CIVIL PROCEDURE exclusive then the place stipulated is the only venue of the action.
This
GENERAL PRINCIPLES
COMPLAINT
 The Rules of Civil Procedure will not be operational without someone
going to the court to file a complaint.
 The filing of the complaint gives life to procedural rules. It is the first
pleading filed with the court by the Plaintiff.
 The purpose of the complaint is to sue another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
RIGHT OF ACTION AND CAUSE OF ACTION
 Civil Procedure starts when he believes that someone has violated his
rights
 Before the filing of the complaint, it must be determined whether there
is a cause of action against the defendant.
 Cause of Action involves the right of the plaintiff and a violation of
this right by the defendant. Without a right and violation of the right
there can be no cause of action.
 Cause of Action refers to an act or omission by which a party violates
the right of another
 The right to file a suit is called a right of action. The right of action is
procedural in character, is the consequence of the violation of the right
of the plaintiff.
 There is no right of action where there is no cause of action.
 It is not enough that a party has a cause of action. The rules require
sufficiency in alleging those facts which, taken together, constitutes
cause of action. It is the sufficiency not the veracity of the material
allegations.
 The failure to make sufficient allegations of a cause of action in the
complaint is a ground for its dismissal.
 GR: 1 suit= 1 cause of action. A plaintiff is precluded from instituting
more than one suit for a single cause of action. He cannot split a single
cause of action into several parts and subject each part to a separate
complaint.
EXC: (JOINDER OF ACTIONS) 1 suit= several causes of action. The plaintiff is
not precluded from asserting in one complaint as many causes of action he may
have against the same opposing party. Joinder of actions is not prohibited by the
rules.
JURISDICTION
 It is a well-entrenched rule that a complaint must be filed in the proper
court which the law conferred jurisdiction over the subject matter of
the action.
 Filing of complaint with the wrong court is a ground for dismissal by
means of as follows:
a. By proper motion
b. Motu proprio
 Jurisdiction over civil actions and probate proceedings is determined
by the value of the personal property, estate or demand and also by the
place where the action is to be instituted.
 Jurisdiction over civil actions involving title to, possession of, real
property, or any interest therein will be apportioned using the assessed
value of the property as bench mark.
VENUE
 It is the place where the action is to be filed.
 A complaint even in the court with the appropriate jurisdiction, runs
the risk of being dismissed, on motion, if commenced in the wrong
place.
 The rules on venue preclude the court from dismissing the complaint
motu proprio, except when authorized by special rules.
 In determining the venue of an ordinary civil action, the plaintiff will,
inevitably, have to initially consider whether or not the action to be
filed is a real action or a personal action.
 If the action is REAL, the action shall be commenced and tried in the
place where the property is situated.
 If the action is PERSONAL, the action shall be commenced and tried
in the place where the plaintiff resides or where the defendant resides,
or in the case of non-resident defendant, where he may be found, at the
election of the plaintiff.
 If the parties have agreed in writing on the exclusive venue prior to the
filing of the action, and the agreed venue is contemplated to be so
stipulation precludes the filing of the action in other places.
PARTIES
 The parties are the plaintiff and the defendant.
 It must be determined whether the plaintiff is a real party-in-interest.
 A plaintiff, who claims to be one, must sufficiently allege ownership of
a right violated by the adverse party. He must be one who stands to be
benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit.
 As a rule, a suit can be commenced only against one averred to have
violated the plaintiff’s rights. In doing so, the counsel must identify
whether the defendant is an indispensable party or a mere necessary
party. This distinction is vital because where the party is indispensable,
his joinder is compulsory.
 Without an indispensable party, no final determination could be had of
an action.
 The non-inclusion of a necessary party does not prevent the court from
proceeding with the action although, without such party, no complete
relief may be accorded as to those already parties.
PRESCRIPTION AND CONDITION PRECEDENT
 If the action is barred by statute of limitations, then the right of action
has ceased. It has ceased because it has prescribed and prescription is
one of the well-recognized grounds for the dismissal of a complaint.
 Written contracts created by law, or a judgment prescribes after 10
years from the time the cause of action accrues.
 Forcible entry, unlawful detainer and defamation must be commenced
within one year from the accrual of the cause of action.
 Under the Rules, if it appears from the pleadings or the evidence on
record that the action has prescribed, the court is mandated by the
Rules to dismiss the claim.
 When dismissed on the ground of prescription, the filing of the same
action or claim is barred.
 If the action requires a performance of condition precedent, then the
compliance of the condition is imperative and cannot be conveniently
ignored. (KATARUNGANG PAMBARANGAY) If compliance of the
condition precedent is sufficient, it must be alleged in the complaint for
it to sufficiently state a cause of action.
 Unlawful detainer predicated from non-payment of rentals, the action
shall come after a demand is made.
 Actions between members of the same family must be preceded by
attempts to have the controversy settled and compromised. If it is
shown that no such efforts were made, the case must be dismissed
pursuant to the family code.
 Under jurisprudence, when there is a need to exhaust administrative
remedies before judicial intervention is sought, it must be alleged in the
pleadings that it has complied with the exhaustion of administrative
remedies.
PREPERATION OF THE COMPLAINT
 There must be a statement of ultimate facts which constitute the party’s
claim or defense. It must be only ultimate facts; evidentiary facts must
be omitted. Evidentiary matters are to be presented in the trial.
 Circumstances constituting fraud or mistake must be stated with
particularity to the court to determine the type of fraud committed
 An action filed may sometimes be based on a document. The document
needs to be properly pleaded in the complaint by setting forth the
substance of the instrument.
 In actions based on promissory note, it is possible for the defendant to
opt to deny the genuineness and due execution of the promissory note.
Under the rules, a mere specific denial of such matters would not be
sufficient denial. It must be made under oath, otherwise the defendant
would be deemed to have admitted the genuineness and execution of
the note.
 The complaint must specify the relief sought
 The complaint must be dated and signed
 The complaint must designate the address of the party or his counsel
 As a general rule, a pleading need not be verified, unless specifically
mandated by law or a particular rule.
 The complaint must be accompanied by a certificate against forum
shopping.
PROVISIONAL REMEDIES
 Kinds of ProvRem:
a. Preliminary attachment
 b. Preliminary injunction
c. Receivership
d. Replevin
e. Support pendente lite
 For forcible entry, the plaintiff may ask for a writ of preliminary
injunction to restore him possession of his land
 In an action for collection of sum of money, the plaintiff may apply for
the issuance of a writ of preliminary attachment of the defendant’s
properties
 In an action for support, the plaintiff may ask the court to order the
defendant to give support to the plaintiff during the pendency of the
action. This is known as support pendente lite
FILING OF COMPLAINT
 The filing of the complaint is the act of presenting the same to the clerk
of court
 When an action is filed, the filing must be accompanied by the
payment of docket and filing fees. As a rule, the court acquires
jurisdiction over the case only upon payment of the prescribed fees.
Without payment, the complaint is not considered filed. The payment
of the docket fee is mandatory and jurisdictional.
 The SC however relaxed the payment of the fee within the reasonable
time, but not beyond the prescriptive period.
 For appeal, the GR is that payment of docket fees within the prescribed
period is mandatory for the perfection of the appeal although there
were instances when the rule has been applied liberally.
 As a GR, the payment if docket fees is required for the perfection of an
appeal. This is so because a court acquires jurisdiction over the subject
matter of the action only upon payment of the correct amount of docket
fees
POSSIBLE PROCEEDINGS AFTER THE FILING OF THE COMPLAINT
 Dismissal of the action by the plaintiff:
It must be made before an answer is filed by the defendant. The plaintiff may
dismiss the action by filing a notice of dismissal. The dismissal by notice of
dismissal is without prejudice to its being refiled later unless otherwise stated in
the notice of dismissal that refiling is barred by the two dismissal rule. If after
service of answer the plaintiff can no longer have his action dismissed by mere
notice, the plaintiff must now file a motion to dismiss his complaint. It is now
under the sound judicial discretion of the court whether to deny or grant the
motion.
 Amendment of the complaint:
Amendment is a matter of right as long as it is made before the other party has
served a responsive pleading. If the court refuses to accept the amendment, the
court may be compelled to do so by means of a petition of mandamus.
Amendment made as a matter of right may be made only once. The plaintiff may
amend his complaint even after a motion to dismiss has been served since a
motion to dismiss is not a responsive pleading. After a responsive pleading, an
amendment must be with leave of court.
SUMMONS
 Upon filing of the complaint and payment of legal fees, the clerk of
court shall issue the corresponding SUMMON to the defendant
directing him to file an answer to the complaint.
 If the defendant fails to file an answer the court may render a judgment
against him by default.
 As a general rule, summons and copy of the complaint are to be served
in person. However, if the summon or the complaint cannot be served
despite diligent efforts, summons may be served by an alternative
mode called substituted service.
 Substituted service consist in serving the summon at the residence of
the defendant or his regular place of business with a person qualified to
receive the summons in accordance with the rules.
 Summons by publication is not a recognized mode of service for the
purpose of acquiring jurisdiction over the person of the defendant.
 It is the filing of the complaint that makes the court have jurisdiction
over the person of the plaintiff. However, the filing of the complaint
does not extend to the person of the defendant. Absence of a voluntary
appearance, it is the service of summons upon the defendant that makes
the court acquire jurisdiction over the defendant
 Service of summons represents a compliance with the rule on notice-
an essential element of due process.
 If the defendant is a minor, insane or incompetent service of summons
shall be made upon him personally and on his legal guardian if he has
one, or if none, upon his guardian ad litem, or in case of a minor, upon
his father or mother.
 If the defendant is a domestic corporation or partnership, service may
be made on certain specific persons only
 If the defendant is a prisoner confined, service shall be made upon him
by the officer having management of the jail
 Service of summons is not always required to enable the court to
acquire the requisite of jurisdiction over the person of the defendant in
certain actions. Service of summons may be dispensed with if the
defendant makes a VOLUNTARY APPEARNCE. A voluntary
appearance in the action shall be equivalent to a service of summons.
MOTION FOR BILL OF PARTICULARS
 Although the summon directs the defendant to file an answer to the
complaint, he is procedurally under no obligation to file an answer
because the rules allows him certain procedural options.
 If there is ambiguity in certain material allegations in the complaint,
the defendant cannot possible file an intelligent answer, he need not
serve his answer unless and until the ambiguity is clarified by the
plaintiff. These ambiguities may be clarified by filing a motion for bill
of particulars.
 The court may deny or grant the motion outright, or allow the parties
the opportunity to be heard. The court therefore, is not obligated to
conduct a hearing on the motion.
 If the motion is granted, the party directed to submit a bill of
particulars must comply with the order within 10 days from notice. If
the order is not obeyed or insufficient compliance, the court may order
the striking out of the pleading or the portions thereof or make such
other order as it may deem just.
MOTION TO DISMISS
 After the plaintiff submits a bill of particulars, the defendant may now
file his answer. After reading the complaint, if the defendant finds a
solid basis for the immediate dismissal of the action, instead of filing
his answer, he may file a motion to dismiss.
 The court may dismiss the complaint on its own motion and these are
the following instances:
a. Lack of jurisdiction over the subject matter of the action
b. Litis pendentia
c. Res judicata
 A motion to dismiss is an omnibus motion because it is one which
attacks the pleading. When it is filled, it includes all the objections then
available and all objection not so included shall be deemed waived,
EXCEPT defense like lack of jurisdiction over the subject matter, litis
pendentia, res judicata and prescription.
 If no motion to dismiss is filed any grounds for dismissal provided in
the rules may be pleaded as an affirmative defense in the answer, and
in the discretion of the court, a preliminary hearing may be had on the
defense relied upon as if a timely motion has been filed.
ANSWER
 If there exist no ground for a motion to dismiss or of the motion is
rightfully denied, the defendant has to file his answer.
 The answer is the responsive pleading to the complaint.
 The answer gives notice to the plaintiff as to which allegations in the
complaint the defendant decides to contest and put in issue.
 The answer contains both affirmative and negative defense of the
defendant.
DEFAULT
 The filing of an answer is important. The failure to file an answer by
the defendant will entitle the plaintiff to file a motion to declare him in
default.
 When in default the defendant loses his standing in court and the latter
may proceed to render judgment granting the plaintiff relief, unless, in
the discretion of the court requires the plaintiff to submit evidence on
his claim.
 The courts declaration of default should be preceded by a motion to
declare the said party in default together with proof of such failure.
 A party declared in default shall be entitled to notice of subsequent
proceedings, and is accorded a relief from the order. He may, at any
time after the notice and before the judgment, file a motion under oath
to set aside the order of judgment in default. The motion must show
that his failure to answer was due to the following:
a. Fraud
b. Accident
c. Mistake
d. Excusable negligence
  A default order will not be issued in the following actions:  During the pre-trial stage, the party may obtain information from each
a. Annulment of marriage other through the employment of devices, collectively known as
b. Declaration of nullity of marriage discovery procedures.
c. Legal separation  A party may avail various modes of discovery like as follows:
 When the order of default ripens into a judgment by default, there is a a. Depositions
limit imposed by the Rules on the extent of relief to be awarded in the b. Interrogatories to parties
judgment. A judgment rendered against a party in default shall not c. Request for admission
exceed or be different in kind from that prayed for nor award d. Production and inspection of documents
unliquidated damages. e. Physical and mental examinations of persons

SPECIFIC DENIALS TRIAL

 The answer to the complaint must specifically deny the material
averments in the complaint because material averments not specifically
denied are deemed admitted.
 If the answer admits material averments in the complaint the answer is
deemed to have failed to tender an issue. Since there is no triable issue
a trial is completely unnecessary.
 A judgment on the pleadings is not to be confused with summary
judgment. A judgment on the pleadings is rendered because, as
disclosed by the pleadings, there is no issue in the case because the
answer fails to tender an issue or because it admits the material
allegations in the complaint. A summary judgment is based not on the
pleadings of the parties but also on their affidavits, depositions, or
admissions. The basis of summary judgment is not the absence of an
issue but the absence of genuine issue in the case.
COUNTERCLAIM, CROSS-CLAIM, THIRD-PARTY COMPLAINT, REPLY
AND INTERVENTION
 When the defendant has his own claim against the plaintiff, in his
answer to the complaint, his answer may be coupled with a
counterclaim, which is a pleading in its own right.
 A COUNTERCLAIM is a pleading that sets forth a claim which a
defending party may have against an opposing party.
 A counter claim may be COMPULSORY COUNTERCLAIM or a
PERMISSIVE COUNTERCLAIM.
 COMPULSORY COUNTERCLAIM is which the defending party has
at the time he files his answer, shall be contained therein
 PERMISIVE COUNTERCLAIM does not have to be raised in the
same proceeding because, by its nature, it could be invoked as an
independent action.
 CROSS-CLAIM is where one defendant has a claim against his co-
defendant, arising out of the transaction or occurrence which is the
subject matter of the complaint. The claiming defendant may, then, in
his answer interpose a pleading against his co-defendant.
 THIRD-PARTY COMPLAINT is when a defendant, named in the
complaint, has a cause of action against one who is not a party to the
action. This cause of action is a claim against a third person either for
contribution, indemnity subrogation, or any other relief in respect of
the plaintiff’s claim. The defendant may bring in the third person into
the suit and implead him as a party by filing, with leave of court a
third-party complaint.
 REPLY is the pleading made by the plaintiff in response to the answer
filed by the defendant. The defendant files an answer to the complaint.
The answer is the responsive pleading of the complaint. The plaintiff
may likewise make his own response, upon receipt of the answer of the
defendant, the plaintiff may respond through a pleading, it is called a
reply.
 A reply is the plaintiffs responsive pleading. While failure for the
defendant to file an answer may lead to a declaration of default, the
failure to reply does not have the same consequence. The failure to
reply does not also result in an implied admission of material
allegations.
 INTERVENTION is where a person not a party to the complaint wants
to be a party to the action. Under the Rules, if, at any time before
judgment, a person, not a party to the action, believes that he has legal
interest in the matter in litigation in a case which he is not a party, he
may, with leave of court file a complaint-in-intervention. If he unites
with the defending party in resisting a claim against said party, he may
file an answer-in-intervention.
PRE-TRIAL
 After a pleading has been served and filed, it is the duty of the plaintiff
to promptly move for a pre-trial
 A pre-trial is mandatory and failure to appear by either party will result
in an adverse consequence for the absent party.
 In a pre-trial the parties shall consider the possibility of an amicable
settlement or submission of the case to ADR.
 If no amicable settlement or compromise be forged between parties,
the case will be set for trial
 During trial parties can present their evidences on their claims and
defenses
 The plaintiff shall present their evidence first, and after he rest his case
it shall be followed by the evidence presentation of the defendant.
 If the defendant believes that, upon the facts and the law, the plaintiff
is not entitled to relief, instead of presenting his evidence, he may
move for the dismissal of the case. He does so by DEMURRER TO
EVIDENCE. If the demurrer to evidence is denied, the defendant still
has the right to present his evidence. If the demurrer is granted but on
appeal, the order of dismissal is reversed, the defendant is deemed to
have waived his right to present evidence.
 A trial is not an indispensable stage of a civil action. Hence, a
judgment may be rendered without trial. A judgment may also be
rendered in pleading, in this case, no trial is required because the basis
of the decision is the pleadings by both parties. A judgment by
compromise may also occur without trial.
JUDGMENT
 Judgment is rendered after the submission of the evidence of the
parties has been concluded.
 Judgment is the decision of the court and represents its official
determination of the respective rights and obligations of the parties to
the case
 There is NO ORAL JUDGMENT. A judgment must be through as
follows:
a. In writing
b. Personally and directly prepared by the judge
c. It must state the facts and the law on which the judgement is
based
d. It must be signed by the judge
e. It must be filed by the clerk of court
 The date of entry of judgement is also the date of finality of judgment.
POST-JUDGMENT REMEDIES
 Remedies may be classified as follows:
a. Remedies before the judgment becomes final and executory
b. Remedies after the judgment becomes final and executory
 Before the judgment becomes final and executory the aggrieved party
may file the following remedies:
a. MR
b. Motion for new trial
c. Appeal
If the MR or MNT is denied, the aggrieved party may appeal from the judgment
within the period of appeal following the fresh period rule.
 After the judgment becomes final and executory the losing party may
file the following remedies:
a. Petition for relief
b. An action to annul judgment
c. Certiorari
d. An attack against the judgment collaterally when the nullity of
the judgment is plain and evident on its face
After the judgment becomes final and executory, a party may no longer appeal
because the period for appeal has already lapsed. The judgment becomes final and
executory and the prevailing party may, at any time within 5 YEARS from its date
of entry, file a motion for execution of judgment rendered in its favor.
EXECUTION AND SATISFACTION OF JUDGMENT
 When all remedies of the parties have been exhausted, the judgment of
the court the be subject to execution. This is the remedy afforded by
the Rules for the enforcement of judgment.
REMEDIAL LAW AND THE RULES OF COURT

CONCEPT OF REMIDIAL LAW
 It is the traditional term given to the rules which prescribes the
procedure for the protection and enforcement of all claims arising from
the rights and duties created by law
 It provides the means and methods where a cause of action may be
effectuated, wrongs redressed and relief obtained.
SUBSTANTIVE LAW VS REMEDIAL LAW
 Substantive Law, creates, defines and regulates rights and duties
concerning life, liberty and property. The violation of substantive law
gives rise to cause of action
 Remedial Law, prescribes the methods of enforcing those rights and
obligations created by substantive law. It provides the procedural
system for obtaining redress for the invasion of rights and violations of
duties, and by laying out rules as to how suits are filed, tried and
decided upon by the courts.
Rules of Evidence are not strictly applied to proceedings before
administrative bodies.
 The Rules of Court do not apply to non-judicial proceedings.
 Labor disputes are not governed by the strict and technical Rules of
Evidence and procedure observed by the regular courts. However, it
may be applied by analogy or suppletory in character.
 The rule on formal offer of evidence is not applicable to a case
involving a petition for naturalization
 Administrative bodies are not bound by the technical rule obtaining in
a court of law. Hence, administrative due process cannot be full
equated with due process in strict judicial terms.
 Technical rules of evidence are not binding in labor cases. Labor
officials should use every reasonable means to ascertain the facts in
each case speedily and objectively, without regard to technicalities of
law or procedure, all in the interest of due process.
 Proceedings before the NLRC are not covered by the rules of evidence
and procedure observed by the regular courts.

THE PROCEDURAL RULES UNDERE THE ROC ARE NOT LAWS NEED FOR SUBSTANTIAL EVIDENCE
 The ROC is the body of rules that governs pleading, practice and  While administrative of quasi-judicial bodies are not bound by the
procedure promulgated by the SC pursuant to its rule-making powers technical rules on procedure, this rule cannot be taken as a license to
under the Constitution. Since they do not originate from the legislature, disregard fundamental evidentiary rules; the decision of the
they cannot be deemed as laws. However, because they are created by administrative agencies and the evidence it relies upon must be, at very
authorities of law, the ROC have the force and effect of laws if not in least substantial.
conflict with positive law.
 In case of conflict between the ROC and statutes, the statutes will SCOPE OF CIVIL PROCEDURE
prevail.  The scope of Civil Procedure includes the following:
a. Ordinary Civil Actions R1-56
PROSPECTIVE EFFECT OF THE ROC b. Provisional Civil Actions R57-61
 As a GR: The ROC are not penal laws and should not be given c. Special Civil Actions R62-71
retroactive effect.
 EXC: To the extent that, in the opinion of the court, their application RULE-MAKING POWER OF THE SUPREME COURT
would be feasible or would work injustice, in which event, the former
procedure shall apply. CONSTITUTIONAL AUTHORITY TO PROMULGATE RULES
 The 1987 Philippine Constitution provides that the Supreme Court
APPLICABILITY TO PENDING ACTIONS; RETROACTIVITY have the power to promulgate rules concerning the protection and
 The Rule of procedure may be made applicable retroactively to actions enforcement of constitutional rights, pleading, practice, and procedure
that are pending and undetermined at the time of their passage. As a in all courts, the admission to the practice of law, the integrated bar,
GR, the retroactive effect of procedural law cannot be considered and legal assistance to the underprivileged.
violative of any personal right because no vested right may attach to  The 1987 Philippine Constitution provides that the rules promulgated
nor arise therefrom. by the SC shall provide simplified and inexpensive procedure for the
speedy disposition of cases and shall be uniform for all courts of the
WHEN PROCEDURAL RULES DOES NOT APPLY TO PENDING ACTIONS same grade, and shall not diminish, increase, or modify substantive
 While procedural rules may be made applicable to actions pending and rights.
undetermined at the time of their passage, the following are instances  Rules of procedure of special courts and quasi-judicial courts shall
that the rules cannot be applied retroactively to pending and remain effective unless disapproved by the SC.
undetermined actions:  The rule-making power of the SC specifically includes the
a. Where the statute itself or by necessary implication provides that constitutional power to promulgate rules concerning pleading, practice
pending actions are excepted from its operation and procedure.
b. If applying the rule to pending proceedings would impair vested  The rule making power of the SC in effect gives power to the SC to
rights disapprove rules of procedure of special courts and quasi-judicial
c. When to do so would not be feasible or would work injustice; or bodies.
d. If doing so would involve intricate problems of due process or  The 1987 Philippine Constitution took away the power of the Congress
impair the independence of the court to repeal, alter or supplement rules concerning pleading, practice and
procedure.
APPLICABLE ACTIONS OR PROCEEDINGS  It was held that it has been the sole prerogative of the courts to amend,
 The ROC shall govern the procedure to be observed in the following: repeal, or even establish new rules for a more simplified and
a. Civil actions inexpensive process, and the speedy disposition of cases.
b. Criminal actions
c. Special proceedings THE POWER TO AMEND RULES
d. All courts, except otherwise provided by the SC  The SC has the power to amend, repeal or even establish new rules for
a more simplified and inexpensive process, and the speedy disposition
INAPPLICABLE ACTIONS OR PROCEEDINGS of cases.
 As a GR, the Rules of Court provides that the Rules shall not apply to  The power of the SC to amend and repeal rules carries with it the
the following cases: power to overturn judicial precedents on points of remedial law
a. Election cases through the amendment of the Rules of Court.
b. Land registration cases
c. Cadastral cases THE POWER TO SUSPEND THE RULES
d. Naturalization cases  The courts have the power to relax, suspend technical or procedural
e. Insolvency cases rules or to except a case from their operation when compelling reasons
 EXC: The Rules may, however, apply to the above mentioned cases by so warrant or when the purpose of injustice requires it.
as follows:  In the determination on what constitutes a sufficient cause for the court
a. Analogy to suspend the rules is under the courts discretion.
b. In suppletory character
 In the exercise of their rule-making power the court can suspend its
 The COMELEC are not bound to strictly adhere to the Rules and rules with respect to a particular case (PRO HAC VICE)
procedure in the presentation of evidence. Settled is the rule that the
  The power to suspend or even disregard rules can be so pervasive and
compelling as to alter even that which the Court itself had already
declared final.
 The rules shall be liberally construed in order to promote their object
and assist the parties in obtaining just, speedy, and inexpensive
determination of every actin and proceeding.
 Courts not only have the power to but also have the duty to construe
and apply technical rules liberally in favor of substantive law and
substantial justice.
 The SC has the power no only to liberally construe the rules, but also
has the power to suspend them, in favor of substantive law or
substantial rights.
 The reason which would warrant suspension of the rules are as follows:
a. The existence of a special or compelling circumstances
b. The merits of the case
c. A cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules
d. A lack of any showing that the review sought is merely frivolous
and dilatory;
e. The rights of the other party will not be unjustly prejudiced
 The inherent power of the court to amend and control its process and
orders includes the right to reverse itself if only to make its findings
and conclusions conformable to law and justice.
LIMITATION OF THE RULE-MAKING POWERS OF THE SC
 The following are the limitations that are imposed by the SC to the
rule-making power of the SC:
a. The rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases
b. The rules shall be uniform for courts of the same grade
c. The rules shall not diminish, increase, or modify substantive
rights.
THE RULE ON LIBERAL CONSTRUCTION
 The Rules shall be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of
every action and proceeding.
 The rule on liberal construction seeks to achieve a disposition of every
action and proceeding in a manner that is:
a. Just
b. Speedy
c. Inexpensive
 Procedural rules are created to aid the attainment of justice. If a strict
application of the rules would hinder rather than serve the demands of
substantial justice, then the former must yield to the latter.
MEANING OF THE RULE ON LIBERAL CONSTRUCTION
 This means that the strict application of the Rules may be relaxed so
that the ends of justice may be better served and that the technicality or
procedural imperfection should not serve as basis of decisions.
 It also means that the Rules must not be applied rigidly if it overrides
substantial justice because rules of procedure are created to facilitate
and not to frustrate substantial justice.
GENERAL RULES ON LIBERAL CONSTRUCTIONS AND THE
EXCEPTIONS
 As a GR: There must be compliance with the procedural rules, and the
abandonment thereof should be done in the most exceptional
circumstance.
 EXC: The rules will be relaxed for the most compelling reasons that if
the rules would be strictly complied, it would defeat, rather than serve
the ends of justice.
 The rules would be relaxed when they hinder rather than promote
substantial justice.
 The rule on liberal construction cannot be invoked successfully where
a party seeking for its application cannot show a justification for his
deviation from the Rules.
APPLICABILITY OF LIBERAL CONSTRUCTION TO CASES
 Liberal construction of Rules shall be applicable to Civil and Criminal
Cases
NATURE OF THE PHILIPPINE CURTS
COURTS OF LAW AND EQUITY
 Philippine Courts are courts of both law and equity.
 Legal and equitable jurisdiction is dispensed with in the same tribunals.
 Settled is the rule that when supported by substantive evidence, the
findings of the CA are conclusive and binding to the parties and are not
reviewable by the SC. However, there were times that the SC finds it
necessary to re-evaluate the findings of the CA, as when the same
contradicts the lower tribunals. When the SC makes reevaluation, it
does so by exercising equity and jurisdiction.
APPLICATION OF EQUITY; EQUITY JURISDICTION
 Equity jurisdiction is used to describe the power of the court to resolve
issues presented in a case, in accordance with the natural rules of
fairness and justice, and in the absence of a clear, positive law
governing the issue.
 Equity is not applied to all cases. For all Its conceded merits, equity is
applicable only when there is absence of law and not as a replacement
it.
DOCTRINE OF HIERACHY OF COURTS (PRINCIPLE OF JUDICIAL
HIERARCHY)
 Jurisprudence provides that when the court has concurrent jurisdiction
over a subject matter the doctrine of hierarchy of courts must be
observed. This doctrine means that where a case must be filed before
the lowest court possible having the appropriate jurisdiction, except, if
one can advance a special reason which would allow a party a direct
resort to a higher court.
 It was ruled that the concurrent jurisdiction, does not grant the party
seeking relief the absolute freedom to file a petition in any court of his
choice.
 The SC is the court of last resort. It cannot and should not be burdened
with the task of deciding cases in the first instance. Its jurisdiction in
issuing extraordinary writs should be exercised only where there is an
absolute necessity or here serious and important reasons exist.
PURPOSE OF THE DOCTRINE OF HIERARCHY OF COURTS
 The purpose of the doctrine are as follows:
a. It would be an imposition upon the limited time of the court
b. It would inevitably result in a delay, intended or otherwise, in the
adjudication of cases, which in some instances, had to be
remanded or referred to the lower court as the proper forum under
the rules of procedure, or as better equipped to resolve the issues
because the court is not a trier of facts. It is only for special and
compelling reasons that the court shall exercise its primary
jurisdiction over the extraordinary remedy of writ of prohibition.
WHEN DOCTRINE OF HIERARCHY OF COURTS BE DISREGARDED
 The SC may disregard the doctrine of warranted by the nature and
importance of the issues raised in the interest of speedy justice and to
avoid future litigations.
 When it is dictated by public welfare and the advancement of public
policy
 When demanded by the broader interest of justice
 When the challenge orders were patent nullities
 When analogous exceptional and compelling circumstances called for
and justified the immediate and direct handling by the court.
DOCTRINE F NON-INTERFERENCE OR DOCTRINE OF JUDICIAL
STABILITY
 This principle holds that courts of equal and coordinate jurisdiction
cannot interfere with each other’s orders.
 This principle bars a court form reviewing or interfering with the
judgment of co-equal court over which it has no appellate jurisdiction
or power of review
 The doctrine of non-interference applies with equal force to
administrative bodies. When the law provides for an appeal from the
decision of an administrative body to the SC or CA, it means that such
body is co-equal with the RTC in terms of rank and stature, and
logically beyond the control of the latter.
CONSTITUTIONAL AND STATUTORY COURTS
 Constitutional Courts:
a. SC as provided for under the Constitution
 Statutory Courts are as follows:
a. All courts in the Philippines are statutory courts except SC
CIVIL AND CRIMINAL COURTS
 Civil courts are those which determines controversies between private
persons
  Criminal courts are those which adjudicate offenses alleged to have
been committed against the state.
 The Philippine courts both exercise civil and criminal jurisdiction,
COURTS OF RECORDS AND COURTS NOT OF RECORDS
 COR are those which keep a written account of its proceedings. CNOR
are those which are not bound to keep such records
 One attribute of COR is the strong presumption as to the veracity of its
records that cannot be collaterally attacked except for fraud
 All Philippine courts, including inferior courts are now courts of
record.
SUPERIOR AND IFERIOR COURTS
 Superior court is one with controlling authority over other courts, and
with an original jurisdiction of its own.
 Inferior court is one which is subordinate to another court the judgment
of which may be reviewed by a higher court.
COURTS OF ORIGINAL AND APPELATE JURISDICTON
 A court is one with original jurisdiction when actions or proceedings
are originally filed with it.
 A court is one with appellate jurisdiction when it has the power of
review over the decisions or orders of a lower court.
 The MeTC, TCTC, MTC are courts of original jurisdiction. The RTC
is likewise a court of original jurisdiction with respect to cases
originally filed with it but also an appellate court with respect to cases
decided by the MTC within its territorial jurisdiction.
 The CA is primarily a court of appellate jurisdiction with competence
to review judgments of the RTC and specified quasi-judicial agencies.
 The CA is also a court of original jurisdiction with respect to cases
filed before it involving the issuance of writs of certiorari, mandamus,
quo warranto, habeas corpus and prohibition. It is also a court of
original jurisdiction to actions of annulment of the decisions of the
RTC.
 The SC is also a court of appellate jurisdiction, but it may be a court of
original jurisdiction over cases affecting ambassadors, public ministers
and consuls and in cases of petitions for certiorari, prohibition and
mandamus. It also is a court of original jurisdiction to a petition of a
writ of amparo or a writ of habeas data.
ORIGINAL JURISDICTION vs EXLUSIVE JURISDICTION
 OJ means jurisdiction to take cognizance of a case at its inception, try
it and pass judgment upon the law and facts, while EJ precludes the
idea of co-existence and refers to jurisdiction possessed to the
exclusion of others
CONCURRENT JURISDICTION
 This type of jurisdiction is also known as coordinate jurisdiction; it is
the power of different court to take cognizance of the same subject
matter. Where there is concurrent jurisdiction, the court first taking
cognizance of the case assumes jurisdiction to the exclusion of the
other courts.
COURT DEFINED
 A court is an organ of government belonging to the judicial department
the function of which is the application of laws to controversies
brought before it as well as the public administration of justice.
COURT vs JUDGE
 C is a tribunal official assembled under authority of law. J is simply an
officer of that tribunal
 C us an organ of the government with a personality separate and
distinct from the J who sits on it.
 C is a being in imagination comparable to the corporation. J is a
physical person
 J is a public officer. C is an office.
 Jurisdiction is attached to C. While jurisdiction don’t attach to J.
VENUE
VENUE DEFINED
 Venue is the place, or the geographical area in which a court with
jurisdiction may hear and determine a case.
VENUE IN CIVIL CASE; VENUE IN CRIMINAL CASE
 Venue relates only to the place of trial or the geographical location in
which an action or proceeding should be brought.
 Venue does not equate of the jurisdiction of the court.
 Venue is an essential element of jurisdiction only in criminal actions.
 Venue is procedural and not substantive.
 In civil cases venue is not a matter of jurisdiction. In essence, venue
concerns a rule of procedure.
 In a criminal case, an information filed in a place where the offense is
not committed is a ground for the information to be quashed for the
lack of jurisdiction of the court.
 In a civil case, improper venue is not equivalent to lack of jurisdiction
because jurisdiction in civil cases is merely procedural and the parties
may waive the venue of the case.
 Because venue is an essential element in criminal cases, venue in
criminal cases determines not only the place where the criminal action
is to be instituted, but also the court that has the jurisdiction to try and
hear the case.
 In a criminal case where it is filed in a wrong venue, the ground for
motion to quash is lack of jurisdiction and not merely improper venue.
VENUE vs JURISDICTION
 J is the authority to hear and determine cases. V is the place where the
case is to be heard and tried.
 J is a matter of substantive law. V is a matter of procedural law
 J establishes a relation between the court and the subject matter. V
establishes a relation between plaintiff and defendant, or petitioner and
respondent
 J is fixed and cannot be conferred by parties. V may be conferred the
act or agreement of the parties.
 The court may dismiss an action motu proprio for a case of lack of
jurisdiction over the subject matter but not for improper venue.
 Jurisdiction over the subject matter nay be raised at any stage of the
proceedings since it is conferred by law although a party may be barred
from raising it on the grounds of estoppel
 The objection for improper venue must be raised either in a motion to
dismiss or in the answer because under the rules, defense and objection
not pleaded either in a motion to dismiss or in the answer are deemed
waived.
 Defense of improper venue is not one of those defense which are not
waived when not raised in a motion to dismiss or in the answer.
BASIC VENU ANALYISIS
 Determine first if the action is real or personal
 If it is personal the venue is deemed transitory and thus, generally
depends upon the residences of the party.
 If it is real, the venue is local and thus, generally, the venue is the place
where the property is located.
VENUE OF PERSONAL ACTIONS
 The venue of personal actions is where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the
principal defendant resides, at the election of the plaintiff.
 If the defendant is a non-resident, the venue us where the plaintiff or
any of the principal plaintiffs resides, or where the non-resident
defendant may be found, at the election of the plaintiff.
 Actions for damages and actions for collection of money are personal
actions. It shall be filed either at the residence of the plaintiff or the
residence of the defendant at the election of the plaintiff.
VENUE OF REAL ACTIONS
 Actions AFFECTING TITLE TO or POSSESSION OF REAL
PROPERTY, or INTEREST THEREIN, shall be commenced and tried
in the proper court which has jurisdiction over the area wherein the real
property involved, or a portion thereof is situated.
 To simplify, if the action is real, the venue is local and refers to the
place where the real property involved, or any portion thereof, is
situated.
 Actions to recover ownership of real property are real actions and must
be filed in the place where the real property is located.
 Actions for unlawful detainer, forcible entry and accion publician are
real actions and must be filed in the place where the subject property is
located.
 Where the action is for specific performance and does not involve
recovery of real property, the action is a personal action. Hence, may
be commenced and tried where the plaintiff resides or at the place
where the defendant resides at the choice of the plaintiff.

VENUE OF ACTIONS FOR FORCIBLE ENTRY AND UNLAWFUL
DETAINER
 FE and UD actions shall be commenced and tried in the MTC where
the real property is located.
VENUE OF ACTIONS AGAINST NON-RESIDENTS AFFECT THE
PERSONAL STATUS OF THE PLAINTIFF; ACTIONS AFFECTING THE
PROPERTY OF THE NON-RESIDENT
 Rule 4 section 3 applies when:
a. Any of the defendant is a non-resident and, at the same time, not
found in the Philippines
b. Action affects personal status of the plaintiff
c. Action affects any property of the non-resident defendant located
in the Philippines
 The actions under this Rule may be commenced and tried in the court
of the place where the plaintiff resides, or where the property or any
portion thereof is situated or found.
WHEN THE RULES ON VENUE DO NOT APPLY
 The Rules on venue do not apply in the following cases:
1. In cases where a specific rule or law provides otherwise; and
2. Where the parties have validly agreed in writing before the filing
of the action on the exclusive venue thereof.
STIPULATIONS ON VENUE
 The parties may agree on a specific venue which could be in the place
where neither of them resides.
 In real actions, the parties may stipulate on a venue other than the place
where the real property is situated.
 The parties may stipulate the venue as long as it is in the following
manner:
1. In writing;
2. Made before the filing of the action;
3. Exclusive as to the venue
 If there is a stipulation as to where the suit is to be filed, the rule that
the residence of the parties is to be considered in determination of
venue of personal actions will not apply because of the restrictive tenor
of the stipulated venue.
 Stipulations as to venue, according to the court is either permissive or
mandatory. In interpreting stipulations, inquiry must be made as to
whether or not the agreement is restrictive in the sense that the suit
may be filed only in the place agreed upon or merely permissive in that
their suits not only in the place agreed but also in the places fixed by
the rules.
 When it is mandatory, the complaint shall be filed only in the
stipulated venue. If it is permissive, the complaint may be filed in the
place designated by the Rules or in the place stipulated.
 The mere stipulation on the venue of an action is not enough to
preclude the parties from bringing the case in other venues. The parties
must be able to show that such stipulation is exclusive. In the absence
of restrictive words, the stipulation should not be deemed as merely an
agreement on an additional forum not as limiting venue to the specified
place.
VENUE IN A CONTRACT OF ADHESION
 The court ruled that contracts of adhesion might be occasionally struck
down only of there was a showing that the dominant bargaining party
left the weaker party without any choice as to be completely deprived
of an opportunity to bargain.
DISMISSAL BASED ON IMPROPER VENUE
 A motu proprio dismissal based on improper venue is plain error. A
court may not dismiss an action motu proprio on the ground of
improper venue as it is not one of the grounds for the courts to dismiss
an action motu proprio on the basis of the pleadings.
 Unless and until the defendant objects to the venue in a motion to
dismiss, the venue cannot be truly said to be improperly laid, because
venue, although technically wrong, may be acceptable to the parties for
whose convenience the rules on venue have been devised.
WHEN COURT MAKE A MOTU PROPRIO DISMISSAL BASED ON
IMPROPER VENUE
 The court may motu proprio dismiss the complaint based on improper
venue on the following cases:
1. When the action is covered by the rules on summary procedure
2. In small claims cases
3. In actions for forcible entry and unlawful detainer
DENIAL OF A MOTION TO DISMISS BASED ON IMPROPER VENUE; NO
APPEAL
 If a motion to dismiss based on improper venue is denied, the
defendant cannot appeal. An order denying a motion to dismiss is
merely interlocutory. It is not final. Only final orders or judgments may
be appealed.
 The remedy is to file an answer and interpose the ground as an
affirmative defense, go to trial and appeal from the adverse judgment.
If the denial is tainted with grave abuse of discretion amounting to lack
of jurisdiction, the remedy is certiorari and prohibition.
IMPROPER VENUE IS NOT JURISDICTIONAL; WAIVER OF IMPROPER
VENUE
 If the venue is improper; it would not be correct to file a motion to
dismiss on the grounds of lack of jurisdiction because venue is not
jurisdictional in civil cases.
 Jurisdiction over the territory is irrelevant in a civil case. In civil cases,
the concept of venue is entirely distinct from the concept of
jurisdiction.

ACTIONS, CAUSES OF ACTOIN AND PARTIES
ACTION DEFINED
 An action is the legal and formal demand of ones right from another
person made and insisted upon in a court of justice.
CIVIL ACTION DEFINED
 A civil action is one by which a party sues another for the enforcement
of a right or protection of a right or the prevention or redress of a
wrong.
CRIMINAL ACTION DEFINED
 A criminal action is one by which the State prosecutes a person for an
act or omission punishable by law.
ACTIONS vs SPECIAL PROCEEDINGS
 As to purpose an action is either to protect a right or prevent or redress
a wrong in a civil action. If it is a criminal action, the purpose is to
prosecute a person for an act or omission punishable by law. While in
Special proceedings it is to establish a right, status or a particular fact.
SPECIAL CIVIL ACTIONS IN THE RULES OF COURT
 The following are special civil actions under the ROC:
1. Interpleader
2. Declaratory relief and similar remedies
3. Review of judgments and final orders or resolution of the
COMELEC and Commission on Audit
4. Certiorari, prohibition, and mandamus
5. Quo warranto
6. Expropriation
7. Foreclosure of real estate mortgage
8. Partition
9. Forcible entry and unlawful detainer
10. Contempt
REAL AND PERSONAL ACTIONS
 An action is REAL when it affects title to or possession of real
property, or an interest therein. All other actions are personal
 An action s real when it is founded upon the privity of real estate. That
means that realty, or an interest therein is the subject matter of the
action.
 To be a real action, it is not enough that the action must deal with real
property. It is important that the matter in lititgation must also involve
or affect the title to or possession of real property, or interest therein.
 An action for damages to real property, while involving realty is a
personal action because it does not involve or affect the title to or
possession of real property or interest therein.
 In determining the venue of the action, the rule on venue of real actions
shall be applied even if the recovery of damages is included in the
recovery of possession of the realty.
 An action to recover personal property is a personal action.
 An action for declaration of nullity of marriage is a personal action
  An action for specific performance is a personal action as long as it
does not involve a claim of or recovery of ownership of or title to real
property
 If the complaint is denominated as one for specific performance, but,
nonetheless, prays for the issuance of a deed of sale for a parcel of
land, to enable the plaintiff to acquire ownership, it is deemed as a real
action.
 The prime objective of an action must affect title or possession of real
property to be considered as real action.
 An action to foreclose a real estate mortgage is a real action.
 An action to compel the mortgagee to accept payment of the mortgage
debt and release the mortgage is a personal action.
 An action to annul a contract of loan and its accessory real estate
mortgage is a persona action.
SIGNIFICANCE OF THE DISTINCTION BETWEEN A PERSONAL AND
REAL ACTION
 To determine the venue of the action
 A real action is local; its venue depends upon the location of the
property involved. Actions affecting title or possession or interest
therein, shall be commenced and tried in the proper court which has
jurisdiction over the area wherein the real property is located.
 A personal action is transitory; its venue depends upon the residence of
the plaintiff or the defendant. A personal action may be commenced
and tried where the plaintiff or any the principal plaintiffs resides, or
where the defendant or any of the principal defendant resides, or in the
case of non-resident defendant, where he may be found, at the election
of the plaintiff
 If the question involves the venue of the action, the analysis will
necessarily involve the following steps:
1. A determination whether the action is real or personal
2. An application of the rules on venue under Rule 4 of the ROC
 Forcible entry and unlawful detainer shall be commenced and tried in
the municipal trial court of the municipality or city wherein the real
property involved, or a portion thereof, is situated.
ACTION IN PERSONAM AND ACTION IN REM
 A proceeding in personam is one which seeks to enforce personal
rights and obligations brought against the person. It is based on the
jurisdiction of the person, although it may involve his right to, or the
exercise of ownership of a specific property, or seek to compel him to
control or dispose of it in accordance with the mandate of the court.
 The purpose of proceeding in personam is to impose, through the
judgment of the court, some responsibility or liability directly upon a
person of the defendant.
 In an action in personam, no one, other than the defendant, not the
whole world, is sought to be held liable.
 An action in personam is lodged against a person based on personal
liablity. An action in rem is directed against the thing itself. An action
quasi in rem, names a person as defendant, but its object is to subject
that person’s interest in the property to a corresponding lien or
obligation.
 In an action in personam jurisdiction over the person of the defendant
is necessary for the court to validly try the case.
 In proceeding in rem, jurisdiction over the person of the defendant is
not a pre-requisite to confer jurisdiction on the court provided that the
latter has jurisdiction over the res.
 Jurisdiction over the res is acquired either by:
1. Seizure of the property under legal process
2. As a result of the institution of legal proceedings in which the
power of the court is recognized and made effective.
 In rem proceedings are validated essentially through publication.
 Judgment in rem is binding to the whole world.
 Judgment in personam is binding upon the parties and their successor-
in-interest but not upon strangers.
 Recovery of real property are in personam
 An action in personam is not necessarily a personal action. Nor a real
action be an action in rem
 It is in rem if it is directed against the whole world, and in personam
when directed to a particular person.
 Notice by publication is sufficient for actions in rem but not for action
in personam.
QUASI IN REM ACTIONS
 An action quasi in rem is one wherein an individual is named as
defendant and the purpose of the proceeding is to subject his interest
therein to the obligation or lien burdening the property
 The object of an action quasi in rem is the sale or disposition of the
property whether by attachment, foreclosure or any other form of
remedy.
 A proceeding quasi in rem is one brought against a person seeking to
subject the property of such person to the discharge of the claims
assailed.
 In action quasi in rem, an individual is name as defendant and the
purpose of the proceeding is to subject his interest therein to the
obligation.
 Actions quasi in rem deals with the status, ownership or liability of a
particular property but which are intended to operate on these questions
only as between the particular parties to the proceeding and not to
ascertain or cut-off the rights or interest of possible claimants
 Examples of actions quasi in rem:
1. Attachment
2. Foreclosure of mortgage
3. Action for partition
4. Action for accounting
SIGNIFICANCE OF DISTINCTION BETWEEN ACTIONS IN REM, IN
PERSONAM AND QUASI IN REM
 To determine whether or not jurisdiction over the person of the
defendant is required and consequently to determine the type of
summons to be employed
 Jurisdiction over the person of the defendant is necessary for the court
to validly try and decide a case against said defendant where the action
is one in persona, but not where the action is in rem or quasi in rem
 If the action is in personam and is against a resident defendant,
jurisdiction is acquired by service of summons on the defendant, or in
case he cannot be served in person within a reasonable time, by
substituted service of summons.
 Without a valid service of summons, the court cannot obtain
jurisdiction over the person of the defendant unless he voluntarily
appears in the action. Voluntary appearance is equivalent to service of
summons.
 In an action in personam against a non-resident who does not
voluntarily submit himself to the authority of the court, personal
service within the state is essential to the acquisition of jurisdiction
over his person. This method, is possible, if such defendant is
physically present in the country. If he is not found therein, the court
cannot acquire jurisdiction over his person, and, therefore, cannot
validly try the case against him.
 In an action for specific performance against a non-resident who does
not reside in the Philippines, summons by publication will not enable
the court to acquire jurisdiction over him.
WHEN SUMMONS BY PUBLICATION MAY BE MADE IN AN ACTION IN
PERSONAM
 Summons by publication, as far as existing jurisprudence is concerned,
will not enable the court to acquire jurisdiction over the person of the
defendant.
Except:
1. If the identity of the defendant is unknown or his whereabouts is
unknown, service may, with leave of court, be affected upon him
by publication in a newspaper of general circulation.
2. If the resident defendant is temporarily out of the country, he may
be served by publication with leave of court.
CAUSES OF ACTION
CAUSE OF ACTION DEFINED
 A cause of action is the act or omission by which a party violates the
rights of the another.
WHEN CAUSE OF ACTION IS REQUIRED
 Every ORDINARY CIVIL ACTION must be based on a cause of
action.
ELEMENTS OF A CAUSE OF ACTION
 The elements of a cause of actions are as follows:
1. A right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
 2. An obligation on the part of the named defendant to respect or
not to violate the right; and
3. Act or omission on the part of the defendant in violation of the
right of the plaintiff or constituting a breach of the obligation of
the defendant to the plaintiff for which the latter may maintain an
action for recovery of damage or other appropriate relief.
CAUSE OF ACTION BASED ON CONTRACTS
 A cause of action based on breach of contract merely requires that
there must be the existence of a contract and there is a breach of
contract.
CAUSE OF ACTION BASED ON VICARIOUS LIABILITY
 As a rule, negligence, as an element of a quasi-delict must be alleged
and proved, but negligence of those person described under the new
civil code, although based in quasi0delict, is presumed.
 Under the NCC, the following persons are liable for the acts of persons
for whom they are responsible:
1. Father
2. Mother
3. Guardian
4. Owners
5. Managers of an establishment or enterprise
6. Employers
7. State
8. Teachers
9. Heads of establishments of arts and trades
 The employers’ negligence in the selection and supervision of his
employee is presumed and his liability shall only cease if he
successfully proves his observance of the diligence required of a good
father of a family
CAUSE OF ACTION FOR A SUM OF MONEY BASED ON PROMISSORY
NOTE
 Where the cause of action is based on promissory note, filing the action
before the due date of the obligation would be premature because the
obligation is one with a period. Whenever a period is designated in an
obligation, the obligation becomes demandable only when the period
arrives. The period is presumed to benefit both parties and of course,
also of the debtor. He cannot be charged before the due date, unless he
loses the right to make use of the period.
 A cause of action for a sum of money based on a promissory note
requires an allegation that a debt exist. Since the note is the basis of the
suit, the note is deemed as an actionable document and must be
properly pleaded in accordance with the rules related to pleadings. The
complaint must likewise allege that the debt is due, and that no
payment was made despite a demand.
CAUSE OF ACTION FOR UNLAWFUL DETAINER
 In an unlawful detainer case, the cause of action does not accrue unless
there is a demand to vacate and such is not complied with. If the suit is
based on expiration of the lease, notice and demand are not required.
 If the unlawful detainer case is based on the alleged violation of the
terms and conditions of the lease agreement or failure to pay the
rentals, the demand should not be to pay or vacate, but to pay and
vacate.
CAUSE OF ACTION FOR FOCIBLE ENTRY
 In forcible entry, the possession of the defendant is illegal from the
very beginning having deprived the actual possessor of his possession
by FISTS.
 It is the nature of the defendants’ entry into the land which determines
the cause of action. If the entry is illegal, the action that may be filed
against the intruder is forcible entry. If the entry is legal but the
possession thereafter becomes illegal, the case is unlawful detainer.
 In forcible entry cases, the plaintiff must allege, in the complaint, and
prove that he was in prior physical possession of the property in
dispute until he was deprived thereof by the defendant by means of
FISTS.
 In forcible entry cases, the occupancy of the defendant of the premises
is illegal from the very beginning.
CAUSE OF ACTION FOR MALICIOUS PROSECUTION
 For a malicious prosecution suit to prosper, the plaintiff must prove the
following:
1. The prosecution did occur, and the defendant was himself the
prosecutor or that he instigated its commencement
2. The criminal action finally ended with an acquittal
3. In bringing the action, the prosecutor acted without probable
cause; and
4. The prosecution was impelled by legal malice—an improper or
sinister motive.
CAUSE OF ACTION IN ENVIRONMENTAL CASES
 In environmental cases, the complaint shall state that it is an
environmental case, and the law involved.
ACTION vs CAUSE OF ACTION
 An action is the suit filed in court for the enforcement or protection of
a right, or prevention or redress of a wrong. While a cause of action is
the basis of the action filed. Under the rules of court, every ordinary
civil action must be based on a cause of action
FAILURE TO STATE A CAUSE OF ACTION; TEST OF SUFFICIENCY OF
THE ALLEGATIONS
 The mere existence of a cause of action is not sufficient for a complaint
to prosper. The cause of action must unmistakably be stated or alleged
in the complaint or that all the elements of the cause of action required
by substantive law must clearly appear from the mere reading of the
complaint. To avoid a possible early dismissal of the complaint.
 Where there is a defect or insufficiency in the statement of the cause of
action, a complaint may be dismissed not because of the lack of cause
of action but the failure of the complaint to state a cause of action.
TEST TO DETERMINE WHEN PLEADINGS ASSERTING THE CLAIM
STATE NO CAUSE OF ACTION
 When the defending party files a motion to dismiss on the ground that
the complaint states no cause of action, the test to be applied is
whether, assuming that the allegations of fact in the complaint to be
true, a valid judgment could be rendered in accordance with the prayer
stated therein. This means matters outside the pleading are not to be
considered in granting or denying the motion to dismiss.
EFFECT OF A FINDING TAT THE COMPLAINT STATES A CAUSE OF
ACTION
 It shall result in the reinstatement of the complaint and the hearing of
the case for presentation of evidence of the parties.
FAILURE TO STATE A CASUE OF ACTION AND LACK OF A CAUSE OF
ACTION
 Failure to state a cause of action is not the same as an absence or lack
of cause of action. The failure to state a cause of action refers to an
insufficiency in the allegations of the complaint while the lack or
absence of a cause of action refers to the failure to prove or establish
by evidence that one has a cause of action.
 Under the Rules of Court, a complaint may be dismissed for the failure
to state a cause of action and not the lack or the absence thereof.
 In a dismissal of a complaint on the ground that it states no cause of
action it is raised under Rule 16 before a responsive pleading is filed,
and can be determined only from the allegations of the pleading and
not form the evidentiary matters.
 In a dismissal of a complaint on the ground of lack of cause of action,
it is raised in a demurrer to evidence under Rule 33 after the plaintiff
has rested his case, and can be resolved only on the basis of evidence
he has presented to support his claim.
 While the motion to dismiss under R16 is based on preliminary
objections which can be ventilated before the beginning of the trial, a
motion to dismiss under R33, in in the nature of a demurer to evidence
on the ground of insufficiency of evidence and is presented only after
the plaintiff has rested his case.
 There is a failure to state a cause of action if the allegations in the
complaint, taken together, do not completely spell out the elements of a
particular cause of action.
 In a motion to dismiss, based on the ground that the complaint fails to
state a cause of action, the question submitted to the court for the
determination is the sufficiency of the allegation in the complaint, and
to determine the sufficiency of the cause of action, only the facts
alleged in the complaint, and no other, should be considered.
FAILUIRE TO ESTABLISH A CAUSE OF ACTION
 If there is a sufficiency of the allegations in the pleading but the
evidence presented does not prove the cause of action, then there is a
failure to establish a cause of action.
  It is not correct for the trial court to dismiss a complaint on the ground
of failure to establish its cause of action without giving the parties an
opportunity to present evidence.
TEST OF SUFFICIENCY OF CAUSE OF ACTION
 The test of the sufficiency of the facts alleged in the complaint as
constituting a cause of action is whether or not admitting the facts, the
court could render a valid verdict in accordance with the prayer in the
complaint.
 A complaint is said to assert sufficient cause of action if, admitting
what appears solely on its face to be correct, the plaintiff would be
entitled to the relief prayed for. Accordingly, if the allegations furnish
sufficient basis by which the complaint can be maintained, the same
should not be dismissed regardless of the defenses that may be averred
by the defendants.
 A complaint is sufficient if it contains sufficient notice of the cause of
action even though the allegations may be not clear and indefinite.
 To sustain a motion to dismiss for lack of cause of action, the
complaint must show that the claim for relief does not exist rather than
that a claim has been defectively stated or is ambiguous, indefinite or
uncertain.
 The test for failure to state a cause of action is whether the complaint
alleges facts which if true would justify the relief demanded.
ALLEGATIONS IN THE COMPLAINT DETERMINE WHETHER OR NOT
THE COMPLAINT STATES A CAUSE OF ACTION
 The court ought to not consider matters outside the complaint in
determining whether or not a complaint states a cause of action. The
court should only consider the allegations in the complaint and there is
no need to require the presentation of evidence to determine whether or
not the complaint states a cause of action because the allegations in the
complaint will disclose the compliance or non-compliance of the
required statement of the cause of action.
 In determining whether or not a cause of action is sufficiently stated in
the complaint, the statements in the complaint may be properly
considered. It is error for the court to take cognizance of external facts
or to hold preliminary hearings to determine its existence.
 The sufficiency of the statement of the cause of action must appear on
the face of the complaint and its existence may be determined only by
the allegations in the complaint, consideration of other facts proscribed
and any attempt to prove extraneous circumstances is not allowed.
 The principle that other matters aside from the material allegations in
the complaint are not to be considered, is not a strict rule. The court in
many cases considered documents attached to the complaint to
determine the sufficiency of the cause of action. This is because
annexes are considered part of the complaint.
IMPORTANCE OF ALLEGATIONS IN THE COMPLAINT
 The cause of action in a complaint is not what the designation of the
complaint states, but what the allegation in the body of the complaint
define and describe. The designation or caption of the complaint is not
controlling, more than the allegations in the complaint themselves are,
for it is not even an indispensable part of the complaint.
 Based on jurisprudence, what determines the nature of an action, as
well as which court or body has jurisdiction over it, are the allegations
in the complaint and the character of the relief sought, whether or not
the plaintiff is entitled to any and all of the reliefs prayed for.
 Cause of action is determined from the allegation of the complaint, not
from its caption.
SPLITTING A SINGLE CAUSE OF ACTION
 Splitting a cause of action is the act of instituting two or more suits on
the basis of the same cause of action.
 In slitting a cause of action, the pleader divides a single cause of action
into two or more parts and brings a suit for one of such parts with the
intent to reserve the rest for another separate action.
PROHIBITION AGAINST SPLITTING A SINGLE CAUSE OF ACTION
 The rules of court do not allow a party to institute more than one suit
for a single cause of action
 The splitting of action breeds multiplicity of suits and clogs the court
dockets which leads to vexatious litigation.
 The rule against splitting of action also applies to counter-claims
 In an action for forcible entry, the claim for damages cannot be filed
separately.
THE THREE TEST TO ASCERTAIN WHETHER TWO SUITS RELATE TO A
SINGLE OR COMMON CAUSE OF ACTION
 The test are as follows:
1. Whether the same evidence would support and sustain both the
first and second cause of action
2. Whether the defenses in one case may be used to substantiate the
complaint in the other
3. Whether the cause of action in the second case existed at the time
of the filing of the first complaint
ANTICIPATORY BREACH
 As a general rule, a contract to do several things at several times is
divisible in its nature. This kind of obligation authorizes successive
actions and a judgment recovered for a single breach does not bar a suit
for a subsequent breach. If the obligor manifests an unqualified and
positive refusal the perform a contract, though the performance of the
same is not yet due, and the renunciation goes to the whole contract, it
may be treated as a complete breach, which will entitle the injured
party to bring his action at once. In this case, the breach is considered a
total breach and there can only be one action and the plaintiff must
recover all his damages therein
EFFECT OF SPLITTING A SINGLE CAUSE OF ACTION
 If two or more suits are instituted for a single cause of action, the filing
of one is available as a ground for the dismissal of the others. The
remedy then of the defendant is to file a motion to dismiss. Hence, if
the first action is pending when the second action is filed, the latter
may be dismissed on the grounds of litis pendentia. If a final judgment
has been rendered in the first action when the second action is filed, the
latter may be dismissed based on res judicata.
JOINDER OF CAUSES OF ACTION
 Joinder of causes of action is the assertion of as many causes of action
as a party may have against another in one pleading alone.
 It is the process of uniting two or more demands or rights of action.
 Under the rule of joinder of causes of action, a party may file a single
suit against another for the collection of both debts, despite the claim
being actually separate causes of action and having arisen of different
transaction.
 Joinder of causes of action is not compulsory. It is merely permissive.
 Under the rules of court, where the claims in all the causes of action
are principally for recovery of sum of money, the aggregate amount
claimed shall be the test of jurisdiction.
 Special civil actions cannot be joined or those governed under special
rules. The rule is clear that joinder shall not include special civil
actions or actions governed by special rules.
 Before there can be a proper joinder of parties, a right to relief exists in
favor of or against several persons whether jointly, severally or in the
alternative, and the right to relief arises out of the same transaction or
series of transactions and that there exists a question of law or fact
common to all such plaintiff or to all such defendant. This however
does not apply when there is only on plaintiff and one defendant
because there can be no parties to be joined.
 Where a party sues two or more defendants, it is necessary for the
causes of action to arise out of the same transaction or series of
transactions and that there should be a question of law or fact common
to them.
REMEDY IN CASE OF MISJOINDER OF ACTIONS
 Misjoinder is not a ground for dismissal.
 When there is a misjoinder of actions, the erroneously joined cause of
action can be served and proceeded with separately upon motion of
party or upon courts initiative.
PARTIES
PARTIES TO A CIVIL ACTION
 The parties to a civil action are as follows:
1. Plaintiff: it is the claiming party, the one who files the case. The
plaintiff may be the claiming party, counter-claimant, cross-
claimant or the third-(..etc) party.
2. Defendant: is the defending party to a civil action. It may refer to
a defendant to a counterclaim, cross-defendant, thrird(..etc) party
defendant.
WHO MAY BE PARTIES
 The parties to a civil action may be as follows:
 1. Natural persons
2. Juridical persons
3. Entities authorized by law
JURIDICAL PERSONS AS PARTIES
 The juridical persons who may be parties to a civil action are as
follows:
1. The State and its political subdivisions
2. Other corporations, institutions and entities for public interest or
purpose, created by law
3. Corporations, partnerships and associations for private interest or
purpose to which the law grants a juridical personality, separate
and distinct form that of each shareholder, partner or member
ENTITIES AUTORIZED BY LAW TO BE PARTIES
 Entities authorized by law to be parties are as follows:
1. Corporation by estoppel
2. A partnership having a capital of 3000 or more which fails to
comply with the registration requirement
3. Estate of a deceased person
4. A legitimate labor organization
5. Roman Catholic Church
6. Dissolved Corporation
ENTITIES WITHOUT JURIDICAL PERSONALITY AS DEFENDANT
 Under the ROC when two or more persons not organized as an entity
with juridical personality enter into a transaction, they may be sued
under the name by which they are generally or commonly known.
EFFECT WHE A PARTY IMPLEADED IS NOT AUTHORIZED TO BE A
PARTY
 Where the plaintiff is not a natural or a juridical person or an entity
authorized by law, a motion to dismiss may be filed on the ground that
the plaintiff has no legal capacity to sue.
 Where it is the defendant who is not a natural or a juridical person or
an entity authorized by law, the complaint may be dismissed on the
ground that the pleading asserting the claim states no cause of action or
failure to state a cause of action because a complaint cannot possibly
state a cause of action against one who cannot be a party to a civil
action.
AVERMENT OF CAPACITY TO SUE OR BE SUED
 Facts showing the capacity of a party to sue or be sued, or the authority
of a party to sue or be sued in a representative capacity, or the legal
existence of an organized organization of persons that is made a party,
must be averred.
MINOR OR INCOMPETENT AS PARTY
 A minor or an incompetent may sue or be sued. He can be a party but
with the assistance of his father, mother, guardian, of if he has none, a
guardian ad litem.
REAL PARTY-IN-INTEREST
 Every action must be prosecuted or defended in the name of the real
party-in-interest
 A real party-in-interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of
the suit.
 Real interest means a present substantial interest, not a mere
expectancy or a future, contingent, subordinate, or consequential
interest.
 The determination of the real party in interest requires going back to
the elements of a cause of action.
 The agent may sue or be sued in his own name, without joining the
principal, except when the contract involves things belonging to the
principal.
 An attorney in fact is not a real party in interest and there is no law
permitting an action to be brought by and against an attorney in fact
alone.
 In an action for forcible entry, the possessor/lessee is the real party in
interest, not the owner/lessor
DOCTRINE OF LOCUS STANDI
 The doctrine of locus standi requires a litigant to have a material
interest in the outcome of a case. In private suits, locus standi requires
litigant to be a real party in interest.
 In non-private suits, the doctrine of locus standi requires that the one
who sues, must show, that he has sustained injury or will sustain a
direct injury as a result of a governmental action, or has a material
interest in the issue affected by the challenged official act.
 For tax payers to have locus standi, there must be a claim of illegal
disbursement of public funds or that the tax measure is unconstitutional
 For voters to have locus standi, there must be a showing of obvious
interest in the validity of the law in question
 For concerned citizen to have locus standi, there must be a showing
that the issues raised are of transcendental importance which must be
settled early
 For legislators to have locus standi, there must be a claim that the
official action complained of infringes on their prerogatives as
legislators
 The requisites for a judicial review are as follows:
1. There must be an actual controversy
2. The person challenging must have locus standi
3. It must be raised at the earliest possible time
4. The issue must be the very lis mota of the case
GROUNDS FOR DISMISSAL WHEN A PARTY IS NOT THE REAL PARTY
IN INTEREST
 If the plaintiff has capacity to sue but he is not the real party-in-
interest, the ground for dismissal is a failure to state a cause of action
or that the complaint states no cause of action.
PROSECUTION OF AN ACTION IN THE NAME OF THE REAL PARTY IN
INTEREST
 Every action must be prosecuted and defended in the name of the real
party in interest, unless otherwise authorized by law or the Rules.
REPRESENTATIVE PARTIES
 Some actions may be allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity like a trustee
of an express trust, a guardian, an executor or administrator, or a party
authorized by law or by the rules.
SUITS BY AGENTS
 When an agent acts in his own name and for the benefit of an
undisclosed principal, he may sue or be sued without joining the
principal. The principal, however, should be joined when the contract
involves things belonging to the principal.
FAILURE TO NAME A PARTY IN A PLEADING
 The mere failure to name a party in the title of the complaint is not
fatal because the ROC requires the courts to pierce the form and go
into the substance and not be misled by false or wrong name in the
pleading. The averments are controlling not the title.
LOCUS STANDI vs REAL PARTY IN INTEREST
INDISPENSABLE PARTY
 An indispensable party is a real party in interest without whom no final
determination can be had of an action. A joinder of indispensable
parties is mandatory and the court cannot proceed without their
presence.
 If there is a failure to implead an indispensable party, any judgment
rendered would have no effect.
COMPULSORY JOINDER OF INDISPENSABLE PARTIES
 A joinder of parties is normally permissive; the joinder of a party
becomes compulsory when the one involved is an indispensable party.
 The presence of all indispensable parties is a condition sine qua non for
the exercise of judicial power. The plaintiff is mandated to implead all
the indispensable party, otherwise the action should be dismissed.
DISMISSAL FOR FAILURE TO IMPLEAD AN INDISPENSABLE PARTY
 The joinder of the indispensable party is compulsory; the action should
be dismissed when indispensable parties are not impleaded or are not
before the court.
 It is not automatic that an action will be dismissed for the failure to join
an indispensable party. Under the rules, the non-joinder or misjoinder
of parties is not a ground for dismissal of an action. Instead, parties
may be dropped or added by the court on motion of any party or on its
own initiative at any stage of the action and on such terms as are just. It
is when the order of the court to implead an indispensable party goes
unheeded may the case be dismissed.

NECESSARY PARTIES
 A necessary party is one who is not indispensable but who ought to be
joined as a party to the case if complete relief is to be accorded as to
those already parties, or for a complete determination or settlement of
the claim subject of the action
INDISPENSABLE PARTIES vs NECESSARY PARTY
 IP must be joined under any and all conditions while NP should be
joined whenever is possible.
 IP presence is mandatory. NP presence is not mandatory
 A final decree can be had without NP. A decision cannot be made
without IP
DUTY OF PLEADER IF A NECESSARY PARTY IS NOT JOINED; EFFECT
 If a necessary party is not joined in a pleading where a claim is
asserted, the pleader shall state the name of the necessary party, if his
name is known, and state why such is omitted.
WHEN COURT MAY ORDER JOINDER OF NECESSARY PARTY
 If the reason of non-joinder of the necessary party is found by the court
to be unmeritorious, it may order the pleader to join the omitted party if
jurisdiction over his person is obtained.
EFFECT OF FAILURE TO COMPLY WITH THE ORDER OF THE COURT
 The failure to comply with the order of the court to include the
necessary party, without justifiable cause, shall be deemed as a waiver
of the claim against the necessary party.
EFFECT OF A JUSTIFIED NON-INCLUSION OF A NECESSARY PARTY
 The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered shall be without
prejudice to the rights of the necessary party.
UNWILLING CO-PLAINTIFF
 An unwilling co-plaintiff is a party who is supposed to be a plaintiff
but whose consent to be joined as a plaintiff cannot be obtained as
when he refuses to be a party to the action. Under the ROC, an
unwilling co-plaintiff may be made a defendant and the reason thereof
shall be stated in the complaint.
ALTERNATIVE DEFENDANTS
 Under the ROC, where the plaintiff is uncertain against who of sever
persons he is entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to relief against one may
be inconsistent with the right of relief of the other.
 Under the ROC, alternative causes of action and alternatives defenses
is allowed.
MISJOINDER AND NON-JOINDER OF PARTIES
 A party is misjoined when he is made a party to the action although he
should not be impleaded. A party is not joined when he is supposed to
be joined but not impleaded in the action.
 The Rules provided, that neither misjoinder or non-joinder of parties is
a ground for the dismissal of an action. Parties may be dropped or
added by order of the court of motion of the parties on its own
initiative at any stage of the action and on such terms as are just. If
there is a claim against a party misjoined, the same may be served and
proceeded with separately.
 Misjoinder of parties does not involve question of jurisdiction and is
not a ground for dismissal.
UNKNOWN IDENTITY OF THE DEFENDANT
 Whenever the identity or name of the defendant is unknown, he may be
sued as the unknown owner heir, devisee or by such other designation
as the case may require, when his identity or true name is discovered,
the pleading must be amended accordingly.
EFFECT OF DEATH OF A PARTY ON THE ATTORNEY-CLIENT
RELATIONSHIP
 The death of the client extinguishes the attorney-client relations and
divests the counsel of his authority to represent the client.
DUTY OF THE COUNSEL UPON THE DEATH OF HIS CLIENT
 Whenever a party to a pending action dies, it is the duty of the counsel
of the deceased party to inform the court of the death of the party
within 30 days after its death. This duty is mandatory and failure to
comply therewith is a ground for disciplinary action.
ACTION OF COURT UPON NOTICE OF DEATH; EFFECT OF DEATH ON
THE CASE
 Upon receipt of the notice of death, the court shall determine whether
or not the claim is extinguished by the death. If the claim survives, the
court shall order the legal representative or representatives of the
deceased to appear and be substituted for the deceased within 30 days
from notice. The substitution of the deceased will not be ordered by the
court in case the death of the party would extinguish the action because
substitution is only proper when the action survives.
WHEN THERE IS NO NEED TO PROCURE AN EXECUTOR OR
ADMINISTRATOR
 Under the Rules the heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the appointment of an
executor or administrator. However, if within the specified period, a
legal representative fails to appear, the court may order the opposing
counsel, within a specified period, to procure the appointment of an
administrator or executor who shall immediately appear for the estate
of the deceased.
NO REQUIREMENT FOR SERVICES OF SUMMONS
 Service of summons is not required to effect substitution.
 It is not the amendment of the pleading, but the order of substitution
and its service that are the initial steps towards the substitution of the
deceased by his representatives.
PURPOSE AND IMPORTANCE OF SUBSTITUTION OF THE DECEASED
 It is for the protection of the right of every party to due process. It is to
ensure that the deceased would continue to be properly represented in
the suit through the duly appointed legal representative of the estate.
 Non-compliance with the rules on substitution of a deceased party
renders the proceedings of the trial court infirm because the court
acquired no jurisdiction over the person of the legal representative of
heirs of the deceased because no man should be affect by a proceeding
to which he is a stranger.
 Formal substitution is not necessary when the heirs themselves
voluntarily appeared in the actin, participated therein and presented
evidence in defense of the deceased defendant. In the absence of
formal substitution, the court can acquire jurisdiction over the person
of the decedents representative if he voluntarily submits himself to the
said jurisdiction.
EXAMPLES OF ACTIONS WHICH SURVIVES THE DEATH OF THE
PARTY
 Action to recover real and personal property
 Action to enforce a lien thereon
 Actions to recover damages for an injury to person or property
 Actions for damages arising from delicts
 Actions based on the tortious conduct of the defendant survive the
death of the latter
 Action for quieting of title with damages
 Action for ejectment
 Actions for recovery of money, arising from contract express or
implied are not extinguished by the death of the defendant.
ACTIONS FOR THE RECOVERY OF MONEY ON CONTRACTUAL
CLAIMS
 When the action is for recovery of money arising from contract,
express or implied, and the defendant dies before the entry of final
judgment in the court in which the action was pending at the time of
such death, the court shall not dismiss the suit. The case shall be
allowed to continue until the entry of final judgment.
 If the action survives the death of the defendant, substitution of the
defendant shall be done following the procedure prescribed by the
rules.
 If the plaintiff obtains favorable judgment, the judgement shall be
enforced following the procedure provided for in the Rules for
prosecuting claims against the estate of a deceased person.
INCOMPETENCY OR INCAPACITY OF A PARTY DURING THE
PENDENCY OF THE ACTION
  Under the ROC, in case a party becomes incompetent or incapacitated NECESSITY AND PURPOSE OF PLEADINGS
during the pendency of the action, the court, upon motion with the  Pleadings are necessary, in order to confer jurisdiction on a court, that
notice, may allow the action to be continue by or against the the subject matter be presented for its consideration in a mode
incompetent or incapacitated party with the assistance of his legal sanctioned by law and this is done by the filing of a complaint or other
guardian or guardian ad litem. pleading.
 Pleadings are intended to secure a method by which the issues may be
TRANSFER OF INTEREST properly laid before the court.
 The rules provide that in case of transfer of interest, the action may be
continued by or against the original party, unless the court, upon CONSTRUCTION OF PLEADINGS
motion, directs the person to whom the interest is transferred to be  All pleadings shall be liberally construed so as to do substantial justice.
substituted in the action or joined with the original party.  The intention of the pleader is the controlling factor in construing a
pleading and should be read in accordance with its substance, not its
INDIGENT PARTIES form.
 The rules provide that a party may be authorized to litigate as an  Admissions in the pleadings cannot be controverted by the party
indigent if the court is satisfied that the party is one who has no money making such admission and are conclusive as to him, and that all
or property sufficient and available for food, shelter and basic proofs submitted by him contrary thereto or inconsistent therewith,
necessities for himself and his family. The application and hearing to should be ignored, whether objection is interposed or not.
litigate as an indigent is made ex parte.
 Under the Rules, if one is authorized to litigate as an indigent, such CONSTRUCTION OF AMBIGUOUS ALLEGATIONS IN PLEADINGS
authority shall include an exemption from the payment of:  In case there are ambiguities in the pleading, the same must be
a. Docket fees; construed most strongly against the pleader and that no presumption in
b. Other lawful fees; and his favor are to be indulged. A pleader who selects the language used
c. Transcript of stenographic notes. and if his pleading is open to different constructions, such ambiguities
 Under the rules, a lien on the judgment shall not arise if the court must be at the pleaders peril.
provides otherwise. The amount of the docket and other lawful fees,
which the indigent was exempted from paying, shall be lien on the SYSTEM OF PLEADING IN THE PHILIPPINES
judgment rendered in the case favorable to the indigent. A lien on the  The system of pleading used in the PH is the Code Pleading following
judgment shall not arise if the court provides otherwise. the system observed in some states in the US. This system is based on
 293 codified rules or written set of procedure as distinguished from
common law procedure.
ROLE OF THE SOLICITOR GENERAL
 The rule is that only the SG can bring and defend actions in behalf of PLEADING ALLOWED BY THE ROC
the RP and that actions filed in the name of the RP or its agencies and  The following are pleading allowed by the ROC:
instrumentalities, if not initiated by the SG will be summarily a. Complaint;
dismissed. b. Answer;
c. Counterclaim;
SUIT BY OR AGAINST SPOUSES d. Cross-claim;
 Husband and wife shall sue or be sued jointly, except as provided by e. Third (Fourth, etc.) –party complaint;
law f. Complaint-in-intervention; and
g. Reply.
CLASS SUIT
 A class suit is an action where one or more may sue for the benefit of PLEADINGS ALLOWED UNDER THE RULES ON SUMMARY
all if the requisite for said action are complied with. PROCEDURE
 An action does not become a class suit merely because it is designated  When the case falls under the Rules on Summary Procedure, the only
as such in the pleadings. Whether the suit is or is not a class suit pleading allowed to be filed are:
depends upon the attending facts. a. Complaint;
 For a class suit to prosper, the following must concur: b. Compulsory counterclaim pleaded in the answer;
a. The subject matter of the controversy must be of common or c. Cross-claim pleaded in the answer; and
general interest to many persons; d. Answer thereto.
b. The persons are so numerous that it is impracticable to join all  A permissive counterclaim, third-party complaint, reply and pleading-
parties; in-intervention are prohibited under the Rules on Summary Procedure.
c. The parties actually before the court are sufficiently numerous
and representative as to fully protect the interest of all concerned; PLEADINGS IN THE RULE OF PROCEDURE FOR SMALL CLAIMS CASES
d. The representatives sue or defend for the benefit of all  Instead of filing a complaint, as in an ordinary civil action, a small
 No class suit when the interest of the parties in the subject matter are claims action is commenced by filing with the court an accomplished
conflicting, the class suit will not prosper. and verified statement of claim. No other formal pleading is necessary
 No class suit by a corporation to recover property of its members. to initiate a small claims action.
 No class suit to recover real property individually held.  Instead of answer the defendant shall file with the court and serve on
 No class suit to recover damages for reputation. the plaintiff a duly accomplished and verified response.
 A class suit shall not be dismissed or compromised without the  The following pleadings or petitions are prohibited in cases under
approval of the court. Small Claims:
a. Petition for relief of judgment
PLEADINGS AND MOTIONS b. Petition for Certiorari, Prohibition or Mandamus against any
interlocutory order issued by the court
NATURE OF PLEADINGS c. Reply
 Under the rules, pleadings are the written statements of the respective d. Third-party complaints; and
claims and defenses of the parties submitted to the court for e. Intervention,
appropriate judgment.
 Pleadings cannot be oral because they are clearly described by the rules PLEADINGS NOT ALLWED IN A PETITION FOR A WRIT OF AMPARO OR
as written. HABEAS DATA
 Pleadings are the allegations made by the parties to an action or  In a petition for a writ of amparo or habeas data, in addition to certain
proceeding for the purpose of presenting the issue to be tried and prohibited motion, the following pleadings and petitions are not
determined, whether such issue is of law or fact. allowed:
 Pleadings are considered as the formal statements by the parties of the a. Counterclaim;
operative facts which constitute their respective claims and defenses. b. Cross-claim;
c. Third-party complaint;
d. Reply; and
 e. Intervention  A court can grant the relief warranted by the allegations and the proof
even if it is not specifically sought by injured party; the inclusion of a
PLEADINGS IN TE RULES OF PROCEDURE FOR ENVIRONMENTAL general prayer may justify the grant of a remedy different from or
CASES together with the specific remedy sought, if the facts alleged in the
 The pleading may be filed are the: complaint and the evidence introduced so warrant.
a. Complaint;  It is the material allegation in the complaint, not the legal conclusion
b. Answer made therein or the prayer, that determines the relief to which the
c. Compulsory counterclaim plaintiff is entitled.
d. Cross-claim
 A reply and rejoinder and a third-party complaint is prohibited SIGNATURE AND ADDRESS
pleadings.  Every pleading must be signed by the plaintiff or counsel representing
 A pleading in intervention may also be filed as in citizen suit. him stating in either case his address. This address should not be a post
 Upon filing of a citizen suit, the court shall issue an order requiring all office box.
interested parties to manifest their intention to intervene in the case  In the absence of a proper notice to the court of a change of address,
within 15 days from notice. service upon the parties must be made at the last address of their
counsel.
NATURE OF THE PLEADING; HOW DETERMINED?  A signed pleading is one that is signed either by the party or his
 The nature of a pleading is to be determined by the averments in it not counsel. The rule is clear that it is only the party or his counsel
by its title. representing him must sign the pleading.

VARIANCE BETWEEN CAPTION AND ALLEGATION IN PLEADING EFFECT OF AN UNSIGNED PLEADING

 It is not the caption of the pleading, but the allegations therein, which  An unsigned pleading produces no legal effect.
determine the nature of the action and the court shall grant relief
warranted by the allegations and proof even if no such relief is prayed SIGNIFICANCE OF THE SIGNATURE OF COUNSEL
for.  The signature of a counsel is significant. The counsel’s signature
constitutes a certificate by him that:
PARTS OF THE PLEADING a. He has read the pleading;
b. That to the best of his knowledge, information and belief, there is
CAPTION OF THE PLEADING a good ground to support it; and
 The caption contains: c. That it is not interposed for delay.
a. Name of the court;
b. Title of the action; and WHEN COUNSEL IS SUBJECT TO DISCIPLINARY ACTION IN
c. Docket number, if assigned. CONNECTION WITH PLEADINGS
 A counsel shall be subject to disciplinary action in the following cases:
TITLE OF THE ACTION a. When he deliberately files an unsigned pleading;
 The title of the action contains the names of the parties, whose b. When he signs a pleading in violation of the Rules;
participation in the case shall be indicated. c. When he alleges in the pleading scandalous or incident matter; or
d. When he fails to promptly report to the court a change of his
BODY OF THE PLEADING address.
 The body of the pleading set forth its designation, the allegations of the
party’s claims or defenses, the relief prayed for, and the date of the VERIFICATION IN A PLEADING
pleading.  Pleading need not be under oath, verified or accompanied by affidavit,
 The allegations in the body of the pleading shall be divided into except when so required by law or rule.
paragraphs and shall be so numbered for ready identification. This
numbering scheme is significant because, in subsequent pleadings, a HOW IS PELADING VERIFIED
paragraph may be referred to only by its number without need for  A pleading is verified by an affidavit. This affidavit declares that:
repeating the entire allegation in the paragraph. Each paragraph shall a. The affiant has read the pleading; and
contain a statement of a single set of circumstances so far as the court b. The allegations therein are true and correct of his personal
can be done with convenience. knowledge or based on authentic records.

HEADINGS; DESIGNATION OF CAUSES OF ACTIONS JOINED IN ONE SIGNIFICANCE OF VERIFICATION

COMPLAINT
 When two or more causes of action are joined, the first cause of action
shall be prefaced with the words, “first cause of action,” of the second
cause of action by the words, “second cause of action,” and so on for
the others.
EFFECT OF LACK OF VERIFICATION
ALLEGATION OF ULTIMATE FACTS
 A pleading must only aver facts because conclusions are for the courts
to make.
 Evidentiary matters are to be presented during the trial of the case, not
in the pleading of the parties.
 The rule re requires that a pleading should contain only allegations of
ultimate facts, the facts that are essential to a party’s cause of action or
defense or facts that are so essential that they cannot be stricken out
without leaving the statement of the cause of action inadequate.
 Ultimate facts are to be stated in a logical and methodical form. It
should be direct and concise manner.
 The verification requirement is significant, as it is intended to secure an
assurance that the allegations in a pleading are true and correct and not
the product of the imagination or a matter of speculation, and that the
pleading is filed in good faith.
 Under the rules, if a pleading lacks verification it shall be treated as an
unsigned pleading. Hence, it produces no legal effect and is
dismissible.
 It was held however, that the absence of a verification does not
necessarily render the pleading defective. It is only formal and not a
jurisdictional requirement. The requirement is a condition affecting
only the form of the pleading and non-compliance therewith does not
necessarily render it fatally defective. The court may order its
submission or correction or act on the pleading if the attending
circumstances are such that strict compliance with the rule may be
dispensed with in order that the ends of justice may be served thereby.

RELIEF CERTIFICATION OF FORUM SHOPPING

 The complaint must contain a statement of the relief sought from the
court and to which he believes he is entitled. This portion is often times
referred to as prayer.
 The rules require that the pleading shall specify the relief sought
although the statement may include a general prayer for such further or
other relief as may be deemed just and equitable
 The certification against forum shopping is a sworn statement in which
the plaintiff or principal party certifies in a complaint or initiatory
pleading to the following matters:
a. That he has not commenced any action or filed any claim
involving the same issues in any court, tribunal, or quasi-judicial
agency and, to the best of his knowledge, no such other action or
claim is pending therein;
 b. That if there is such other pending action or claim, a complete
statement of the present status thereof; and
c. That if he should thereafter learn that the same or similar action
or claim has been filed or is pending, he shall report that fact
within 5 days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
 The certification is mandatory under the rules but not jurisdictional
since jurisdiction is conferred by law.
 Prohibition against forum shopping is different from a violation of
certification requirement. The former is the filing of multiple suits
involving the same parties, same rights asserted, and reliefs prayed for
and is a ground for summary dismissal and direct contempt, if willfully
and deliberately done. The violation of the certification requirement is
the failure to attach the sworn certification to the initiatory pleading
and constitute a cause for dismissal without prejudice.
MEANING OF FORUM SHOPPING
 The concept of forum shopping has been described through as follows:
a. When a party repetitively avails of several judicial remedies in
different courts, simultaneously or successively, all substantially
founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either
pending in or already resolved adversely by some other court.
b. There is forum shopping when, as a result of an adverse opinion
in one forum, a party seeks a favorable opinion, other than by
appeal or certiorari in another. There can also be forum shopping
when a party institutes two or more suits in different courts,
either simultaneously or successively, in order to ask the court to
rule on the same or related causes and/or to grant the same or
substantially the same reliefs on the supposition that one or the
other court would make a favorable decision or increase a party’s
chance of obtaining a favorable decision.
 Forum shopping consists of filing multiple suits involving the same
parties for the same cause of action, either simultaneously or
successively, for the purpose of obtaining a favorable judgment.
 Forum shopping exist where the:
a. Identities of the parties, or at least such parties as represent the
same interests in both actions;
b. Identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and
c. The identity of the two preceding particulars is such that any
judgment rendered in the pending case, regardless of which party
is successful, would amount to res judicata in other case
THREE WAYS OF COMMITTING FORUM SHOPPING
 The SC enumerated the ways by which forum shopping may be
committed and are as follows:
a. Filing mutitple cases based on the same cause of action and with
the same prayer, the previous case not having been resolved yet;
(dismissible litis pendentia)
b. Filing multiple cases based on the same cause of action and the
same prayer, the previous case having been finally resolved.
(dismissible res judicata);
c. Filing multiple cases based on the same cause of action, but with
different prayers. (Splitting causes of action)
HOW TO DETERMINE EXISTENCE OF FORUM SHOPPING?
 To determine whether a party violated the rule against forum shopping,
the most important question to ask is whether the elements of litis
pendentia are present or whether a final judgment in one case will
result to res judicata.
 To determine forum shopping, the test is to see whether in the two or
more cases pending, there is:
a. Identity of the parties;
b. Identity of rights or causes of action; and
c. Identity of reliefs sought
 Forum shopping refers to actions involving the same issues.
 There is forum shopping when two or more actions or proceedings,
founded on the same cause, are instituted by a party on the supposition
that one or the other court would make a favorable decision.
 There could be forum shopping when multiple cases are filed with
different prayers but are actually based on the same cause of action.
WHO EXECUTES THE CERTIFICATION AGAINST FORUM SHOPPING;
EXCEPTION
 It is the plaintiff or principal party who executes certification under
oath.
 The certification must be executed by the party not the counsel.
 A certification signed by the counsel is a defective certification and is a
valid cause for dismissal.
 Except if for reasonable or justifiable reasons, the party-pleader is
unable to sign, he must execute a SPA designating his counsel of
record to sign in his behalf.
 With respect to corporations, generally, the certification must be
executed by an officer or member of the board of directors or by one
who is duly authorized by a resolution of the board of directors;
otherwise, the complaint will be dismissed. However, in one case, the
SC held that a president of a corporation can sign the verification and
certification against forum shopping in behalf of the corporation
without the benefit of a board resolution.
In some cases, the Court declared, that it also allows the following to sign:
a. The chairperson of the board of directors;
b. The general manager or acting general manager;
c. Personal officer; and
d. Employment specialist in a labor case.
 The court allowed the signature of an academic dean in a case
involving a faculty member in his college.
RULE IF THERE ARE SEVERAL PLAINTIFFS OR PETITIONERS;
EXCEPTION
 The certification against forum shopping must be signed by all the
plaintiffs or petitioners in a case; otherwise, those who did not sign will
be dropped as parties to the case. Under reasonable or justifiable
circumstances, however, as when the plaintiffs or petitioners shares a
common interest and invoke a common cause of action or defense, the
signature of only one of them substantially complies with the rules.
This rule, however, will not apply if dishonesty attended the signing of
the certification.
LIBERAL INTERPRETATION OF THE RULES ON THE SIGNING OF THE
CERTIFICATION AGAINST FORUM SHOPPING
 It has been held that the rule son forum shopping, which were precisely
designed to promote and facilitate the orderly administration of justice,
should not be interpreted with such absolute literalness as to subvert its
own ultimate and legitimate objective which is the goal of all rules of
procedure, that is, to achieve substantial justice as expeditiously as
possible. Hence, it is within the inherent power of the Court to suspend
its own rules in a particular case in order to do justice.
WHEN THE RULE ON LIBERAL CONSTRUCTION APPLIES
 The attachment of a certificate of non-forum shopping is a basic
requirement which the court considers necessary and mandatory for
procedural orderliness.
 The rule for the submission of a certificate of non-forum shopping,
proper in form and substance, remains to be strict and mandatory rule;
any liberal application has to be justified by ample and sufficient
reasons that maintain the integrity of, and do not detract from, the
mandatory character of the rule.
SIGNING THE CERTIFICATION WHEN THE PLAINTIFF IS A JURIDICAL
ENTITY
 A juridical entity, can only perform physical acts through properly
delegated individuals. The certification against forum shopping, where
the plaintiff or a principal party is a juridical entity like a corporation,
may be executed by properly authorized persons.
PLEADINGS REQUIRING A CERTIFICATION AGAINST FORUM
SHOPPING
 The certification against forum shopping applies to the complaint and
other initiatory pleadings asserting a claim or relief. These initiatory
pleadings include:
a. Original Complaint;
b. Permissive Counterclaim;
c. Cross-claim;
d. Third (fourth, etc.)-party complaint;
e. Complaint-in-intervention;
f. Petition or any application in which a party asserts his claim for
relief.
 The violation to the anti-forum shopping rule, shall not be curable by
mere amendment, but shall be cause for the dismissal of the case
without prejudice.
  The rule does not require certification of forum shopping for a
compulsory counter claim because it cannot be subject to a separate
and independent adjudication.
APPLICABILITY TO SCA
 The court held that, the rule requiring a certification against forum
shopping applies as well to SCA because SCA is governed by the rules
of ordinary civil actions, subject to the specific rules prescribed for a
special civil action.
EFFECT OF NON-COMPLIANCE WITH THE RULE ON CERTIFICATION
AGAINST FORUM SHOPPING
 The failure to comply is not curable by mere amendment and shall be a
cause for dismissal. The dismissal for failure to comply is not to be
done by the court motu proprio. The rules require that the dismissal be
made upon motion and after hearing.
 The dismissal of the case for non-compliance with the certification
requirement is as a rule, without prejudice. Hence, where the dismissal
is silent as to the character of the dismissal, the dismissal is presumed
to be without prejudice to the refiling of the complaint.
EXCEPTIONS TO THE EFFECTS OF NON-COMPLIANCE
 The non-compliance with the rule requiring a certification against
forum shopping or a defect therein, is generally not curable by
subsequent submission or correction, unless there is a need to relax the
rule on the ground of substantial compliance or there is the presence of
special circumstances or compelling reasons.
NO APPEAL FROM AN ORDER OF DISMISSAL
 A party who failed to comply with the required certification cannot
appeal from the order because an order dismissing an action without
prejudice, is, as a rule not appealable. The remedy provided for under
the rules is to avail of a SCA under R65.
EFFECT OF WILLFUL AND DELIBERATE FORUM SHOPPING
 It is a ground for summary dismissal with prejudice and shall constitute
contempt, as well as cause for administrative sanctions
EFFECT OF FALSE CERTIFICATION
 The submission of a false certification shall constitute and indirect
contempt of court without prejudice to the corresponding
administrative and criminal sanctions.
EFFECT OF NON-COMPLIANCE WITH THE UNDERTAKINGS
 Failure to comply with the undertakings in the certification against
forum shopping has the same effect as the submissions of a false
certification. Hence, such failure shall constitute indirect contempt of
court without prejudice to the corresponding sanctions. Criminal
sanction would apply to the submission of a false certification.
ALLEGATIONS IN THE PLEADING
MANNER OF MAKING ALLEGATIONS
 The pleading asserting the claim or the cause of action must contain
only the ultimate facts. These facts must be stated in a plain, concise,
methodical and logical form. Evidentiary facts must be omitted. It
should not contain conclusions because conclusions are not facts.
 Ultimate facts refer to the essential facts of the claim. They are the
principal, determinate, constitutive facts, upon the existence of which,
the entire cause of action rests.
 The complaint, in stating the cause of action, should not contain sham,
false, redundant, immaterial, impertinent, or scandalous matters. These
matters may be stricken out upon motion made by a party before
responding to a pleading or within 20 days after service of the pleading
upon him where no responsive pleading is permitted by the Rules or
upon the courts initiative any time.
CONDITIONS PRECEDENT
 When claim is subject to a condition precedent, the compliance of the
same must be alleged in the pleading.
 The following are condition precedents:
a. Tender of payment is required before making consignation
b. Exhaustion of administrative remedies
c. Prior resort to barangay conciliation proceedings is necessary in
certain cases.
d. Earnest efforts toward a compromise must be undertaken when
the suit is between members of the same family and if no efforts
were in fact made, the case must be dismissed.
e. Arbitration may be a condition precedent when the contract
between the parties provides for arbitration first before recourse
to judicial remedies.
EFFECT OF FAILURE TO COMPLY WITH CONDITION PRECEDENT
 The failure to comply with the condition precedent is an independent
ground for a motion to dismiss; that a condition precedent before filing
the claim has not been complied.
PLEADING A JUDGMENT
 In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or a board or officer, it is sufficient
to aver the judgment or decision. There is no need to allege matters
showing the jurisdiction to render the judgment or decision.
PLEADING AN OFFICIAL DOCUMENT
 In pleading an official document, it is sufficient to aver that the
document was issued in compliance with law. With respect to an
official act, it is likewise sufficient to allege that the act was done also
in compliance with law.
PLEADING CAPACITY TO SUE OR BE SUED
 Facts showing the capacity of a party to sue or be sued must be
averred. If a party suing or sued in a representative capacity, his
authority must be averred. If a party is an organized association of
persons, its legal existence must likewise be averred.
PLEADING FRAUD, MISTAKE OR CONDITION OF THE MIND
 When making averments of fraud, mistake, the circumstance
constituting the fraud or mistake must be stated with particularity.
 Malice, intent, knowledge or other conditions of the mind of a person
may be averred generally. Unlike fraud or mistake, they need not be
stated with particularity. The rule is borne out of human experience. It
is difficult to state the particulars constituting these matters. Hence, a
general averment is sufficient.
PLEADING ALTERNATICE CAUSES OF ACTIONS AS DEFENSE
 The rules provide, that a party may set forth two or more statements of
a claim or defense, alternatively or hypothetically, either in one cause
of action or defense or in separate causes of action or defenses.
 Pleading alternative causes of action normally leads to inconsistent
claims. Under the rules this situation is permissible as long as the
allegations pleaded within a particular cause of action are consistent
with the cause of action relied upon as an alternative.
 A pleading which contains alternative causes of action is not made
insufficient by the insufficiency of one or more of the alternative
statements as long as one of them, if made independently would be
sufficient. This means that the rule does not require that all of the
alternative causes of action be sufficient for the plaintiff to be entitled
to relief. It is enough that one of them, if made independently, would
be sufficient to support a cause of action.
 When two or more statements are made in an alternative and one of
them if made independently would be sufficient, the pleading is not
made insufficient by the insufficiency of one or more of the alternative
statements.
 The rules authorize not only alternative causes of action. It likewise
allows alternative defenses. Under the rules, a party may set forth two
or more defenses alternatively or hypothetically.
 The rule allowing alternative defenses is consistent with the omnibus
motion rule which requires that all motions attacking a pleading shall
include all objections available, and all objections not so included shall
be deemed waived.
PLEADING ACTIONABLE DOCUMENT
 Whenever an actionable document is the basis of a pleading, the rule
specifically directs the pleader to:
a. Document and attach the original or the copy of the document to
the pleading as an exhibit and which shall form part of the
pleading; or
b. With like effect, to set forth in the pleadings said copy of the
instrument or document.
HOW TO CONTENST AN ACITONABLE DOCUMENT
 An actionable document may be contested by:
 a. Specifically denying the genuineness and due execution of the MANNER OF FILING
document;  There are two modes of filing, to wit:
b. Setting forth what he claims to be the facts. a. By presenting the original copy of the pleading, notice,
 A mere specific denial of the actionable document is insufficient. The appearance, motion, order or judgment personally to the clerk of
denial must be coupled with an oath. The denial must be verified. The court; or
absence of an oath will result to an implied admission of the due b. By registered mail.
execution and genuineness of the document.  If made in the first mode, the clerk of court shall indicate or endorse on
the pleading or paper filed, the date and hour of filing.
WHEN AN OATH IS NOT REQUIRED  If made in the second mode, the date of mailing, as shown by the post
 The requirement of a specific denial under oath will not apply in either office stamp on the envelope or registry receipt, shall be considered as
of the following cases: the date of filing, payment or deposit in court. The rule also requires
a. When the adverse party does not appear to be a party to the that the envelope be attached to the record in the case.
instrument;
b. When compliance with an order for an inspection of the original HOW TO PROVE FILING
instrument is refused.  The filing of a pleading or paper shall be proved by its existence in the
records of the case. If it is not in the record, but is claimed to have been
DEFENSES CUT OFF BY THE ADMISSION OF GENUINENESS AND DUE filed personally, the filing shall be proved by the written
EXECUTION acknowledgement of its filing by the clerk of court on a copy of the
 When a party is deemed to have admitted the genuineness and due same.
execution of an actionable document, defenses that are implied from  If the pleading is filed by means of registered mail, proof of filing is by
said admission are necessarily waived like the defense of forgery, lack the registry receipt and the affidavit of the person who did the mailing,
of authority to execute the document, that the party charged signed the containing a full statement of the date and place of depositing the mail
document in some other capacity than that alleged in the pleading, or in the post office in a sealed envelope addressed to the court, with
that the document was never delivered. Also cut off by the admission postage fully prepaid, and with instructions to the postmaster to return
was the defense that the document was not in words and figures as set the mail to the sender after 10 days if not delivered.
out in the pleadings.
PAPERS REQUIRED TO BE FILED AND SERVED
DEFENSES NOT CUT OFF BY THE ADMISSION OF GENUINENESS AND  The following are papers required to be filed with the court and served
DUE EXECUTION upon the parties:
 The following defenses may be interposed despite the implied a. Judgments
admission of the genuineness and due execution of the document: b. Resolutions
a. Payment or non-payment c. Orders
b. Want of consideration d. Pleadings subsequent to the complaint
c. Illegality of consideration e. Written motions
d. Usury f. Notices
e. Fraud g. Appearances
f. Prescription h. Demands
g. Release i. Offers of judgment
h. Waiver j. Similar papers
i. Statute of frauds
j. Estoppel MODES OF SERVICE
k. Discharge in bankruptcy  There are two modes of service of pleadings, motions, notices, orders,
judgments and other papers under the rules and are the following:
FILING AND SERVICE OF PLEADINGS, JUDGEMNTS AND OTHER a. Personally;
PAPERS IN CIVIL CASES b. By mail
c. By substituted service if cannot be served by mail or personally.
MEANING OF FILING
 Filing is the act of presenting the pleading or other paper to the clerk of SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS
court.  Specifically, when what is to be served are judgments and final orders
or resolutions, the same shall be served either by:
MEANING OF SERVICE a. Personal service; or
 Service is the act of providing a party with a copy of the pleading or b. Registered mail
paper concerned.  When a party summoned by publication failed to appear in the action,
judgment, final orders or resolution against him shall be served upon
UPON WHOM SERVICE SHALL BE SERVED him also by publication.
 If a party has not appeared by counsel, then the service must be made
upon him. PERSONAL SERVICE; PRIORITY IN MODES OF SERVICE AND FILING
 If a party has appeared by counsel, then service upon said party shall  The service and filing of pleading and other papers shall be done
be made upon his counsel or one of them, unless service upon the party personally, whenever practicable. This is the preferred mode of service
himself is ordered by the court. The rule is that when a party is under the Rules.
represented by counsel in an action in court, notices of all kinds,  If another mode of service is used other than personal service, the
including motions, pleadings, and orders must be served on said service must be accompanied by a written explanation why the service
counsel and notice to him is notice to client. of filing was not done personally. A violation of the explanation
 It has been held that notice or service made upon a party who is requirement may be cause for the paper to be considered as not having
represented by counsel is a nullity. As a rule, notice to the client and been filed.
not to his counsel of record is not notice in law unless for instance  Personal service is made by:
when the court or tribunal orders service upon the party or when the a. Delivering a copy of the papers personally to the party or his
technical defect in the manner of notice is waived. counsel; or
 Service upon the parties’ counsel of record is tantamount to service b. By leaving the papers in his office with his clerk or parson having
upon the parties themselves, but service upon the parties themselves is charge thereof.
not considered service upon their lawyers. c. If no person is found in the office, or his office is not known or
he has no office, then by leaving a copy of the papers at the
SERVICE UPON COUNSEL REPRESENTING SEVERAL PARTIES party’s counsel’s residence, if known, with a person of sufficient
 Where one counsel appears for several parties, service shall be made age and discretion residing therein between 8 in the morning and
upon said counsel but he shall be entitled only to one copy of any paper 6 in the evening.
served upon him by the opposite side.
WHEN PERSONAL SERVICE DEEMED COMPLETE
  Upon actual delivery, personal service is deemed complete.
SERVICE BY MAIL
 The preferred service by mail is by registered mail. Service by ordinary
mail may be done only if no registry service is available in the locality
of either the sender or the addressee,
 Service by registered mail shall be done by depositing the copy in the
post office, in a sealed envelope, plainly addressed to the party or his
counsel at this office, if known, or otherwise at this residence, if know,
with postage full prepaid, and with the instruction to the postmaster to
return the mail to the sender after 10 days if not delivered.
 The rule is that the person alleging that the notice was served has the
burden of prove the fact of service. The burden of proving notice rests
upon the party asserting its existence.
WHEN SERVICE BY MAIL IS DEEMED COMPLETE
 If by ordinary mail, it is complete upon the expiration of 10 days after
mailing, unless the court otherwise provides
 If by registered mail, it is complete upon actual receipt by the
addressee, or after 5 days from the date he received the first notice of
the postmaster, whichever is earlier.
SUBSTITUTED SERVICE
 This mode is availed of only when there is failure to effect service
personally or by mail. This failure occurs when the office and
residence of the party or counsel is unknown.
 Substituted service is effected by delivering the copy to the clerk of
court, with proof of failure of both persona service and service by mail.
WHEN IS SUBSTITUTED SERVICE COMPLET
 At the time of delivery of the copy to the clerk of court.
HOW TO PROVE SERVICE
 Proof of personal service shall consist of the written admission of the
party served.
 It may also be proved by official return to the server, or the affidavit of
the party serving, containing full information of the date, place and
manner of service.
 If the service is by ordinary mail, proof thereof shall consist of the
affidavit of the person mailing of the facts showing compliance with
the rules.
 If service is by registered mail, the proof shall consist of such affidavit
of the person mailing and the registry receipt issued by the mailing
office.
 Absence of any proof of service of the decision, the period of 15 days
within which a party may file its motion for new trial does not begin to
run against such party. If it admits, however, that it received the copy
of the decision on a certain date despite absence of proof of service,
that date would be the reckoning date of the 15-day period.
COMPLAINT
MEANING OF COMPLAINT
 The complaint is the pleading alleging the plaintiff’s cause of action or
causes of action. The names and the residences of the parties must be
stated in the complaint.
FILING OF THE COMPLAINT
 The filing of the complaint is the act of presenting the complaint to the
clerk of court. The original must be presented personally to the clerk of
court or sent by registered mail.
SIGNIFICANCE OF COMPLAINT
 The filing of the complaint in court signifies the commencement of the
civil action.
 By filing of the complaint, the court also acquires jurisdiction over the
person of the plaintiff.
 Submission to the jurisdiction of the court is implied from the very
filing of the complaint where affirmative relief is prayed for by the
plaintiff.
 The filing of the complaint interrupts the prescription of actions.
PAYMENT OF DOCKET FEES AND ACQUISITION OF JURISDICTION
 It is not the simply the filing of the complaint but the payment of the
prescribed docket fee, that vest the trial court jurisdiction over the
subject matter or nature of the action.
 Any defect in the original pleading resulting underpayment of docket
fees cannot be cured by amendment because there is no original
complaint over which the court has acquired jurisdiction.
 The rule on payment of docket fee has, in some instances, been made
subject to the rule on liberal interpretation. It was held in one case that
while the payment of the required docket fee is a jurisdictional
requirement, even its non-payment at the time of filing does not
automatically cause the dismissal of the case, as long as the fee is paid
within the applicable prescriptive or reglementary period.
 If the amount of docket fee is insufficient considering the amount of
the claim, the party filing the case will be required to pay the
deficiency, but jurisdiction is not automatically lost.
 The non-payment at the time of the filing of the complaint does not
automatically cause the dismissal of the complaint provided the fees
are paid within a reasonable time and if there is no intent to defraud the
government by the failure to pay the correct amount of filing fees. The
stringent rule on non-payment of docket fees should not be applied in
the absence of the intent to defraud.
EFFECT OF FAILURE TO PAY DOCKET FEE ON SUPPLEMENTAL
COMPLAINT
 It is fatal to their action. The court ruled that the trial court acquired
jurisdiction over the plaintiffs’ action from the moment they filed their
original complaint accompanied by the payment of the filing fees due
on the same. The plaintiff’s non-payment of the additional filing fees
due on their additional claim did not divest the court of the jurisdiction
it already had over the case.
PAYMENT OF DOCKET FEE FOR CASES ON APPEAL
 The rules require that the appellate docket and other lawful fees must
be paid within the same period for taking an appeal. Within the period
of taking an appeal, the appellant shall pay to the clerk of court which
rendered the judgment or final order appealed from, the full amount of
docket and other lawful fees.
 Non-payment is a valid ground for the dismissal of the appeal.
PAYMENT OF FULL DOCKET FEES WITHIN THE PRESCRIBED PERIOD
FOR TAKING AN APPEAL IS, AS A RULE MANDATORY.
 It is settled that the right to appeal is a statutory privilege and must be
exercised only in the manner and in accordance with the provisions of
law. Hence, one who seeks to avail of the right to appeal must strictly
comply with the requirements of the rules and the failure to do so leads
to the loss of the right to appeal.
However, the failure to pay the appellate court docket fee within the prescribed
period warrants only discretionary as opposed to automatic dismissal of the appeal
and that the court shall exercise its power to dismiss in accordance with the tenets
of justice and fair play and with great deal of circumspection considering all
attendant circumstances.
ANSWER
NATURE OF ANSWER
 The answer is a pleading in which a defending party sets forth his
defense.
DEFENSE IN AN ANSWER
 An answer contains the defenses of the answering party. These
defenses may either be negative or affirmative defense.
 A defense is negative wen the material averments alleged in the
complaint are specifically denied.
 Under the rules, a negative defense is the specific denial of the material
fact or facts alleged in the pleading of the claimant essential to his
cause of action or defense.
 A negative defense is stated in the form of a specific denial and the
kinds of specific denial described by the Rules. If the denial is not one
of those described by the rules, the denial is deemed to be general.
 A general denial is considered an admission.
EFFECTS OF ABSENCE OF SPECIFIC DENIAL
 Material averments in the complaint not specifically denied are deemed
admitted.
 If the allegations are deemed admitted, there is no more triable issue
between the parties and if the admission appear in the answer of the
defendant, the plaintiff may file a motion for judgment on the pleading
under R34.
PURPOSE OF SPECIFIC DENIAL
 It is to make the defendant disclose the matters alleged in the complaint
which he succinctly intends to disprove at the trial, together with the
matter which he relied upon to support the denial.
KINDS OF SPECIFICE DENIAL
 The following are the types of specific denials:
a. Absolute denial- this refers to the defendant denies each material
allegation of fact the truth of which he does not admit and
whenever practicable, set forth the substance of the matters which
he relies to support his denial.
b. Partial Denial- this refers to the defendant does not make a total
denial of the material allegation in a specific paragraph. In this
type of denial, he denies only a part of the averment.
c. Denial by disavowal of knowledge- this refers to where the
defendant alleges that he is without knowledge or information
sufficient to form a belief as to the truth of a material averment
made in the complaint
NEGATIVE PREGNANT
 A negative pregnant is a negative implying also an affirmative and
which although is stated in a negative form, really admits the
allegations to which it relates.
 A negative pregnant does not qualify as a specific denial. It is
conceded to be actually an admission.
 Negative pregnant refers to a denial which implies its affirmative
opposite nu seeming to deny only a qualification or an incidental
aspect of the allegation but not the main allegation itself.
 A denial in the form of a negative pregnant is an ambiguous pleading
because it cannot be ascertained whether it is the fact or only the
qualification that is intended to be denied.
SPECIFIC DENIAL MUST ALWAYS BE COUPLED WITH AN OATH
 As a rule, a negative defense is sufficient if made in the form of a
specific denial of the material allegations alleged in the pleading of the
claimant.
 The following, however are instances when a specific denial is not
sufficient for a negative defense. In these cases, the specific denial
must be coupled by an oath:
a. A denial of an actionable document;
b. A denial of allegations of usury in a complaint to recover
usurious interest.
 If an adverse party desires to deny the genuineness and due execution
of the actionable document, he must do the following:
a. Specifically deny the genuineness and due execution of the
document and set forth what claims to be the facts; and
b. Make the denial under oath
 Failure to deny the genuineness and due execution of an actionable
document does not preclude a party from arguing against it by
evidence of fraud, mistake compromise, payment, statute of
limitations, estoppel, and want of consideration.
 Allegations of usury that requires specific denial are the following:
a. Allegations of usury in a complaint; and
b. The complaint to recover must be usurious interests.
MATTERS NOT DEEMED ADMITTED BY THE FAILURE TO MAKE A
SPECIFIC DENIAL
 Material allegations not specifically denied are deemed admitted. The
following are nevertheless, not deemed admitted by the failure to make
a specific denial in party’s responsive pleading:
a. Amount of unliquidated damages;
b. Conclusions in a pleading because only ultimate facts need be
alleged in a pleading; and
c. Non-material averments or allegations because only material
allegations have to be denied.
AFFIRMATIVE DEFENSE
 An affirmative defense is when it alleges new matters which, while
hypothetically admitting the allegations in the pleading of the claimant,
would, nevertheless, prevent or bar recovery by the claiming party.
 Affirmative defense is one which is not a denial of an essential
ingredient in the plaintiff’s cause of action, but one which, if
established, will be a good defense.
 Allegations presented in the answer as affirmative defense are not
automatically characterized as such. Before an allegation qualify as an
affirmative defense, it must be of the nature as to bar the plaintiff from
claiming on his cause of action.
 An answer may allege affirmative defense which may strike down the
plaintiff’s cause of action. When the answer asserts affirmative
defense, there is proper joinder of issues which must be ventilated in a
full-blown trial on the merits and cannot be resolved by mere judgment
on the pleadings.
PERIODS TO FILE AN ANSWER
 The defendant shall file an answer to the complaint 15 days after
service of summons, unless different period is fixed by the court.
 If the plaintiff amended the complaint, as a matter of right the
defendant shall answer the same within 15 days after being served with
the copy thereof.
 Where the amended complaint is not a matter of right, the defendant
shall answer the amended complaint within 10days from notice of the
order admitting the same.
 Where the defendant is a private foreign juridical entity and service of
summons is made on the government official designated by law to
receive the same, the answer shall be filed within 30 days after receipt
of summons by such entity.
 A supplemental complaint may be answered within 10 days from
notice of the order admitting the same unless a different period is fixed
by the court. The answer to the complaint shall serve as the answer to
the supplemental complaint if no new or supplemental answer is filed.
DEFAULT
NATURE OF DEFAULT
 Default is a procedural concept that occurs when the defending party
fails to file his answer within the reglementary period
 A declaration or order of default is issued as a punishment for
unnecessary delay in joining issues.
 The failure to answer within the time allowed is a ground for a
declaration in default.
 The failure of the defendant to appear at the pre-trial, while a cause for
the court to order the plaintiff to present his evidence ex parte and the
court to render judgment on the basis thereof, is not a ground for a
declaration of default contemplated under the Rules.
 The term default is not identified with failure to appear in court, but
with the failure of the defending party to answer.
 The failure of the defendant to appear and attend the hearings for the
presentation of evidence is not default but is a waiver of the defendants
right to object to the evidence presented during the hearings and cross-
examine the witness.
REQUISITES BEFORE A DEFENDING PARTY MAY BE DECLARED IN
DEFAULT
 The following are the requisites before a party may be declared in
default:
a. The court has validly acquired jurisdiction over the person of the
defending party, either by service of summons or voluntary
appearance;
b. The defending party must have failed to file his answer within the
time allowed thereof;
c. The claiming party must file a motion to declare the defending
party in default;
d. The claiming party must prove that the defending party has failed
to answer within the period provided by the Rules;
e. The defending party must be notified of the motion to declare
him in default;
f. There must be hearing set on the motion to declare the defending
party in default.
 It was held, that as a rule on default requires the filing of a motion and
notice of the motion to the defending party, it is not enough that the
defendant failed to answer the complaint within the reglementary
period to be a sufficient ground for declaration in default. The motion
must also be heard.
NO MOTU PROPRIO DECLARATION OF DEFAULT
 The court has no authority to motu proprio declare the defending party
in default. A motion to declare the defending party must be filed by the
claiming party before a declaration is made by the court.
 The rule on default requires the filing of motion and notice of such
motion to the defending party.
EXTENSION OF TIME TO ANSWER
  The trial court has the discretion not only to extend the time for filing
an answer but also allow an answer to be filed after the reglementary
period.
FAILURE TO SERVE THE ANSWER TO THE ADVERSE PARTY
 It was held that the defendant who files his answer in time, but failed to
serve a copy thereof upon the adverse party, may validly be declared in
default. This failure is not fata because the declaration of default may
be set aside by a timely and proper motion with the requisite affidavit
of merit and provided no loss of time occurs.
FAILURE TO FILE A RESPONSE UNDER DIFFERENT RULES
 A motion to be declared in default is prohibited in small claims cases.
 A motion to be declared in default is prohibited in environmental cases.
 A motion to be declared in default is prohibited in writ of amparo.
 A motion to be declared in default is prohibited in writ of habeas data.
 A motion to be declared in default is a prohibited motion is summary
procedure.
EFFECT OF DECLARATIO OF DEFAULT
 A party declared in default loses his standing in the court. The loss of
the standing prevents him from taking part in the trial. He nevertheless
is entitled to notices of the proceeding.
EFFECT OF PARTIAL DEFAULT
 When a pleading asserts a claim against several defending parties and
some file and serve their answer but the others do not, the court shall
try the case against all the defending parties based on the answer filed
and render judgment upon the evidence presented where the claim
states a common cause of action against them.
ACTION OF THE COURT AFTER DECLARATION OF DEFAULT
 Under the Rules, when a party is declared in default, the court may do
either two things:
a. Proceed to render judgment granting the claimant such relief as
his pleading may warrant; or
b. Require the claimant to submit evidence ex parte.
COURT NOT REQUIRED TO RECEIVE EVIDENCE PERSONALLY
 The court need not personally receive the evidence if it decides to hear
the evidence of the claiming party. The reception of the evidence may
be delegated to the clerk of court.
REMEDIES OF A DEFENDING PARTY DECLARED IN DEFAULT
 The following are the remedies of a defending party declared in
default:
a. Remedy after notice of order and before judgment:
A party declared in default may, at any time after notice thereof and before
judgment, file a motion under oath to set aside the order of default due to FAME
and show that he has a meritorious defense.
b. Remedy after judgment and before judgment becomes final and
executory:
If the judgment has already been rendered when the defendant discovered the
default, but before the same has become final and executory, he may file a motion
for new trial. He may also appeal from the judgment as being contrary to the
evidence or the law.
c. Remedy after the judgment becomes final and executory:
The defendant may file a petition for relief from judgment
d. Remedy if the party is improperly declared in default:
File a petition for certiorari.
EXTENT OF RELIEF IN A JUDMENT BY DEFAULT
 A judgment rendered against a party in default shall not exceed the
amount or be different in kind from that prayed for nor award
unliquidated damages.
CASES WHERE DECLARTION OF DEFAULT CANNOT BE MADE
 Annulment of marriage
 Declaration of nullity of marriage
 Legal separation
COUNTER CLAIM
NATURE OF A COUNTER CLAIM
 A counter claim is any claim which a defending party may have against
an opposing party. It partakes of a complaint by the defendant against
the plaintiff.
 A counter claim described by the rules as any claim. It may refer to
money or other relief against the opposing party.
 A counter claim may be compulsory or permissive.
 A compulsory counter claim is one that arises out of the transaction or
occurrence that the subject matter of the opposing party’s claim; falls
within the jurisdiction of the court; and does not require for its
adjudication the presence of third parties over whom the court cannot
acquire jurisdiction. Otherwise, a counter claim is merely permissive.
COMPULSORY COUNTER CLAIM; TESTS
 Under the rules a compulsory counter claim has the following
elements:
a. It arises out of or is necessarily connected with the transaction or
occurrence which is the subject matter of the opposing party’s
claim;
b. It does not require for its adjudication the presence of third
parties over whom the court cannot acquire jurisdiction; and
c. It is cognizable by the regular courts of justice and such courts
have jurisdiction to entertain the counterclaim both as to the
amount and nature.
 Based on the rules, the court has devised a more complete test, thus:
a. Are the issues of fact and law raised by the claim and the
counterclaim largely the same?
b. Would res judicata bar a subsequent suit on the defendant’s
claims. Absent the compulsory counter claim rule?
c. Will substantially the same evidence support or refute plaintiff’s
claim as well as the defendant’s counterclaim?
d. Is there any logical relation between the claim and the
counterclaim?
If a positive answer to all four questions would indicate that the counter claim is
compulsory.
INCOMPATIBILITY OF COMPUSORY COUNTER CLAIM AND MD
 A party who desires to plead a compulsory counterclaim should not file
a motion to dismiss. If he files a MD and the complaint is dismissed,
there will be no chance to invoke the counter claim.
PERMISSIVE COUNTER CLAIM
 A counter claim is permissive if any of the elements of a compulsory
counterclaim is absent.
 A counter claim is permissive if it does not arise out of nor is
necessarily connected with the subject matter of the opposing party’s
claim. It is not barred even if not set up.
PERMISSIVE COUNTER CLAIM vs COMPULSORY COUNTER CLAIM
 CCC, which a party has at the time the answer is filed, shall be
contained in the answer because a CCC not set up shall be barred. In
PCC it is not subject to the rule. It may be set up as an independent
action and will not be barred if not contained in the answer to the
complaint.
 CCC is not an initiatory pleading. In PCC it is an initiatory pleading
PADAYUNA KUWANG PA KA DIRI DAPITA (395-495)
MODES OF DISCOVERY
MEANING OF DISCOVERY
 Discovery is a device employed by a party to obtain information about
relevant matters on the case from the adverse party in the preparation
for the trial.
PURPOSE OF DISCOVERY
1. To permit mutual knowledge before trial of all relevant facts gathered
by both parties so that either party may compel the other to disgorge
facts whatever he has in his possession
2. Designed to serve as an additional device aside from pre-trial
DUTY OF THE COURT IN RELATION TO THE MODES OF DISCOVERY
 The court is required to issue an order requiring the parties to avail of
interrogatories to parties under R25, and request for admission by
adverse party under R26 or, at their discretion, make use of depositions
under R23, or other measures under R27 and R28 within 5 days from
the filing of the answer.
MODES OF DISCOVERY UNDER THE ROC
1. Depositions pending action (R23)
 2. Depositions before action or pending appeal (R24)
3. Interrogatories to parties (R25)
4. Admission by adverse party (R26)
5. Production and inspection of documents or things (R27)
6. Physical and mental examination of persons (R28)
DEPOSITIONS
DEPOSITION DEFINED
 A deposition is the taking of the testimony of any person, whether he
be a party or not, but at the instance of a party to the action. This
testimony is taken out of court.
METHODS IN TAKING DEPOSITIONS
1. Oral examinations
2. Written interrogatory
WHEN DEPOSITIONS ARE SOUGHT
1. When there is pending action (R23)
- If it is used during pending action it is commonly called as
deposition de bene esse and is governed by R23.
2. When there is future action (R24)
- If it is used for future action, it is called deposition perpatuam rei
memoriam and is governed by R24.
3. When there is pending appeal (R24)
- If it is used during pending appeals, it is called deposition
perpatuam rei memoriam and is governed by R24.
DEPOSITION PENDING ACTIONS; LEAVE OF COURT WHEN REQUIRED
 Leave of court is not required after an answer has been served, but
leave of court is required before the service of an answer but after
jurisdiction has been acquired over any of the defendant or over the
property subject of the action.
DEPOSITION OF A PRISONER
 When it is deposition of a prisoner that is to be taken, his deposition
may be taken only with leave of court and upon such terms as the court
may prescribe.
BEFORE WHOM TAKEN
1. IF WITHIN THE PHILIPPINES, a deposition need not be taken before
a judge, although it may be taken before one. It may also be taken
before a notary public.
2. IF OUTSIDE THE PHILIPPINES, a deposition may be taken before as
follows:
a. Secretary of an embassy or legation, consul general consul, vice-
consul, or consular agent of the RP
b. Person or officer as may be appointed by the commission or
letters rogatory
c. Person authorized to administer oaths by written stipulation of
parties
3. No deposition shall be taken before a person who is:
a. Relative within 6th degree of consanguinity or affinity;
b. Employee or counsel of any of the parties;
c. A relative within the same degree
d. Employee of the counsel
e. One financially interested in the action.
EXAMINATION OF THE DEPONENT
 A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every party to
the action stating the time and place for taking the deposition and the
name and address of each person to be examined. After the notice is
served the court may make any order for the protection of the parties
and the deponents,
 The attendance of witness may be compelled by the use of a subpoena.
 The deponent may be examined or cross-examined following the
procedure for witnesses in a trial. He may be asked questions on direct,
cross, re-direct, or re-cross. He has the same rights as a witness and
may be impeached like a court witness because of S3 to S18 of R132
apply to a deponent.
 Unless otherwise ordered by the court, the deponent may be examined
regarding any matter not privileged which is relevant to pending
action, whether relating to the claim or defense of any party, including
the existence, description, nature, custody, condition and location of
any books, documents, or other tangible things and the identity and
location of persons having knowledge of relevant facts.
 The officer before whom the deposition is taken has no authority to
rule on the objections interposed during the course of the deposition
although any objections shall be noted by the officer upon the
deposition. Any evidence that is objected to shall still be taken but
subject to the objection.
USE OF DEPOSITION IN PENDING ACTIONS
 Any part or all of the deposition, so far as admissible under the rules on
evidence, may be used against:
1. Any party who was present or represented at the taking of the
deposition; or
2. One who had due notice of the deposition.
The deposition, or any of its parts, may be used at the trial or upon the hearing of a
motion or an interlocutory proceeding.
 The deposition may be used for the following purposes:
1. Contradicting or impeaching the testimony of the deponent as a
witness;
2. For any purpose by the adverse party where the deponent is a
party or, at the time of the taking the deposition was an officer,
director, or managing agent of a public or private corporation,
partnership or association which is a party
3. For any purpose by any party, where the deponent is a witness,
whether or not a party, if the court finds that:
a. The witness is dead;
b. That the witness resides more than 100KM from the place
of trial or hearing, or is out of the PH, unless it appears that
his absence was procured by the party offering the
deposition;
c. That the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment;
d. That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
e. When exceptional circumstances exist, upon application
and notice
EFFECT OF SUBSTITUTION OF PARTIES
 The substitution of parties does not affect the right to use the
deposition previously taken. The same rule also provides that when an
action has been dismissed and another action involving the same
subject and between the same parties, or their representatives or
successors in interest, is afterwards brought, all the depositions
lawfully taken and duly filed in the former action may be used in the
latter as if originally taken.
EFFECT OF THE TAKING OF DEPOSITION OF A PERSON
 A person whose deposition is taken by a party does not, by reason of
such deposition, make such person the witness of said party. Under the
Rules, a party shall not be deemed to make a person his own witness
for any purpose by taking deposition.
EFFECT OF USING THE DEPOSITION OF A PERSON
 While the taking of the deposition of a person does not make that
person a witness of the party taking his deposition, the introduction of
the deposition, or any part thereof, makes the deponent the witness of
the party introducing the deposition if used for a purpose other than
that of contradicting or impeaching the deponent.
 The same, however does not make this rule applicable to the use by an
adverse party of a deposing mentioned under S4 R23
ORAL DEPOSITION
 A party desiring to take the deposition of any person upon oral
examination shall give to every party to the action a reasonable notice
in writing. Such notice is required to contain the following:
1. Time and place for taking the deposition; and
2. Name and address of each person to be examined if known; if not
known, there must be a general description sufficient to identify
him or the particular class or group to which he belongs
 Under the Rules, it provides for some guidelines for oral deposition
and is required to be observed and these are as follows:
1. The officer before whom the deposition is taken shall put the
witness on oath;
2. The testimony of the witness or deponent must be recorded and
be taken stenographically, unless the parties agree otherwise;
3. All objections made at the time of the examination shall be noted;
4. Evidence objected to shall be taken but subject to the objection
  Under the Rules, in lieu of participating in the oral examination, parties
served with notice of taking a deposition may transmit written
interrogatories to the officers, who shall propound them to the witness
and record the answer in verbatim
 Settled is the Rule that when the testimony is fully transcribed, the
deposition shall be submitted to the witness for examination and read
to or by him, unless such examination is waived by the witness and the
parties. The witness may desire some changes in form and substance,
in which case such changes shall be entered upon the deposition by the
officer with a statement of the reasons of the witness for making such
changes. The deposition shall be signed by the witness, unless the
signing is waived by the parties by stipulation or, the deposition cannot
be signed because the witness is ill, cannot be found or if refuses to
sign.
 Under the Rules, if the deposition is not signed by the witness, the
officer shall sign it and state on the record the attendant facts, together
with the reason given for the non-signing of the deposition. This
having been done, the deposition may be used as fully as though it was
signed, unless on a motion to suppress under R23 S29f and the court
holds that the reason given for the refusal to sign requires rejecting the
deposition in whole or in part.
 The Rules provide that the officer is required to certify on the
deposition that the witness was duly sworn to by hum and that the
deposition is a true record of the testimony given by the witness. He
shall then securely seal the deposition in an envelope indorsed with the
title of the action. He shall, likewise, promptly file it with the court in
which the action is pending or send it by registered mail to the clerk
thereof for filing. All parties shall promptly be notified of its filing by
the officer taking the deposition and upon payment of reasonable
charges, the officer shall furnish a copy of the deposition to any party
or to the deponent.
DEPOSITION UPON WRITTEN INTERROGATORIES
 Under the Rules, a deposition need not be conducted through an oral
examination. It may be conducted through a written interrogatory.
 The Rules provides that a party desiring to take the deposition of any
person upon written interrogatory shall serve the interrogatory upon
every other party with a notice state the name and address of the person
who is to answer them, the name and descriptive title and address of
the officer before whom the deposition is to be taken
 Under the Rules, the party served with the interrogatories may also
serve cross-interrogatories upon the party proposing to take the
deposition within 10 days from service of the written interrogatories.
The latter may, within 5 days, serve a re-direct interrogatory. Within 3
days after being served with re-direct interrogatory, a party may serve a
re-cross interrogatory upon the party proposing to take the deposition.
 The Rules states that a copy of the notice and copies of all
interrogatory served shall be delivered by the party taking the
deposition to the officer designated in the notice. He shall
 Under the Rules, a copy of the notice and copies of all interrogatories
served shall be delivered by the party taking the deposition to the
officer designated in the notice. He shall proceed promptly to take the
testimony of the witness in response to the interrogatories and to
prepare, certify, and file or mail the deposition, attaching thereto the
copy of the notice and the interrogatories received by him.
DEPOSITIONS BEFORE ACTION
 Under the Rules, a deposition before action is availed of when a person
desires to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the
Philippines.
PERPETUATION OF TESTIMONY BEFORE ACTION
 The Rules states that the perpetuation of a testimony is done by filing a
verified petition in the place of the residence of any expected adverse
party.
 The Rules provide that notices shall be sent in accordance to the Rules
and if the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make the appropriate order
for the taking of the deposition.
 Under the Rules, the deposition taken is admissible in evidence in any
action subsequently brought involving the same subject matter.
DEPOSTIOINS PEDING APPEAL
 The Rules clearly state that if an appeal has been taken from a
judgment of a court, including the CA in proper cases, or before the
taking of an appeal if the time therefor has not expired, the court in
which the judgment was rendered may allow the taking of depositions
of witnesses to perpetuate their testimony for use in the event of further
proceedings in said court.
 Under the Rules, the party who desires to perpetuate the testimony may
make a motion in said court for leave to take the deposition. The notice
and service shall be made in the same manner as if the action is
pending.
 The Rules provides that the motion shall state the following:
a. Names and addresses of the person to be examined
b. Substance of the testimony he expects to elicit form each of the
persons to be examined
c. Reason for perpetuation their testimony
 Under the Rules, the court shall allow the depositions if it finds that the
perpetuation of the testimony is proper to avoid the failure or delay of
justice. The depositions may be taken and use in the same manner and
under the same conditions prescribed for depositions pending actions
INTERROGATORIES TO PARTIES
PURPOSE OF INTERROGATORIES TO PARTIES
 Under the Rules of Court, interrogatories to parties is a mode of
discovery and is availed of by a party to the action for the purpose of
eliciting material and relevant facts from any adverse party.
INTERROGATORIES TO PARTIES vs BILL OF PARTICULARS
 Under the Rules of Court, a bill of particulars is directed to a pleading
and is designed to seek for a more definite statement or for particulars
of any matter not averred with sufficient definiteness in a pleading.
Whereas interrogatories to parties are not directed against a particular
pleading but rather it seeks the disclosure of all material and relevant
facts from a party.
INTERROGATORIES TO PARTIES vs DEPOSITIONS
 The Rules of Court provides that written interrogatories in a
depositions are not served upon the adverse party directly. They are
instead delivered to the officer designated in the notice. The service of
written interrogatories is a mod of depositions and distinct from
interrogatories to parties. While interrogatories to parties are served
directly upon the adverse party.
PROCEDURE
1. The mode of discovery is availed of by filing and serving upon the
adverse party written interrogatories to be answered by the party
served. If the party is a juridical entity, the written interrogatories shall
be answered by any of its officers competent to testify in its behalf.
2. No party may, without leave of court, serve more than 1 set of
interrogatories to be answered by the same party.
3. The interrogatories shall be answered fully in writing, signed, and
sworn to by the person making them. The party upon whom the
interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within 15 days after
service thereof. This period may, upon motion and for good cause
shown, be extended or shortened by the court.
4. The party against whom it is directed may make objections to the
interrogatories. If he does so, said objections shall be presented to the
court within 10 days after service of the interrogatories. The filing of
the objections shall have the effect of deferring the filing and service of
the answer to the interrogatories until the objections are resolved.
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
 Under the Rules of Court, a party not served with written
interrogatories may not be compelled by the adverse party to give
testimony in open court, or give deposition pending appeal, unless
allowed by the court for good cause shown and to prevent a failure of
justice.
ADMISSIONS BY ADVERSE PARTY
PURSPOSE OF ADMISSION BY ADVERSE PARTY
 It is settled that the purpose of admission by adverse party is to allow
one party to request the adverse party, in writing, to admit certain
material and relevant matters which, most likely, will not be disputed
during the trial. To avoid unnecessary inconvenience to the parties in
going through the rigors of proof before the trial, a party may request
the other to:
1. Admit the genuineness of any material and relevant document
described in and exhibited with the request; or
 2. Admit the truth of any material and relevant matter of fact set
forth in the request
WHEN REQUEST IS MADE
 Under the ROC, a party may file and serve the written request at any
time after issues have been joined.
EFFFECT OF NOT FILING A WRITTEN REQUEST FOR ADMISSION
 It is advisable for the party to whom the written request is directed to
file and serve upon the party requesting the admission a sworn
statement either:
a. Specifically denying the matter of which the admission is
requested; or
b. If he does not deny the same, set forth in detail the reasons why
he cannot truthfully admit or deny those matters.
This sworn statement shall be filed and served within the period designated in the
request but which shall not be less than 15 days from the service of such request,
or within such further time as the court may allow
 If the party to whom the written request for admission is directed does
not file the required sworn statement, each of the matters of which an
admission is requested shall be deemed admitted.
EFFECT OF ADMISSION
 Under the ROC, any admission made by a party as a consequence of
the failure to comply with the request is only for the purpose of
pending action and shall not be deemed an admission for any other
purpose. Likewise, the admission cannot be used against the admitting
party in any other proceeding.
DEFERMENT OF COMPLIANCE
 The ROC provides that to avoid implied admissions, the party
requested may have the compliance of filing and service of the sworn
statement deferred. This deferment may be effected by the filing with
the court objections to the request for admission. Compliance shall be
deferred until such objection are resolved by the court.
WITHDRAWAL OF ADMISSION
 It is a well-settled rule that admissions made under mode of discovery,
whether express or implied, are not final and revocable.
 Under the ROC, the court may allow the party making the admission to
withdraw or amend the admission upon such terms as may be just.
 To effect the withdrawal, it is settled that the admitting party should
file a motion to be relieved of the effects of his admission.
PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
PURPOSE OF PRODUCTION OR INSPECTION OF DOCUMENTS
 The purpose of this mode of discovery is to allow a party to seek an
order from the court in which the action is pending to:
1. Order any party to produce and permit the inspection and copying
or photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in
the action and which are in his possession, custody or control;
and
2. Order any party to permit entry upon designated land or other
property in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing the property
or any designated relevant object or operation thereon.
 This mode of discovery is not only for the benefit of a party, but also
for the court and for It to discover all the relevant and material facts in
connection with the case before. The scope of discovery under this
mode is to be liberally construed so as to provide the litigants with
information essential to the fair and amicable settlement or expeditious
trial of the case. All parties are required to lay their cards on the table
so that justice can be rendered on the merits of the case. While the
grant of the motion for production of a document is admittedly
discretionary on the part of the trial court judge, nevertheless, it cannot
be arbitrarily or unreasonably denied because to do so would bar
access to relevant evidence that may be used by a party-litigant and,
hence, impair his fundamental right to due process. The test to be
applied by the trial judge in determining the relevancy of documents in
one of the reasonableness and practicability.
 This discovery procedure has a limitation: the documents to be
disclosed and produced should be not privileged.
FILING OF A MOTION; ORDER OF THE COURT
 A motion must be filed by the party seeking the production or
inspection of documents and things, and the motion must show good
cause supporting the same.
 The order shall specify the time, place and manner of making the
inspection and taking copies and photographs, and may prescribe such
terms and conditions as are just.
PRIVILEGED DOCUMENTS
 The rules provide that the documents, papers, books, accounts, letters,
photographs, objects or tangible things that may be produced and
inspected should not be privileged. The documents must not be
privileged against disclosure. On the ground of public policy, the rules
providing the production and inspection of books and papers do not
authorize the production or inspection of privileged matter; that is,
books and papers which, because of their confidential and privileged
character, could not be received in evidence. Such condition is in
addition to the requisite that the items be designate and must constitute
or contain evidence material to any matter involve in the action and
which are in the party’s possession, custody or control.
 The Rules draw the types of disqualification by reason of privilege
commotion, to wit:
1. Communication between husband and wife;
2. Communication between attorney and client;
3. Communication between physician and patient;
4. Communication between priest and penitent; and
5. Communication of public officers involving public interest.
 There are also privileged matters not mentioned under the Rules. These
are the following:
1. Editors may not be compelled to disclose the source of published
news;
2. Voter may not be compelled to disclose from whom they voted;
3. Trade secrets;
4. Information contained in tax census returns; and
5. Bank deposits.
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
APPLICABILITY
 Under the Rules this mode of discovery apples to an action in which
the mental or physical condition of a party is in controversy.
 Examples of actions would be:
1. An action for annulment of a contract where the ground relied
upon is insanity
2. A petition for guardianship of a person alleged to be insane
3. An action to recover damages for personal injury where the issue
is the extent of the injuries of the plaintiff.
PROCEDURE
 A motion must show good cause for examination. With notice to the
other parties aside from the party to be examined. The motion shall,
likewise, specify the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made. The
motion is to be filed with the court where the action is pending.
 The party examined may request the party causing the examination to
be made to deliver to him a copy of a detailed written report of the
examining physician setting out his findings and conclusions. After
such request and deliver, the party causing the examination to be made
shall be entitled upon the party examined a like report of any
examination, previously or thereafter made, of the same mental or
physical condition.
If the party examined refuses to deliver the report, the court may make an order
requiring the deliver on such terms as are just. If it is the physician who fails or
refuses to make a report, the court may exclude his testimony if offered at the trial.
WAIVER OF PRIVILAGE
 Under the ROC by requesting and obtaining a report of the
examination or by taking the deposition of the examiner, the party
examined waives any privilege he may have in that action or any other
involving the same controversy, regarding the testimony of every other
person who has examined or may thereafter examine him in respect of
the same mental or physical examination.
REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
  The sanctions for the refusal to comply with the modes of discovery
are as follows:
1. IF THE REUFESAL TO ANSWER ANY QUESTION UPON
ORAL EXAMINATION:
a. Under the ROC if a party refuses to answer any question
upon oral examination, the proponent may apply to the
proper court, for an order to compel an answer. The same
procedure may be availed of when a party or witness
refuses to answer any interrogatory submitted pursuant to
the rules on the modes of discovery. If the application is
granted, the court shall order the deponent or refusing party
to answer the question on interrogatory. If the refusal is
unjustified, the court may require the refusing party or
deponent or the counsel advising the refusal, or both of
them to pay the proponent the amount of the reasonable
expenses incurred in the obtaining the order, including
attorney’s fees. Also, a refusal to answer after being
directed by the proper court may be considered a contempt
of court.
b. Under the ROC it the application for an order to compel a
deponent to answer is denied because of the absence of a
substantial justification, the court may require the proponent
or the counsel advising the application, or both of them, to
pay to the refusing party or deponent the amount of the
reasonable expense incurred in the opposing application,
including attorney’s fees.
2. IF THE REFUSAL TO ANSWER DESIGNATED OR
PARTICULAR QUESTION OR REFUSAL TO PRODUCE
DOCUMENTS OR THINGS OR TO SUBMIT TO PHYSICAL
OR MENTAL EXAMINATION:
a. Under the ROC the court may order that the matters,
regarding which the questions were asked, shall be taken as
established for purposes of the action in accordance with
the claim of the party obtaining them.
b. Under the ROC the court may issue an order refusing to
allow the disobedient party to support or oppose designated
claims or defenses or prohibiting him from introducing in
evidence designated documents or things or items of
testimony, or from introducing evidence of physical or
mental condition.
c. As mandated under the ROC, the court may issue an order
striking out pleadings or parts thereof, or staying further
proceeding until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party.
d. The ROC provides that the court may direct the arrest of
any party or agent of a party for disobeying any of the
orders of the court, except an order to submit to a physical
or mental examination.
REFUSAL TO BE SWORN
 Under the ROC a refusal of a party to be sworn after being directed by
the court may be considered a contempt of that court.
REFUSAL TO ADMINT
 Under the ROC if a party refuses to admit the genuineness of any
document or the truth of any matter of fact and serve a sworn denial
thereof, and if the other party later on proves the genuineness of the
document or the truth of such matter of fact, the court, upon proper
application, may order the former to pay the reasonable expenses in
making such proof including the attorney’s fees.
FAILURE TO ATTEND DEPOSITIONS OR TO SERVE ANSWERS TO
INTERROGATORRIES
 Under the ROC the court may:
a. Strike out all or any part of that party;
b. Dismiss the action or proceeding or any part thereof;
c. Enter a judgment by default against that party, and in its
discretion;
d. Order him to pay the expenses incurred by the other, including
Attorney’s fees.
 The above mentioned will only apply if a party refuses to answer the
whole set of written interrogatories, and not just a particular question.
Where the party, upon whom the written interrogatories is served, refuses to
answer a particular question in the set of written interrogatories and despite an
order compelling him to answer the particular question, still refuses to order under
R29 S3(c)
The following are the consequences:
a. The court may issue an order striking out pleading or parts
thereof;
b. The court may issue an order staying further proceeding until the
order is obeyed;
c. The court may issue an order dismissing the action or proceeding
or any part thereof; or
d. The court may issue an order rendering a judgment by default
against the disobedient party.
 The matter of how, and when, the above sanctions should be applied
depends on the sound discretion of the court.
TRIAL
NATURE OF TRIAL
 Trial is the judicial examination and determination of the issues
between the parties to the action. It is the Judicial process of
investigating and determining legal controversies between or among
the parties. It is where the parties would present evidence of their
respective claims and defenses.
 The period of the trial terminates when the judgment begins.
TRIAL AND HEARING
 Hearing and trial are at times synonymous to each other. However,
there is a difference between the two. Hearing is much broader term. It
is not confined to the trial and presentation of the evidence because it
actually embraces several stages in the litigation. It includes the pre-
trial and the determination of granting or denying a motion.
WHEN IS TRIAL UNNECESSARY
 Trial is unnecessary to the following cases:
a. Where the pleadings of the parties tender no issue at all, a
judgment on the pleadings may be directed by the court.
b. Where from the pleadings, affidavits, depositions and other
papers, there is actually no genuine issue, the court may render a
summary judgment.
c. Where the parties have entered into a compromise or an amicable
settlement either during the pre-trial or while the trial is in
progress.
d. Where the complaint has been dismissed with prejudice, or when
the dismissal has the effect of an adjudication on the merits
e. Where the case falls under the operation of Rules on Summary
Procedure
f. Where, the parties agree, in writing, upon the facts involved in
the litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence. If, however,
there is no agreement as to all the facts in the case, trial may be
held only as to the disputed facts.
NOTICE OF TRIAL
 Under the ROC, upon entry of the case in the trial calendar, the clerk of
court shall notify the parties of the date of trial in such manner as the
ensure the receipt of the notice at least 5 days before such date.
CALENDARING OF CASES
 The ROC provides that in calendaring of cases, the clerk of court shall
give preference to habeas corpus cases, election cases, special civil
actions, and those so required by law to be preferred.
ADJUOURNMENTS AND POSTPONEMENTS
 Under the ROC, as a GR the court may adjourn a trial from day to day,
and to any stated time, as the expeditious and convenient transaction of
business may require.
LIMITATION ON THE AUTHORITY TO ADJOURN
 Under the ROC, the court has no power to adjourn a trial for a period
of no longer than 1 month for each adjournment, nor more than 3
months in all, EXCEPT when authorized in writing by the court
administrator.
 Jurisprudence dictates that a motion for postponement should not be
filed on the last hour specially when there is no reason why it could not
have been presented earlier. A party asking for postponement has no
absolute right to expect that his motion would be granted.
POSTPONEMENT ON THE GROUND OF ILLNESS
 Trial may be postponed on the ground of illness of either party or
counsel by complying with the following:
1. A motion for postponement must be filed;
2. The motion mist be supported by an affidavit or sworn
certification showing that:
a. The presence of the party or counsel at the trial is
indispensable; and
b. The character of his illness is such as the render his non-
attendance excusable
POSTPONEMENT ON THE GROUND OF ABSENCE OF EVIDENCE
 The trial may be postponed on the ground of absence of evidence upon
compliance of the following:
a. A motion for postponement must be filed; and
b. The motion must be supported by an affidavit showing the
following:
1. Materiality or relevancy of the evidence; and
2. Due diligence has been used to procure it.
 If the adverse party admits the facts to be given in evidence, the trial
shall not be postponed even if he reserves the right to object to the
admissibility of the evidence
POSTPONEMENT OR CONTINUANCE; NOT A MATTER OF RIGHT
 The SC ruled in one case that as a rule, the grant or denial of a motion
for postponement is addressed to the sound discretion of the court
which should always be predicated on the consideration that more than
the mere convenience of the courts or of the parties, the ends of justice
and fairness should be served thereby. Furthermore, this discretion
must be exercised intelligently.
RECEPTION OF EVIDENCE
 The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties.
Reception of the evidence may, nevertheless, be delegated to the clerk of court,
who is a member of the bar, in any of the following cases:
1. In default hearings;
2. In ex parte hearings; or
3. In any case by written agreement to the parties
ISSUES ON TRIAL
 The ROC provides that the trial shall be limited to the issues stated in
the pre-trial order. This is the GR, unless the court directs for special
reasons.
AGREED STATEMENT OF FACTS
 Under the ROC, 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, but if the
parties agree only on some facts in issue, the trial shall be held as to the
disputed facts in such order as the court shall prescribe.
 If the parties have agreed to submit the case for judgment based on the
facts agreed upon, a trial need not be conducted because presentation
of evidence would no longer be necessary.
ORDER OF TRIAL; MODIFICATION OF THE ORDER OF TRIAL
 Under the ROC the order of trial in a civil case shall proceed through
as follows:
a. The Plaintiff shall adduce evidence in support of his complain;
b. The defendant shall then adduce evidence in support to his
defense
c. Third-party defendant, if any, shall adduce evidence
d. Fourth-party defendant, if any, shall adduce evidence
e. Parties whom any counterclaim or cross-claim has been pleaded,
shall adduce evidence in support of their defense, in order to be
prescribed in the court
f. Parties may then respectively adduce rebutting evidence only,
unless, the court directs the parties to argue or to submit their
respective memoranda or any other pleadings
g. Upon admission of the evidence, the case shall be deemed
submitted for decision, unless the court directs the parties to
argue or to submit their respective memoranda or any other
pleadings.
 Under the ROC, the order of trial is the GR. It is however subject to the
provisions of R31 S2 and unless, for special reasons, the court
otherwise directs.
 Under the ROC, the normal order of trial may be modified of the court,
in furtherance of convenience and to avoid prejudice, orders a separate
trial of any claim, cross-claim, counterclaim, or third-party complaint.
It may also order, for the same reasons, a separate trial of any separate
issue or of any number of claims, cross claims, courter claims, third-
party complaints or issues. The court may, likewise, order a
modifications of the order of trial if it so directs for “special reasons.”
REOPENING THE CASE OF A PARTY FOR THE PURPOSE OF
INTRODUCING FURTHER EVIDENCE
 The parties may be permitted by the court to adduce evidence on their
original case even after the presentation of their original evidence,
provided:
1. There are good reasons; and
2. The reasons are in furtherance of justice.
 Under the ROC, parties may respectively adduce rebutting evidence
only, unless the court, for good reasons and in the furtherance of
justice, permits them to adduce evidence upon their original case.
 Jurisprudence provides that a party who has the burden of proof must
introduce, at the first instance, all the evidence he relies upon and such
evidence cannot be given piecemeal. This is to avoid injurious
surprises to the other party and the consequent delay in the
administration of justice.
 The SC held that when the evidence is rebuttal in character, whose
necessity, for instance, arose from the shifting of the burden of
evidence from one party to the other; or where the evidence sought to
be presented is in the nature of newly discovered evidence, the party’s
right to introduce further evidence must be recognized. Otherwise, the
aggrieved party may avail of the remedy of certiorari.
 It was held that additional evidence is allowed when it is newly
discovered, or where it has been omitted through inadvertence or
mistake, or where the purpose of the evidence is to correct evidence
previously offered.
 It was ruled by the SC that material testimony should not be excluded
because it is offered by the plaintiff after the defendant has rested,
although not in rebuttal, unless it has been kept back by a trick, and for
the purpose of deceiving the defendant and affecting his case
injuriously.
CONSOLIDATION OR SEVERANCE
 The SC held that Consolidation is a procedural device, granted to the
court as an aid in deciding how cases in its docket are to be tried, so
that the business of the court may be dispatched expeditiously whole
providing justice to the parties.
 Under the ROC, the actions to be consolidated must involve a common
question of law or fact. When actions that involve a common question
of law or fact are pending before the court, the court may order a joint
hearing or trial of any or all the matters in issue in the actions and may
order the consolidation of all the actions.
 The ROC provides that the court may also order a separate trial of any
claim, cross-claim, counter-claim, or third-party complaint, or issues.
The court may do so in furtherance of convenience, or to avoid
prejudice.
 It is a time-honored principle that when two or more cases involve the
same parties and affect closely related subject matters, they must be
consolidated and jointly tried, in order to serve the best interests of the
parties and to settle expeditiously the issues involved. In other words,
consolidation is proper wherever the subject matter involved and relief
demanded in the different suits make it expedient for the court to
determine all of the issues involved and adjudicate the rights of the
parties by hearing the suits together. The purpose of the rule is to avoid
multiplicity of suits, guard against oppression and abuse, prevent
delays, clear congested dockets, and simplify the work of the trial
court.
KINDS OF CONSOLIDATION
 Consolidation is used in three different senses:
1. QUASI-CONSOLIDATION: it is where all, except one of
several actions are stayed until on is tried, in which case the
judgment in the one trial is conclusive as to the others, this is not
actually consolidation but is referred to as such.
2. ACTUAL CONSOLIDATION: it is where several actions are
combined into one, lose their separate identity, and become a
single action in which a single judgment is rendered.
3. CONSOLIDATION FOR TRIAL: it is where several actions are
ordered to be tried together, but each retains its separate
character, and require the entry of a separate judgment. This type
 of consolidation does not merge the suits into a single action, or
cause the parties to one action to be parties to another.
DEMURRER TO EVIDNECE
 Under the ROC the regular order of trial requires the plaintiff to adduce
evidence in support of his complaint. During the trial, he presents all
the evidence avail to him- object, documentary and testimonial.
 Under the ROC, after the plaintiff has completed the presentation of his
evidence, the defendant shall, then, adduce evidence in support of his
defense, counterclaim or third-party complaint, as the case may be.
 If the defendant feel that the plaintiff has not lived up to his burden of
proving the material allegations of his claim and is, therefore, not
entitled to the relief sought for in his complaint. Instead of presenting
his evidence, the defendant may move for the dismissal of the case on
the ground that, upon the facts and the law, the plaintiff has shown no
right to relief. The defendant should file a motion to demurrer to
evidence.
MOTION TO DISMISS IN R16 vs DEMURRER TO EVINDECE UNDER R33
 MD is made before the filing of the answer; D s made after the plaintiff
rests his case.
 MD has several grounds, D has only one ground
 If MD is denied, the defendant may file his responsive pleading; D, the
defendant may present his evidence
 MD, if granted, the complaint may be refiled, depending on the
grounds of dismissal; D, may not be refiled and the remedy of the
plaintiff is to appeal from the order of dismissal.
STAGE OF THE PROCEEDINGS WHEN DEMURRER TO EVIDENCE IS
VAILED OF
 Under the ROC, a demurrer to evidence is availed of by the defendant
after the plaintiff has completed the presentation of his evidence.
GROUNDS FOR A DEMURRER TO EVIDENCE
 Under the ROC, the defendant may move for dismissal on the ground
that upon the facts and the law, the plaintiff has shown no right to
relief.
 Res judicata is an inappropriate ground for sustaining a demurrer to
evidence, even as it stands as a proper ground for a motion to dismiss.
A demurrer may be granted if, after the presentation of plaintiff’s
evidence, it appears upon the facts and the law that the plaintiff has
shown right to relief. In contrast, the grounds for res judicata presents
themselves even before the presentation of evidence, and it should be
at that stage that the defense of res judicata should be invoked as a
ground for dismissal.
EFFECT OF DENIAL OF THE DEMURRER TO EVINDENCE
 Under the ROC, if the demurrer is denied, the defendant shall have the
right to present his evidence. This means that the denial of the
demurrer to evidence does not deprived the defendant of the
opportunity to adduce evidence in his behalf.
 Under jurisprudence, where a court denies a demurrer to evidence, it
should set the date for the reception of the defendant’s evidence in
chief. It should not proceed to grant the relief demanded by the
plaintiff.
 It was held that an order denying a demurrer to the evidence is
interlocutory and is, therefore not appealable. It can however be subject
for certiorari under R65.
 It was held by the SC that a party who files a demurrer to evidence that
is subsequently denied in an election case cannot insist on the right to
present evidence. The provisions of the ROC governing demurrer to
evidence does not apply to an election case. It is enshrined under the
ROC, that the ROC shall not apply to election cases, land registration,
cadastral, naturalization and insolvency proceedings.
EFFECT OF GRANTING THE DEMURRER TO EVIDENCE
 Under the ROC, if the demurrer to evidence is granted, the case shall
be dismissed. However, if, on appeal the order granting the motion
reversed, the defendant loses his right to present evidence.
 It is not correct for the appellate court reversing the order granting the
demurrer to remand the case to the trial court for further proceedings.
The appellate court should, instead of remanding the case, render
judgment on the basis of the evidence submitted by the plaintiff.
 In case, the trial court, acting on the respondent’s demurrer to
evidence, dismissed the complaint on the ground that the plaintiff had
adduced mere hearsay evidence. However, on appeal, the appellate
court reversed the trial court because the genuineness and due
execution of the disputed pieces of evidence had, in fact been admitted
by the defendants, the CA should have rendered judgment on the basis
of the evidence submitted by the petitioner. The reviewing court should
not remand the case for further proceedings; rather, it should render
judgment on the basis of the evidence presented by the plaintiff.
DEMURRER IN A CIVIL CASE vs DEMURRER IN A CRIMINAL CASE
 CIV, leave of court is not required before filing the D. In CRIM, a D is
filed with or without leave of court.
 In CIV, if the D is granted, the order of dismissal is appealable. In
CRIM, the order of dismissal is not appealable because of the
constitutional policy of double jeopardy.
 In CIV, if the D is denied, the defendant may proceed to present his
evidence. In CRIM, the accused may adduce his evidence only if the D
is filed with leave of court. He cannot present his evidence if he filed
the D without leave of court.
 In CIV, the court, cannot on its own make a D. In CRIM, the court may
do so.
JUDGMENT
MEANING OF JUDGMENT
 Defined by jurisprudence, a judgment is the final ruling by a court of
competent jurisdiction regarding the rights or other matters submitted
to it in an action or proceedings. It is the courts official and final
consideration and determination of the respective rights and obligations
of the parties.
REQUISITES OF A VALID JUDGMENT
 For a judgment to be valid, the following requisites must exist:
1. The court or tribunal must be clothed with authority to hear and
determine the matter before it;
2. The court must have jurisdiction over the parties and subject
matter;
3. The parties must have been given an opportunity to adduce
evidence in their behalf;
4. The evidence must have been considered by the tribunal in
deciding the case;
5. The judgment must be in writing, personally and directly
prepared by the judge. A verbal judgment is, in contemplation of
law, not in esse, therefore ineffective; and
6. The judgment must state clearly the facts and the law on which it
is based, signed by the judge and filed with the clerk of court
 Decisions, no matter how concisely written, must distinctly and clearly
set forth the facts and law upon which they are based.
 Decisions need not be a complete recital of the evidence presented. SO
long as the factual and legal basis is distinctly and clearly set forth, the
judgment is valid.
 A decision, with nothing to support it, is a patent nullity and should be
struck down and set aside as void.
 A void judgment has no legal and binding effect, force or efficacy for
any purpose.
ORDERS GRANTING OR DENYING A MOTION TO DISMISS
 Orders granting or denying a motion to dismiss must clearly state the
facts and the law upon which they are based. Under the ROC, it is a
requirement that resolutions disposing of a motion to dismiss shall state
clearly and distinctly the reasons for the denial or the grant of the
motion.
DENIAL OF A PETITION FOR REVIEW OR OF A MOTION FOR
RECONSIDERATION
 The Constitution requires that, the refusal to give due course to, or the
denial of a petition for review or a motion for reconsideration, must
state the legal bases thereof.
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY OF THE
DECISION
 A judgment has 2 parts, namely:
1. The body of the judgment or RATIO DECIDENDI; and
2. The dispositive portion of the judgment or the FALLO.
 The body of the decision, called the ration decidendi, is not the part of
the judgment that is subject to execution but the fallo because it is the
latter which constitutes the judgment of the court.
 it is the dispositive portion of the judgment that actually settles and
declares the rights and obligations of the parties, finally, definitively,
 and authoritatively, notwithstanding, the existence of inconsistent
statements in the body that may tend to confuse.
 The GR is that where there is conflict between the fallo and the ration
decidendi, the follo controls. This is because in theory, the fallo is the
final order while the opinion in the body is merely a statement ordering
nothing.
AMBIGUITY IN THE JUDGMENT; CLARIFICATORY JUDGMENT
 Where the judgment is difficult to execute because of ambiguity, the
remedy to avail of is to have the court remove the ambiguity by filing a
motion for clarificatory judgment and not to assail the judgment as
void.
RESOLUTIONS OF THE SUPREME COURT
 Resolutions of the SC, denying petitions to review decisions of the CA,
are not decisions within the purview of the constitution. A petition to
review the decision of the CA is not a matter of right, but of sound
judicial discretion; and so, there is no need to full explain the Court’s
denial.
 Minute resolutions are likewise not decisions falling within the
constitutional requirement. When a minute resolution is issued by the
SC denying or dismissing a petition for a motion for reconsideration
for lack of merit, it is understood that the challenged decision or order,
together with all its findings of fact and legal conclusions are deemed
sustained.
INTERLOCUTORY ORDERS
 Interlocutory refers to something intervening between the
commencement and the end of the suit which decides some point or
matter but is not a final decision of the whole controversy.
 Interlocutory orders are not decisions or judgments within the
constitutional definition. It was held that judgments do not include
resolutions which are interlocutory orders.
QUESTIONING INTERLOCUTORY ORDERS
 The proper remedy to question an improvident interlocutory order is a
petition for certiorari under R65, not R45. A petition for review under
R45 is the proper mode of redress to question only final judgments.
 One cannot appeal from an interlocutory order. Permitting appeals on
such an order may result in multiplicity of appeals in a single action,
thus prolonging the action.
MEMORANDUM DECISIONS
 A memorandum decision is one rendered by an appellate court and
incorporates by reference the findings of fact and conclusions of law
contained in the decisions or order under review.
 Under the law and the ROC every decision or final resolution of a
court in appealed cases shall clearly and distinctly state the findings of
facts and the conclusions of law on which it is based, which may be
contained in the decisions or final resolution itself, or adopted by
reference from those set forth in the decisions, order, or resolution
appealed from.
 As long as a memorandum decision states the nature of the case,
summarizes the facts with references to the record, and contains a
statement of the applicable laws and jurisprudence and the tribunal’s
assessment and conclusions on the case, the constitutional requirement
of a valid judgment will not be transgressed.
MEANING OF REDITION OF JUDGMENT
 Rendition of a judgment is the filing of the same with the clerk of
court. It is not the pronouncement of the judgment in open court that
constitutes the rendition.
 It was held that the mere pronouncement of the judgment in open court
with the stenographer taken note thereof does not constitute a rendition
of judgment. It is the filing of the signed decisions with the clerk of
court that constitute rendition.
 It is not the writing or signing of the judgment which constitutes
rendition of the judgment. It is well-established rule that the filing of
the decision, judgment or order with the clerk of court, not the date of
the writing of the decision or judgment, nor the signing or even the
promulgation thereof, that constitutes rendition.
 Even if the judgment has already been put in writing and signed, it is
still subject to amendment if it has not yet been filed with the clerk of
court.
PERIOD WITHIN WHICH TO RENDER A DECISION
 Under the Constitution, all the cases filed must be decided or resolved
by the SC within 24 months from the date of their submission for
decision, and unless reduced by the SC, within 12 months for all lower
collegiate courts and 3 months for all other lower courts.
 The Constitution provides that a case is deemed submitted for
resolution upon the filing of the last pleading, brief or memorandum
required by the ROC or by the court.
EXTENSION OF THE PERIOD TO RENDER DECISIONS
 It was held that an extension of the period to render a decision may be
set by the SC within which to decide a case upon request by the judge
concerned on account of heavy caseload or by other reasonable excuse.
Without an extension granted by the court, a delay in the disposition of
cases in tantamount to gross inefficiency on the part of the judge.
JUDGMENT PENNED BY A JUDGE WHO DID NOT HEAR THE EVIDENCE
 It is not necessary that the judge who heard the evidence be the same
judge who shall pen the decision. The judge trying the case may die,
resign, be disabled, or transferred to another court, another judge has to
finish the case the trial. The succeeding judge can examine and
evaluate the evidence already presented by the simple expedient of
going over the transcripts of the testimony of the witness in the same
manner as appellate courts review the evidence on record.
 In case the judge who penned the decision was not the same judge who
heard the case and received the evidence therein would not render the
findings in the said decision erroneous and unreliable.
 The validity of a judgment is not rendered erroneous solely because the
judge who heard the case was not the same judge who rendered the
decision. It is not necessary for the validity of judgment that the judge
who penned the decisions should actually hear the case on its entirety,
for the can merely rely on the transcribed stenographic notes taken
during the trial as the basis for his decision.
 The fact that the trial judge who penned the decision was different
from the one who received the evidence is not one of the exceptions
that warrant a factual review of the case.
JUDGMENT PENNED BY A JUDGE WHO HAD CEASED TO BE A JUDGE
 A decision penned by a judge after his retirement cannot be validly
promulgated and cannot acquire binding effect. A decision penned by a
judge during his incumbency cannot be validly promulgated after his
retirement.
 When a judge retires all his authority to decide cases, write, sign and
promulgate the decision has also retired with him.
JUDGMENT PENNED BY A JUDGE WHO WAS TRANSFERRED
 A judge who was permanently transferred to another court of equal
jurisdiction, before the case heard by him was decided, may validly
prepare and sign his decision on the said case and send the same to the
court where he was originally assigned.
 The judge who pens the decision of a case heard by him before he was
assigned or transferred to another district or branch of the court of
equal jurisdiction is considered an incumbent judge, albeit assigned to
a different branch at the time the decisions was promulgated.
JUDGMENTS OF THE SUPREME COURT
 The decisions of the SC form part of the legal system. Thus, every
court must take cognizance of the decisions of the SC. The decisions of
the SC subjects of mandatory judicial notice. Members of the bench
have a responsibility to know and apply the latest holdings of the SC.
 A lower court cannot reverse or set aside the decisions or orders of the
superior courts, especially the SC, for to do so will nullify the essence
of review and negate the principle of hierarchy of courts.
RULE ON STARE DECISIS
 The rule of stare decisis under the NCC provides that judicial decisions
applying or interpreting the laws or the Constitution shall form part of
the legal system of the Philippines.
 When the SC has laid down a principle of law applicable to a certain
state of facts, it will adhere to that principle and apply it to all future
cases where the facts are substantially the same.
 The establish principle of stare decisis et no queta movere holds that a
point of law, once established by the Court, will generally be followed
by the same court and by all courts of lower rank in subsequent cases
involving a similar legal issue.
 Any issue whether raised or not by the parties, but not passed upon by
the SC, does not have any value as precedent.
  Stare decisis et non quieta movere means let the decision stand and
disturb not what is already settled. The doctrine of stare decisis is a
salutary and necessary rule. When the court lays down a principle of
law applicable to a certain state of facts, it must adhere to such
principle and apply it to all future cases in which the facts sued upon
are substantially the same. Once a case is decided one way, then
another case involving exactly the same point at issue should be
decided the same way. It proceeds from the principles of justice that,
absent any powerful countervailing considerations, like cases ought to
be decided alike.
THE PRINCIPLES OF STARE DECISIS AND RES JUDICATA COMPARED
 The focal point of res judicata is the judgment. The principle states that
a judgment on the merits in a previous case rendered by a court of
competent jurisdiction would bind a subsequent case if, between the
first and second actions, there exists an identity of parties, of subject
matters, and of causes of action.
The focal point of stare decisis is the doctrine created. The principle, evokes the
general rule that for the sake of certainty, a conclusion reached in one case should
be doctrinally applied to those that follow if the facts are substantially the same,
even though the parties may be different. It proceeds first principle of justices that
absent any powerful countervailing considerations, like cases ought to be decided
alike. Hence, where the same questions relation to the same event have been put
forward by the parties similarly situated as in a previous case litigated and decided
by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate
the same issue.
RULINGS, PRO HAC VICE
 There are instances when the court suspends the application of a rule in
a particular case, as when it allows a second MR contrary to the rule
that forbids a second MR filed by the same party or when it allows a
party to file a notice of appeal beyond the period allowed by the ROC.
A ruling of such nature is deemed to be made pro hac vice which refers
to one rendered for one particular case. A ruling expressly qualified as
sich cannot be relied upon as a precedent to govern other cases.
OBITER DICTUM
 An obiter dictum is an opinion expressed by a court, which is not
necessary to the decision of the case before it. It is neither enforceable
as a relief nor a source of a judicially actionable claim. It is a remark
made or an opinion expressed by a judge in his decision upon a cause
and such is not binding as a precedent.
WHEN A JUDGMENT BECOMES FINAL
 The finality of judgment in essence is the effect of ending the
litigation, and an aggrieved party may then appeal from the judgment.
Under the ROC, an appeal may be taken from a judgment or final order
that completely disposes of the case. An appeal cannot be taken from
an interlocutory order.
 Under the ROC, the word final may refer to a judgment that is no
longer appealable and is already capable of being executed because the
period for appeal has elapsed without a party having perfected an
appeal or if there has been an appeal, it has already been resolved by a
highest possible tribunal. In this sense, the judgment is commonly
referred to as one that is final and executory.
FINAL ORDER vs INTERLOCUTORY ORDER
 FO is defined as one which disposes of the subject matter in its entirety
or terminates a particular proceeding or action, leaving nothing else to
be done but to enforce by execution what has been determined by the
court.
IO does not dispose of the case completely but leaves something to be decided
upon by the court. Its effects are merely provisional in character and substantial
proceedings have to be further conducted by the court in order to finally resolve
the issue or controversy.
 The distinction is important because a FO, that completely disposes a
case is appealable, while IO is not appealable as provided for by the
ROC.
DOCTRINE OF IMMUTABILITY OF JUDGMENTS OR CONLUSSIVENSS
OF JUDGMENTS
 Under this doctrine, a judgment that has attained finality can no longer
be disturbed. Issues actually and directly resolved in a former suit
cannot again be raised in any future case between the same parties.
 It is settled that under the doctrine of immutability of judgment, a
decision that has acquired finality becomes immutable and unalterable,
and may no longer be modified in any respect, even if the modification
is meant to correct erroneous conclusions of fact and law, and whether
it be made by the court that rendered it or by the Highest court of the
land.
REASONS FOR IMMUTABILITY OF JUDGMENTS
 To avoid delay in the administration of justice
 To put an end to judicial controversies.
REMEDIES AGAINST A FINAL AND EXECUTORY DECISION
 Action for annulment under R47
 Petition for relief under R38
EXCEPTIONS FOR IMMUTABILITY OF JUDGMENTS
 The correction of clerical errors
 The nunc pro tunc entries which cause no prejudice to any party and
void judgments
 Whenever circumstances transpire after the finality of the decision
rendering its execution unjust and inequitable
 In cases of special and exceptional nature as when facts and
circumstances transpire which render the judgment’s execution
impossible and unjust, when necessary in the interest of justice to
direct its modification to harmonize the disposition with prevailing
circumstances
 In case of void judgments
 Where there is a grave showing that a grave injustice would result from
the applications of the ROC
 When there are grounds from annulment of the judgment or a petition
for relief.
 The SC is not precluded from rectifying errors of judgment if blind and
stubborn adherence to the doctrine of immutability of final judgments
would involve the sacrifice of justice for technicality.
 The court has relaxed the rule in order to serve substantial justice
considering:
a. Matters of life, liberty, honor or property
b. The existence of special or compelling circumstances
c. The merits of the case
d. A cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules
e. A lack of any showing that the review sough is merely frivolous
and dilatory
f. The other party will not be unjustly prejudiced
EFFECT OF FINAL JUDGMENT; RES JUDICATA
 When the court has rendered judgment with jurisdiction, the following
are the effects of its judgment or final order:
1. If the judgment or final order is on a specific thing, the same is
conclusive upon the title to the thing
2. If the judgment or final order is in respect to the probate of a will,
or the administration of the estate of a deceased person, the same
in conclusive upon the will or administration, but the probate of
the will or granting of letter of administration, shall only be prima
facie evidence of the death of the testator or intestate and not a
conclusive presumption of death.
3. If the judgment be with respect to the matter directly adjudged or
as to any other matter that could have been raised in relation
thereto, the judgment or final order is conclusive between the
parties and their successor in interest by the title subsequent to
the commencement of the action or special proceeding, litigating
the same thing and under the same title and the same capacity.
 When it is a foreign court or tribunal which renders a judgment that has
become final, and it has jurisdiction to render such judgment or final
order, the same is conclusive upon the title to the thing in case of a
judgment or final order upon a specific thing.
In case final order or judgment against a person, such judgment or final order is
presumptive evidence of a right between the parties and their successor in interest
by a subsequent title.
In either of the above cases, judgment or final order may be repelled by evidence
of:
a. Want of jurisdiction;
b. Want of notice to the party;
c. Collusion;
d. Fraud; or
 e. Clear mistake of law or fact
 The judgment or final order has the effect of res judicata between the
parties. Res judicata has 2 aspects, namely:
a. BAR BY A PRIOR JUDGMENT: the judgment or final order is a
bar to the prosecution of a subsequent action based on the same
claim or cause of action
b. CONCLUSIVENESS OF JUDGMENT: the judgment or final
order precludes the relitigation of particular issues or facts on a
different demand or cause of action
 The doctrine of res judicata in essence is when material facts or
questions, which were in issue on a former action and were admitted or
judicially determined, are conclusively settled by a judgment rendered
therein, such facts or questions becomes res judicata and may not again
be litigated in a subsequent action between the same parties or their
privies regardless of the form of the latter.
Case law expounds the concept or res judicata in 2 aspects:
1. The BAR BY PRIOR JUDGMENT RULE or ESTOPPEL BY
VERDICT: It is the effect of a judgment as a bar to the
prosecution of a second action upon the same claim, demand or
cause of action.
2. The CONCLUSIVENESS OF JUDGMENT RULE or RULE OF
AUTER ACTION PENDENT: this rule ordains that issues
actually and directly resolved in a former suit cannot again be
raised in any future case between the same parties involving a
different cause of action.
 Under the principle of conclusiveness of judgment, when a right or fact
has been juridically tried and determined by a court of competent
jurisdiction, or when an opportunity for such trial has been given, the
judgment of the court, as long as it remains unreversed, should be
conclusive upon parties and those in privity with them.
 If an action has been dismissed and the order of dismissal has become
final, a prior judgment bars the institution of another action involving
the same parties, subject matter and cause of action. The principle
behind the doctrine of res judicata is that parties ought not to be
permitted to litigate the same issue more than once. In order that there
may be res judicata, it is required that:
1. The former judgment is final;
2. If has been rendered by a court of competent jurisdiction
3. It is a judgment on the merits; and
4. Between the first and the second actions, there is identity of
parties, subject matter and cause of action.
JUDGMENT ON THE MERITS
 A judgment is on merits when it amounts to a legal declaration of
respective rights and duties of the parties, based upon the undisclosed
facts. Merits has been, as a matter of substance and law, as
distinguished from a matter of form, refers to the real and substantial
grounds of action or defense, as contrasted with some technical or
collateral matter raised on the course of the suit. There could be a
judgment on the merits even if there is no trial. A ruling based on MD,
without trial or forma presentation of evidence, can still be a judgment
on the merits. A judgment ruling that the dense was substantial enough
to overcome the relief sought is a judgment on the merits.
 Dismissal on the ground of failure to state cause of action is still a
judgment on the merits and operates as res judicata on a subsequent
case involving the same parties, subject matter and cause of action as
long as the dismissal ruled on the issues raised. What appears essential
in a judgment on the merits is that it be a reasoned decision, which
clearly states the facts and the law on which it is based.
 Case law does not require that a judgment on merits be one rendered
after a full blown trial. The order of trial court in one case that the
complaint does not state a cause of action is a determination of the case
on merits. The dismissal for failure to state a cause of action is
judgment on merits.
 It was held that a judgment dismissing an action for want of
jurisdiction cannot operate as res judicata on the merits. Where the
dismissal was on the ground of the failure of the petitioner to furnish a
copy of her formal offer of evidence, the decision does not constitute
an adjudication on the merits, but only a resolution of an interlocutory
matter.
DOCTRINE OF LAW OF THE CASE; IN RELATION TO RES JUDICATA
 The law of the case has been defined as the opinion delivered on a
former appeal.
According to this principle, whatever is once irrevocably established as the
controlling legal rule or decision between the same parties in the case continues to
be the law of the case, whether correct on general principles or not, so long as the
facts on which such decision was predicated continue to be the facts of the case
before the court.
This principle generally finds application in cases where an appellate court passes
on a question and remands the case to the lower court for further proceedings. The
question there settled becomes the law of the case upon subsequent appeal.
Consequently, the court reviewing the succeeding appeal will not relitigate the
case but, instead, apply the ruling in the previous appeals. This enables the
appellate court to perform its duties satisfactorily and efficiently which would be
impossible if a question, once considered decided by it, where to be litigated anew
in the same case and upon any and subsequent appeal.
 The law of the case does not have the finality of res judicata. Law of
the case applies only to the same case, whereas res judicata forecloses
parties or privies on one case by what has been done on another case.
In law of the case, the rule made by an appellate court cannot be
departed from in subsequent proceedings in the same case.
Furthermore, law of the case relates entirely to questions of law, whole
res judicata is applicable to conclusive determination of issues of fact.
Although res judicata may include questions of law, it is not generally
concerned with the effect of adjudication in a wholly independent
proceeding.
SEVERAL JUDGMENT
 Under the ROC a several judgment is one rendered by a court against
one or more defendants, but not against all, leaving the action to
proceed against the others.
 Case law provides that a several judgment is proper when the liability
of each party is clearly separable and distinct from that of his co-
parties, such that the claims against each of them could have been the
subject of separate suits, and judgment for or against one of them will
not necessarily affect the other.
SEPARTE JUDGMENT
 This kind of judgment presupposes that there are several claims for
relief presented in a single action. Aside from the original complaint
for instances, the defendant may have interposed a counterclaim, cross-
claim, or third party-complaint. The court may, after determining the
issues relative to a claim and considering other circumstances, may
render judgment, let us say, on the cross-claim or the counterclaim.
The judgment will terminate the action with respect to that claim and
the action shall proceed as the remaining claims. Despite the rendition
of a separate judgment, the court may stay the execution of a separate
judgment until rendition of a judgment on all the other claims.
CONDITIONAL JUDGMENT
 A conditional judgment is one the effectivity of which depends upon
the occurrence or the non-occurrence of an event. Such a judgment is
generally void because of the absence of a disposition.
JUDGMENT SIN PERJUICIO
 A judgment sin perjuicio is understood to be a brief judgment
containing only the dispositive portion without prejudice to the making
of a more extensive discussion of the findings of fact and law to
support it. It current use may also refer to dismissal of an action
without prejudice to its being refiled on a later date.
JUDGMENT NUN PRO TUNC
 A judgment nun pro tunc is one intended to enter into the record acts
which had already been done, but which do not yet appear in the
record. It is a judgment which order the entry of something which was
actually previously done. Its purpose is not to supply an omitted action
by the court but to enter into the record an action previously done but
which was not reflected in the record by reason of inadvertence or
mistake.
 The object or nun pro tunc judgment is to place in proper form on the
record those matter previously rendered to make the record speak the
truth and to reflect deliberations and discussions had on the issue. In a
sense, it is a correction of clerical and no judicial error.
JUDGMENT UPON COMPROMISE
 This is a judgment rendered by the court on the basis of a compromise
agreement entered into between the parties to the action.
  A compromise has upon the parties the effect of res judicata, and under
the principle of res judicata, an issue which had already been laid to
rest by the parties themselves can no longer be relitigated.
 Under the NCC a compromise agreement is a contract whereby the
parties, by making reciprocal concessions, avoid litigation or put an
end to one already commenced. A compromise is a form of an
amicable settlement that is not only allowed but also encouraged in
Civil cases.
 A compromise agreement is perfected by mere consent, manifested by
the meeting of the offer and the acceptance upon the thing and the
cause which constitutes the contract. It must not be contrary to law,
public policy, morals or good customs.
 Once approved by the court, a judicial compromise is not appealable
and it thereby becomes immediately executory. It would be natural to
assume that such action constitutes an implicit waiver of the right to
appeal against the decision.
 A compromise agreement cannot bind a party who did not voluntarily
take part in the settlement itself and give specific individual consent. A
compromise agreement is also a contract, hence, it requires consent of
the parties.
 If one of the parties refuses to abide by the compromise, the other party
may either enforce the compromise or regard it as rescinded and insist
upon his original demand.
 To assail a judgment by compromise, there must be a proper motion to
set aside the compromise on the ground that the compromise
agreement was obtained either by fraud, violence, intimidation, falsity
of documents, or some other vices of consent.
 The ROC provides that decisions denying a motion to set aside
compromise agreement on the ground of fraud, mistake or duress, or
any other ground vitiating consent is not appealable.
 A motion to set aside the compromise on the ground of vitiated consent
applies only to a judgment upon a compromise. When the compromise
is not judicial and is a result of a contract between the parties, the
proper remedy is to annul the compromise.
JUDGMENT UPON A CONFESSION
 This is a judgment rendered by the court when a party expressly agrees
to the other party’s claim or acknowledges the validity of the claim
against him
JUDGMENT ON THE PLEADINGS
NATURE OF JUDGMENT ON THE PLEADINGS
 Judgment on pleadings is appropriate when an answer fails to tender an
issue, or otherwise admits the material allegations of the adverse
party’s pleadings.
 Under jurisprudence an answer which fails to tender an issue, if it does
not comply with the requirements of specific denials, resulting to the
admission of the material allegations of the adverse party’s pleadings.
As such, it is a judgment that is exclusively based on the pleadings
submitted, without introduction of evidence as the factual issue
remains unconverted.
 Under the ROC the concept of judgment on pleadings will not apply
when no answer is filed. It will come into operation when an answer is
served and filed but the same fails to tender an issue or admits the
material allegations of the adverse party’s pleadings
 An answer fails to tender an issue when the material allegations of the
other party are admitted or not specifically denied by the pleader.
Under the ROC, material allegations of the complaint not specifically
denied are deemed admitted.
MOTION ACQUIRED
 A judgment on the pleadings cannot be rendered by the court moto
proprio. It can be done only where there is a prior motion to the effect
filed by the appropriate party.
CASES WHERE JUDGMENT ON PLEADINGS WILL NOT APPLY
 Actions for the declaration of nullity of marriage;
 Actions for the annulment of marriage; and
 Actions for legal separation
 In these cases, the ROC mandates that the material facts alleged in the
complaint should always be proved.
SUMMARY JUDGMENT
NATURE OF SUMMARY JUDGMENT
 A summary judgment, also known as accelerated judgment is proper
where, upon a motion filed after the issues had been joined and on the
basis of the pleadings and papers filed, the court finds that there is no
genuine issue as to any material fact except as to the amount of
damages.
 A summary judgment is granted to settle expeditiously a case of, on
motion of either party, there appears form the pleading, deposition,
admission, and affidavits that no important issues of fact are involved,
except the amount of damages.
 What triggers a summary judgment is the absence of genuine factual
issues. It is not proper where there are factual issues to be resolved by
the presentation of evidence. Even if there is a complicated question of
law, if there is no issue as to the facts, a summary judgment is not
barred.
 The principles governing summary judgment are as follows:
1. Summary judgment is appropriate when there are no genuine
issues of fact which call for the presentation of evidence in a full-
blown trial.
2. Even if on their face the pleadings appear to raise issues, when
the affidavits, depositions and admissions show that such issues
are not genuine, then summary judgment prescribed by the ROC
must ensue as a matter of law.
3. The determinative factor in a motion for summary judgment, is
the presence or absence of a genuine issue as to any material fact.
 Genuine issue is an issue of fact which requires the presentation of
evidence as distinguished from sham, fictitious, contrived or false
claim. When the facts appear uncontested or undisputed, then there is
no real genuine issue as to the facts, and summary judgment is called
for.
 The party who moves for summary judgment has the burden of
demonstrating clearly the absence of any genuine issue of fact, or that
the issue posed in the complaint is patently unsubstantial so as not to
constitute a genuine issue for trial.
 When the facts as pleaded by the parties are disputed or contested,
proceedings for summary judgment cannot take the place of trial.
 Trial court cannot moto proprio decide that summary judgment on an
action is in order. Under the ROC, the defending party or the claimant
must invoke summary judgment by filing a motion. The adverse party
must be notified of the motion furnished with affidavits to support its
motion before hearing is conducted.
 Summary judgment is permitted only when there is no genuine issue as
to any material fact and moving party is entitled to a judgment as a
matter of law.
DETERMINATION OF THE AMOUNG OF DAMAGES; NOT NECESSARY
 A final judgment or order is one that finally disposes of a case, leaving
nothing more for the court to do. A summary judgment that satisfies
the requirement of a final judgment will be considered as such.
A summary judgment is granted to settle expeditiously a case of, on motion of
either party, there appears from the pleadings, depositions, admissions, and
affidavits that no important issues of fact are involved, except the amount of
damages.
 A summary judgment may not be rendered on the amount of damages,
although such judgment rendered on the issue of the right to damages.
JUDGMENT ON THE PLEADINGS vs SUMMARY JUDGMENT
 JOP, there is an absence of factual issue in the case because of the
answer tenders no issue at all. SJ involves an issue, but the issue is not
genuine, the issue is only as to the amount of damages but not as to any
material fact.
 JOP is filed by the claiming party. SJ is filed by either claiming or
defending party.
 JOP is based on pleadings alone. SJ is based on pleadings, affidavits,
depositions and admissions.
 JOP requires only 3-day notice to the adverse party prior to the
hearing. SJ requires 10-day notice to the adverse party prior to the
hearing.
JUDGMENT AGAINST AN ENTITY WITHOUT A JURIDICAL
PERSONALITY
 Under the ROC when 2 or more persons not organized as an entity
with juridical personality, nevertheless transact with 3rd persons under a
common name, they may be sued under the name by which they are
generally or commonly known.
  The judgment shall be actually against the persons who from the entity
without a juridical personality and the judgment shall set out their
individual or proper names, if known.
ENTRY OF JUDGMENT; DATE THEREOF
 The entry of judgment refers to the physical act performed by the clerk
of court in entering the dispositive portion of the judgment in the book
of entries of judgment after the same has become final and executory.
Under the ROC, the record shall contain the dispositive portion of the judgment or
final order and shall be signed by the clerk of court, with a certificate by said clerk
that the judgment has already become final and executory.
 Under the ROC, the date of the entry of judgment is the date when the
judgment becomes final and executory regardless of the date when the
physical act of entry was done.
 The ROC provides that the date of finality of the judgment or final
order shall be deemed to be the date of entry.
POST JUDMENT REMEDIES
POST JUDMENT REMEDIES AVAILABLE TO THE AGGRIEVED PARTY
 A judgment becomes final and executory upon the expiration of the
period to appeal from the judgment that finally disposes of the action
or proceeding, if no appeal has been duly perfected.
 A judgment also becomes executory after an appeal taken from the
judgment or der has been finally resolved.
 The ROC provides that the judgment becomes executory, execution
becomes a matter of right on motion of the prevailing parties.
 The remedies a judgment would necessarily refer to those remedies,
the aggrieved or losing party may avail the following:
a. Before the judgment becomes final and executory; and
1. MR
2. MNT
3. Appeal
b. After the judgment becomes final and executory
1. Petition for relief from judgment
2. Action to annul a judgment
3. Certiorari
4. Collateral attack of judgment
MOTION FOR RECONSIDERATION
OBJECT OF MOTION FOR RECONSIDERATION
 The object of MR under the R37 is one directed against a judgment or
a final order. It is not the MR of an interlocutory order which normally
precedes a petition for certiorari under R65.
MR IN CASES COVERED BY SUMMARY PROCEDURE
 MR is prohibited in summary procedure.
MR IN SMALL CLAIMS CASES
 MR is prohibited in Small Claims cases.
MR IN PETITIONS FOR WRIT OF AMPARO AND HABEAS DATA
 In petition for writ of amparo and habeas data, the MR that is
prohibited is one directed against an interlocutory order or interim
relief.
MR IN ENVIRONMENTAL CASES
 MR is allowed.
WHEN TO FILE MR
 A MR is filed within the period for taking an appeal. No motion for
extension of time to file a MR shall be allowed.
 The period of appeal depends on whether the appeal is by notice of
appeal or record of appeal.
If it is made by notice of appeal, the period for appeal is within 15days after notice
to the appeal of the judgment or final order appealed from.
If made by record of appeal, the period is within 30 days from notice of judgment.
A record of appeal is required only is SpecPro and in other cases of multiple or
separate appeal.
 The periods mentioned would begin to rune upon the receipt of notice
of the decision or final order appealed from. The periods begin upon
receipt of notice by the counsel of record, which is considered notice to
the parties. Service of judgment on the party represented by counsel is
not considered the official notice and receipt of the judgment.
It was held that notice upon parties’ counsel of record is tantamount to service
upon the parties themselves, but service upon the parties themselves is not
considered service upon the lawyers.
 It has been held that notice or service made upon a party, who is
represented by counsel, is a nullity. As a rule, notice the client, and not
to his counsel of record, is not notice in law unless, for instance, when
the court or tribunal orders service upon the party, or when the
technical defect in the manner of notice is waived.
EFFECT OF FILING A MR ON THE PERIOD FO APPEAL
 Under the ROC, the timely filing of MR interrupts the period of appeal.
GROUNDS OF MR; WHAT TO ALLEGE
 In an MR. it must be:
a. In writing
b. Notice must be given to the adverse party
c. It must state the following:
1. Damages awarded are excessive;
2. The evidence is insufficient to justify the decisions or final
order; or
3. The decision or final order is contrary to law
 It is not sufficient to mention the ground relied upon. It is necessary
that in an MR to specify and point out the findings of the judgment
which are not supported by evidence or which is contrary to law.
 The non-compliance of these requirements would render the MR a
mere pro forma motion. A pro forma motion for MR shall not toll
reglementary period.
PRO FORMA MOTION
 A pro forma motion is one which does not satisfy the requirements of
the rules and will be treated as a motion intended to delay the
procedure.
 A MR is deemed to be a pro forma if the same does not specify the
findings in the judgment which are not supported by evidence or
contrary to law.
 If a MR is deemed as pro forma, it may be because of the following
reasons:
1. It was a second MR
2. It did not comply with the rule that the motion must specify the
findings and conclusions alleged to be contrary to law or not
supported by evidence
3. It failed to substantiate the alleged errors
4. It merely alleged that the decisions in question was contrary to
law
5. The adverse party was not given notice
RESOLUTION OF AN MR
 It shall be resolved in 30 days
FRES PERIOD RULE; NYEPES RULE
 If the motion is denied, the movant has a fresh period of 15 days from
receipt of notice of the order denying or dismissing the MR within
which to fila a notice of appeal.
 The fresh period rule not only apply to R41 but also R40. R43 and
R45.
 The nyepes rule shall not be applied where no motion for new trial or
MR has been filed.
 The 15-day period within which to file the notice of appeal should be
counted on the day the order of dismissing a motion for new trial or
MR is received.
 Parties who availed MR are now allowed to file a notice of appeal
within 15-days from the denial of that motion.
APPLICATION OF NYEPES RULE TO CRIMINAL CASES
 The Nyepes rule has been held to be applicable to criminal cases.
Under the law, the period for appeal shall be 15 days counted from the
notice of the final order, resolution, award, judgment, or decision
appealed from. This period of appeal is applicable to all cases.
ORDER OF DENIAL, NOT APPEALABLE
 The fresh period rule does not refer to the period within which to
appeal from the order denying the motion for reconsideration, but the
period within which to appeal from the judgment itself because an
order denying a motion for reconsideration is not appealable.
  Under the Rules, an order denying a motion for new trial or
reconsideration is not appealable, the remedy being an appeal from the
judgment or final order.
REMEDY WHEN MR IS DENIED
 The remedy from an order denying a MR is not to appeal from the
order of denial because the order is not appealable. The remedy is to
appeal from the judgment or final order itself subject of the MR.
 The order denying the MR cannot be assailed by petition for certiorari
under R65 because of the amendment of R41. R65 may only be
assailed in an order denying a motion for new trial or MR.
EFFECT OF GRANTING MR
 If the court grants the MR, it may amend the judgment or final order.
 The amended judgment is in the nature of a new judgment which
supersedes the original judgment. It is not a mere supplemental
decision.
PARTIAL RECONSIDERATION
 Under the Rules. If the court finds a motion affects the issues of the
case as to only a part, or less than all of the matters in controversy, or
only one, or less than all, of the parties to it, the order may grant a
reconsideration as to such issues of severable without interfering with
the judgment or final order upon the rest.
THE SINGLE MOTION RULE
 A party shall not be allowed to file a second MR of a judgment or a
final order. Under the Rules, no party shall be allowed a second MR of
a judgment or a final order.
 The prohibition for a second MR applies only when the MR is directed
against the judgment or final order. The rule does not apply on a MR
for interlocutory order.
MR IN APPEALED CASES; STAY OF EXECUTION
 A party may file a MR of a judgment or final resolution within 15-days
from notice thereof, with proof of service on the adverse party. This
motion shall be resolved within 90 days from the date when the court
declares it submitted for resolution.
 The pendency of the MR shall stay the execution of the judgment or
final resolution sought to be reconsidered, provided the motion is filed
on time and by the proper party except when the court for good
reasons, otherwise directs.
 The court shall not entertain a second MR of a judgment or final
resolution. The second MR that is not allowed refers to the MR filed by
the same party.
 This rule applies also to original cases filed before the SC. This
however will not apply when the court grants express leave to file a
second MR granted for extraordinary persuasive reasons.
 The rule prohibiting the same party from filing the second MR has,
this, not been enforced with unbending rigor. It was held that no
second MR of a judgment or final resolution by the same party shall be
entertained, contemplates a situation where a second MR is filed by the
same party assailing the same judgment or final resolution. A second
MR directed against an amended decision that totally reversed and set
aside a previous ruling is not prohibited.
 In case a party wants to appeal, the period to file an appeal should be
reckoned not from the denial of the MR of the original decision, but
from the date of petitioner’s receipt of notice of denial of the MR from
the amended decision.
MOTION FOR NEW TRIAL
NATURE OF NT
 A NT is a remedy that seeks to temper the severity of a judgment or
prevent a failure of justice. The grant of NT is generally addressed to
the sound discretion of the court which cannot be interfered unless a
clear abuse thereof is shown.
NT IN SUMMARY PROCEDURE; PROHIBITED
 A motion for NT is prohibited in cases falling under Summary
Procedure.
NT IN SMALL CLAIMS CASES; PROHIBITED
 A motion for NT is prohibited in Small Claims Cases
NT IN ENVIRONMENTAL CASES; ALLOWED
 A motion for NT is allowed in environmental cases to prevent a
manifest of miscarriage of justice.
WHEN TO FILE MOTION FOR NT
 A motion for NT is filed within the period for taking an appeal. Not
motion for extension of time to file a motion for NT shall be allowed.
 When the appeal is by notice of appeal, the period for appeal is within
15-days after notice to the appellant of the judgment or final order
appealed from.
 Where record of appeal is required, the period for appeal is within 30
days from notice of the judgment or final order. A record on appeal
shall be required only in special proceedings and other cases of
multiple or separate appeals.
EFFECT OF FINLING THE MOTION FOR NT ON THE PERIOD OF APPEAL
 Under the Rules, in effect it interrupts the period to appeal.
FORM OF A MOTION FOR NT
 In filing a motion for NT it shall be:
a. In writing
b. It states the ground for NT
c. A written notice shall be served by the movant to the adverse
party
GROUNDS FOR MOTION FOR NT
 By reason of FAME which ordinary prudence could not have guarded
against and, by reasons of which, such aggrieved party has probably
been impaired in his rights.
 By reason of Newly-discovered evidence, which could not, with
reasonable diligence, have discovered and produced at the trial, and
which, if presented, would probably alter the results.
 If grounded on FAME, it must be supported by affidavits of merits. If
grounded on newly-discovered evidence it must be supported by
affidavits of witness or duly authenticated documents.
NON-COMLIANCE WITH THIS REQUIREMENT WOULD REDUCE THE
MOTION TO A MERE PRO FORMA MOTION
 A pro forma motion shall not toll the reglementary period of an appeal.
AFFIDAVTI OF MERIT
 Under the Rules, the moving party must show that he has a meritorious
defense. He may show the meritorious defense by means of an affidavit
which should company the motion for NT. Mere allegations that on has
meritorious defense and good cause are mere conclusions which do not
provide the court basis for determining the nature and merit of the case.
 An affidavit of merit must state facts, and not mere opinion or
conclusions of law.
 An affidavit of merit is required in a motion for NT grounded on
FAME.
REQUISITES OF A NEWLY-DISCOVERED EVIDENCE
 The requisites of a newly-discovered evidence are as follows:
1. The evidence was discovered after trial
2. The evidence could not have been discovered and produced at the
trial even with the exercise of reasonable diligence
3. It is material, not merely cumulative, corroborative, or
impeaching
4. The evidence is of such weight that it would probably change the
judgment, if admitted.
GROSS NEGLIGENCE OF COURSE NOT A GROUND FOR NEW TRIAL
 Gross negligence is not one of the grounds for a motion for NT. The
court cannot declare his counsel’s negligence as gross as to liberate
him from the effects of his failure to present his countervailing
evidence.
RESOULTION OF THE MOTION
 The motion shall be resolved 30 days from the time it is submitted for
resolution.
DENIAL OF THE MOTION; FRESH PERIOD RULE
 If the motion for NT is denied, the movant has fresh period of 15 days
from the receipt of the order denying or dismissing the motion for NT
within which to file a notice of appeal for the same grounds as the fresh
period rule governing a denial of a MR.
ORDER OF DENIAL; NOT APPEALABLE
  The fresh period rule does not refer to the period within which to
appeal from the order denying the motion for new trial because the
order is not appealable.
REMEDY WHEN MOTION IS DENIED
 An order denying a motion for NT is no longer assailable by certiorari
under R65. The proper remedy would be to appeal from the judgment
or order under R37 S9.
EFFECT OF GRANTING MOTION FOR NT
 If the court grants the MNT, the original judgment shall be vacated and
the action shall stand for trial de novo. The recorded evidence taken
upon the former trial shall be used at the new trial without retaking the
same if the evidence is material and competent.
PARTIAL NT
 If the courts find that a motion affects the issues of the case as to only a
part, the court may grant a new trial as to such issues if severable
without interfering with the judgment or final order upon the rest. The
effect of this order is a partial new trial.
 When there is an order of a partial new trial, the court may either enter
a judgment as to the rest, or stay the enforcement of the judgment until
after the new trial.
SECOND MOTION FOR NEW TRIAL
 A second MNT is not allowed. A MNT shall include all grounds then
available. Those not so included are deemed waived. When a ground
for new trial was not existing or available when the first motion was
made, a second motion for new trial may be filed within the period
allowed but excluding the time during which the first motion had been
pending.
NEW TRIAL IN APPEALED CASES
 The Rules provides that at any time after the appeal from the lower
court has been perfected and before the CA loses jurisdiction over the
case, a party may file a MNT on the ground of newly-discovered
evidence. To be considered as newly-discovered evidence, the
evidence should be one which could not have been discovered prior to
the trial in the court below even with the exercise of reasonable
diligence and it is in a character as would probably change the result
 The CA may grant or refuse NT. If it grants the MNT, the court shall
consider the new evidence with that adduced at the trial below. It may
order, with notice to the parties, taking further testimonies. It may also
render the other judgment which ought to be rendered upon such terms
as it may deem just.
 The motion shall be resolved within 90 days from the date when the
court declares it submitted for resolution
APPEALS
GENERAL PRINCIPLES ON APPEALS
 The right to appeal is not part of due process but a mere statutory
privilege that has to be exercised only in the manner and in accordance
with the provisions of law.
 The right to appeal is not a constitutional, natural or inherent right. It is
a statutory privilege and of statutory origin. It is available only if
granted or as provided by statutes.
 The GR is that the remedy to obtain reversal or modification of
judgment on the merits is appeal.
 R65 and R41 cannot be invoked at the same time. Since one remedy
would cancel out the other.
 The perfection of an appeal within the reglementary period and in the
manner prescribed by law is mandatory and jurisdictional. The failure
to do so renders the questioned decisions final and executory and
deprives the appellate court of jurisdiction to alter the final judgment,
much less entertain the appeal
JUDGMENTS OR ORDERS THAT ARE APPEALABLE
 An appeal may be taken from a judgment or final order that completely
disposes the case. Hence, and interlocutory order is not appealable until
after the finality of judgment on the merits.
 It is settled that not every judgment or final order is appealable. When
the judgment or final order does not completely dispose of the case,
then the same is not appealable.
JUDGMENTS OR ORDERS THAT ARE NOT APPEALABLE
 Under the Rules, the following judgments are not appealable:
a. An order denying a petition for relief or any similar motion
seeking relief from judgment;
b. An interlocutory order;
c. An order disallowing or dismissing an appeal;
d. An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or
duress, or any other ground vitiating consent;
e. An order of execution;
f. A judgment or final order for or against one or more several
parties or in separate claims, counterclaims, cross-claim, and
third-party complaints, while the main case is pending; unless the
court allows an appeal therefrom; and
g. An order dismissing an action without prejudice
REMEDY IN CASE THE JUDGMENT OR FINAL ORDER IS NOT
APPEALABLE
 The proper remedy is to appeal from the judgment under R35 S9
REMEDY AGAINST AN ORDER OF EXECUTION; EXCEPTIONS
 No appeal may be taken from an order of execution and a party who
challenges such order may file a petition for certiorari under R65.
 It was held that an order of execution is not appealable, the rile is not
absolute since a party aggrieved by an improper execution is not
without remedy.
The Court emphasized that to rule that a special civil action for certiorari
constitutes the sole and exclusive remedy to assail a writ or order of execution
would unduly restrict the remedy available to a party prejudiced by an improper
execution, as when the writ of execution varies the judgment, there has been a
change in the situation of the parties, the writ of execution has been improvidently
issues, the writ is defective in substance, or is issued against the wrong party. In
these exceptional circumstances, considerations of justice and equity dictate that
there be some mode available to the party aggrieved of elevating the question to a
higher court. That mode may either by appeal, or by special civil action for
certiorari, prohibition or mandamus.
ISSUES MAY BE RAISED ON APPEAL
 A party may not change his theory of the case on appeal. Under the
Rules provide that whether or not the appellant has filed a MNT in the
court below, he may include in his assignment of errors any question of
law or fact that has been raised in the court below and which is within
the issues framed by the parties.
 A party cannot change the legal theory of his case under which the
controversy was heard and decided in the trial court. It should be the
same theory under which the review on appeal is conducted.
 A defense not pleaded in the answer may not be raised for the first time
on appeal. A party cannot, on appeal, change fundamentally the nature
of the issue in the case, when a party deliberately adopts a certain
theory and the case is decided upon that theory in the court below, he
will not be permitted to change the same on appeal because to permit
him would be unfair for the adverse party.
ISSUES THAT THE APPELLATE COURT DECIDES ON APPEAL; NO
CHANGE OF THEORY ON APPEAL
 The rules provide that the appellate court shall consider no error unless
stated in the assignment of errors.
 Accordingly, a question that was never raised in the lower courts
cannot be allowed to be raised for the first time on appeal without
offending the basic rules of fair play, justice and due process.
 For the appellate court to entertain a legal question, it should be raised
on the lower court.
 As a rule, no questions will be entertained on appeal unless it has been
raised in the court below. Points of law, theories, issues and arguments
not brought to the attention of the lower court, ordinarily, will not be
considered by a reviewing court because they cannot be raised first
time at that late stage.
 It is well-settled that issues not raised for the first time on appeal and
not raised in the proceedings in the lower court are barred by estoppel.
 The rule that parties cannot change his theory on appeal also applies to
criminal cases.
ROLE OF THE APPELLEE
 An appellee cannot impugn the correctness of a judgment not appealed
from by him. He cannot assign such errors as are designed to have the
judgment modified. The appellate court cannot take cognizance of a
ground for dismissal interposed by the appellee who did not appeal.
 Hence, a dismissal made by the appellate court on a ground not raised
as an error by the appellant is a reversible error.
WHEN ERRORS NOT RAISED ON APPEAL MAY BE CONSIDERED
 The rule that the appellate court shall not consider errors not raised in
the assignment of errors is not absolute. It is settled that the court may
consider an error not raised on appeal provided the same falls within
any of the following categories:
a. It is an error that affects the jurisdiction over the subject matter;
b. It is an error that affects the validity of the judgment appealed
from;
c. It I an error which affects the validity of the proceedings;
d. It is an error closely related to or dependent on the assigned error,
and properly argued in the brief; and
e. It is a plain and clerical error.
Under jurisprudence, the court made I clear that an appellate court is clothed with
ample authority to review rulings, even if they are not assigned as errors on
appeal, in the following instances:
a. Grounds not assigned as errors but affecting jurisdiction over the
subject matter;
b. Matters not assigned as errors on appeal but are evidently plain or
clerical errors within contemplation of law;
c. Matters not assigned as errors on appeal but consideration of
which is necessary in arriving at a just decision and complete
resolution of the case or to serve the interest of justice or to avoid
dispensing piecemeal justice;
d. Matters not specifically assigned as errors on appeal but raised in
the trial court and are matters of record having some bearing on
the issue submitted which the parties failed to raise or which the
lower court ignored;
e. Matters not assigned as errors on appeal but closely related to an
errors assigned; and
f. Matters not assigned as errors on appeal but upon which the
determination of a question properly assigned is dependent.
APPEALS IN CRIMINAL CASES
 In criminal cases, it is axiomatic that where an accused appeals the
decisions against him, he throws open the whole case for review and it,
then becomes the duty of the SC to correct any error as may be found
in the appealed judgment, whether it was made the subject of
assignment of errors or not.
 An appeal in a criminal case opens the entire case for review. The court
can correct errors unassigned in the appeal.
PAYMENT OF DOCKET FEE
 Payment of docket fee within the prescribed period is mandatory for
the perfection of an appeal. Without the payment, the appellate court
does not acquire jurisdiction over the subject matter of the action; and
the decision sought to be appealed from becomes final and executory.
RECORD ON APPEAL; NOTICE OF APPEAL
 An appeal is made by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple or separate
appeals where the law or the Rules so require.
 In case where multiple appeals are allowed, a party may appeal only a
particular incident in the case and not all of the mater involved in the
same case. The other which are not the subject to the appeal remain to
be resolved by the trial court. The record on appeal is required so the
appellate court may have a record of the proceedings to resolve a
separate and distinct issue raised in the appeal, and since the original
records remain with the trial court, it still can resolve the other issues
of the case not made subject of the appeal.
 Multiple appeals are allowed in special proceedings, actions for
recovery of property with accounting, actions for partition of property
with accounting, and special civil actions of eminent domain and
foreclosure of mortgage.
DISMISSAL OF AN APPEAL
 The following are the grounds for the dismissal of an appeal by the CA
on its own motion or on that of the appellee:
a. Failure for the record on appeal to show on its face that the
appeal was taken within the period fixed by the rules
b. Failure to file the notice of appeal or the record on appeal within
the period prescribed by the rules
c. Failure of the appellant to pay the docket and other lawful fess
d. Unauthorized alterations, omissions or additions in the approved
record on appeal
e. Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided by
the rules
f. Absence of specific assignment of errors in the appellant’s brief,
or of page references to the record as required under R44
g. Failure of the appellant to take the necessary steps for the
correction or completion of the record within the time limited by
the court in its order
h. Failure of the appellant to appear at the preliminary conference
under R48 or to comply with orders, circulars or directives of the
court without justifiable cause
i. The fact that the order or judgment appealed from is not
appealable
 The following are the ground for dismissal of an appeal in the SC motu
proprio by the court on motion:
a. Failure to take the appeal within the reglementary period;
b. Lack of merit of the petition;
c. Failure to pay the requisite docket fee and other lawful fees or to
make a deposit for costs;
d. Failure to comply with the requirements regarding proof of
service and contents of and the documents which should
accompany the petition;
e. Failure to comply with any circular, directive or order of the SC
without justifiable cause;
f. Error in the choice or mode of appeal; and
g. The fact that the case is not appealable to the SC
 The court laid down the basic rules with respect to the issue of the non-
filing of appellant’s brief with the CA and its consequences:
1. The GR is for the CA to dismiss an appeal when no appellant’s
brief is filed within the reglementary period prescribed by the
rules;
2. The power conferred upon the CA to dismiss an appeal is
discretionary and directory and not ministerial or mandatory;
3. The failure of an appellant to file his brief within the
reglementary period does not have the effect of causing the
automatic dismissal of the appeal;
4. In case of late filing, the appellate court has the power to still
allow the appeal; however, for the proper exercise of the courts
leniency it is imperative that:
a. The circumstances obtaining warrant the court’s liberality;
b. That strong considerations of equity justify an exception to
the procedural rule in interest of substantial justice;
c. No material injury has been suffered by the appellee by the
delay;
d. There is no contention that the appellees cause was
prejudiced
e. At least there is no motion to dismiss filed
5. In case of delay, the lapse must be for a reasonable period; and
6. Inadvertence of counsel cannot be considered as an adequate
excuse as to call for the appellant’s courts indulgence except:
a. Where the reckless or gross negligence of counsel deprive
the client of due process of law;
b. When application of the rule will result in outright
deprivation of the client’s liberty or property; or
c. Where the interests of justice so require.
APPEALS FROM THE MTC TO THE RTC
WHERE TO APPEAL JUDGMENT FROM A JUDGMENT OR FINAL ORDER
OF A MUNICIPAL COURT
 An appeal from a judgment or final order the MTC may be taken to the
RTC exercising jurisdiction over the area to which the former pertains.
WHEN TO APPEAL
 An appeal may be taken within 15-days after notice to the appellant of
the judgment or final order appealed from.
 Where a record on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within 30-days after notice of the
judgment or final order. A record on appeal shall be required only in
special proceedings and in case of multiple or separate appeals.
HOW TO APPEAL; CONTENTS OF NOTICE OF APPEAL
 There must be a filing of notice of appeal and record of appeal if so
required.
  There must be service of the notice and record to the adverse party.
 The notice of appeal shall contain the following:
1. Indicate the parties to the appeal;
2. The judgment or final order or part thereof appealed from; and
3. State the material dates showing the timeliness of the appeal.
 A payment of the full amount of docket fees and other lawful fees.
 Within 15-days form the perfection of the appeal, the clerk of court
shall transmit the original record or record on appeal, together with
transcripts and exhibits, which he shall certify as complete, to the
proper RTC.
PERFECTION OF THE APPEAL
 A party’s appeal by notice of appeal is deemed perfected as to him
upon the filing of the notice of appeal in due time. A party’s appeal by
record on appeal is deemed perfected as to him with respect to the
subject matter thereof upon the approval of the record on appeal filed
in due time.
 The notice of appeal does not require the approval of the court. The
function of the notice of appeal is merely to notify the trial court hat
the appellant was availing of the right to appeal, and not to seek the
court’s permission that the be allowed to pose an appeal. The trial
court’s duty with respect to a timely notice of appeal is to transmit the
original record of the case to the appellate court.
DUTY OF THE CLERK OF COURT OF THE RTC
 Upon receipt of the complete record or the record on appeal, the clerk
of court of the RTC shall notify the parties of such fact.
SUBMISSION OF MEMORADUM
 Within 15-days form the notice, it shall be the duty of the appellant to
submit a memorandum, copy of which shall be furnished the appellee.
 For the appellant, the filing of a memorandum is vital to his appeal.
Failure to file shall be a ground of the dismissal of the appeal. The
memorandum shall briefly discuss the errors imputed to the lower
court. The appellee may, if he so desires, file his memorandum within
15-days from receipt of the appellant’s memorandum.
WHEN CASE IS DEEMED SUBMITTED FOR DECISIONS
 The case shall be considered submitted for decision upon the filing of
the memorandum of the appellee, or the expiration of the period to do
so.
BASIS OF THE DECISION
 The RTC shall decide the case on the basis of the entire record of the
proceedings had in the court of origin and such memoranda as are
filed.
APPEAL FROM AN ORDER DISMISSING A CASE FOR LAC OF
JURISDICTION
 A case may be dismissed in the MTC without trial on the merits. This
happens when a MD is filed and granted in accordance to R16. If an
appeal is taken from the dismissal by the MTC, the RTC may affirm or
reverse it.
 Under R40, the dismissal in the MTC is made on the ground of lack of
jurisdiction over the subject matter, and the RTC on appeal affirms the
dismissal, the action of the latter court, if it has jurisdiction, shall not
be confined to a mere affirmation of the dismissal if it has jurisdiction
over the subject matter. Instead, the rule requires the RTC to try the
case on the merits as if the case was originally filed with it.
 Under R40, if the case was tried on the merits by the lower courts
without jurisdiction over the subject matter, the RTC on appeal shall
not dismiss the case if it has original jurisdiction but shall rather decide
the case in accordance to the Rules. The court may, however admit,
amend the pleadings and additional evidence in the interest of justice.
 Pursuant to a MD or motu roprio for lack of jurisdiction the order of
dismissal is one without prejudice because of the plaintiff may refile
the complaint with the court with the proper jurisdiction. Under R41,
the order of dismissing an action without prejudice is not appealable.
Under R40 however states that the rule allows an appeal from an order
of the MTC dismissing a case for lack of jurisdiction. This serves as an
exception to R41.
APPEALS FROM THE RTC TO THE CA
MODES OF APPEAL FROM THE DECSIONS OF THE RTC
 There are 3 modes of appeal from the decision of the RTC, to wit:
a. AN ORDINARY APPEAL or an appeal by writ of error, where
judgment was rendered by the court in the exercise of its original
jurisdiction. This mode is governed by R41 and is taken to the
CA on questions of fact or mixed question of fact and law.
b. PETITION FOR REVIEW, where judgment was rendered by the
court in the exercise of its appellate jurisdiction. This mode is
covered by R42 and is brought to the CA on questions of fact,
questions of law or mixed question of fact and law.
c. PETITION FRO REVIEW ON CERTIORARI OR APPEAL BY
CERTIORARI TO THE SC. This mode is brought to the SC
from the decision of the RTC in the exercise of its original
jurisdiction and only on questions of law.
MODES OF APPEAL FROM THE RTC TO THE CA
 There are 2 modes of appeal from the RTC to the CA, to wit:
a. By ORDINARY APPEAL, where the appealed judgment was
rendered in a civil or criminal action by the RTC in exercise of its
original jurisdiction.
b. By PETITION FOR REVIEW, where the judgment was rendered
by the RTC in the exercise of its appellate jurisdiction.
MODE OF APPEAL FROM THE RTC TO THE SC
 APPEAL BY CERTIORARI OR PETITION FOR REVIEW ON
CERTIORARI UNDER R45. This is brought to the SC form the
decisions of the RTC in the exercise of its original jurisdiction and only
on questions of law.
APPLICATION OF R41 ON ORDINARLY APPEALS
 R41 apples to appeals from the judgment or final orders of the RTC in
the exercise of its original jurisdiction.
 If a litigant loses in the MTC and, on appeal, loses in the RTC, the
mode of appeal to the CA is by way of petition for review under R42.
This is because the decision of the RTC is on in the exercise of its
appellate jurisdiction.
WHEN TO APPEAL
 The appeal shall be taken within 15 days from notice of the judgment
or final order appealed from.
 Where record of appeal is required, the appellant shall file a notice of
appeal and a record on appeal within 30 days from notice of judgment
or final order.
 In habeas corpus cases, the appeal shall be taken within 48 hours’ form
notice of judgment or final order.
HOW TO APPEAL
 The appeal to the CA in cases decided by the RTC in the exercise of its
original jurisdiction shall be taken by:
1. Filing a notice of appeal with the court which rendered judgment
2. Serving a copy thereof to the adverse party
3. If a record of appeal is required, they may file a joint record on
appeal.
4. Pay the docket fee
5. The appeal is deemed perfected upon the filing of the notice of
appeal in due time. A party’s record on appeal is deemed perfect
as to him with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time.
6. Within 30 days after the perfection of the appeals, the clerk of
court shall verify its correctness and completeness. If incomplete,
to take such measures to complete it.
7. Upon receiving the original record on appeal an accompanying
documents transmitted by the lower court, as well as the proof of
payment of the docket and other lawful fess, the clerk of CA shall
docket the case and notify the parties.
8. Within 45 days from the receipt of the appellant’s brief, the
appellee shall file his own brief with proof of service to the
appellant.
9. Within 20-days from receipt of the appellee’s brief, the appellant
may file a brief answering the points in the appellee’s brief not
covered in his main brief.
10. Extension of time for the filing of the briefs will not be allowed,
except for goo and sufficient cause, and only if the motion for
extension is filed before the expiration of the time sought to be
extended.
11. In SCA, briefs are not filed. Instead, the parties shall file their
respective memoranda within a non-extendible period of 30 days
from receipt of notice issued by the clerk that all the evidences
are already attached to the record.

QUESTIONS THAT MAY BE RAISED ON APPEAL
 An appeal under R41 taken from the RTC to the CA raising only
questions for law shall be dismissed, issues purely of law not being
reviewable on the said court. An appeal by notice of appeal instead of
by petition for review from the appellate judgment of the RTC shall be
dismissed.
RESDIDUAL JURISDICTION
 The term refers to the authority of the trial court to issue orders for the
protection and preservation of the rights of the parties, which do not
involve any matter litigated the appeal, approve compromises, permit
appeals of indigent litigants, order execution pending appeal in
accordance with the Rules, and allow withdrawal of the appeal
provided these are done prior to the transmittal of the original record or
record on appeal, even if the appeals have already been perfected or
despite the approval of the record on appeal, or in case of a petition for
review before the CA gives due course to the petition.
 Residual jurisdiction is available at any stage in which the court is
normally deemed to have lost jurisdiction over the case or the subject
matter involved in the appeal. There is no residual jurisdiction to speak
of where no appeal or petition has been filed.
PETITION FOR REVIEW FROM THE RTC TO THE CA
APPLICATION OF RULE 42
 R42 applies to an appeal from the judgment or final order of the RTC
to the CA in cases decided by the former in the exercise of its appellate
jurisdiction.
 In case, a petition for certiorari was filed with the RTC which later
dismissed the same. From the dismissal, the petitioner filed a petition
for review with the CA. Ruling on the propriety of the remedy, the
Court emphatically declared that a petition for certiorari is an original
action and, as such, the RTC took cognizance of the petition in the
exercise of its original jurisdiction. Hence, the petitioner should have
filed a notice of appeal with the RTC, instead of a petition for review
with the CA. As a consequence of the failure of the petitioner to file a
notice of appeal with eh RTC, the judgment attained finality.
WHEN TO APPEAL
 The appeal shall be made within 15 days from notice of the decision
sought to be reviewed or of the denial of petitioner’s motion for new
trial or reconsideration filed in due time after judgment.
 The court may grant an additional 15-day period only provided the
extension is sought:
a. Upon proper motion; and
b. Payment of the full amount of docket fees and lawful fees
 No further extension shall be granted except for the most compelling
reasons and in no case to exceed 15-days.
HOW TO APPEAL
 The appeal is made by filing a verified petition for review with the CA.
 Payment of the docket fees and lawful fees.
 Appeal is perfected as to the petitioner upon the timely filing of a
petition for review and the payment of the corresponding docket and
other lawful fees
 Petition shall state a concise statement of the matters involve, the
issues raised, the specification of errors of law or fact, or both,
allegedly committed by the trial court and the reasons or arguments
relied upon for the allowance of the appeal. It shall indicate the
material dates known as the material date rule.
 A certification against forum shopping shall be attached.
 Failure to comply with the requirements is a ground for dismissal of
the petition.
 The CA may dismiss the petition if it finds the same to be patently
without merit. If the court does not dismiss the petition, it may require
the respondent to file a comment on the petition within 10 days from
notice.
 If the CA finds prima facie that the lower court has committed an error
of fact or law that will warrant a reversal or modification of the
appealed decisions, it may, accordingly, give due course to the petition.
If the petition is given due course, the CA may set the case for oral
argument or require the parties to submit a memorandum within the
period of 15 days from notice. The case shall be deemed submitted for
decision upon the filing of the last pleading or memorandum.
RESIDUAL JURISDICTION
 The doctrine of residual jurisdiction also applies to R42. In essence,
when the RTC loses jurisdiction over the case upon the perfection of
the appeal filed in due time, the RTC despite the loss of jurisdiction
may for protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with the Rules, and allow withdrawal of
the appeal provided these are done before the CA gives due course to
the petition.
STAY JUDGMENT
 Except in civil cases decided under the Rules on Summary Procedure,
the appeal, as a rule, shall stay the judgment or final order, unless the
CA, the law or the rules shall provide otherwise.
APPEAL BY CERTIORARI TO THE SC
APPLICATION OF RULE 45
 Appeal by certiorari to the SC via rule 45 applies in the following
cases:
a. Appeal from a judgment or final order of the RTC in cases where
only questions of law are raised or are involved, and the case is
one decided by the said court in the exercise of its original
jurisdiction.
This applies only when the decisions of the RTC is in exercise of its original
jurisdiction because when the decision is rendered by the RTC in the exercise of
its appellate jurisdiction, regardless of whether the appellant raises questions of
fact, question of law or mixed questions of fact an law, the appeal shall be brought
to the CA by filing a petition for review under R42.
b. Appeals from the judgment, final order, or resolutions of the CA
where the petition shall raise only questions of law distinctly set
forth. The filing of a petition for certiorari under R65 from the
judgment of the CA is availing of an improper remedy. The
petition would merit an outright dismissal.
c. Appeal from the judgment, final order, or resolution of the
Sandiganbayan where the petition shall raise only questions of
law distinctly set forth.
d. Appeal from the decision or ruling of the CTA end banc.
e. Appeals from a judgment or final order in a petition for a writ of
amparo to the SC. While in other cases of appeal under R45, only
questions of law may be raised, here the question raised need not
only be questions of law but also questions of fact, or both law
and fact.
f. Appeals from a judgment or final order in a petition for a writ of
habeas data. The appeal may raise question of fact or law or both.
 The mode of appeal prescribed under R45 shall be applicable to both
civil and criminal cases, where the penalty imposed is death, reclusion
perpetua or life imprisonment.
PROVISIONAL REMEDIES
 Under the Rules, the petition for review on certiorari may include an
application for a writ of preliminary injunction or other provisional
remedies.
NOT A MATTER OF RIGHT
 An appeal or review under R45 is not a matter of right, but of sound
discretion of the court, and will be granted only when special reasons
could justify the petition.
 Every appeal to the SC is not a matter of right, but of sound judicial
discretion with the exception of cases where death penalty or reclusion
Perpetua is imposed
QUESTIONS OF LAW; QUESTIONS OF FACT
 In a petition under R45, the petition filed shall raise only questions of
law, which must be distinctly set forth.
 It is fundamental that a petition for review on certiorari filed with the
Court under R45 shall raise only questions of law and that the court is
not duty-bound to analyze again and weigh the evidence introduced
and considered by the tribunals below.
 A question of law arises when there is doubt as to what the law is on a
certain stat of facts, while there is a question of fact when the doubt
arises as to the truth or the falsity of the alleged facts.
 For question to be one of law, the same must not involve an
examination of probative value of the evidences presented by the
parties.
  Question of law is when the doubt or controversy concerns the correct APPEAL FROM JDUGMENT IN PETITION FRO A WRIT OF AMAPARO OR
application of law or jurisprudence to a certain set of facts. WRIT OF HABEAS DATA; WRIT OF KALIKASAN
 The is question of fact when the doubt or difference arises as to the  Any party in a petition for a writ of amparo, may appeal from the final
truth or falsehood of facts. order or judgment of the court to the SC under R45. Although R45
 The test whether a question of law or of fact is not the appellation mandates raising only questions of law, an appeal from a judgment in a
given to the question by the party raising the same; rather, it is whether petition for a writ of amparo by way of exception to the GR under R45,
the appellate court can determine the issue raised without reviewing or may raise not only question of law but also question of facts, or both.
evaluating the evidence, in which case, it is a question of law;  An appeal from a judgment in a petition for writ of habeas data may be
otherwise, it is a question of fact. appealed to the SC under R45. Said appeal may, likewise, raise
question of fact or law or both.
FINDINGS OF FACTS, NOT ORDINARILY REVIEWED; FACTUAL-ISSUE-  An appeal to the SC under R45 in a petition for a writ of kalikasan may
BAR RULE raise question of fact.
 The SC is not a trier of facts and, unless there are excepting
circumstances, it does not routinely undertake the re-examination of CERTIORARI UNDER R45 IS NOT THE CERTIORARI UNDER R65
the evidence presented by the contending parties during the trial of the  The following are the distinction of R45 and R65:
case. a. ---
 Jurisdiction of the SC in cases brought before it from the CA is limited b. ---
only to reviewing and revising the errors of law imputed to it, its c. ---
findings of fact being conclusive. Findings of fact of the CA, when d. ---
supported by substantial evidence, are conclusive and binding on the e. ---
parties and are not reviewable by the court. This is referred to as the f. ---
Factual-issue-bar rule. g. ---
 The jurisdiction of the Court over appealed cases form the CA is
limited to the review and revision of errors of law allegedly committed WHEN A R65 PETITION IS TREATED AS A R45 PETITION
by the appellate court, as its findings of fact are deemed conclusive.  The rule is that the filing of a special civil action for certiorari under
The court is not duty-bound to analyze and weigh all over again the R65, when the proper remedy should be R45 merits the outright
evidence already considered in the proceedings in the lower court. dismissal of the case.
Except when the findings of fact of the CA are contrary to the findings  However, in some occasions the Court has treated the filing of R65 as
and conclusions of the trial court. R45 when:
a. the petition has been filed within the 15-day reglementary period;
REVIEW IS ONLY OF ERRORS OF THE APPELLATE COURT b. public welfare and the advancement of public policy dictates such
 Where a case was appealed to the CA, the decision of which was treatment; the broader interests of justice require such treatment;
subsequently appealed to the SC, it is only the errors of the CA which the writs issued were null and void; or
is reviewed by the SC in a petition for review on certiorari, and not c. the questioned decision or order amounts to an oppressive
those of the trial court, quasi-judicial agency, tribunal or officer which exercise of judicial authority.
rendered the decision in the first instance. To do so would convert the
SC into a trier of facts. WHEN TO APPEAL
 the appeal shall be in the form of a verified petition
REFERAL TO THE CA  filed within 15-days from notice of judgment or within 15-days from
 If a R45 appeal, which raises a question of fact, s taken to the SC form the notice of the denial of the MNT or MR filed in due time.
the RTC, the appeal may be denied by the court on its own initiative  The SC for justifiable reasons may grant an extension of 30-days only
because the SC may entertain only questions of law in a petition for within which to file the petition provided:
review on certiorari. a. There is a motion for extension filed and served;
 The court may refer the appeal to the CA. An appeal by certiorari taken b. There is full payment of docket and lawful fees
to the SC from the RTC submitting issues of fact may be referred to the c. The motion is served and payment is made before the
CA for decisions or appropriate action. The determination of the SC on reglementary period.
whether or not issues of fact are involved shall be final.
HOW TO APPEAL
WHEN QUESTIONS OF FACT MAY BE PASSED UPON IN A R45 PETITION  An appeal by virtue of R45 shall be made through the following:
 GR: the SC cannot pass upon, in a petition for review on certiorari a. A verified petition is filed
factual findings of a lower court since it is jurisdiction is limited to b. Payment of docket fee and lawful fees and the deposit amount.
reviewing errors of law. Factual findings of the trial court, affirmed by c. Proof of service of a copy of the petition on the lower court
the CA, are final and conclusive an may not be reviewed on appeal. concerned and the adverse party shall be submitted together with
 The rule proscribing the raising of question of fact is not absolute. the petition.
Questions of fact may be raised on appeal via R45 provided the d. The petition shall contain all matters mention in R45 S4
petition shows any, some or all of the following: including the compliance with the material data rule.
a. The conclusion of the CA is grounded entirely on speculations, e. Certification against non-forum shopping.
surmises and conjectures;  The failure of the petitioner to comply with the requirements is a
b. The inference made is manifestly mistaken, absurd or impossible ground for dismissal.
c. There is a grave abuse of discretion;  The court on its own initiative may deny the petition on the ground
d. The judgment is based on misapprehension of facts; that:
e. The findings of facts are conflicting; a. The appeal lacks merit;
f. The CA, in making its findings, went beyond the issues of the b. The appeal is prosecuted for delay; or
case and the same is contrary to the admissions of both appellant c. The question raised are too unsubstantial to require consideration.
and appellee;
g. The findings of the CA are contrary to those of the trial court; OTHER APPEAL/ REVIEWS
h. The findings of fact are conclusions without citation of specific
evidence on which they are based; APPEALS FROM QUASI-JUDICIAL BODIES
i. The facts set forth in the petition, as well as in the petitioner’s  Appeals from quasi-judicial bodies are now required by the Rules to be
main and reply briefs, are not disputed by the respondents; or brought to the CA under the requirements and conditions set forth in
j. the findings of fact of the CA are premised on the supposed R43.
absence of evidence on record  The appeal under R43 may be taken to the CA whether the appeal
k. when the findings of facts of the court below are conflicts as involves question of fact, a question of law or both. The appeal shall be
when the findings of the CA are contrary to those of the trial taken by filing a verified petition for review with the CA within 15-
court. days form notice.
  The appeal shall not stay the award, judgment, final order or resolution
sought to be reviewed, unless the CA shall direct otherwise upon such
terms as it may deem just.
REVIEWS OF DECISIONS OF THE NLRC
 The remedy of a party aggrieved by the decision of the NRLC is to
promptly move for reconsideration of the decision, and if denied, to
timely file a special civil action for certiorari under R65 within 60
days’ form notice of the decision. In the observance of the doctrine of
hierarchy of courts, the petition shall be filed to the CA. From the CA,
the remedy of the aggrieved party is an appeal vial petition for review
on certiorari to the SC.
REVIEW OF DECISOINS OF VOLUNTARY ARBITARATORS IN LABOR
CASES
 Review of voluntary arbitrators do not come within the ambit or R43
S2 which stats that R43 is not applicable to judgment and final orders
issued under the Labor Code of the Philippines. Hence, a petition for
review under R43 is a proper remedy just like those of quasi-judicial
agencies.
APPEALS FROM THE SANDIGANBAYAN
 Decisions and final orders from the Sandiganbayan shall be appealed to
the SC by way of certiorari under R45 raising pure questions of law.
Certiorari under R65 is not the remedy because the SB is in the same
level of the CA.
REVIEW OF THE RULINGS OF THE OMBUDSMAN
 In administrative disciplinary cases, the rulings of the Office of the
Ombudsman are appealable to the CA. A direct appeal to the SC was
declared invalid because the statute, being one, which increased the
appellate jurisdiction of the SC, was enacted without the advice and
concurrence of the Court. Under the Constitution, no law shall be
passed increasing the appellate jurisdiction of the SC as provided in the
Constitution without its advice and concurrence. Instead, appeals from
decisions of the Ombudsman in administrative disciplinary actions
should be brought to the CA under R43.
 In cases where it is alleged that the Ombudsman acted with grave
abuse of discretion amounting to lack or in excess of jurisdiction, a
SCA for certiorari under R65 may be filed with the SC to set aside the
decision of the ombudsman.
APPEALABLE DECISIONS OF THE OMBUDSMAN ARE NOT STAYED BY
INJUNCTION
 The decision of the Ombudsman is immediately executory and may not
be stayed by the filing of an appeal or the issuance of an injunctive
writ.
APPEALS FROM JUDGMENTS OF THE CTA
 No civil proceeding involving matters arising under the NIRC, the
tariff code and customs code, or the LGC shall be maintained, except
as provided, until and unless an appeal has been previously filed with
the CTA and disposed in accordance with the provisions of the law.
 A party adversely affected by a resolution of a division of the CTA on
a MR or MNT may file a petition for review with the CTA en banc.
REVIEW OF JUDGMENTS OF THE COMELEC
 A judgment by the COMELE may be brought by the aggrieved party to
the SC under R65 by filing the petition within 30 days from notice.
 The review by the SC is limited only to the jurisdictional issue of
whether the COMELEC acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of
jurisdiction.
REVIEW OF JUDGMENTS OF THE COA
 A judgment by the COA may be brought by the aggrieved party to the
SC on certiorari under R65 by filing the petition within 30 days from
notice.
APPEALS FROM JUDGMENTS OF THE CSC
 A judgment of the CSC may be taken to the CA under R43. The appeal
shall be taken within15 days from notice.
APPEALS FROM JUDGMENTS OF THE OFFICE OF THE PRESIDENT
 The judgment of the office of the President may be taken to the CA
under R43.
REVIEW OF THE SECRETARY OF THE RESOLUTION OF THE
SECRETARY OF JUSTICE
 The CA is clothed with jurisdiction to review the resolution issued by
the Secretary of the DOJ through a petition for certiorari under R65 of
the ROC, solely on the ground of grave abuse of discretion amounting
to lack of jurisdiction.
MODE OF APPEAL TO THE SC
 An appeal to the SC may be taken only by a petition for review on
certiorari, except in criminal cases where the penalty imposed is death,
RP or life imprisonment or via R65.
REMEDIES AFTER A JUDGMENT HAS BECOME FINAL AND
EXECUTORY
 The following remedies for aggrieved parties against a judgment that is
already final and executory:
a. Petition for relief from judgment
b. Petition for annulment of a judgment
c. Direct action for certiorari under R65
d. A collateral attack of a judgment that is void on its face.
PETIOIN FOR RELEIF FROM JUDGMENT ORDERS OR OTHER
PROCEEDINGS
NATURE OF THE PETITION
 It is a legal remedy where a party seeks to set aside a judgment
rendered against him by a court whenever he was unjustly deprived of
a hearing or was prevented from taking an appeal because of FAME.
GROUNDS FOR PETITION FOR RELIEF
 A petition for relief may be filed on the following grounds:
a. When a judgment or final order is entered through FAME
b. When the petitioner has been prevented from taking an appeal
due to FAME
 Petition for relief from judgment or final order should be filed and
resolved by the court in the same case from which the petition arose.
EXTRINSIC FRAUD; CONCEPT
 The fraud that is a ground for a petition for relief is extrinsic fraud.
 Extrinsic fraud refers to that fraud which the prevailing party caused to
prevent the losing party from being heard on his action or defense.
Such fraud concerns not the judgment itself but the manner in which it
was obtained.
 Extrinsic fraud also justifies the MNT and a motion to set aside
judgment an order of default, and an action for annulment of a
judgment.
PETITION IS AVAILABLE ONLY TO THE PARTIES
 A petition for relief from judgment, together with a MNT and MR, are
remedies available only to parties of the proceedings where the assailed
judgment is rendered,
 It has been held that a person, who was never a party to the case, or
even summoned to appear therein, cannot avail of a petition for relief
from judgment.
PETITION IS AVAILABLE TO PROCEEDINGS AFTER THE JUDGMENT
 A petition for relief is available not only against a judgment or final
order. Under the ROC, it is also available when “any other proceedings
is thereafter taken against a party in the court through FAME.”
 It has been held by the SC, that a petition for relief is also applicable to
a proceeding taken after the entry of judgment or final order such as an
order of execution. R38 does not refer only to judgments but also
orders, or any other proceedings.
WHEN TO FILE
 The petition shall be filed within 60 days after the petitioner learns of
the judgment and not more than 6 months after the judgment was
entered or such proceeding was take.
 Thus it has been cleared by jurisprudence that a petition for relief from
judgment must be filed within the following instances:
a. Within 6 months from entry of judgment, order or other
proceedings
b. Within 60 days from knowledge of the judgment, order or
proceedings.
 The periods mandated by the ROC is not extendable.
FORM OF THE PETITION; AFFIDAVIT OF MERIT
  The petition must be verified and accompanied with affidavits showing
FAME
 The petition must state the facts constituting the petitioners good and
substantial cause of action or defense, as the case may be.
ORDER TO ANSWER
 If the petition is sufficient in form and substance to justify relief, the
court shall then issue an order requiring the adverse parties to answer
the same within 15 days from the receipt thereof.
HEARING OF THE PETITION
 After filing of the answer or expiration of the period to file the answer,
the court shall hear the petition.
ACTION OF THE COURT
 After hearing and the court finds that the allegations are not true, it
shall dismiss the petition.
 If the allegations are true, it shall set aside the judgment, final order, or
proceedings complained of. The case shall stand as if the judgment,
final order or proceedings had never been rendered.
The court shall then proceed to hear and determine the case as if a timely MNT or
MR had been granted by it. This action of the court applies only to petition for
relief praying that the judgment, final order or a petition for relief praying that the
judgment, final order or proceeding be set aside having been entered or taken
against petitioner by FAME.
 Where the prayer of petitioner is to give due course to his appeal
because he was prevented from taking an appeal through FAME, and
the courts finds the allegations of the petition to be true, the court shall
set aside the previous denial of the appeal and shall give due course to
the said appeal. It shall elevate the records of the appealed case as if a
timely and proper appeal had been made.
PRELIMINARY INJUNCTION PENDING THE PETITION FOR RELIEF
 A petition for relief is a remedy available after the judgment or final
order has become final or executory. Hence, the judgment could be
subject of a writ of execution.
 The petitioner may avail of the remedy allowed for him under the
ROC. Under the ROC, the court in which the petition is filed, may
grant a preliminary injunction to preserve the rights of the parties upon
the filing of a bond in favor of the adverse party. The bond is
conditioned upon the payment to the adverse party of all damages and
costs that may be awarded by reasons of the issuance of the injunction
or the other proceedings following the petition.
NO PETITION FOR RELIEF IN THE SC AND THE CA
 It was held that a petition for relief is not available in the SC and the
CA because the petition for relief is not included in the list of cases
originally cognizable by these courts.
NO PETITION FOR RELIEF IN SUMMARRY PROCEDURE, SMALL
CLAIMS AND ENVIRONMENTAL CASES
 A petition for relief from judgment in forcible entry and unlawful
detainer cases is a prohibited pleading.
 The petition for relief is not allowed in small claims cases.
 A petition for relief from judgment is allowed in environmental cases
in highly meritorious cases or to prevent a manifest of miscarriage of
justice.
ANNULEMT OF JUDGMENT, FINAL ORDERS OR RESOLUTIONS
NATURE OF THE ACTION
 An action for annulment of judgment is a remedy in law independent
of the case where the judgment sought to be annulled was rendered.
 The purpose of annulment of judgment is to have the final and
executory judgment set aside to that there will be a renewal of
litigation.
 It is resorted to in cases where the ordinary remedies of MNT, appeal,
and petition for relief from judgment, or other appropriate remedies are
no longer available through the fault of the petitioner.
 This remedy is an exception to the final judgment rule.
 The remedy may not be invoked where the party has availed himself of
the remedy of MNT, appeal, petition for relief from judgment or other
appropriate remedy and lost, or where he has failed to avail himself of
those remedies through his own fault.
 Under jurisprudence, a petition for annulment of judgment is a remedy
granted only under exceptional circumstances where a party, without
fault on his part, has failed to vail of the ordinary or other appropriate
remedies provided by law. The action is never resorted to as a
substitute for a party’s own negligence in not promptly filing of the
ordinary or other remedies. Before a party can avail annulment of
judgment, it is a condition sine qua non that one must have failed to
move for new trial, appeal or file a petition for relief against the
issuance or take other appropriate remedies thereon, through no fault
attributable to him.
 It is settled by the Supreme Court that the remedy of petition to annul
judgment cannot be invoked where the party has availed himself of the
remedy of new trial, appeal, petition for relief or other appropriate
remedy and lost, or where he has failed to avail these remedies due to
his negligence.
 The action is commenced by filing of a verified petition with the
proper court. The petition shall be filed on the appellate courts of the
court where the case originated.
GROUNDS FOR ANNULMENT
 The grounds for annulment of judgment are as follows:
a. Extrinsic fraud
b. Lack of jurisdiction
EXTRINSIC FRAUD
 An action to annul a judgment on the ground of fraud lies only if the
extrinsic or collateral in character. Fraud is regarded as extrinsic where
it prevents a party from having a trial or from presenting his entire case
to the court, or where it operates upon matters pertaining not to the
judgment itself but to the manner in which it is procured. The
overriding consideration when fraud is alleged is that the fraudulent
scheme of the prevailing litigant prevented a party from having his day
in court.
This kind of fraud prevents the aggrieved party from having a trial or presenting
his case to the court or is used to procure the judgment without fair submission of
the controversy, as when there is a false promise of a compromise or when one is
kept ignorant of the suit.
 Extrinsic fraud shall not be a valid ground if it was availed of, or could
have been availed of, in a MNT or petition for relief.
 Extrinsic fraud exists when there is a fraudulent act committed by the
prevailing party outside of the trial of the case, whereby the defeated
party was prevented from presenting fully his side of the case by
deception practiced on him by the prevailing party.
FORGERY OR PURJERY
 The use of forged instruments or perjured testimonies during trial is
NOT extrinsic fraud because the evidence obtained does not preclude a
party from participating in the trial.
 Offering a manufacture document is intrinsic and not extrinsic fraud.
Intrinsic fraud is not sufficient to annul a judgment.
LACK OF JURISDICTION
 Lack of jurisdiction, as a ground of annulment of judgment, refers to
either lack of jurisdiction over the person of the defending party or lack
of jurisdiction over the subject matter of the claim.
 The petitioner must show not a mere grave of abuse of discretion but
an absolute lack of jurisdiction because the concept of lack of
jurisdiction to annul a judgment does not embrace abuse of discretion.
 Petitioner must show an absolute lack of authority on the part of the
court to hear and decide the case.
PERIOD OF FILING THE ACTION
 If based on extrinsic fraud, the action must be filed within 4 years from
its discovery.
 If based on lack of jurisdiction, the action must be brought before the
action is barred by laches or estoppel.
WHO MAY FILE THE ACTION
 The petitioner does not need to be a party to the judgment sought to be
annulled to acquire personality to file the action for annulment of
judgment. What is essential is that the petitioner is one who can prove
his allegation that the judgment was obtained by the use of fraud and
collusion, and that he was affected.
 An action for annulment can be field by one who was not a party to the
action in which the assailed judgment was rendered. It is a remedy in
law independent of the case where the judgment sought to be annulled
is promulgated.
BASIC PROCEDURE  The purpose of certiorari is to correct errors of jurisdiction only or
 A petition for annulment of judgment filed with the CA shall observe grave abuse of discretion amounting to lack or in excess of jurisdiction.
the procedure in ordinary civil cases. Should the CA find a trial It is restricted to resolving errors of jurisdiction not errors of judgment.
necessary, the reception of evidence may be referred to a member of 
the court or the judge of the RTC.
 A petition filed with the RTC shall also be treated as an ordinary civil
action.
 Under Summary procedure, where the court is clearly authorized to
dismiss a complaint outright even before summons is served, an
outright dismissal is not the usual procedure in ordinary civil actions.

In ordinary civil actions, the clerk of court first issues the corresponding summons
to the defendant upon filing of the complaint and the payment of the required legal
fees. The defendant may, then, file a MD under R16 or the court may make a motu
proprio dismissal on certain grounds.
 An action for annulment of a judgment, although treated as an ordinary
civil action, departs form the usual norm because the court, upon the
filing of the petition, may make an outright dismissal of the petition as
long as it has specific reason for its dismissal. The dismissal may be
made even before the summons is served. It is only when the court
finds a prima facie merit on the petition shall summons be served on
the respondents.

EFFECT OF A JUDGMENT OF ANNULMENT

 A judgment of annulment based on lack of jurisdiction shall have the
effect of setting aside the questioned judgment or final order and
rendering the same as null and void, but the judgment of annulment
without prejudice to the refiling of the original action in the proper
court.
 The period for the refiling of the original action shall be deemed
suspended from the filing of the original action until the finality of
judgment of annulment. This prescriptive period shall not, however, be
suspended where the extrinsic fraud is attributable to the plaintiff in the
original action.
 Where the judgment or final order is set aside and annulled on the
ground of extrinsic fraud, the court, upon motion, may order the trial
court to try the case as if a motion for new trial was granted.
 Aside from setting aside the judgment, judgment of annulment may
include the award of damage, attorney’s fees and other relief

REMEDY WHEN THE QUESTIONED JUDGMENT HAS ALREADY BEEN

EXECUTED
 If the questioned judgment has already been executed, the court may
issue an order of restitution or other relief as justice and equity may
warrant under the circumstances.

APPLICATION OF R47; ANNULMEMT OF JUDGMENT OF THE MTC

 R47 governs the annulment by the CA of judgments or final orders
issued by the RTC.

ANNULMENT OF JUDGMENTS OF QUASI-JUDICIAL BODIES

 It was decided by the SC that annulment of judgment covers annulment
of the judgments of the RTC by the CA. BP129 is silent as to the
jurisdiction of the CA to annul judgments made by quasi-judicial
bodies. Thus, a party who desires to annul the judgment rendered by
quasi-judicial bodies shall avail the remedy of petition for review to the
CA under R43.

CERTIORARI

NATURE OF THE REMEDY

 A petition for certiorari is an original and independent action, and is
not part of the proceedings that resulted in the order assailed.
 The petition shall not interrupt the course of the principal case, unless a
temporary restraining order or a writ or preliminary injunction has been
issued, enjoining the public respondent from further proceeding with
the case.
 The public respondent in a petition for certiorari, shall proceed with the
principal case within 10 days from filing of the petition with a higher
court or tribunal, absent a temporary restraining order or a preliminary
injunction, or upon its expiration.
 Failure of the public respondent to proceed with the principal case may
be a ground for an administrative charge.
 It is not a mode of appeal unlike R45, because it is an original and
independent action, the judgment in the petition is correctible by an
appeal, not by another petition for certiorari.