsel shall ascertain
what material facts exist without substantial controversy and what are actually and
in good faith controverted.
It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or
other relief is not in controversy, and directing such further proceedings in the
action as are just. The facts so specified shall be deemed established, and the trial
shall be conducted on the controverted facts accordingly.
SEC 5. FORM OF AFFIDAVITS AND SUPPORTING PAPERS
Section 5. Form of affidavits and supporting papers. — Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Certified true copies of all
papers or parts thereof referred to in the affidavit shall be attached thereto or
served therewith.
SEC 6. AFFIDAVITS IN BAD FAITH
Section 6. Affidavits in bad faith. — Should it appear to its satisfaction at any time
that any of the affidavits presented pursuant to this Rule are presented in bad
faith, or solely for the purpose of delay, the court shall forthwith order the
offending party or counsel to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused him to incur including attorney's
fees, it may, after hearing further adjudge the offending party or counsel guilty of
contempt.
RULE 36 – JUDGMENTS, FINAL ORDERS, ENTRY THEREOF
SEC 1. RENDITION OF JUDGMENTS AND FINAL ORDERS
Section 1. Rendition of judgments and final orders. — 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.
Q. What is the difference between decision and judgment?
A. Decision – Refers to the entire document which summarizes what
transpire during the trial which contains what has transpired during
the trial, evidence presented, the findings of facts of the court and
conclusions of law.
B. Judgment – The last part of the decision, also known as the fallo.
The conclusion of the court. Usually in just 1 or 2 paragraphs – the
WHEREFORE portion. The most common term for judgment is the
dispositive portion.
HOW FINAL JUDGMENT IS RENDERED
A final judgment on the merits of the case must be:
1. In writing
2. Personally and directly prepared by the judge
3. Stating clearly and distinctly the facts and the law on which it is
based.
Except: The decision of the Supreme Court.
Montie: Because if in reality, if your case is not that interesting or did not
comply with the technicalities, the Supreme Court will just decide in 1-2
sentences. This is otherwise called as Minute Resolution. This is because
appeals to the Supreme Court is not a matter of right, but a matter of
privilege. Thus, if the procedural requirements are not duly complied with,
it can right away be dismissed by a Minute Resolution.
4. Signed by the judge
5. Filed with the clerk of court
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Montie: This is what we call the rendition of judgment. Most civil cases are
appealable within 15 days. But there are some that are appealable within 30 days
like in special civil actions or when there are multiple appeal were record of appeal
is required to be filed. (To be discussed later)
RENDITION OF JUDGMENT, WHEN
The rendition of judgment is reckoned from the moment the signed
decision is filed in court, and not its pronouncement in open court. The
court must explain the basis of its decision. However, a minute resolution
can be issued by Supreme Court in the dismissal of petition for review
on certiorari.
Q. When does the court deem to have rendered their decision?
It is upon the delivery of a signed copy of the decision to the clerk of
court for mailing to all parties. When the clerk of court receives the copy,
he will send copies to all the parties. When the losing party receives his
copy, that is the time that you will start counting the 15 days to appeal.
Q. When does the decision become final?
The decision of the case becomes final after the lapse of the period to
appeal and no appeal or motion for new trial or reconsideration is filed.
Montie: In criminal cases, there must be promulgation of judgment of the cases.
It is done by reading of the decision in open court. While in civil case, there is only
sending of copy to the parties.
SEC 2. ENTRY OF JUDGMENTS AND FINAL ODERS
Section 2. Entry of judgments and final orders. — If no appeal or motion for new
trial or reconsideration is filed within the time provided in these Rules, the
judgment or final order shall forthwith be entered by the clerk in the book of entries
of judgments. The date of finality of the judgment or final order shall be deemed
to be the date of its entry. The record shall contain the dispositive part of the
judgment or final order and shall be signed by the clerk, within a certificate that
such judgment or final order has become final and executory.
ENTRY OF JUDGMENT AND FINAL ORDERS:
Q. When is judgment deemed entered?
Old rule
The moment the clerk of court enters the judgment in the Book of
Entries of Judgment.
Montie: Under the old rules, entry of judgment is actually the mechanical act of
writing the dispositive portion of a final decision in the Book of entries of judgment.
Here, the clerk of court will enter the judgment (not the decision) of the court and
record its date.
New rule
The date of finality of the judgment shall be the date of entry.
Important: The date of finality of the judgment or final order
shall be deemed to be the date of its entry.
Example: Judgment is final on January 4. But the clerk of court is on
vacation and he returned a week after. He entered the judgment in the
book on January 11. When was the judgment deemed entered?
Ans. – January 4. The date of the finality of judgment or final order shall
be deemed to be the date of its entry, even if it is entered many weeks
or months later.
Montie: Why? Because there are many remedies in the Rules of Court that are
reckoned on the date of entry of judgment. So it is just to avoid confusion. That is
why in this new rule, the date of finality is deemed to be the date of entry. No
need to wait for the clerk of court to write it down in the Book of Entries of
Judgment.
8|U N I V E R S I T Y O F S A N C A R L O S
OTHER KINDS OF JUDGMENTS
Section 3. Judgment for or against one or more of several parties. — Judgment
may be given for or against one or more of several plaintiffs and for or against one
or more of several defendants. When justice so demands, the court may require
the parties on each side to file adversary pleadings as between themselves and
determine their ultimate rights and obligations.
Section 4. Several judgments. — In an action against several defendants, the
court may, when a several judgment is proper, render judgment against one or
more of them, leaving the action to proceed against the others.
Section 5. Separate judgments. — When more than one claim for relief is
presented in an action, the court, at any stage, upon a determination of the issues
material to a particular claim and all counterclaims arising out of the transaction
or occurrence which is the subject matter of the claim, may render a separate
judgment disposing of such claim.
The judgment shall terminate the action with respect to the claim so disposed of
and the action shall proceed as to the remaining claims. In case a separate
judgment is rendered the court by order may stay its enforcement until the
rendition of a subsequent judgment or judgments and may prescribe such
conditions as may be necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered.
Section 6. Judgment against entity without juridical personality. — When
judgment is rendered against two or more persons sued as an entity without
juridical personality, the judgment shall set out their individual or proper names, if
known.
TYPES OF JUDGMENT
1. Judgment for or against one or more of several parties (Sec 3)
2. Several Judgment (Sec 4)
3. Separate Judgment (Sec 5)
4. Judgment against entity without judicial personality (Sec 6)
5. Judgment for specific act
6. Special Judgment
Montie: We will discuss those judgments when we reach Rule 39.
7. Judgment upon confession
8. Judgment non pro tunc – a judgment that reiterates an old
judgment that is not put on record. The present court will just
revive the judgment and put it on record.
9. Judgment upon compromise – immediately executory and final. Not
appealable.
10. Clarificatory judgment – when the judgment is vague, you can ask
the court to clarify their judgment.
Decision that will not become final
Decision for Support – it will not become final because it can be adjusted
anytime. Pwede increase, pwede pud decrease depending on the
circumstances.
JUDGMENT UPON COMPROMISE
A judgment of the court from the compromise agreement of the parties.
This judgment is not appealable.
Montie: Now we all know that the remedy of a losing party is to appeal. However,
there are decisions that are not appealable, i.e. judgment upon compromise. This
kind of judgment is made by the parties themselves, and that’s the reason why
they cannot appeal. Why would you appeal your own agreement? It is already
final, executory and not appealable.
Compromise Agreement must be:
A. In writing
B. Signed by the parties and their lawyers (Lawyers must assist in the
compromise)
C. Submitted to the court
Upon submission of the compromise agreement, the court will
now render judgment based on compromise agreement.
Usually the court will just copy the agreement then dispositive portion.
The court will just state that their judgment is based on the agreement.
“That it is not contrary to law and the same has been granted and the
parties will strictly comply”
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Important: If later, the compromise agreement contains some
provisions that the parties did not really agreed upon, i.e. there was
fraud involved. Can that party appeal? Still no.
What is his remedy?
File a Motion to set aside the Judgment based on the Compromise
Agreement because of Fraud or Deceit. If the Court will still deny the
motion to set aside, this is the time you will appeal – On the denial of
the court of your motion to set aside the judgment.
RULE 37 – NEW TRIAL OR RECONSIDERATION
SEC 6. JUDGMENT AGAINST ENTITY W/O PERSONALITY
New Trial or Reconsideration
When the losing party receives the decision, he has three options:
1. Appeal the case
2. Motion for reconsideration
3. Motion for New trial
TN: These remedies can be availed of within the period to appeal – 15
days from receipt of decision.
SEC 1. GROUNDS AND PERIOD FOR FILING
Section 1. Grounds of and period for filing motion for new trial or reconsideration.
— Within the period for taking an appeal, the aggrieved party may move the trial
court to set aside the judgment or final order and grant a new trial for one or more
of the following causes materially affecting the substantial rights of said party:
(a) Fraud, accident, mistake or excusable negligence which ordinary
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable diligence,
have discovered and produced at the trial, and which if presented would
probably alter the result.
Within the same period, the aggrieved party may also move for reconsideration
upon the grounds that the damages awarded are excessive, that the evidence is
insufficient to justify the decision or final order, or that the decision or final order
is contrary to law.
SEC 2. CONTENTS OF MOTION AND NOTICE THEREOF
Section 2. Contents of motion for new trial or reconsideration and notice thereof.
— The motion shall be made in writing stating the ground or grounds therefor, a
written notice of which shall be served by the movant on the adverse party.
A motion for new trial shall be proved in the manner provided for proof of motion.
A motion for the cause mentioned in paragraph (a) of the preceding section shall
be supported by affidavits of merits which may be rebutted by affidavits. A motion
for the cause mentioned in paragraph (b) shall be supported by affidavits of the
witnesses by whom such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
A motion for reconsideration shall point out a specifically the findings or
conclusions of the judgment or final order which are not supported by the evidence
or which are contrary to law making express reference to the testimonial or
documentary evidence or to the provisions of law alleged to be contrary to such
findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll the reglementary
period of appeal.
9|U N I V E R S I T Y O F S A N C A R L O S
Q. What are the grounds for new trial and reconsideration?
Motion for New Trial
1. Fraud, accident, mistake and excusable negligence
2. Newly discovered evidence
Motion for Reconsideration
1. The damages awarded are excessive
2. The evidence is insufficient to justify the decision or final order
3. That the decision or final order is contrary to law
GROUNDS FOR MOTION FOR NEW TRIAL
1 – Fraud, accident, mistake and excusable negligence
When, by reason of FAME, you lost the case because you were
prevented from presenting evidence or denied your day in court. Your
remedy is to have the judgment of the court set aside and allow a new
trial in order that you can now present evidence.
Must be supported by Affidavit of Merit
To show to the court the nature of the FAME as a basis of your motion,
and that you have a meritorious defense if only the court will allow you
to present evidence.
Example: Order of default – you can file a motion to lift motion of default
only when there is no judgment yet. When there is judgment – you can
either appeal the case or file a motion for new trial.
Important: Fraud must refer only to extrinsic fraud.
Two kinds of fraud:
A. Extrinsic fraud – fraud is committed in order to prevent you from
presenting evidence in court.
Example: A filed a case against you, you filed an answer. Now, you
went to A – for possible compromise agreement. He said ok, you
signed the agreement. A said that he will be the one to submit it in
court. But A did not submit it to court, he took your money and
continued the case. As a result, you lost the case because you were
not able to present your evidence by reason of A’s fraud.
What is your remedy?
You can ask for New Trial on the ground of Fraud.
B. Intrinsic fraud– fraud committed during trial. You were able to
present evidence, not denied of your day in court but the adverse
party presented fake documents, wrong witnesses, etc.
Is there fraud? Yes but this kind of fraud could not be a ground of
new trial. The party here was defrauded but was not denied of his
rights to the case. The fraud could have been discovered if only his
lawyer is diligent enough during presentation or during cross-
examinations.
New trial is different from reopening of trial
New trial Reopening of trial
The trial is done The trial is done
There is already a decision There is no decision yet
Ask the court to present
Grounds are FAME and newly evidence which you
discovered evidence forgot to present that will be
considered by the court when it
will eventually decide the case
2 – Newly discovered evidence
Evidences that you were not able to discover during the trial despite due
diligence. And if these evidences are presented to the court, it would
alter the decision of the court. You probably could have won the case.
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Elements of newly discovered evidence: SEC 3. ACTION UPON MOTION

1. It was discovered only after trial
2. That it could not have been discovered despite due diligence
3. Will surely alter the result of the case
Example: A filed collection case against you. You know that you have
already paid him but you cannot present any evidence. The court
rendered decision adverse to you. But before the time to appeal expires,
B appears and saying that he is there when you made payment to A. In
fact, he has a photo to prove it.
So in here, at first you did not know that B was there – that he was
present when you made the payment. In fact, during the trial of your
case, B was on US – he just returned from his vacation. So you ask the
court that you may present evidence.
Newly discovered evidence does not refer to forgotten evidence
A. Despite due diligence – you must be the one to prove to the court
that during the trial you exerted due diligence to get the evidence
but of no avail.
B. Forgotten evidence – evidence that could have been discovered in
exercise of due diligence – kanang nagdanghag lang ka ba, bisag
naa ra sa imo atubangan ang evidence – wa jud nimu gamita.
Newly discovered evidence may either be:
A. Testimonial evidence – testimony of a witness in your motion for
new trial, you must attach the affidavit of your new witness.
Section 3. Action upon motion for new trial or reconsideration. — The trial court
may set aside the judgment or final order and grant a new trial, upon such terms
as may be just, or may deny the motion. If the court finds that excessive damages
have been awarded or that the judgment or final order is contrary to the evidence
or law, it may amend such judgment or final order accordingly.
EFFECTS WHEN MOTION IS GRANTED
If motion for new trial is granted
The original judgment or final order shall be vacated, and the action
shall stand for trial de novo.
A. You can now present your new evidence
B. The evidence presented before shall remain as it is
If motion for reconsideration is granted
If the court finds that excessive damages have been awarded or that
the judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly. There is change of the
decision only, like decreasing the amount of damages and conforming
the judgment to the rules.
EFFECT WHEN MOTION IS DENIED
Fresh period rule
Important: Movant must appeal the judgment within 15 days from
receipt of the order denying his motion and not just for the balance of
the period. (Neypes v. CA)

B. Documentary evidence – attach as certified true copy, Rationale: In order to have uniformity of the period given to a losing
authenticated of the documentary document. party in the different modes of appeal.

Montie: It is only in a denial of a motion to dismiss and motion for bill of particulars
GROUNDS FOR MOTION FOR RECONSIDERATION where the balance rule is applicable and not the fresh period rule.
1. The damages awarded are excessive
2. The evidence is insufficient to justify the decision or final order SEC 4. RESOLUTION OF MOTION
3. That the decision or final order is contrary to law
Section 4. Resolution of motion. — A motion for new trial or reconsideration shall
Montie: Here, you must be able to point out which specific portion of the be resolved within thirty (30) days from the time it is submitted for resolution.
decision is not supported by evidence or contrary to law. If you cannot point
out – your motion is a pro forma motion.
RESOLUTION OF MOTION
Important: These remedies must comply strictly on the requirements A motion for new trial or reconsideration must be resolved within 30
of contents under the Rules. Non-compliance makes the motion a pro days from the time it is submitted for resolution.
forma motion, which does not toll the running of the reglementary
period to appeal. What if it will fail to resolve in 30 days? Can the court still
resolve the motion?
Motion for New Trial Yes, the only consequence is that the judge may be penalized by the
Motion for
Newly discovered reconsideration SC. The motion will still be valid even if it will go beyond 30 days.
FAME evidence
A. Testimonial – attach Point out which SEC 5. SECOND MOTION FOR NEW TRIAL
Attach affidavit of evidence of new
merit stating the specific portion of Section 5. Second motion for new trial. — A motion for new trial shall include all
witness the decision is not
nature of the FAME B. Documentary – grounds then available and those not so included shall be deemed waived. A
and that there is a supported by second motion for new trial, based on a ground not existing nor available when
attach certified true evidence or
meritorious defense copy, authenticated the first motion was made, may be filed within the time herein provided excluding
contrary to law. the time during which the first motion had been pending.
and notarized
Must be set for hearing; Proof of service No party shall be allowed a second motion for reconsideration of a judgment or
final order.
In one case:
SC held that if your motion for reconsideration contains a mere SECOND MOTION FOR NEW TRIAL OR RECONSIDERATION:
reiteration of what you have already argued in you memorandum that
was submitted to the court – and in fact the court has already discussed When the court denies your motion for reconsideration, can you
that extensively – your motion serves no other purpose but to delay the file second motion for reconsideration?
resolution of the case. This kind of motion is still considered pro forma
GR: No, it is prohibited.
motion.
XPN: The Supreme Court.
Montie: Just like in League of Cities case. There was more or less 5 motions for
reconsideration. Only the SC can violate their rules.

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How about in new trial? Can you file a second motion?

Yes, if the ground for the second motion is different from the first
motion.
Example: First motion is based on FAME. Denied. Then you discovered
another evidence. So file another motion based on newly discovered
evidence. That is allowed.
SEC 6. EFFECT OF GRANTING NEW TRIAL
RULE 38 – RELIEF FROM JUDGMENTS, ORDERS, ETC.
SEC 1. PETITION FOR RELIEF FROM JUDGMENT
Section 1. Petition for relief from judgment, order, or other proceedings. — When
a judgment or final order is entered, or any other proceeding is thereafter taken
against a party in any court through fraud, accident, mistake, or excusable
negligence, he may file a petition in such court and in the same case praying that
the judgment, order or proceeding be set aside.

Section 6. Effect of granting of motion for new trial. — If a new trial is granted
in accordance with the provisions of this Rules the original judgment or final order
shall be vacated, and the action shall stand for trial de novo; but the recorded
evidence taken upon the former trial, insofar as the same is material and
competent to establish the issues, shall be used at the new trial without retaking
the same.
PETITION FOR RELIEF FROM JUDGMENT
It is a remedy given to the losing party after the judgment has been
final and executory and the reason is that you were not able to present
your evidence. What you are asking is to set aside the judgment and be
allowed to present evidence.

If motion for new trial is granted Q. What are the grounds?

The original judgment or final order shall be vacated, and the action
shall stand for trial de novo.
A. You can now present your new evidence
B. The evidence presented before shall remain as it is
PARTIAL NEW TRIAL OR RECONSIDERATION
Section 7. Partial new trial or reconsideration. — If the grounds for a motion
under this Rule appear to the court to affect the issues as to only a part, or less
than an of the matter in controversy, or only one, or less than all, of the parties to
it, the court may order a new trial or grant reconsideration as to such issues if
severable without interfering with the judgment or final order upon the rest.
Section 8. Effect of order for partial new trial. — When less than all of the issues
are ordered retried, the court may either enter a judgment or final order as to the
rest, or stay the enforcement of such judgment or final order until after the new
trial.
SEC 9. REMEDY AGAINST ORDER DENYING MOTION
Section 9. Remedy against order denying a motion for new trial or
reconsideration. — An order denying a motion for new trial or reconsideration is
not appealed, the remedy being an appeal from the judgment or final order.
REMEDY AGAINST ORDER DENYING MOTION FOR NEW TRIAL
OR RECONSIDERATION
An order denying a motion for new trial or reconsideration is not
appealable. It is an interlocutory order.
Important: The remedy being an appeal from the judgment or final
order. In other words, what you appeal is not the order denying the
motion for new trial but the judgment itself.
Except: Certiorari under Rule 65 is now a remedy pursuant to AM No.
07-7-12, dated Dec. 27, 2007 – Grave abuse of discretion.
FAME: Fraud, Accident, Mistake, Excusable Negligence – they are the
reasons why you were not able to present evidence.
TN: This is the only ground – exclusive.
Affidavit of merit
You must present affidavit of merit to convince the court. An affidavit
stating that you have a meritorious defense.
Montie: FAME is used 3 times in the Rules of Court as a ground
1. Lifting the order of default – no judgment yet
2. Motion for new trial – already a judgment before expiration of the period to
appeal
3. Petition for relief of judgment
SEC 2. PETITION FOR RELIEF FROM DENIAL OF APPEAL
Section 2. Petition for relief from denial of appeal. — When a judgment or final
order is rendered by any court in a case, and a party thereto, by fraud, accident,
mistake, or excusable negligence, has been prevented from taking an appeal, he
may file a petition in such court and in the same case praying that the appeal be
given due course.
PETITION FOR RELIEF FROM DENIAL OF APPEAL
In here you were able to participate in the trial, you have presented your
evidence, but you were prevented from appealing because of FAME.
Example: You lost the case. You did not appeal because you did not
know that there is already a decision. It is because the plaintiff connived
with the sheriff not to give you the decision.
So how could you appeal when you did not know that there is already a
decision? Why did you not know that there is already a decision?
Because of fraud – the plaintiff connived with the sheriff.
So here you have already presented your evidence, what you are asking
is to be allowed to appeal.

Relief from Judgment v. Relief from Denial to Appeal

Relief from judgment Relief from denial to appeal

You were not able
You have presented evidence
to present evidence

You lost the case and a

judgment has been rendered.
The judgment became final (15
days has already lapsed)
It is only after 15 days that you have
known that there is already judgment
The same. You lost the case
and a judgment has been
rendered. The judgment
became final.

TN: If the judgment has not become

final, what is your remedy? Motion for
new trial.

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You are not asking to set aside
the judgment (because you
You are asking the court to set
have already presented your
aside the judgment and let you
evidence)
present evidence
What you are asking is only to
allow you to file an appeal
SEC 3. TIME FOR FILING PETITION; CONTENTS, ETC.
Section 3. Time for filing petition; contents and verification. — A petition provided
for in either of the preceding sections of this Rule must be verified, filed within
sixty (60) days after the petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months after such judgment
or final order was entered, or such proceeding was taken, and must be
accompanied with affidavits showing the fraud, accident, mistake, or excusable
negligence relied upon, and the facts constituting the petitioner's good and
substantial cause of action or defense, as the case may be.
TIME FOR FILING THE PETITION
Time for filing the petition:
60 days from the knowledge of the decision, but not more than 6 months
from the entry of judgment
TN: Remember that the finality of judgment is deemed to be the entry
of judgment.
If FAME happened beyond 6 months
Remedy is Rule 47 Annulment of judgment of RTC (Can only be done by
the CA) If MTC decision– file in the RTC.
CONTENTS OF THE PETITION
Must be verified and accompanied with affidavits showing the fraud,
accident, mistake, or excusable negligence relied upon, and the facts
constituting the petitioner’s good and substantial cause of action or
defense, as the case may be.
“Verified”
Must be in affidavit form. A statement that the petitioner:
A. Has read the petition
B. Supplied all the information
C. And the contents are all true and correct to the best of his
knowledge
Affidavit of Merit
The petition must be accompanied with an affidavit of merit. It describes
the extent and nature of FAME. That if only he is given a change to
present evidence, he can show to the court that he has meritorious
defense.
Instances where affidavit of merit is not required
Only when the court has already discussed extensively the FAME in its
decision because the petition is verified. A verification of your petition
is like an affidavit of merit already.
Important: Such affidavit of merit is not anymore required when the
judgment or order is void for want of jurisdiction.
Montie: As in the case of lack of jurisdiction over the person because the
defendant did not really receive the summons, no need to attach affidavit of merit.
SEC 4. ORDER TO FILE AN ANSWER
Section 4. Order to file an answer. — If the petition is sufficient in form and
substance to justify relief, the court in which it is filed, shall issue an order requiring
the adverse parties to answer the same within fifteen (15) days from the receipt
thereof. The order shall be served in such manner as the court may direct, together
with copies of the petition and the accompanying affidavits.
12 | U N I V E R S I T Y O F S A N C A R L O S
ORDER OF THE COURT OF REQUIRING ANSWER
If the petition is sufficient in form and substance to justify relief, the
court shall issue an order requiring the adverse party (prevailing party)
to answer the same with fifteen (15) days from receipt thereof.
Order of the court of requiring answer:
Is the court duty bound? No. The court may or may not give due course
to the petition.
 If it the petition is not sufficient – It can dismiss it right away
 If sufficient – require other party to answer.
After the receipt of the answers and comments
The court will conduct a hearing. The sole issue here is whether or not
the court will grant your petition on relief of judgment.
SEC 5. PRELIMINARY INJUNCTION PENDING PROCEEDING
Section 5. Preliminary injunction pending proceedings. — The court in which the
petition is filed may grant such preliminary injunction as may be necessary for the
preservation of the rights of the parties, upon the filing by the petitioner of a bond
in favor of the adverse party, conditioned that if the petition is dismissed or the
petitioner fails on the trial of the case upon its merits, he will pay the adverse party
all damages and costs that may be awarded to him by reason of the issuance of
such injunction or the other proceedings following the petition, but such injunction
shall not operate to discharge or extinguish any lien which the adverse party may
have acquired upon, the property, of the petitioner.
PRELIMINARY INJUNCTION PENDING PROCEEDINGS
Remember that in here, the judgment is already final and executory.
Thus the winning party can file for execution of the judgment.
Q. What will be the remedy of the losing party who wants to file
for Relief of Judgment?
He can file a petition for preliminary injunction – to stop the execution
proceedings. The sheriff will be ordered by the court to hold in abeyance
the implementation of the judgment until after the court shall have
resolved the petition for relief from judgment.
Has to put up an injunction bond
When you ask for a TRO or an injunction, you will need to put up an
injunction bond, to answer for whatever damage the prevailing party
may have suffered because of the stay of execution.
SEC 6. PROCEEDINGS AFTER ANSWER IS FILED
Section 6. Proceedings after answer is filed. — After the filing of the answer or
the expiration of the period therefor, the court shall hear the petition and if after
such hearing, it finds that the allegations thereof are not true, the petition shall be
dismissed; but if it finds said allegations to be true, it shall set aside the judgment
or final order or other proceeding complained of upon such terms as may be just.
Thereafter the case shall stand as if such judgment, final order or other proceeding
had never been rendered, issued or taken. The court shall then proceed to hear
and determine the case as if a timely motion for a new trial or reconsideration had
been granted by it.
HEARING OF THE PETITION
If the court grants the petition, it will then conduct a hearing of the case
on the merit. So there are actually two hearings to be conducted by the
court.
1. To determine whether the petition will be granted, and
2. If the petition is granted – a hearing on the merits of the case.
SEC 7. WHERE THE DENIAL OF AN APPEAL IS SET ASIDE
Section 7. Procedure where the denial of an appeal is set aside. — Where the
denial of an appeal is set aside, the lower court shall be required to give due course
to the appeal and to elevate the record of the appealed case as if a timely and
proper appeal had been made.
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PROCEDURE WHERE THE DENIAL OF AN APPEAL IS SET ASIDE
Where the denial of an appeal is set aside, the lower court shall be
required to give due course to the appeal and to elevate the record of
the appealed case as if a timely and proper appeal had been made.
Motion for New Trial v. Motion to Relief from Judgment
Motion for New Trial Motion for Relief from
Judgment
Judgment is not yet final. Judgment is final.
There are 2 grounds (FAME and
Only 1 ground (FAME)
Newly discovered evidence)
RULE 39 – EXECUTION, SATISFACTION AND EFFECTS
Caveat: Rule 39 has 48 long sections, so the codal provisions that will appear
here are only those discussed by Atty. Monteclar. Also, there will be sections which,
though discussed by Atty. will not appear here because they may be very lengthy.
Nevertheless, I will indicate which section the discussion relates to. Please read
this part alongside your codals. Thanks. 
Execution, Satisfaction and Effects of Judgment
This Rule discusses how to enforce the judgment of the court. This is
where you get the fruits of your labor. Here, we are talking about
judgment that is already final and executory. It is a matter of enforcing
the decision of the court.
Montie: Meaning, the period to appeal has already expired, and no appeal was
filed. The next thing to be done is to enforce the judgment. Who enforces? The
sheriff.
SEC 1. EXECUTION UPON JUDGMENTS OR FINAL ORDERS
Section 1. Execution upon judgments or final orders. — Execution shall issue as
a matter of right, or motion, upon a judgment or order that disposes of the action
or proceeding upon the expiration of the period to appeal therefrom if no appeal
has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may
forthwith be applied for in the court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment or judgments or final
order or orders sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case, when the interest of justice
so requires, direct the court of origin to issue the writ of execution.
KINDS OF EXECUTION
As to the Nature
1. Execution as a matter of right
It is a matter of right when the judgment or decision of the court
is already final and executory. There is nothing more to be done.
2. Execution as a matter of judicial discretion
When the judgment has not yet attained finality, but the judgment
may be executed if there are some good reasons to be contained
in a special order. “Execution pending appeal”
As to enforcement
1. By a mere motion
Just file a motion for execution of final judgment within 5 years
from the time the judgment becomes final – filed in the same court
who rendered the judgment.
2. By independent action
If not filed within 5 years, it becomes dormant.
Effect if motion is dormant:
You cannot enforce it by mere motion. You must file an
independent action – Petition for Revival of Judgment. You will just
tell the court that there is already a judgment, and you just want
it to be revived. Here, there is no more issue to be discussed.
13 | U N I V E R S I T Y O F S A N C A R L O S
Important: The court does not have a choice but to grant the motion
because the judgment is already final. It is his ministerial duty. If it will
not grant, the court can be compelled by a petition for mandamus.
WHERE TO FILE MOTION FOR WRIT OF EXECUTION
Q. Where to file a motion for issuance of a writ of execution?
If case is not appealed
In the court of origin.
RTC rendered judgment in favor of plaintiff. Defendant did not appeal.
After 15 days from receipt of judgment, decision became final and
executory. Plaintiff has to file a motion for execution in the RTC – the
court which rendered the judgment.
If case is appealed
If the case is appealed and CA affirmed in toto the decision of the RTC
and such was not anymore appealed. The decision of the CA becomes
final after 15 days without appeal. Where to file a motion for execution
of judgment?
Still in the court of origin – RTC.
Q. When to file a motion for execution in the RTC if it is an
appealed case?
A. Old rule – Only after the records of the case has been returned to
the RTC from the Court of Appeals.
B. New rule – No need to wait for the records to be returned to the
court of origin. You only have to get a certified true copy of the
decision of the CA and the entry of judgment.
Important: Exception: You can file it in the CA, if the RTC is dilly-
dallying the issuance of the writ of execution. However, what the
CA will do is only to direct the RTC to issue the writ of execution.
CA will never issue the writ.
Q. Is there a need to notify the losing party?
Important: It depends on the decision you are enforcing.
A. If case is not appealed – No need to notify the other party because
it is an execution as a matter of right. Besides, the other party
already knows that he lost the case, so why notify?
B. If case is appealed – there is a need to notify the other party
because there may be supervening events that have transpired that
may cause the issuance of the writ to be not in order.
WHEN COURT MAY REFUSE TO ISSUE WRIT OF EXECUTION
Q. When may the court refuse to issue the writ of execution
despite the finality of the judgment?
1. When subsequent facts and circumstances (supervening events)
transpire which render such execution unjust or impossible.
2. When the judgment has been novated by the parties.
3. When a petition for relief from judgment is filed and a writ of
preliminary injunction is issued.
4. When the judgment has become dormant, the five year period to
enforce it by a mere motion having expired.
5. When the judgment is incomplete
When subsequent facts and circumstances transpire which
render such execution unjust or impossible
Example: Plaintiff filed an ejectment case against a tenant. The court
decided in favor of the Plaintiff, but even though there is already a
decision, the tenant still does not want to vacate.
On the other hand, plaintiff has a debt to a Bank. The land leased by
the tenant was made as a collateral to the debt. He did not pay, so Bank
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foreclosed the mortgage. During the auction sale, tenant was the
highest bidder. So the property is now owned by the Tenant.
Now, can the plaintiff file execution to eject the tenant because the
judgment has already become final?
Not anymore. There is already a supervening event. Thus, it is
inequitable to enforce it. You cannot eject him because he is already the
owner.
Example: Bankruptcy – There are creditors of the bank who filed cases
against the bank. They won and the decision is final. Can the creditors
execute against the bank?
No. Once the Bank is under Receivership, no one can touch its asset
until the receivership is terminated. The receivers are liquidating to
determine if the bank may be revived and for the meantime, all claims
of the creditors are frozen.
When the judgment has been novated by the parties
Example: In a collection case, you lost and the court ordered you to pay
the plaintiff. After you received the decision, you went to the plaintiff
because you can’t pay 1M right away. You want it to be by installment
and the plaintiff agreed. You two signed a contract for the agreement.
However, on the 4th month installment, you did not pay. Can the plaintiff
file for execution?
No. because that it has already been novated when you two modified or
changed the judgment.
When the judgment is incomplete
GR: When the judgment has become final and executory, court cannot
amend the judgment.
XPN: The court can still amend a final and executory judgment if:
A. To make corrections of clerical errors
B. To clarify ambiguity
C. In judgment for support because it can be amended anytime
SEC 2. DISCRETIONARY EXECUTION
Section 2. Discretionary execution. —
(a) Execution of a judgment or final order pending appeal. — On motion of the
prevailing party with notice to the adverse party filed in the trial court while
it has jurisdiction over the case and is in possession of either the original
record or the record on appeal, as the case may be, at the time of the filing
of such motion, said court may, in its discretion, order execution of a
judgment or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in
a special order after due hearing.
(b) Execution of several, separate or partial judgments. — A several, separate
or partial judgment may be executed under the same terms and conditions
as execution of a judgment or final order pending appeal.
DISCRETIONARY EXECUTION
The court may grant execution even if the decision is not yet final and
executory. However, it may only issue upon good reasons to be stated
in a special order after due hearing.
Montie: Good reasons is a must and there must be special order.
Q: Where do you file motion for discretionary execution?
In the court of origin, RTC which renders the decision. (?)
Q. When can the trial court be said to have already lost its
jurisdiction?
14 | U N I V E R S I T Y O F S A N C A R L O S
When the case is appealed and the records of the case are already sent
to the Court of Appeals.
Important: Even if the appeal is filed in the CA, but if the records are
still in the possession of the RTC, the RTC retains its residual jurisdiction.
It can still issue an order for the discretionary execution. But when the
records are already sent to the CA, then RTC loses its jurisdiction over
the case.
Q: What happens if the case is appealed in the CA? Where will
you file?
It depends.
A. If the records of the case has not yet been forwarded to the CA –
file in the RTC.
B. If the records are already in the CA – file in the CA
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.
The Court of Appeals has no authority to issue immediate execution
pending appeal of its own decisions therein. Discretionary execution is
allowed pending appeal only on a judgment of the trial court upon good
reason to be stated in a special order. A judgment of the Court of
Appeals cannot be executed pending appeal.
Q: What if the case is forwarded to the Supreme Court?
You cannot touch that case anymore. Once it is forwarded to the SC, no
one can touch the case because it is out of respect of the highest court
of the land. So there is no such thing as discretionary execution of a CA
decision. It is only discretionary execution of a RTC decision.
Important: A decision of the CA cannot be executed if it is pending
appeal in the Supreme Court.
GOOD REASONS FOR EXECUTION PENDING APPEAL
1. Where the lapse of time will make the judgment ineffective.
Example: You have already won the case but thing is perishable.
Like if you fought over a banana. Defendant will not return the
banana because he still wants to appeal. Execution here is
warranted to prevent the banana from perishing.
2. Where the appeal is clearly dilatory
Important: It is only the CA which can decide if the appeal is
dilatory or not. RTC could not grant the execution pending appeal
on the ground that the appeal is clearly dilatory. Otherwise, they
are prejudging the case.
3. Where the judgment is for support
4. Where the article subject of the case would deteriorate
5. Where the defendants are exhausting their income
6. Where the judgment debtor is in imminent danger of insolvency
7. Where the prevailing party is of advance age.
Q. What is the remedy?
If the court grants discretionary execution and you think the grant is
without basis, remedy is Rule 65 Certiorari for grave abuse of discretion.
SEC 3. STAY OF DISCRETIONARY EXECUTION
Section 3. Stay of discretionary execution. — Discretionary execution issued
under the preceding section may be stayed upon approval by the proper court of
a sufficient supersedeas bond filed by the party against whom it is directed,
conditioned upon the performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in part. The bond thus
given may be proceeded against on motion with notice to the surety.
How to prevent execution pending appeal
Yes, by filing a supersedeas bond – an amount of money that you
deposited in court to answer for whatever damage the prevailing party
may have suffered because of the stay of execution.
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Supersedeas bond does not automatically stay the execution
Important: However, the filing of supersedeas bond does not entitle
the judgment debtor to the suspension of execution as a matter of right.
Hence, where the needs of the prevailing party are urgent, the court can
order immediate execution despite such supersedeas bond.
Example: A party filed a motion for execution. You prevented it by filing
Supersedeas Bond. If found that the stay of execution is not meritorious,
and the winning party suffered damage. Here, the party will just go after
the Supersedeas Bond.
Important: Even if the losing party is willing to put up a bond, the court
has still the discretion to deny the bond and proceed with the
discretionary execution if the reason for immediate execution weighs
more than the supersedeas bond.
Montie: Rule is, you cannot file execution if the case is appealed, except if it is
discretionary appeal. But there are cases that are immediately executory.
SEC 4. JUDGMENTS NOT STAYED BY APPEAL
Section 4. Judgments not stayed by appeal. — Judgments in actions for
injunction, receivership, accounting and support, and such other judgments as are
now or may hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not, be stayed by an appeal taken
therefrom, unless otherwise ordered by the trial court. On appeal therefrom, the
appellate court in its discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or otherwise as may be
considered proper for the security or protection of the rights of the adverse party.
JUDGMENT NOT STAYED BY APPEAL
Judgments which are not stayed by appeal are immediately executory.
Examples: (IRAS)
1. Injunction
2. Receivership
3. Accounting
4. Support
SEC 6. EXECUTION BY MOTION/ BY INDEPENDENT ACTION
Section 6. Execution by motion or by independent action. — A final and executory
judgment or order may be executed on motion within five (5) years from the date
of its entry. After the lapse of such time, and before it is barred by the statute of
limitations, a judgment may be enforced by action. The revived judgment may also
be enforced by motion within five (5) years from the date of its entry and thereafter
by action before it is barred by the statute of limitations.
EXECUTION BY MOTION OR BY INDEPENDENT ACTION
A. By mere motion – A final and executory judgment may be
executed on motion within 5 years from the entry of judgment.
Simply file a motion for execution in the court where the case was
rendered. The court will then just issue a writ of execution.
B. By Independent action – After 5 years but before it is barred by
prescription, a judgment may be enforced by independent action
to revive the judgment.
Q. If the revival of judgment is granted, how will you execute?
Execute by mere motion within 5 years from such revival.
Q. What happens if this revival of judgment will expire again?
PNB v. Bondoc
If the judgment is a revival judgment and it expired – you can file
another revival. A revived judgment is already equivalent to a new
judgment. Thus, it can be enforced by a mere motion or another revival
action.
15 | U N I V E R S I T Y O F S A N C A R L O S
Veloso Case:
If it is a revived judgment, you are only allowed to execute it by mere
motion. Thus if the revival judgment has prescribed, you cannot
anymore file for another revival.
Important: Sec 6 Rule 9 restored the Bondoc ruling. Thus, a revived
judgment can be enforced by a mere motion within 5 years and by
another revival action after the lapse of 5 years. The Bondoc case is the
prevailing doctrine.
SEC 7. EXECUTION IN CASE OF DEATH OF PARTY
Section 7. Execution in case of death of party. — In case of the death of a party,
execution may issue or be enforced in the following manner:
(a) In case of the death of the judgment obligee, upon the application of his
executor or administrator, or successor in interest;
(b) In case of the death of the judgment obligor, against his executor or
administrator or successor in interest, if the judgment be for the recovery
of real or personal property, or the enforcement of a lien thereon;
(c) In case of the death of the judgment obligor, after execution is actually
levied upon any of his property, the same may be sold for the satisfaction
of the judgment obligation, and the officer making the sale shall account
to the corresponding executor or administrator for any surplus in his hands.
EXECUTION IN CASE OF DEATH OF A PARTY
Death after the decision has been rendered and has become final
Two kinds of questions here:
1. What kind of action is filed?
2. Who died?
Q. How do you execute a judgment when the losing party
already died?
To answer this question, first distinguish what kind of action is filed,
whether it is one which survives or does not survive.
A. If the action does not survive
The case is dismissed.
Example: Action for Support - What is there to support if the one
to give the support is already dead?
B. If the action survives
Distinguish – who died?
If the judgment becomes final and the judgment creditor died
The execution shall be done by the executor or the administrator
of the estate of the judgment creditor.
If judgment debtor died
Distinguish what kind of action:
1. Action for the recovery of real/ personal property – execution
shall be done against the executor or administrator of the
deceased.
2. Action for collection or recovery of sum of money –
Distinguish if with or without levy:
Levy – the act of setting aside the property of the judgment debtor
to answer for the debt as stated in the judgment. When does the levy
occur? – When there is a demand for payment to the judgment debtor
and he did not pay. The sheriff started looking for property of the
debtor and it will be the subject of the execution sale.
a) With Levy – execution sale of the property as a result
of the levy shall continue.
Example: A money judgment by the court becomes
final and executory. Before it is executed, the judgment
debtor died. How will the creditor execute the
judgment? The sheriff will continue to auction sale the
levied property and apply the proceeds to the
judgment. If there is excess – it shall be given to the
administrator of the estate of the deceased judgment
debtor.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
b) Without Levy – execution shall be enforced against the
estate of the deceased person.
Example: A money judgment by the court becomes final
and executory. Before it is executed, the judgment
debtor died. How will the creditor execute the
judgment? He will just present the decision to the
estate of the deceased debtor. In other words, no need
to have a levy.
To summarize –
IF ACTION DOES The case is dismissed.
NOT SURVIVE
If judgment creditor died
The execution shall be done by the executor
or the administrator of the estate of the
judgment creditor.
If judgment debtor died
Distinguish what kind of action was filed
1. Action for collection of real or
personal property
Execution shall be done against the
executor or administrator of the
IF ACTION deceased.
SURVIVES
Distinguish who died 2. Action for collection or recovery
of sum of money
Distinguish if with or without levy
a) With levy
Execution sale of the property as
a result of the levy shall
continue.
b) Without levy
Execution shall be enforced
against the estate of the
deceased person.
SEC 8. FORMS AND CONTENTS OF A WRIT OF EXECUTION
FORMS AND CONTENTS OF A WRIT OF EXECUTION
Writ of Execution – a written order of the court directing the sheriff
to enforce the judgment of the court that is final and executory. It shall
quote the dispositive portion.
Important: A motion for execution of judgment must contain the
specific amount of judgment you want to execute. The lawyer of the
prevailing party must specify the exact amount. The important
amendment now is that the writ shall specifically state the exact amount
of the principal, interest, costs of suit, profit due as of the date of the
issuance of the writ. The writ shall only state the dispositive portion of
the decision and not the entire body.
Montie: Don’t leave the computation to the sheriff or the judge.
SEC 9. HOW TO EXECUTE MONEY JUDGMENT
MONEY JUDGMENT
And order directing the losing party to pay the prevailing party a certain
amount of money.
Q. How are execution of money judgments enforced?
1. Sheriff to demand payment
2. Satisfaction by levy
3. Garnishment of debts and credits
16 | U N I V E R S I T Y O F S A N C A R L O S
1 - IMMEDIATE PAYMENT OF DEMAND
The sheriff shall enforce an execution of a judgment for money by
demanding from the judgment obligor the immediate payment of the
full amount stated in the writ of execution and all lawful fees.
To whom shall payment be made
If the judgment creditor is present as when he accompanied the sheriff,
payment shall be made to him. If not, payment shall be made to the
sheriff.
The judgment debtor shall pay either in:
1. Cash
2. Manager’s check
3. Any other modes of payment acceptable to the judgment creditor
Sheriff will give the payment to the clerk of court and the clerk will
deposit it in the bank. If the clerk is absent, then the sheriff can deposit
the payment to the nearest government bank directly.
Montie: Personal check is not valid – until it is encashed.
Q. What if a personal property is offered instead to the sheriff?
The sheriff must not accept, unless the judgment creditor is willing to
accept other modes of payment.
2 - SATISFACTION BY LEVY
If debtor has no money, sheriff will look for properties of the debtor to
be set aside for the future executions to be applied for the satisfaction
of the judgment.
Levy – The act of setting apart a property of the judgment debtor to
answer for his debt or obligation by way of auction sale.
How levy is done
A. If real property – just annotate at the back of the title that the said
property is levied in connection to a certain case.
B. If personal property or capable of manual delivery – sheriff will take
them
Q. What properties may be levied?
Real and personal properties – Tangibles properties only.
Q. What if the judgment debtor has no tangible properties?
Then the sheriff will try to find out if the debtor has collectibles from
other people – intangibles. Intangibles are executed by garnishment.
3 - GARNISHMENT OF DEBTS AND CREDITS
The sheriff will try to find if the judgment debtor has collectibles from
other persons. He will garnish that amount to satisfy judgment creditor.
Example: Judgment debtor has another debtor. So sheriff will go to that
third person and ask him to stop his payment to the judgment debtor,
and instead, it shall be paid to the judgment creditor.
Things that may be garnished
1. Commissions
2. Collectible Debts
3. Bank Deposits
Montie: Why bank deposits? Because the contract involved is that of loan.
Thus, the relationship is actually that of creditor-debtor. So the same with
the earlier example, instead of the bank paying the loan to the judgment
debtor, pay to the judgment creditor.
Q. Can the bank use their Bank Secrecy Law to refuse in
divulging whether the judgment debtor is a depositor therein?
No, it will not apply with the execution of judgment.
The bank only has 5 days to inform the court through the sheriff if a
deposit is present and whether it is sufficient to satisfy the obligation. If
he has sufficient money, then the bank will deliver the money to the
sheriff and the latter will deliver it to the judgment creditor.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
EXECUTION OF OTHER JUDGMENT
EXECUTION OF OTHER JUDGMENT
Execution may vary:
1. Execution of judgment for specific act
2. Execution of special judgments
EXECUTION OF JUDGMENT FOR SPECIFIC ACT (Sec. 10)
Deals with execution of judgment by the court ordering the judgment
debtor to perform a particular act. If he will not perform, the court will
delegate someone else to perform the act for him, at the cost of the
judgment debtor.
Non-compliance will not result to contempt of court because
the act can be performed by other persons.
Example1: Accion Publiciana or Action Reindivicatoria – The court
ordered the defendant to reconvey the lot to the plaintiff. Defendant
did not cooperate. Can he be cited in contempt? No. Because the court
can let somebody else to perform the act.
Example2: Transfer of Ownership of the property – The defendant was
ordered to sign the deed of sale in favor of the plaintiff. He did not sign.
So the court can ask the clerk of court to sign the deed of sale in behalf
of the losing party.
Example3: Return of title – Defendant did not return the title. The court
can order the registry of deeds to cancel the title of the defendant and
issue a title in favor of the plaintiff.
Example4: Ejectment Case – When defendant refused to vacate when
the sheriff tried to enforce the ejectment. Can the defendant be held in
contempt? The SC held “It’s quiet a weird decision” – that he is not in
contempt because he not defying the court. He is defying the sheriff.
Besides, there are many remedies for the sheriff to make the defendant
vacate and make the plaintiff possess the land. He can always ask the
assistance of the police. He can use reasonable force.
TN: However, if there are improvements introduced by the defendant,
the plaintiff cannot demolish these improvements.
The plaintiff will have to file for writ of demolition. It will be set for
hearing. It is only when there is order from the court for the demolition
that you can demolish the improvements.
Important: The demolition is not covered in the Writ of Execution. You
must ask the court for a Writ of Demolition, which is the Special
Judgment.
EXECUTION OF SPECIAL JUDGMENT (SEC. 11)
Deals with execution of judgment of the court directing the judgment
debtor to do or perform an act that only he can perform. It cannot be
delegated for being strictly personal.
Non-compliance results to contempt of court
Example1: You were paid to sing in a show for a song nga ikaw raj d
ang makakanta. Later you don’t want to sing. A case is filed against you.
Can you later on say, “Lain nlang pakantaha sir!”? No. That skill is
personal to you.
Example2: Petition for Quo Warranto – You occupy an office that you
have no right to occupy. Court held that you must vacate the office. Only
you can vacate the office, not somebody else.
17 | U N I V E R S I T Y O F S A N C A R L O S
SEC 12. EFFECT OF LEVY ON EXECUTION TO 3RD PERSONS
Section 12. Effect of levy on execution as to third person. — The levy on
execution shall create a lien in favor of the judgment obligee over the right, title
and interest of the judgment obligor in such property at the time of the levy,
subject to liens and encumbrances then existing.
Levy
The act or acts by which an officer sets apart or appropriates a party or
the whole of the property of the judgment debtor for purposes of the
prospective execution sale.
Effect of levy
Important: A levy creates a lien in favor of the judgment creditor, but
subject to the liens then existing. However, levy is subordinate to the
other liens. If there is already a prior lien to the property, it will be
preferred than the levy.
Example: Property of a judgment debtor is levied. But it was mortgaged
before to the bank. So that mortgage will be preferred provided that the
mortgage has been properly registered. That means it is useless to buy
that property in auction sale because it will still be subject to the
mortgage.
SEC 13. PROPERTY EXEMPT FROM EXECUTION
PROPERTY EXEMPT FROM EXECUTION
1. Family Home – house and lot where the family reside, the husband
and the wife own the house and lot
2. Ordinary tools and implements personally used by him in his trade.
3. Three horses or three cows used by him in his ordinary occupation.
4. Necessary clothing and articles for ordinary personal use, excluding
jewelry.
5. Household furniture and utensils necessary for housekeeping of a
value not exceeding P100k.
6. Provisions for individual or family use sufficient for four months.
7. Professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentist, etc. not exceeding P300k in value.
8. One fishing boat and accessories not exceeding the total value of
P100k owned by a fisherman.
9. So much of the salaries, wages, or earnings of the judgment obligor
for his personal services within the four months preceding the levy
as are necessary for the support of his family.
10. Lettered gravestone.
11. Monies, benefits, privileges, or annuities accruing or in any manner
growing out of life insurance.
12. The right to receive legal support.
13. Properties specially exempted by law.
SEC 14. RETURN OF THE WRIT OF EXECUTION
Section 14. Return of writ of execution. — The writ of execution shall be
returnable to the court issuing it immediately after the judgment has been satisfied
in part or in full. If the judgment cannot be satisfied in full within thirty (30) days
after his receipt of the writ, the officer shall report to the court and state the reason
therefor.
Such writ shall continue in effect during the period within which the judgment may
be enforced by motion. The officer shall make a report to the court every thirty
(30) days on the proceedings taken thereon until the judgment is satisfied in full,
or its effectivity expires. The returns or periodic reports shall set forth the whole
of the proceedings taken, and shall be filed with the court and copies thereof
promptly furnished the parties.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
RETURN OF WRIT OF EXECUTION
A writ of execution, once served and fully satisfied, must be returned by
the sheriff to the court. It has a life span of 5 years.
A. Old rule – It must be enforced within 60 days. If not enforced
within 60 days, it will be functus officio. It becomes invalid,
useless – it has no more power.
Q. So what will happen if the sheriff cannot find property real or personal,
or any intangibles of the judgment debtor?
The writ of execution shall be returned to the court.
Q. What if the debtor wins in the lotto after 60 days and return of the writ?
Can the judgment creditor execute the judgment based on the same writ?
No, it is already functus officio. What you will do is to ask the court to issue
an alias writ of execution.
B. New rule – It must be enforced within 5 years by mere motion.
It requires more responsibility to the sheriff. Every 30 days, he
will make periodic report to the judge until he finds a property
within 5 years.
EXECUTION SALE
EXECUTION SALE
The sheriff must first levy the property before the execution sale.
Execution sale is like a public auction sale. The proceeds will be used to
pay the judgment creditor.
A. If the proceeds is not enough – the judgment debtor will be liable
for that deficit.
B. If the proceeds is in excess – it shall be returned to the judgment
obligor.
SEC 15. NOTICE OF SALE
Section 15. Notice of sale of property on execution. The notice shall specify the
place, date and exact time of the sale which should not be earlier than nine o'clock
in the morning and not later than two o'clock in the afternoon.
The place of the sale may be agreed upon by the parties. In the absence of such
agreement, the sale of the property or personal property not capable of manual
delivery shall be held in the office of the clerk of court of the Regional Trial Court
or the Municipal Trial Court which issued the writ of or which was designated by
the appellate court. In the case of personal property capable of manual delivery,
the sale shall be held in the place where the property is located.
NOTICE OF SALE
Before the execution sale, notice of sale must be made. The notice must
provide a description of the thing to be sold, the specific date, place and
time.
Place of execution sale
A. If personal property capable of manual delivery – in the place
where the property is located.
B. If Real property – in the court who issued the writ.
Time of execution sale
Between 9am and 2pm. However, the notice must indicate the specific
time the sale will be conducted.
The notice must be posted in 3 conspicuous public places. How
many days is the posting?
It depends.
A. Personal Property – at least 5 days before the scheduled execution
sale
Except: If perishable like banana. Execution sale can be done
immediately after the notice.
B. Real Property – at least 20 days before the date of the sale.
18 | U N I V E R S I T Y O F S A N C A R L O S
Except: If worth more than P50,000, in addition to the posting in 3
conspicuous places – notice must be published in the newspaper
of general circulation in the place where sale be held once a week
for 2 consecutive weeks.
Montie: What is required is local newspaper only. It shall be raffled to avoid
conflict on which newspaper it will be posted.
Important:
Absence of notice will render the execution sale null and void.
SEC 16. WHERE PROPERTY CLAIMED BY THIRD PERSON
PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSON
Terceria – a third party claim made or filed by third person against the
property levied by the sheriff.
Montie: Kung magpataka lang ang sheriff ug levy, a property of a third person
may be involved. The third person shall file his claim to the sheriff. He will just
execute an affidavit and submit it to the sheriff – must be accompanied with proof
of ownership.
Q. What will the sheriff do?
The sheriff should not proceed with the execution sale. Otherwise, he
will be personally liable for damages if it turns out that the third party
really owns the property. What the sheriff should do is to immediately
inform the court and the judgment creditor.
Important: If the judgment creditor wants to go on with the sale, he
shall put up a bond. The amount of the bond shall be at least equivalent
to the property.
Purpose of the bond: To answer for any damages the sheriff may be
held liable in the event that the third party claimant will prove that he is
the real owner of the property.
Important: The bond has a lifespan of only 120 days. The bond is liable
only if the third party claimant files a case within 120 days. If he does
not file an independent action within such period, the bond will no longer
be liable.
Q. If you are the third party claimant, how will you prevent the
execution sale after the judgment creditor has put up a bond?
Important: File an independent action to recover the property
(Reinvindicatory action), with prayer of injunction or TRO to stop the
sheriff from selling the property.
Montie: In here, the court does not rule on the issue of ownership. The only issue
is whether or not the sheriff is right or wrong in levying the property of the third
person. If he wants to resolve the issue of ownership, then he must file an
independent action again to resolve on the issue of ownership.
Important: If the third party claim is proven to be frivolous and
baseless, the judgment creditor can sue him for damages. This is now
allowed under the New Rules.
SEC 17. PENALTY FOR SELLING WITHOUT NOTICE
Section 17. Penalty for selling without notice, or removing or defacing notice. —
An officer selling without the notice prescribed by section 15 of this Rule shall be
liable to pay punitive damages in the amount of five thousand (P5,000.00) pesos
to any person injured thereby, in addition to his actual damages, both to be
recovered by motion in the same action; and a person willfully removing or
defacing the notice posted, if done before the sale, or before the satisfaction of
the judgment if it be satisfied before the sale, shall be liable to pay five thousand
(P5,000.00) pesos to any person injured by reason thereof, in addition to his actual
damages, to be recovered by motion in the same action.
PENALTY FOR SELLING WITHOUT NOTICE
An execution sale is a public bidding, which is why notice is necessary.
Thus, an execution sale conducted without notice, is null and void.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
Rules of court even provides penalties if sale is without notice
Sheriff is liable for P5, 000, plus actual damages suffered by the
concerned party.
SEC 18. NO SALE IF JUDGMENT AND COSTS PAID
Section 18. No sale if judgment and costs paid. — At any time before the sale of
property on execution, the judgment obligor may prevent the sale by paying the
amount required by the execution and the costs that have been incurred therein.
SEC 19. WHO MAY DIRECT MANNER & ORDER OF SALE
Section 19. How property sold on execution; who may direct manner and order
of sale. — All sales of property under execution must be made at public auction,
to the highest bidder, to start at the exact time fixed in the notice. After sufficient
property has been sold to satisfy the execution, no more shall be sold and any
excess property or proceeds of the sale shall be promptly delivered to the judgment
obligor or his authorized representative, unless otherwise directed by the judgment
or order of the court. When the sale is of real property, consisting of several known
lots, they must be sold separately; or, when a portion of such real property is
claimed by a third person, he may require it to be sold separately.
When the sale is of personal property capable of manual delivery, it must be sold
within view of those attending the same and in such parcels as are likely to bring
the highest price. The judgment obligor, if present at the sale, may direct the order
in which property, real or personal shall be sold, when such property consists of
several known lots or parcels which can be sold to advantage separately. Neither
the officer conducting the execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly in any purchase at such sale.
WHO MAY DIRECT MANNER AND ORDER OF EXECUTION
This is a situation where the sheriff was able to levy several properties.
i.e. house, ref, car, speedboat, etc.
Q. Who will direct which will be sold first?
A. If the judgment debtor is around – he is given the privilege which
one to sell first.
B. If he is not around – the sheriff will decide.
Important: The sale will go on until the obligation is satisfied. Normally,
it is the personal property sold first then the real property.
SEC 20. REFUSAL OF PURCHASER TO PAY
Section 20. Refusal of purchaser to pay. — If a purchaser refuses to pay the
amount bid by him for property struck off to him at a sale under execution, the
officer may again sell the property to the highest bidder and shall not be
responsible for any loss occasioned thereby; but the court may order the refusing
purchaser to pay into the court the amount of such loss, with costs, and may
punish him for contempt if he disobeys the order.
The amount of such payment shall be for the benefit of the person entitled to the
proceeds of the execution, unless the execution has been fully satisfied, in which
event such proceeds shall be for the benefit of the judgment obligor. The officer
may thereafter reject any subsequent bid of such purchaser who refuses to pay.
REFUSAL OF PURCHASER TO PAY
If the highest bidder to whom the property was awarded to refuses to
pay, the sheriff will conduct another bidding. The person who refused
to pay is disqualified.
Penalty
As a penalty, he will be made to pay the amount of loss, with costs, and
the court may punish him for contempt if he disobeys the order.
Example: The first highest bid was 1M, and the bidder did not pay.
Another bidding was conducted. In that second bidding, the highest
bidder is 600k. The first highest bidder, as a penalty, will be made to
pay the difference of 400k. If he won’t, he will be cited in contempt.
19 | U N I V E R S I T Y O F S A N C A R L O S
SEC 21. JUDGMENT OBLIGEE AS PURHCASES
Section 21. Judgment obligee as purchaser. — When the purchaser is the
judgment obligee, and no third-party claim has been filed, he need not pay the
amount of the bid if it does not exceed the amount of his judgment. If it does, he
shall pay only the excess.
Q. Can the judgment creditor participate in the bidding?
Yes. In reality, it is only him who will appear in the bidding. So kung
ikaw ra usa, aw igo-igo.a nlang imo bid. Daghan kaau nabira – Car,
House, Ref, Speedboat – the debt is only 100k. Bid dayon – 55k balay,
5k Ref, 30k, car, 20k Speedboat. Bahalag dagko nag kantidad dha.
If creditor bids, does he have to pay?
No. Here we apply compensation.
Except: When there is Terceria or a third party claimant. He will be
required to pay his bid in cash.
During public auction where there are several properties, which
property will be sold first?
It will be the will of the judgment debtor which one will be sold first.
Example: There are 5 properties mortgaged amounting to 2M.
Obligation is only 1.2M. Will the sheriff auction sale everything to satisfy
the obligation?
No. The sheriff is not allowed to auction everything. It shall be done one
by one until it shall satisfy the obligation. So when the third property is
auctioned, it reached to 1.2M already, then auction sale will end there.
Once there is already a highest bidder
Sheriff will award the property to the highest bidder. After paying the
purchase price – the sheriff will execute a Certificate of Sale to him.
SEC 23-24. CONVEYANCE OF PERSONAL PROPERTY
Section 23. Conveyance to purchaser of personal property capable of manual
delivery. — When the purchaser of any personal property, capable of manual
delivery, pays the purchase price, the officer making the sale must deliver the
property to the purchaser and, if desired, execute and deliver to him a certificate
of sale. The sale conveys to the purchaser all the rights which the judgment obligor
had in such property as of the date of the levy on execution or preliminary
attachment.
Section 24. Conveyance to purchaser of personal property not capable of manual
delivery. — When the purchaser of any personal property, not capable of manual
delivery, pays the purchase price, the officer making the sale must execute and
deliver to the purchaser a certificate of sale. Such certificate conveys to the
purchaser all the rights which the judgment obligor had in such property as of the
date of the levy on execution or preliminary attachment.
CONVEYANCE OF PROPERTY
Personal property – the sale conveys to the purchaser all the rights
which the judgment obligor had in such property as of the date of the
levy on execution or preliminary attachment. There is no warranty
against eviction.
Real property – the office must give to the purchaser a Certificate of
Sale containing:
1. A particular description of the property sold
2. The price paid for each distinct lot or parcel
3. The whole price paid by him
4. A statement that the right of redemption expires one year from the
date of the registration of the certificate of sale.
Take note: Such certificate must be registered in the Registry of
the place where the property is located.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
DIFFERENCE BETWEEN SEC 23 AND SEC 24
Both refers to conveyance of personal property.
Section 23
Refers to the conveyance of a personal property sold in execution sale
which is capable of manual delivery.
Example: Car, jewelries – movable properties. Here, once a purchaser
submits the highest bid and pays the purchased price, the sheriff will
deliver to him the property. And only if necessary, the sheriff will execute
a deed of sale. The delivery itself is sufficient to transfer ownership.
Section 24 – refers to the conveyance of a personal property sold in
execution sale which is not capable of manual delivery.
Example: Shares of Stocks.
Important: Here, the sheriff must execute a deed of sale. The
execution of the deed of sale is the operative act of transferring
ownership. In fact, the execution of the deed of sale retroacts to the
date of the levy.
Montie: Meaning, when a deed of sale is handed over to you, you are deemed to
be the owner of the property way back at the time the sheriff has levied the said
property.
Example: When the property has been levied, judgment creditor sold it
to B. When there was an auction sale, you are the highest bidder.
Property was awarded to you. Now B claims that he is the owner. Who
has a better right? You or B?
Important: As a rule, you have a better right than the buyer of the
property after the levy and before the execution sale. You are deemed
to be the owner of the property from the time the sheriff levied the said
property – it retroacts.
IRREGULARITIES IN THE EXECUTION AND CONDUCT OF SALE
Q. What are these irregularities in the execution?
Irregularities in the notice
A. No posting in 3 conspicuous places
B. Debtor was not notified
C. Someone who is not qualified to buy the properties
1. Wards
2. Guardians
3. Agents
4. Executors or administrators of the estate
5. Public officials if the property belongs to the government
6. Judges – if it is within their territorial jurisdiction
7. Lawyer – if he participated in that case involving the property
Q. What is the remedy of the judgment debtor in case of
irregularities in the conduct of the auction sale?
File motion to set aside the sale.
Q. If there is gross inadequacy in the amount of the auction
sale, is it considered as irregularity of the auction sale?
Qualify.
A. If personal property – Yes, it can nullify the sale because there is
no right of redemption there.
B. If real property – No, judgment debtor cannot complain because
it is in fact favorable to him when he exercises his redemption
right.
Example: If you land is worth P1M and sold in an auction for
P200k – judgment debtor will only pay P200k to redeem it.
Important: Gross inadequacy in the sale is not an irregularity, unless
it involves a personal property.
20 | U N I V E R S I T Y O F S A N C A R L O S
SEC 25. CONVEYANCE OF REAL PROPERTY
EXECUTION INVOLVING REAL PROPERTY
The sheriff, upon submission of the highest bid and payment of the
buyer, will issue a certificate of sale.
Certificate of Sale will specify the:
1. Amount of the bid
2. The purchase price
3. A description of the land sold and
4. A statement of judgment debtor’s right to redemption.
Important: Debtor has the right to redeem the property within 1 year
from registration of the certificate of sale.
Example: When the sheriff executed the deed of sale in favor to you,
does it mean that you are already the owner of the property?
No, ownership has not yet transferred to you. The Certificate of Sale is
only an evidence that you bought it in an execution sale.
Why? Because the debtor still has right to redemption within 1 year. So
you have to wait for 1 year.
Important: When you buy a property in an execution sale – it is
incumbent upon you to register the sale in the Register of Deeds. The
Register of Deeds will annotate that certificate at the back of the title.
Until you register the deed of sale, the one-year redemption will not start
to run.
Important: Remember that the levy is annotated at the back of the
title of the property. That is why the third party buyer can never claim
to have bought it in good faith.
During the period of redemption
The judgment debtor will still occupy the land. He will still enjoy the land
– plants, animals, fruits are all his.
Effect if there is no redemption after one year
The Sheriff will execute the final deed of sale.
So there are actually two Deeds of Sale if it involves Real Property:
1. Tentative Deed of Sale – called the certificate of sale. This does
not give the purchaser ownership over the property.
2. Final Deed of Sale or Deed of Conveyance – gives the purchaser
the ownership over the property.
Important: The final deed of sale will retroact to the time of the
levy. Just like the personal property, it is as if you are the owner
of the property at the time of the levy.
PERSONS WHO CAN REDEEM THE PROPERTY
1. Judgment debtor
2. Redemptioners
3. Successors in interest
Redemptioners
There are other parties who can redeem the property called the
Redemptioners. They are those who acquired a lien on the property after
the levy.
Example: A land is levied. After 1 month, it was sold in an execution
sale. However, after the levy but before the sale, there were people who
acquired a lien over the property by reason of a mortgage, attachment,
etc.
Q. What if the lien is attached before the levy?
Here, there is no problem. The lien will be preferred over the levy.
Remember Sec 12 that the levy is subject to existing liens.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
To simplify –
A. Lien before levy – preferred
B. Lien after levy – Redemptioners
Q. How will the redemptioners exercise their right?
They will redeem from the judgment creditor.
Example: Property of the judgment debtor is levied for execution sale.
It was bought by purchaser X. But before it was bought, that property
was already attached by creditors A, B and C. They are acquired a lien
over the property. (A – by attachment; B – by foreclosure; C – by
attachment – they all acquired lien after the levy)
Purchaser X does not acquire ownership yet because the original debtor
has the right to redeem it from him within 1 year.
Q. In the example, who can redeem?
Either the judgment Debtor, A, B or C (Redemptioners) can redeem from
purchaser X within 1 year from the Registration.
Q. If A redeems the property, when can B, and C redeem the
property from A?
The subsequent redemptioners only have 60 days to redeem it from the
first redemptioner.
If A wants to redeem from X, he must reimburse X of the purchase price
+ cost of auction sale + taxes + 1% interest per month from the time
X purchased the property.
Q. How will he exercise this right?
Go to the sheriff and prove your right to redeem – present the
document, i.e. mortgage, attachment, etc.
 B can also redeem the property from A – reimburse everything A
has paid to X + 2% interest
 C can also redeem from B – reimburse everything B has paid to A
+ 2% interest
Montie: The 60 days only apply to redemptioners from the time it was redeemed
by another redemptioner. The +2% interest of the redemptioners is fixed. That is
already the equivalent to the 60 days of their right to exercise redemption.
Important: Once the judgment debtor redeems the property, there can
be no more redemption by the other Redemptioners. (See Sec 29)
Example: X purchased, A redeemed, B Redeemed. But before C was
able to redeem, it was the judgment debtor who redeemed it from B. C
can no longer redeem from the judgment debtor. Judgment debtor is
the original debtor, thus he has preferential right.
Debtor always have 1 year of redemption from registration
Remember, from Registration ha. So even if redemptioner redeems the
property in the 365th day, debtor cannot redeem anymore for another 1
year. It will not be renewed - non extendible.
Except: Judgment Creditor will agree. In which case, it is not judicial
redemption anymore. If there is an agreement, then it will become
conventional redemption. Parties can stipulate their redemption terms.
Successors in interest of the judgment debtor
Successors in interest refer to:
1. Heirs of the debtor
2. His assignees
Montie: Right to redeem is also a property right, thus it can be sold. Debtor
can assign it to anyone. In fact this is a good advice for your client: His
property was executed – he does not have money to redeem. Redemption
period is about to expire. Then he can sell his right to redeem to another
person he trust to redeem it in behalf of himself.
Example: Property is P1M. Bidding was made and purchaser bought it for
P500k. You have no money to redeem, so you can sell your right for P300k.
That third person can redeem your property. Tabla rag gipalit niya imong
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yuta worth P1M for P800k (P500k for the redemption + P300k for right to
redeem)
Important: Your client will just execute a deed of assignment and
that’s it. He can even redeem it if he wants to.
Q. If, after the 1 year redemption period, the debtor still do not
want to vacate the property, what is the remedy of the
purchaser?
To ask the court to issue Writ of Possession.
Except: When there is already a third person possessing the property
claiming ownership. In which case, purchaser will have to file a case
again to litigate the new issue because the third party is already claiming
a right.
Q. What if there are anomalies in the property? The purchaser
has already paid but cannot possess the property. What right
does he have?
Example: During the execution, there is a 3rd party claimant. He filed an
independent action with the court asking for preliminary injunction. The
case pushed through, only that the preliminary injunction was denied.
This means that because preliminary injunction is denied, the execution
continued. Thus, the purchaser successfully bid and won the property.
But the case pushed through, the third party’s case is still there, and
what if in that case, the court favored the 3rd party claimant? This is the
anomaly we are talking about. What is the effect?
The effect is that the purchaser cannot possess the land because of the
anomaly.
Q. What are the remedies of the purchaser?
1. To file an action to recover the money he already paid
2. To ask for the revival of the judgment in favor of the judgment
creditor.
Montie: Here, purchaser will step into the shoes of the judgment creditor
and have an execution again. Sheriff will levy another property of the
judgment debtor.
REMEDIES IN AID OF EXECUTION
Sheriff did not find any property of the debtor. Writ is returned
unsatisfied.
What are the remedies?
1. Examination of judgment debtor – there may be properties hidden
by the debtor. The creditor here will ask the court for subpoena.
Debtor will be asked to go to court and be cross-examination
regarding properties allegedly hidden.
Montie: If he is examined in court, remember that he is doing so under
oath. Thus, if he is lying, he will be liable for perjury.
2. Examination of debtor of the judgment debtor – If the creditor is
informed that there are people indebted to the debtor. Creditor will
ask the court to subpoena these people and to ask them how much
they are liable and to stop payment to the judgment debtor.
Instead, obligation will be paid to the sheriff or judgment creditor.
Montie: This is a form of garnishment.
3. Enforcement of the attendance and conduct of examination –
noncompliance will make the judgment debtor liable for contempt
4. Debtor to pay directly to creditor
5. Garnishment of income more than enough for the support of his
family.
Can salary be garnished?
Yes, provided it is in excess of what is needed to support his family.
It can be made in monthly installment. Court can direct the
employer to set aside certain amount – If salary is 100k, 90k is for
support, and maybe 10k for the obligation.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
6. Appointment of Receiver – usually for corporations; liquidations.
7. Sale of ascertainable interest of judgment debtor in a real estate.
Ascertainable Interest
 Like to assign the redemption
 Like a right of mortgagee to foreclose a mortgage. He can
step into his shoes.
8. Proceedings when indebtedness is denied or property claim by
another person.
If a third person in possession of the property denies that it belongs
to the judgment debtor and instead claims ownership to the
property – The court here will allow the judgment creditor to step
into the shoes of the judgment debtor to file case against that third
person.
Important: Only if there is strong proof that the property really
belongs to the judgment debtor.
Example: Property levied is a car. That car is in possession of the
3rd person – saying that he is the real owner of it. Then the court
will allow you to file a case against him. If proven that it is really a
property of the judgment debtor, it shall be delivered to the sheriff
for the execution.
SATISFACTION OF JUDGMENT
Section 44. Entry of satisfaction of judgment by clerk of court. — Satisfaction of
a judgment shall be entered by the clerk of court in the court docket, and in the
execution book, upon the return of a writ of execution showing the full satisfaction
of the judgment, or upon the filing of an admission to the satisfaction of the
judgment executed and acknowledged in the same manner as a conveyance of
real property by the judgment obligee or by his counsel unless a revocation of his
authority is filed, or upon the endorsement of such admission by the judgment
obligee or his counsel, on the face of the record of the judgment.
Section 45. Entry of satisfaction with or without admission. — Whenever a
judgment is satisfied in fact, or otherwise than upon an execution on demand of
the judgment obligor, the judgment obligee or his counsel must execute and
acknowledge, or indorse an admission of the satisfaction as provided in the last
preceding section, and after notice and upon motion the court may order either
the judgment obligee or his counsel to do so, or may order the entry of satisfaction
to be made without such admission.
Section 46. When principal bound by judgment against surety. — When a
judgment is rendered against a party who stands as surety for another, the latter
is also bound from the time that he has notice of the action or proceeding, and an
opportunity at the surety's request to join in the defense
SATISFACTION OF JUDGMENT
A. Entry of satisfaction of judgment by the clerk of court
Here, the creditor admitted that he has been paid already.
B. Entry of satisfaction with or without admission
Here, admitted or not, it can still be proven by the sheriff.
C. When principal is bound by the judgment against surety
Here, the surety is solidarily bound. If there is a case filed against
the surety, debtor is bound by the judgment of the surety.
SEC 47-48. EFFECT OF JUDGMENT OR FINAL ORDER
EFFECT OF JUDGMENT OR FINAL ORDER
A. Effect of judgment or final order
B. You cannot revive the case with the same issues and the same
parties.
Requisites of res judicata
A. Judgment must be final
B. Court must have jurisdiction
C. Judgment must be upon the merits
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D. There must be between the two cases:
 Identity of the party
 Identity of subject matter
 Identity of cause of action
EFFECT OF FOREIGN JUDGMENT OR FINAL ORDER
A. In a case of judgment upon a specific thing – the judgment is
conclusive upon the title to the thing.
B. In case of judgment against a person – the judgment is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title.
TN: 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, clear mistake of law or facts.
Q. Is the judgment of a foreign court be enforced in our court?
As a rule, it shall be respected by our court under the principle of
reciprocity.
Except: When the foreign court does not have jurisdiction of the case
or that the foreign court has clearly violated the basis principle of due
process.
Examples re jurisdiction
Example: A and B are both American citizens. Married in US, they filed
a divorce in US. Can our court recognize that divorce decree?
Yes. Parties are both Americans.
Example; Same situation. But A and B are Filipinos. Can our court
recognize the divorce degree?
It shall not be recognized. Remember in Art 15 of Family Code. The
theory of nationality. That laws relating to family rights, duties, status,
relation and legal capacity shall be binding with citizens of the Philippines
where ever they will go.
So your status is binding where ever you will go. The courts in US do
not have jurisdiction to change it. Even if you get your divorce there, it
shall not be recognized under Philippine laws. It is your national law that
determines you right to remarry.
Q. But can the foreign judgment be enforced in the Philippines?
Art. 26 – If a Filipino is married to a foreigner and the foreigner obtains
divorce abroad. The Philippine courts will recognize that divorce
obtained by the foreigner husband against the Filipino wife. We will
recognize that in order for the Filipino wife to remarry.
Is it automatic?
No. If she wants to remarry, she must file a case in our court for
recognition of foreign judgment called enforcement of foreign judgment.
Garcia Case
A foreign divorce decree obtained a by foreigner spouse against Filipino
spouse can be given effect in the Philippines in order to capacitate the
latter to remarry only after it is recognized by our court.
The Filipina spouse must prove:
1. That it is the foreign spouse who filed for divorce.
2. Present the authenticated divorce decree.
3. And that after the divorce, the foreigner spouse has capacity to
remarry under his national law.
– END –
“That in all things, God may be glorified.”
God bless, everyone! #Team407