Civil Procedure Memory Aid Atty.

Tranquil Salvador

 
Filing Fees § NLRC
• Docket Fees to be paid § CSC
1. Real Action: depends on fair market value § RTC
a. Stated in current tax declaration, or o Concurrent with RTC and SC (remember rule on
b. Current zonal valuation of BIR, or hierarchy of courts)
c. If none, stated value of property § Habeas Corpus
2. Involving actions incapable of pecuniary estimation: flat rate § Habeas Data
• Computation includes: § Writ of Amparo
1. Interest § Quo warranto
2. Penalties § Certiorari
3. Surcharges § Mandamus
4. Damages of whatever kind § Prohibition versus lower courts
5. Attorney’s fees o Appellate
6. Court Expenses § Over RTC, original
• Exceptions to rule that docket fees must be paid when you file the • If fact or fact and law – ordinary
complaint notice of appeal
1. Damages arose after filing (will serve as lien on judgment) • If law only – go straight to SC!
2. Complaint is amended and new damages are alleged (pay § RTC, appellate over MTC
additional within prescriptive period or reglementary period) • Petition for review, even if pure
3. Clerk makes a wrong assessment (pay full amount within questions of law
period) § Quasi-judicial agencies
• Petition for review even if pure
Jurisdiction questions of law
• Jurisdiction – power of the court to hear, try or decide case as • Supreme Court
conferred by law o Original and exclusive
• How it is acquired: § Petitions for writ of certiorari, prohibition and
1. Over the case – complaint + pay filing fees mandamus against:
2. Over the subject matter – conferred by law, power to try and • CA
decide a case • COMELEC
3. Over the person – arrest or voluntary surrender • CoA
• MTC • SB
1. Opposite of RTC • CTA
2. Ejectment/unlawful detainer (Rule 70) § Declaratory Relief – only when question of
• RTC constitutionality
1. Amount incapable of pecuniary estimation o Concurrent with CA
2. Civil actions involving real property or interest therein where § Petitions for writ of certiorari, prohibition and
assessed value of the property involved: mandamus against:
a. If in Metro Manila – exceeds P50,000 • NLRC
b. Elsewhere – exceeds P20,000 • CSC
c. Except (jurisdiction conferred to MTC): • RTC
i. Actions for forcible entry o Concurrent with RTC and CA
ii. Unlawful detainer § Habeas Corpus
d. Assessed value = worth or value of property § Habeas Data
established by taxing authorities on basis of which § Writ of Amparo
tax rate is applied § Quo warranto
3. Admiralty and maritime jurisdiction where claim: § Certiorari
a. If in Manila – exceeds P400,000 § Mandamus
b. Elsewhere – exceed P300,000 § Prohibition versus lower courts
4. Probate, both testate and intestate where gross value of o Concurrent with RTC
estate: § Cases affecting ambassadors
a. Manila – exceeds P400,000 o Concurrent with IBP
b. Elsewhere – exceeds P300,000 § Cases against members of Bar
5. Involving contract of marriage and marital relations o Appellate over:
6. All cases not within exclusive jurisdiction of any court, § RTC, original
tribunal, person or body exercising jurisdiction of any court, • Pure questions of law – Petition for
tribunal, person or body exercising judicial or quasi-judicial review on certiorari (Rule 45)
functions (general jurisdiction) § CA
7. Other cases which demand:
• SB
a. Manila – exceeds P400,000
• CTA en banc
b. Elsewhere – exceeds P300,000
c. Exclusive of • CoA
i. Interest, • Comelec
ii. Damages of whatever kind,
iii. Attorney’s fees, Small Claims
iv. Litigation expenses and • Small Claims – cases involve cases with amounts (money claims)
v. Cost or value of property in controversy NOT EXCEEDING P100,000
d. Those under the Securities Regulation Code o Exclusive of interests and costs
• Court of Appeal (BP 129, also in Rule 46) • Filed in the MTC
o Original and Exclusive – annul judgments of RTC • Court can dismiss outright, otherwise issue summons and notice
based on: of hearing to defendant
§ Extrinsic fraud, or o 10 days to make verified response = cannot be
§ Lack of jurisdiction extended
o Concurrent with SC – issuance of writs of certiorari, o Fails to respond, court can render judgment based on
prohibition and madamus against: statement of claim
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Civil Procedure Memory Aid Atty. Tranquil Salvador
 

 
• Counterclaims allowed so long as not exceeding P100K o Subject to following conditions:
• Prohibited from filing Rule 65 Certiorari 1. Comply with rules on joinder of parties
• Lawyers can’t appear in the hearing a. If between two parties, no need for this
• If party absent from hearing: rule
o Plaintiff absent – dismiss, defendant allowed for b. If multiple defendants, applies.
permissive counterclaim Conditions:
o Defendant – as if no filed response i. Arises from same or series of
o Both – dismiss both claim and counterclaim transactions, and
• Postponement allowed provided: ii. Involves common question of
a) Only once per party and law
b) Proof of physical disability to appear in court 2. Shall not include special civil actions or actions
• Decision governed by special rules
o Rendered on the same day. 3. Where CoA is between same parties but pertain to
o Final and unappealable different venues of jurisdiction
o If decision is in favor of plaintiff, execution shall issue a. Allowed in the RTC, provided one of the
upon motion causes falls withint jurisdiction of said
court and venue lies therein
RULE 1 4. Where claims in all are principally for recovery of
• Action – formal demand of one’s legal rights in a court of justice in money, aggregate amount claimed shall be the
manner prescribed by court or by law test of jurisdiction
• Civil Action –party sues another for enforcement or protection of a • Misjoinder
right, or redress of a wrong o Not a ground for dismissal of principal action
o Ordinary, or o Cause of action may be dropped either:
o Special – specific rules prescribed § Motu propio, or
§ Upon motion by defendant
• Criminal Action – Information filed in court
o If no one objects, will be valid
• Special Proceeding – application or proceeding to establish:
a) Status of a party, or
RULE 3 Parties to Civil Actions
b) Right of a party, or rd
• Plaintiff – claiming party, counter-claimant, cross-claimant, or 3
c) Particular fact
party plaintiff
• Except by analogy or supplementary, rules won’t apply to:
• Defendant – against whom the claim is asserted
o Election cases
o Land registration • Who may be parties
o Cadastral 1. Natural persons
o Natural and 2. Juridical persons
o Insolvency proceedings 3. Duly incorporated and registered SEC
4. Entities authorized by law
• Action Commence – upon filing of complaint in court
o Interrupts prescription period • States can’t be sued: unless:
o If additional defendant, upon date of filing amended 1. There’s express consent
complaint impleading defendant 2. Implied consent
• In order to vest jurisdiction • Parties in Interest – stands to be benefited or injured by the
a) File complaint judgment in the suit, or is entitled to the avails of the suit (actual
b) Pay the docket fees interest)
o Concept only applies to private suits
• Rules to be liberally construed
o For public suits, legal standing/locus standii
o Remedy for impleading the wrong party: Motion to
RULE 2 Cause of Action
Dismiss, Pleading states no cause of action as a
• Cause of Action – act or omission by which a party violates a right
ground
of another
o If PiI changes after action is commenced, original
• Elements of Cause of Action
plaintiff becomes the representative of transferee of the
1. Legal right of plaintiff interest
2. Correlative obligation of defendant
• Representatives as parties
3. Act or omission of defendant in violation of plaintiff’s said
o Beneficiary should be included in the title of case and
right
deemed to be the real party in interest
• CoA must exist at time complaint is filed; can’t be cured by § If not included, defect can be cured by simply
amendment or supplemental pleading requiring the rep to disclose the names of the
• One cause of action = one suit principals and amend the title and averments
• Splitting a single cause of action – 2 or more suits instituted on o Representative may be:
same CoA 1. Trustee of an express trust
o Not allowed 2. Guardian
o Filing of one, or judgment upon merits in any one is a 3. Executor or administrator
ground for dismissal of the others 4. Party authorized by law or these rules
o Purpose – prevent repeated litigation Agent acting in his own name and for benefit of
o Applies to all claims undisclosed principal may be sued/sue, except when
o Can be set up by means of contract involves things belonging to principal
§ Motion to dismiss, or • Spouses shall sue or be sued jointly, except:
§ An affirmative defense in the answer 1. Suit of one against the other
§ Grounds: 2. Based on a crime/delict
• Res Judicata, or 3. Judicial separation of property
• Litis Pendencia 4. Abandonment
o Can’t consolidate – one or both will be dismissed for 5. Exclusive property of spouses
forum shopping 6. Suits involving the practice of one’s profession
• Joinder of causes of actions – in one pleading, assert, in • Minors require assistance of father, mother guardian, or a
alternative or otherwise, as many cause of action as he may have guardian ad litem
against opposing party. Permissive, not mandatory. • Permissive joinder of parties
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Civil Procedure Memory Aid Atty. Tranquil Salvador

 
o Requisites • Death or separation of party who is a public officer
1. Claim arises from same or series of transactions o Requisites
2. Common questions of law or fact in action 1. Removal/death of public officer and
3. Read with joinder of causes of action appointment of successor within 30 days
• Indispensible party – party in interest without whom no final unless otherwise provided
determination can be had. Without them, there will be no 2. Successor adopts, continues, or threatens to
resolution, void judgment continue the action sued against
• Necessary party – party in interest who is not indispensible but 3. Substantial need to continue the action
who ought to be joined: o Substitution not automatic. Court must:
o If complete relief is to be accorded as to those already 1. Give notice to new public officer, and
parties, or 2. Give opportunity to be heard
o For a complete determination or settlement of the claim • Incompetency or incapacity
subject of the action o Court, upon motion with notice
• Effect of failure to implead o Ask court to continue and for client to be assisted
o If necessary party by guardian
§ General rule: failure to implead not prejudicial • Transfer of interest – may be continued by or against original
§ No waiver, unless there is an order to party (becomes trustee for transferee)
implead from the court and still did not o Unless, upon motion, court orders transferee be
o If indispensible party impleaded
§ Court should order that the indispensible o No substitution, just joined
party be impleaded o Can only substitute if court orders it
§ If despite order, did not comply = case will be o Transferee pendente lite is a proper party but not
dismissed on ground of failure to comply with indispensible
order of the court (with prejudice) • Action on contractual money claims
§ If court didn’t notice non-joinder = void o Applies when:
judgment § Money claim, and
• Neither misjoinder nor non-joinder of parties is a ground for § Defendant dies
dismissal of an action o No substitution
o Parties may be added or dropped either on motion o Once final judgment entered, enforced as claim
motu propio without need to prove
• Class suit (exception to joinder of indispensible parties) • Indigent party
o Requisites o Under Rule 141 Sec 9 (if fits, mandatory!)
1. Subject matter is one of common or general § Gross income + family income = does
interest to many persons not exceed 2x monthly minimum wage,
2. Interested persons are so numerous that its and
impracticable to join them all as parties § Owns real property whose FMV = less
3. Parties bringing the suit are sufficiently numerous than or equal to P300k
or representative of the class and can fully protect o Under Rule 3, Sec 21 Indigency Test
the interests of all concerned (adequate (discretionary)
representation) § Party who has no money or property
• Derivative suit – instituted by an individual stockholder on behalf sufficient and available for himself and
of the corporation in order to protect or vindicate corporate rights. for his family for
o If individual, requires a special power of attorney • Food
• If entity without juridical personality as defendant • Shelter
o Service of summons to one, service to all • Basic necessities
o Can be sued but can’t sue as an entity, must file as § As stated in current tax declaration
individuals o Benefits:
o Answer must reveal names and addresses of the § Stenographic notes: free
persons composing it § Filing fees: no need to pay, but lien on
• In case of death of either party judgment
o Duty of lawyer: duty of counsel to inform court within • Court, in its discretion may require appearance of Solicitor
30 days after fact of death, and give name and address General in actions involving validity of any
of legal representative o Treaty,
§ Failure = ground for disciplinary action o Law,
§ Duty only to name, not appoint o Ordinance,
o Duty of court: order legal rep to appear and substituted o Executive order,
within 30 days from notice. o Presidential decree
§ If no legal rep named or fails to appear, may o Rules or regulations
order opposing party to procure appointment
of an executor. Charges may be recovered RULE 4 Venue of Actions
as costs • Determine two things:
§ Failure to order will not nullify decision 1. Is it a real or personal action?
o Applies if: 2. Is it covered by a special law or by stipulation?
§ Either party dies, and • Venue of real actions
§ Action survives o Tried in court which has jurisdiction over the area
o Who should be the substitute wherein real property is situated
§ Legal heir o Forcible entry and detainer actions – in municipal trial
§ Administrator court
§ Executor o Ejectment cases – MTC where located
§ Guardian § Exception: stipulation
o Rule of substitution is not a manner of jurisdiction but o Real action – those affecting title to or possession of
due process real property, or interest therein
§ Party alleging nullity must prove there was an • Venue of personal actions
undeniable violation of due process
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Civil Procedure Memory Aid
o Either in the place where, at the election of plaintiff:
§ Plaintiff or any of the principal plaintiffs
reside, or
§ Defendant or any of the principal defendants
reside, or
§ In case of non-resident defendant, where he
may be found
o Principal plaintiff – beneficiary of a trust
o Residence – actual residence
• Venue of actions against non-residents
o Applies when defendant or one of defendants non-
resident and is not found in Phil.
o If involves personal status of plaintiff – where plaintiff
resides
o If involves property of defendant located in the
Philippines – where property or any portion thereof is
situated
• When Rule will not apply
o Specific rule or law provides otherwise, or
o Parties validly agree in writing, before filing of action, on
the exclusive venue thereof
§ Must employ categorical and suitably limiting
language
o Remedy for not filing in proper venue:
§ Motion to Dismiss, ground, improper venue
§ There must be a motion since can be waived
if not raised in time
RULE 5 Uniform Procedure in Trial Courts
• Procedure in MTC, same as RTC, except:
1. When by express or implied provision of law
2. Civil cases governed by Rules on Summary Procedure
a. Ejectment cases, regardless of amount of
damages
i. Attorney’s fees to be awarded must not
be more than P20k
b. All other cases where total amount of plaintiff’s
claim does not exceed P100k, or P200K if in
Metro Manila
i. Exclusive of interest and costs
ii. Except probate proceedings
• Steps in Summary Procedure
1. Filing of complaint
o Upon filing, court can dismiss outright, or issue
summons
o Defendant files answer within 10 days
i. If no answer, court can render judgment
either motu propio or on motion of
plaintiff
o All pleadings must be verified
o After filing last pleading, move on to next step
2. Preliminary conference (equivalent of pre-trial)
o Court sets this within 30 days after filing of last answer
o Parties asked to compromise, identify issues
o Absence of parties
§ If plaintiff absent = dismiss
§ If sole defendant absent = judgment
§ Unless have an explanation or send a
representative
o Court can already render judgment, but if none, move
on to next
3. Submission of judicial affidavits and position papers
o No hearings or trials
o Papers must be submitted 10 days from receipt of
order of preliminary conference
o Court renders judgment 30 days from filing of:
§ Last affidavit or position paper, or
§ Expiration of period to file
§ Except: court needs more clarificatory stuff,
may order requiring more affidavits within 10
days from receipt of order. Court then
decides 15 days after receipt of last
clarificatory affidavit.
• Prohibited Pleadings
Atty. Tranquil Salvador
1. Motion to dismiss, except
a. Lack of jurisdiction over subject matter
b. Failure to refer to lupon – dismissal without
prejudice
2. Reply
3. Bill of Particulars
4. MR or MNT
5. Petition for relief of judgment
6. Motion to declare in default
7. Third party complaint
8. Memoranda
9. Dilatory motions for postponement
10. Motion for extension of time
11. Petition for certiorari, mandamus, prohibition against
interlocutory orders of the court
12. Interventions
• Decisions from MTC can be appealed to RTC
o On appeal, MR no longer prohibited
• Judges who fail to follow = admin liability
RULE 6 Kinds of Pleadings
• Pleading – written statement of the respective claims and
defenses of the parties, submitted to the court for appropriate
judgment
• Complaint – pleading alleging the plaintiff’s cause or causes of
action
o Names and residences of plaintiff and defendant must
be stated
o Contents
1. Concise statement of ultimate facts constituting
the plaintiff’s cause of action. Exception: in
actionable documents, since need to put
substance of document or whole contents
2. Relief prayed for, based on facts alleged
3. If depends upon a condition precedent, must
allege and prove fulfillment, or legal excuse for
non-fulfillment
4. Can also be alleged: fraud, mistake, malice, intent,
knowledge, illegality
• Answer – pleading in which a defending party sets for his
defenses
• Defenses:
o Affirmative defense – allegation of a new matter, which,
while hypothetically admitting the material averment in
the pleading, would prevent or bar recovery
§ If estoppel – allege facts constituting it
§ If fraud or mistake – aver with particularity
§ If malice, intent, knowledge – aver it generally
o Negative defense – specific denial of material fact/facts
alleged in the pleading of the claimant essential to his
cause/causes of action. 2 kinds:
§ Specific denial – defendant specifies each
material allegation of fact and sets forth
substance of matters he relies upon for
support
§ Disavowal of knowledge – defendant states
he doesn’t have knowledge or info sufficient
o Negative Pregnant – form of negative expression,
which carries with it an affirmation or at least an
implication of some kind favorable to the adverse party
• Counterclaim – claim which a defending party may have against
an opposing party
o Period to answer counterclaim: within 10 days from
service
o Compulsory counterclaim
1. Must arise out of, or necessarily connected with,
the transaction or occurrence that’s the subject
matter of opposing party’s or co-party’s claim
2. Doesn’t require for its adjudication presence of 3
rd
parties of whom court can’t acquire jurisdiction
3. Within jurisdiction of court and cognizable by
regular courts
§ Test of compulsoriness: duplicity of cases
§ If not filed in answer, deemed waived
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Civil Procedure Memory Aid Atty. Tranquil Salvador

 
§ No need for certificate of non-forum shopping o General rule: need not be under oath, verified or
o Permissive Counterclaim accompanied by affidavit
§ Same as compulsory, except #1, need not o Exception: when otherwise specifically required by law
arise or necessarily connected with or rule
transaction o Must state:
§ Needs certificate of NFS § Affiant has read the pleading
o Docket fees required in both § Allegations are true based on his personal
• Cross-claim – any claim by one party against a co-party arising knowledge or authenticated records
out of the transaction or occurrence that’s the subject matter § Under oath
either of the original action or of a counterclaim therein o Party must sign the pleading, not lawyer
o Period to answer: 10 days from notice § Except under compelling reasons
o No need for leave of court § If multiple parties, all must sign verification
• Reply – pleading, the office or function of which is to deny, or • Unless, common interest among
allege facts in denial or avoidance of new matters alleged by way them
of defense in the answer and thereby join or make issue as to • Certification against forum shopping
such new matters o Forum shopping – filing of multiple suits in different
o Function: courts, either simultaneously or successively
§ Deny, or § Involving same parties
§ Allege facts in denial or avoidance of new § To ask court to rule on the same or related
matters causes, and/or grant the same or
§ Join or make issue as to such new matters substantially same reliefs
o If no reply, all new matters alleged in the answer are o Test: is there identity of:
deemed controverted § Parties
• Third (fourth, etc) party complaint § Rights or causes of action
o Requisites: § Reliefs sought
§ Claim that a defending party may file o Party himself must sign.
§ Against a person not a party to the action o Required in every initiatory pleading, not in a motion
§ For contribution, indemnity, subrogation or o Contents:
any other relief 1. Certify that he has not filed a similar complaint
§ In respect of his opponent’s claim involving same issue in another court, tribunal,
§ With leave of court (only pleading which is quasi-judicial agency
required) 2. If there is any pending claim, provide status
o Period to file: 15 days 3. If learns about similar action, report fact within 5
o Dismissal of original complaint = third-party complaint days from knowledge
dismissed o Absence of certificate
• Bringing new necessary parties § Dismissal without prejudice
o Court may order to be brought in as defendants in § Can’t cure by amendment
counter or cross-claim o Effect of non-compliance (false)
o One or more of defendants in counter/cross is already a 1. Indirect contempt
party to the action 2. Admin and crim cases
o Requires amendment 3. Dismissal of case
• Third party defendant has to file an answer, he may also allege o Effect of willful and deliberate forum shopping
counter/cross, even against the original plaintiff 1. Dismissal with prejudice
2. Direct contempt – summary dismissal, can’t be
RULE 7 Parts of a Pleading heard
• Caption: sets for the a. Remedy: petition for review on certiorari
1. Name of court
2. Title of action – indicates name of parties and their RULE 8 Manner of Making Allegations in Pleadings
respective participation • With respect to capacity, facts concerning the following must be
3. Docket number if assigned averred:
• Body 1. Capacity of person to sue or be sued
1. Designation 2. Authority of party to sue in a representative capacity
2. Allegations – divided into paragraphs so numbered 3. Legal existence of an organized association og the persons
3. Relief prayed for that is made a party
4. Date of pleading – at the bottom, include place of filing • If pleading an action or defense based on a document:
5. Headings o Set forth substance of document in pleading and attach
• Signature and address document, or
o Must be signed by party or counsel representing him, o Reproduce contents of document in the pleading en
otherwise pleading produces no effect toto
o Signature of counsel certifies: • Genuiness – instrument not spurious, counterfeit or of different
1. He has read the pleading import on its face from the one executed
2. That to the best of his knowledge, there’s good • Due execution – done with authority
ground to support it, and • How to contest documents:
3. Not interposed for delay o Specifically denying under oath and setting forth what
o Court may, in its discretion, allow deficiency to be he claims to be the facts
remedied if appear to be due to mere inadvertence and o Oath not required when adverse party doesn’t appear
not for delay to be a party to the instrument, or when compliance
o Grounds for disciplinary action: with order for inspection of original instrument is
1. Deliberately files unsigned pleading refused
2. Signs pleading in violation of Rule o Must be specifically denied
3. Fails to promptly report to court a change of his • Material averments in complaint deemed admitted when not
address specifically denied, except:
• Verification o Those as to amount of unliquidated damages
o Immaterial averments
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Civil Procedure Memory Aid
• Court may order any pleading to be stricken out or any sham or
false or immaterial matter be stricken out
o Upon motion made by party before responding to a
pleading, or
o If no responsive pleading permitted, upon motion by
party within 20 days after service of the pleading upon
him, or
o Upon court’s initiative at any time
RULE 9 Effect of Failure to Plead
• Defenses and objections not raised in a motion to dismiss or in
the answer are deemed waived
o Except:
1. Lack of jurisdiction over subject matter
2. Litis pendencia
3. Res Judicata
4. Prescription
5. Lack or absence of cause of action
o If these grounds appear, dismiss claim
• Kinds of default
1. In actions in rem – general order of default
2. Failure to attend pre-trial – “as in default” allows plaintiff to
present evidence ex parte
3. Failure to file an answer – declaration of default
• When one considered in default
o Court declares when:
§ Fails to answer within allowed time
• Upon motion of claiming party
• With notice to defending party
§ Proof of such failure
o Effect of order – entitled to notice of subsequent
proceedings but not take part in the trial
• Relief from order:
o Before judgment
§ File a motion under oath to set aside order of
default
§ Show failure was due to FAME
o After judgment
a. But before became final and executory = motion
for new trial (ground: FAME)
b. Discovered after finality = petition for relief from
judgment
c. Appeal from judgment as contrary to evidence or
to law
i. Grounds: plaintiff failed to prove material
allegations, or decision contrary to law
d. Certiorari under Rule 65
RULE 10 Amended and Supplemental Pleadings
• Amended Pleading – proper to allege facts which occurred prior
to filing of original complaint but for some reason were not alleged
therein (you omitted something)
o When amendment a matter of right
1. Anytime before responsive pleading is served, or
2. In case of reply, at any time within 10 days after it
is served
a. Can only amend as matter of right once
b. Only notice to amend is necessary
c. Both in form and in substance
d. After defendant’s answer, requires leave
of court (discretionary)
o When to file response to amended complaint
§ If done as matter of right, 15 days after being
served with a copy
§ If not, 10 days from notice of order admitting
the same
o Substantial Amendment – modifies or alters cause of
action or defenses
§ Needs leave of court if after answer
§ If no motion to dismiss, defect may be cured
at trial on merits by presentation of evidence
§ Substituting an actionable document is akin
to an amendment
Atty. Tranquil Salvador
o Formal amendment – correct a defect in designation of
parties and other clearly clerical or typo errors
§ May be summarily dismissed by court a t any
stage
§ Either upon motion of the party,
§ Or by the court motu propio
o Kinds of amendments to conform to evidence
1. No objection on part of other party – allowed even
after judgment. Valid even if what was alleged >
proven
2. If other party objects – discretion of court
a. If admission would not prejudice
objecting party in maintaining hid action
or defense upon merits
• When court can order an amendment even without motion:
1. Formal amendment
2. Bill of particulars
3. Motion to dismiss, court can either grant, deny, or order
amendment
4. In crim cases, in a motion to quash, can either grant, deny or
order amendment
• Supplemental pleading – proper in order to allege facts which
occurred after the filing of the original pleadings, filed pursuant to
new transactions, occurrences or event that arose after filing of
original
o Leave of court necessary
o Upon motion of party, upon reasonable notice and upon
terms as are just
o Response to supplemental pleading to be made within
10 days unless court gives different period
o No supplemental pleadings in the Supreme court
• In filing, must submit new copy of entire pleasing which
incorporates and indicates amendments with appropriate markes
o Must be served on defendant
RULE 11 When to File Responsive Pleadings
• Extension of time to plead
o Maybe allowed by the court
o Upon motion,
o On such terms as may be just,
o And filed before expiration of time sought to be
extended
RULE 12 Bill of Particulars
• Motion for bill of particulars – pleading asking for bill
• Bill of particulars – actual document submitted by plaintiff after
grant of defendant’s motion
• When to move for one:
o Before responding to pleading, or
o If purpose is to clarify reply, within 10 days from
service thereof
• What to point out
1. Defects complained of,
2. Paragraphs where they are contained, and
3. Details desired
a. Identify defects
b. Indicate details required
• Action by court:
o Deny or grant outright, or
o Allow parties opportunity to be heard
• Compliance with order
o If granted, adverse party must comply within 10 days
from notice of order
§ Unless court orders otherwise
• Effect of noncompliance
o Court may order striking out of pleading or portions
thereof
o Dismiss case based on non-compliance with a court
order
• Stay of period to file responsive pleading
o File within period to which he was entitle to at the time
of filing his motion (remaining period), which shall not
be less than 5 days
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Civil Procedure Memory Aid
o Under Rule 22 Sec 1, don’t include day that caused
interruption. If filed on Feb. 1, last day to file is on Feb.
16. If filed on Feb. 6, still has 11 days to file if denied
• Bill becomes part of pleading
RULE 13 Filing and Service of Pleadings, Judgments and Other
Papers
• Filing – act of presenting the pleading or other paper to the clerk
of court
• Manner of filing
o Two ways of filing
1. Personally handing to the clerk of court
a. Clerk endorses in the pleading the date
and hour of filing
b. Stamped, dated and signed by clerk
c. Proof: if pleading is found in records, if
not, present the received copy with
written or stamped acknowledgment of
its filing by clerk
2. By registered mail
a. Date of mailing, as shown by post office
stamp on envelope or registry receipt,
considered date of filing
b. Proof:
i. Registry receipt
ii. Affidavit of person mailing,
containing full statement of
important details
iii. Return card (file in court)
o Papers required to be filed and served
1. Judgment
2. Resolution
3. Order
4. Pleading subsequent to complaint
5. Written motion
6. Notice
7. Appearance
8. Demand
9. Offer of judgment
10. Similar papers
• Service – act of providing a party with a copy of the pleading
• Modes of service
1. Personally
a. Delivering personally a copy to the party or his
counsel
b. Leaving in his office with his clerk, with person
having charge
c. If no person found in the office, or if office not
known, leaving a copy between 8am-6pm at the
party/counsel’s residence, if known, with a person
of sufficient age and discretion residing therein
d. Proof:
i. Written admission of party served,
ii. Or affidavit of person serving (when
other party refused to accept)
iii. Official return of server (when served by
the court) containing full statement of
date, place and manner of service
2. Registered mail
a. Deposit copy in post office
b. In sealed envelope
c. Plainly addressed to the party or his counsel at his
office, or otherwise at his residence
d. With postage fully prepaid, and
e. With instructions to postmaster to return mail to
sender after 10 days if undelivered
f. Proof:
i. Registry receipt (even if defendant does
not actually claim), must indicate that
mail is a copy of the pleading
ii. Affidavit of person mailing, containing
full statement of date, place and manner
of service
iii. Return card
Atty. Tranquil Salvador
1. If unclaimed, file: return card,
the unclaimed document, and
certification by post office
3. Ordinary mail
a. If no registry service is available in locality of either
sender or addressee
b. Proof: by affidavit of person mailing of facts
showing compliance with rules
4. Publication or substituted service (depends where papers
came from)
a. If all else fails, substituted service to clerk of court,
with proof of failure of both personal and service
by mail.
b. No substituted service for judgments, final orders
or resolutions
• Service of judgments, final orders or resolutions
1. Personally
2. Registered mail
3. Publication (if summoned by publication)
a. No substituted service and by ordinary mail
• When service completed:
1. Personal = upon actual delivery
2. Ordinary mail = expiration of 10 days after mailing, unless
court otherwise provides
3. Registered mail =
a. Actual receipt by addressee as seen in return
card, or
b. After 5 days from date he received first notice of
postmaster, whichever is earlier
• In both filing and service, priority is Personal Service
o Exceptions:
§ Papers emanating from the court
§ With sufficient explanation by the party if
registered mail
o If did not comply, as if pleading wasn’t filed
• Notice of Lis Pendens
o Can be annotated in an action involving right, title, or
interest over real property
o Real property must be directly affected
o No need for court approval. Merely send a memo or
letter attaching the complaint to the Register of Deeds
o When court approval needed:
1. Intent to cancel notice on following grounds:
a. Purpose was to molest other party
b. No need for notice to protect rights of
parties who caused it
2. Trial court has inherent power to cancel notice of
lis pendens
o Applies only to judicial cases
o Contents of notice:
1. Statement of institution of an action
2. Court where same is pending
3. Date of institution
4. Reference to number of certification of title,
description of land and registered owner
RULE 16 Summons
• Summons – mode, writ, process, notice or warning issued by the
court upon filing of complaint and payment of required fees, the
service of which confers jurisdiction the court over person of
defendant. Defendant is notified of the action brought against him.
• Contents: directed to defendant, signed by clerk under seal
1. Name of court and names of parties
2. Direction that defendant answer within time fixed
3. Notice that unless defendant answers, plaintiff will take
judgment by default and may be granted relief applied for
4. Copy of complaint and order for appointment of guardian ad
litem if any, attached to original and to each copy
• When defendant has yet to appear in court, new summons must
be filed with amended complaint
• In quasi-judicial agencies, rules on service not strictly construed.
Substantial compliance enough.
• Who serves summons:
1. Sheriff
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Civil Procedure Memory Aid
2. Deputy sheriff
3. Other proper court officer, or
4. For justifiable reasons, by any suitable person authorized by
court
Exclusive enumeration
Court should issue summons within 1 day from receipt of
complaint
• Return – when service has been completed, server shall:
o Serve a copy of return to plaintiff’s counsel
§ Either personally or by registered mail
§ Within 5 days
o Return summons to clerk who issued it
§ Accompanied by proof of service
• Alias summons
o Summons returned without being served on any or all
defendants
o Server shall serve a copy to plaintiff
o State reasons for failure of service, within 5 days
o Or if summons has been lost
o Clerk, upon demand of plaintiff, may issue an alias
summons
o Court can motu propio order the issuance since it can
be refilled anyway
• Service of summons:
o Personal (priority!)
a. Handing copy to defendant in person, or
b. If he refuses to receive and sign, tendering it to
him
c. Can server wherever the defendant is found in the
Philippines
o Substituted service – if for justifiable causes, defendant
can’t be served within a reasonable time, service may
be effected:
a. Leaving copies at defendant’s residence with
some person of suitable age and discretion
residing therein, or
b. Leaving copies at defendant’s office or regular
place of business with some competent person in
charge thereof
o Requirement for a valid substituted service
1. Impossibility of prompt personal service
a. Sheriff has to serve 15-30 days
b. There must be repeated, earnest efforts
to serve (at least 3 times, on at least 2
different dates)
2. Specific details in the return
a. Efforts made to find and reasons behind
failure must be clearly narrated
3. If in the residence, to a person of suitable age (at
least 18 yrs old) and discretion
a. Must speak English
b. Presupposes relation of confidence
between person and defendant
4. If in office or regular place of business, to a
competent person in charge
a. One of the one managing office
b. Must have sufficient knowledge to
understand obligation of defendant in
summons
• Service in other circumstances
o Upon entity without juridical personality = serve either
any one of them, or upon person in charge of office or
place of business
o Upon prisoners = to officer having management of such
jail or institution (deemed deputized as special sheriff)
o Minors and incompetents =
§ Him personally, and
§ His legal guardian if he has, or guardian ad
litem applied for by plaintiff
§ If minor, can be made on either parent
• Service upon Juridical Entity
1. Domestic private
a. May serve upon (exclusive list):
i. President
Atty. Tranquil Salvador
ii. Managing partner
iii. General Manager
iv. Corporate secretary
v. Treasurer
vi. In-house counsel
b. If GOCC:
i. If created by law = see charter
ii. If through Corp Code = same as in
domestic private corporations
2. Foreign private
a. Transacted business in the Philippines =
i. On resident agent designated in
accordance with law for that purpose, or
ii. If none, on government official
designated by law to that effect, or
iii. Any of its officers or agents within the
Philippines
b. Not registered or have no resident agents
i. Personally through appropriate court in
foreign country with assistance of DFA
ii. Publication once in newspaper in
country where defendant may be found,
and by serving a copy and the court
order by registered mail at the last
known address
iii. By fax, or by any recognized electronic
means
iv. Other means ordered by the court
3. Public Corporations
a. If defendant is the Republic = Sol Gen
b. If province, city or municipality or like public
corporations = executive head or such other
officers as the law or the court may direct
• Defendant’s identity or whereabouts unknown and can’t be
ascertained by diligent inquiry
o May be summoned by publication in newspaper of
general circulation and in such places and for such time
as the court orders,
o With leave of court
o No need to send summons to last known address since
not known
• Extraterritorial Service
o When it can be made:
1. Defendant doesn’t reside and is not found in the
Philippines, and
2. Action affects:
a. Personal status of plaintiff, or
b. Any property of defendant located in the
Philippines
3. Applies only to actions in rem and quasi-in-rem
4. With leave of court
o How to serve:
1. Personal service outside the country, with leave of
court, or
2. Publication in newspaper of general circulation in
such places and for such time as the court may
order, and a copy of summons and the court order
by registered mail to the last known address, or
3. In any other manner that the court may deem
sufficient
o No substituted service to a non-resident
§ Except: if there’s a resident spouse who was
previously appointed as attorney-in-fact
o Not for purpose of jurisdiction but for due process
• Resident temporarily out of Philippines
o Personal service may be effected out of the Philippines,
with leave of court, or
o Publication in newspaper of general circulation in such
places and for such time as the court may order, and a
copy of summons and the court order by registered mail
to the last known address, or
o Substituted service if there is impossibility and there are
earnest efforts to serve
o Not mandatory before substituted service
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Civil Procedure Memory Aid
• Leave of court
1. By motion in writing
2. Supported by affidavit of plaintiff or some person on his
behalf
3. Set forth grounds for application
• Proof of service
o Personal
1. In writing by the server
2. Set forth manner, place and date of service
3. Specify any paper which has been served and
name of person who received
4. Shall be sworn to if made by a person other than
sheriff or his deputy
§ Importance of sheriff return: Starts counting for
period to file answer, and determines if there’s
proper service of summons
o By publication: 2 affidavits
1. Affidavit of:
a. Printer
b. Foreman
c. Principal clerk, or
d. Editor of business or advertising
manager
2. Attached is a copy of the publication
• Voluntary appearance
o Not equivalent to summons, but if there’s voluntary
appearance, summons can be dispensed with
o Fling of answer without object, filing for motion for
extension of time to file answer
RULE 15 Motions
• Motion – application for relief other than by a pleading
o May be final or interlocutory
o Neither raises a claim not raise a defense
o Must be in writing, except those made in open court or
in course of a hearing or trial
o Contents
1. Relief sought
2. Grounds as basis
3. If required by Rules or necessary to prove facts
alleged therein, should be accompanied by
supporting affidavits
a. If facts alleged in motion are not of
record or of judicial notice
b. A motion for setting aside judgment by
default requires an affidavit of merit
4. Notice of hearing
• Hearing of Motion
o What must be done
1. All litigated hearings set by applicant, and
2. Served together with notice of hearing in such
manner as to insure receipt (or actually receive it)
at least 3 days before date of hearing – though 3-
day notice rule is not absolute, must be liberally
construed
3. You need notice of hearing, and proof of service
a. Serve to party, but also
b. To clerk of court who schedules the
hearing
o Motions that can be acted upon without hearing
1. Ex Parte motions
2. Court can act upon without prejudicing rights of
adverse party
3. Court concludes if motion is litigious or not
o Notice not required in appellate courts
o How to attack:
§ Final order = appeal
§ Interlocutory = certiorari under Rule 65
o Notice of Hearing
1. Addressed to all parties concerned
2. Specify time and date of hearing, which must not
be later than 10 days after filing of motion
o Ordinary motion day is on a Friday afternoon
Atty. Tranquil Salvador
§ If Friday is a non-working holiday, set on next
working date (Monday)
• Omnibus Motion
o Motion attacking a pleading, order, judgment or
proceeding shall include all objections then available
o All objections not included shall be deemed waived
• Motion for Leave – accompanied by pleading motion sought to be
admitted
• Form – rules on pleadings apply to written motions
o No need for certificate of NFS
o When motion is “pro forma,” there’s failure to
1. Serve copy to other party
2. Include notice of hearing
3. Conform with 3-day notice rule
4. Conform with 10-day rule
RULE 16 Motion to Dismiss
• Kinds of dismissal in civ pro
1. MTD by defendant (Rule 16) – move before filing the answer
2. MTD by plaintiff (Rule 17)
3. Demurrer to evidence
• Grounds
1. No jurisdiction over defendant
2. No jurisdiction over subject matter
3. Improper venue
4. Plaintiff no legal capacity to sue
a. Natural person – age of majority
b. Corporation – duly organized and existing in the
laws of country where it was organized
c. Attorney-in-fact – scope of authority
5. Litis Pendentia: requisites
a. Same parties
b. Same interest
c. Same rights asserted
d. Same relief prayed for
6. Res Judicata
a. Same requisites as (5) but there must be a final
judgment in one case
7. Prescription
8. Pleading asserting claim states no cause of action
a. Ask: hypothetically admitting facts alleged, can
court render a valid judgment in accordance with
relief prayed for?
b. Difference between no cause of action and PACS-
COA
i. Former, use in answer as a defense or
demurrer filed after plaintiff has rested
its case
1. Ground for demurrer:
insufficiency of evidence
ii. Latter, for Motion to Dismiss
1. Waived if not raised in MTD or
answer
9. Claim has been paid, waived, abandoned, extinguished
10. Unenforceable under statute of frauds
11. Condition precedent not complied with
• General rule: dismissal on these ground without prejudice
o Except:
1. Prescription
2. Unenforceable under SoF
3. Res Judicata
4. Extinguished claim
o Remedy in such exceptions = appeal
• Hearing of motion
o Parties submit arguments of questions of law and
evidence on questions of fact available
o Evidence presented during hearing automatically part of
evidence
• Resolution
o Action of court in resolving a motion,
1. Grant the motion (dismiss action)
2. Deny the motion
3. Order amendment of the pleading
o Remedies if denied
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Civil Procedure Memory Aid Atty. Tranquil Salvador
 

 
1. Certiorari under Rule 65 – but will not suspend o If matter of right, additional reckoning point: before
main proceedings pending petition introduction of evidence at trial or hearing
2. Proceed to trial – file answer and interpose objects
raised as defenses. If unfavorable judgment, RULE 18 Pre-Trial
reiterate issue on appeal from final judgment • Duty of plaintiff to promptly move ex parte that case be set for
3. Motion for Reconsideration pre-trial after the last pleading has been served and filed
• Time to plead o Last pleading – answer or reply, depending on case
o If motion denied, file answer within balance period o Must set within 5 days after last pleading filed
prescribed to which he was entitled at the time of o If plaintiff fails to more, duty of clerk to issue notice
serving his motion but not less than 5 days in any • Purpose:
event, computed from receipt of notice of denial 1. Amicable settlement
o If ordered to amend (new period) 2. Expedite Proceedings
§ Matter of right – 15 days • During mediation, pre-trial suspended for 30-60 days
§ Not matter of right – 10 days from service of • There’s also PC in the CA and SC
amended pleading • In ejectment cases, preliminary conference instead of pre-trial
• Effect of dismissal on ground of failure to state a cause of action • Judge shall pre-mark the evidence
o Complaint not dismissed if can correct defect through o If evidence not pre-marked, then can no longer be
amendment presented
o If plaintiff cannot or does not amend complaint when o Same rule with witnesses
ordered, dismissal operates as adjudication based on o Exception:
merits, unless otherwise ordered by the court § Court allows in interest of justice or
• If no motion to dismiss filed, can raise grounds as affirmative § If newly discovered
defense in the answer • Notice of pre-trial
o Preliminary hearing may be had as if a MTD was filed, o Notice is served
w/n court’s discretion § On counsel
§ Defendant should file a motion to set a § If no counsel, on the party
preliminary hearing o Two dates in notice
o If already filed and MTD, can’t ask for hearing anymore 1. Date of PC, and
but can still use in answer 2. Date of Pre-trial itself
§ Persuades parties not to file an MTD but an • Appearance of parties
affirmative defense o Who has to go to pre-trial?
§ Parties, and
RULE 17 Dismissal of Actions § Their counsel
• Plaintiff, 2 ways to dismiss action o Representative can go but needs a written SPA
1. As a matter of right authorizing him to:
a. When to file: 1. Enter into an amicable settlement
i. Before service or answer, or 2. Submit to alternative modes of dispute resolution
ii. Before a motion for summary judgment 3. Enter into stipulations or admissions of facts and
b. By mere notice, court will then order an issue documents
confirming dismissal • Effect of failure to appear
c. Can dismiss as a right only once o If plaintiff doesn’t appear = case dismissed with
d. Effect: dismissal without prejudice. Except: prejudice, unless otherwise ordered by the court
i. Stated in notice that dismissal is with o If defendant doesn’t appear = plaintiff may be allowed
prejudice, or to present evidence ex parte
ii. Plaintiff has once dismissed in a § Def not in default since already filed an
competent court an action based on or answer
including the same claim o If client present but lawyer absent = no adverse effect
2. As a matter of court’s discretion except lawyer to be reprimanded
a. File at any stage of proceeding other than before • Pre-trial brief
service of answer or motion for summary judgment o Parties file with court and serve on adverse party,
b. By motion and order of court ensure receipt at least 3 days before date of pre-trial,
c. Dismissal without prejudice unless court specifies their respective pre-trial briefs
otherwise o Shall contain:
i. Limited to complaint § Statement of willingness to settle or enter into
ii. Counterclaim survives alternative modes of dispute resolution
iii. Defendant can prosecute in separate § Summary of admitted facts and proposed
action, unless within 15 days from stipulation of facts
notice of motion, he manifests his § Issues to be resolves
preference to have his counterclaim § Documents to be presented, stating purpose
resolved in same action § Manifestation of having availed of discovery
iv. Class suit can’t be dismissed without procedures or referral to commissioners
approval or court § Number and names of witnesses and
• When dismissal due to plaintiff be with prejudice substance of respective testimonies
1. Failure of plaintiff to appear without justifiable cause on date o Effect of failure to file brief = same as failure to appear
of presentation of his evidence at pre-trial
2. Failure of plaintiff to prosecute action for an unreasonable • Record of pre-trial
length of time o After pre-trial, court issues order which shall recite all
3. Failure of plaintiff to comply with RoC or any order of the matters taken up in pre-trial
court o Pre-trial order is the bible of the trial. It:
o Can be dismissed based on motion, or upon court motu 1. Binds parties
propio 2. Limits trial to matters not disposed of
o Same effect as adjudication based on merits 3. Controls course of action during trial
• Rule applies to dismissals of counterclaims, cross-claims or third-
party complaints
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Civil Procedure Memory Aid Atty. Tranquil Salvador

 
o Judge issues pre-trial order within 10 days from end of a. Unreasonable and oppressive
pre-trial, or b. Relevancy of documents does not appear
§ Judge can dictate pre-trial order in open court c. Failure to tender costs of production
in presence of parties and their counsel. Give d. Kilometrage/witness fees no tendered, and cost for
printed copy after transportation
• Judicial Dispute Resolution e. Failure to describe with particularity
o There is now JDR in Makati and Manila • Cannot compel attendance and deem in contempt if:
o JDR Judge – one who acts as mediator, conciliator and a. Witness resides more than 100 kms from place where he is
independent evaluator in the stage between filing of to testify or
complaint and before pre-trial b. To a detention prisoner if no permission of the court in which
o New judge via raffle (trial judge) his case is pending is obtained
§ Unless parties consent to continue with JDR
judge RULE 22 Computation of Time
• Date from which designated of time begins to run is excluded and
---------------------------End of Midterm Coverage------------------------------- date of performance included
• If last day falls on a Saturday, Sunday or legal holiday in place
RULE 19 Intervention where court sits, shall not run until next working day
rd
• Intervention – with leave of court, 3 party takes part in a case • If an act is done as to effectively interrupt running period,
between other parties because of: allowable period shall start on day after notice of cessation of
1. Legal interest cause.
a. In the matter in litigation o Day of interruption shall be excluded in computation of
b. In the success of either parties the period
c. Against both
2. Situated as to be adversely affected by a distribution or other MODES OF DISCOVERY
disposition of property in custody of court • 4 Modes of Discovery
• At any time before rendition of judgment by trial court 1. Depositions pending action (Rule 23)
• Complaint-in-intervention – asserts claim against either parties 2. Request for admission by adverse party (Rule 26)
• Answer-in intervention – unites with defendant in resisting a 3. Motion for production of documents or inspection of things
claim (Rule 27)
• Answer filed within 15 days from notice of order 4. Physical and Mental Examination of Persons
RULE 23 Depositions Pending Actions
RULE 20 Calendar of Cases • When and How taken
• Clerk of court under direct supervision of judge 1. After jurisdiction over defendant or over property: by leave of
• Preference given to the following: court
1. Habeas corpus cases 2. After an answer has been served: matter of right, mere
2. Election cases notice is necessary
3. Special civil actions • 2 Kinds
4. Those so required by law 1. Oral Examination/Depositions
• Assignment to branches done by raffle, in open session with 2. Written Interrogatories
adequate notice to parties • Subject: any matter, as long as
1. Not privileged
RULE 21 Subpoena 2. Relevant to subject of pending action
• Subpoena ad testificandum – process directed to a person • Uses of Depositions
requiring him to attend and to testify at hearing 1. Impeach testimony of a witness
• Subpoena Duces Tecum – appear and bring with him any 2. Used against adverse party for any purpose
document or things under his control 3. In lieu of oral testimony of a witness if the deponent:
• Issued by: a. Is dead (necessary that he was cross-examined)
1. Court where witness must attend b. Lives more than 100km from place of trial, or is
2. Court where deposition taken out of the Philippines
3. Officer/body authorized by law in connection with i. Unless absence was procured by party
investigations conducted by said body offering deposition
4. SC/CA justice in any case or investigation pending within the c. Unable to testify or attend due to:
Philippines i. Age
5. Clerk of court in certain instances ii. Sickness
a. Ad testificandum – yes if pending case iii. Imprisonment
b. Decus tecum – if within pending case and if d. Couldn’t be compelled to attend through subpoena
ordered by the court e. Exceptional cases
• Form and content • Who can take depositions
1. Name of court 1. In the Philippines
2. Title of action/investigation a. Any judge
3. Directed to person whose attendance is required b. Notary public, or
4. If duces tecum: c. Person authorized to administer oaths stipulated
a. Test of relevancy: things requested must appear and agreed upon in writing by parties
prima facie relevant to issue 2. Abroad
b. Test of definiteness: reasonably described by a. Secretary of an embassy/legation, consul general,
parties to be readily identified consul, vice-consul or consular agent
• Grounds for Quashing (Motion to Quash) b. Person appointed by a commission or under
o Ad testificandum letters rogatory
a. Witness not bound (not qualified or falls under a i. Commission – issued by the court as a
known privilege) directive to an official of the Philippines
b. Witness fees and kilometrage allowed by Rules authorizing him to take deposition of
not tendered (100km rule) witness
o Duces Tecum

Sales D. A2016
Civil Procedure Memory Aid
ii. Letters Rogatory – requests to foreign
tribunals to give its aid in securing the
desired information
c. Person authorized to administer oaths stipulated
and agreed upon in writing by parties
• Who are disqualified to be deposition officers, must raise
objections before taking or as soon as disqualification if known or
could be discovered with reasonable diligence (waivable)
th
1. Up to 6 degree of consanguinity or affinity from party, or
employee/counsel of party
th
2. Up to 6 degree of consanguinity or affinity from counsel, or
employee or counsel
3. One financially interested in action
• How to oppose taking of deposition
1. By written motion by the party or the person to be examined
2. For good cause shown
• Grounds to oppose (same as in motion to terminate or limit
examination)
1. Protect party or witness from annoyance, embarrassment, or
oppression
2. Or that what is sought is irrelevant in action
• Exceptions to rule that deposition must be signed by witness, in
which cases officer will sign instead:
1. Parties stipulated waiver of signing
2. Witness is ill
3. Witness can’t be found, or
4. Refuses to sign
• Periods for written interrogatories
1. To serve cross-interrogatories: within 10 days from receipt
of notice
2. To serve re-direct: within 5 days from receipt of cross
3. To serve recross-interrogatories: within 3 days from receipt
of re-direct (recross not mandatory)
• All objections to errors and irregularities are waivable, except:
objections to competency or relevancy of evidence during taking,
unless ground is one which might have been removed if
presented at that time
RULE 24 Depositions Before Action or Pending Appeal
• Perpetuation of Testimony
• If before action, file at the place of residence of any expected
adverse party
• Contents
1. Petitioner expects to be a party to an action in court but is
presently unable to bring it
2. Subject matter and his interest therein
3. Facts he desires to establish by proposed testimony and
reasons for desire to perpetuate
4. Names or description and addresses of expected adverse
parties
5. Names and addresses of persons to be examined
• Serve notice at least 20 days before date of hearing
RULE 25 Interrogatories to Parties
• To parties only
• One set of questions to be answered
• Periods to file:
1. Answer: within 15 days after service
2. Objections: within 10 days after service of interrogatories,
with notice
• Can file more than one set of interrogatories to be answered only
with leave of court
• Effect of failure to answer specific questions:
o Proponent must first move to compel other party to
answer, if to no avail,
o Default
RULE 26 Admission by Adverse Party
• File written request after answer/issues joined for admission of:
1. Genuiness of any material and relevant document described,
or
2. Truth of any material and relevant matter of fact set forth in
request
Atty. Tranquil Salvador
• Deemed admitted unless denied within period designated in
request, which shall not be less than 15 days after service of
request
• Relevant periods:
1. To answer (must be under oath): within 15 days, unless
upon motion, extended by court
2. To oppose: within 15 days
RULE 27 Production of Inspection of Documents or Things
• What to file: motion with notice
• What is applied for:
1. Production and permission to inspect tangible things
(describe with particularity)
2. Permit entry into a place under control of other party and
allow inspections
• Documents should
1. Not be privileged
2. Contain or constitute evidence material to any matter
involved in the action
3. Documents are in possession, custody or control of the other
party
RULE 28 Physical and Mental Examination of Persons
• When physical or mental condition of a party is in controversy in a
pending action, examination by physician
• Court can issue motu propio (only mode where court can do so)
or on motion
• For good cause and with notice
• Consequence if copy of exam is given to requesting party
o Waiver of privilege in that action or any other involving
same controversy, regarding the testimony of every
other person who has examined or may thereafter
examine him
o Other party can now also ask for results of previous or
subsequent examinations
RULE 29 Refusal to Comply with Modes of Discovery
• Refusal to answer the question or interrogatory
o If without cause - may require deponent to pay
proponent’s expenses
o If with cause – may require proponent to pay
deponent’s expenses
• Contempt (direct)
o Refusal to be sworn, or
o Refusal to answer a question after being ordered to do
so by the court
• Upon refusal to comply with an order:
1. Contempt
2. Dismissal of case (if refusal by plaintiff)
3. Judgment by default (if refusal by defendant)
4. Pleading stricken out
5. In lieu or in addition to all those mentioned, can order arrest
a. Except if based on refusal to submit to a physical
or mental examination
• Refusal to appear or fail to serve answers to interrogatories (order
not necessary since more blatant)
1. Dismissal of case (if refusal by plaintiff)
2. Judgment by default (if refusal by defendant)
3. Pleadings stricken out
4. Pay reasonable expenses
• Expenses and attorney’s fees not to be imposed upon Republic
under this rule
RULE 30 Trial
• Parties must receive notice from clerk of court at least 5 days
before date of trial
• May adjourn but in no case shall be for a longer period than one
month for each adjournment nor more than 3 months in all
o Exception: authorized in writing by Court Administrator
of the SC
• Grounds for postponing (not exclusive)
1. Absence of evidence
a. Evidence material or relevant, and
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Civil Procedure Memory Aid
b. Could not be produced despite due diligence
2. Illness of a party/counsel
a. Presence of either is indispensible at trial
b. Character of illness renders non-attendance
excusable (appear in an affidavit or sworn
certification)
• Order of Trial (can be reversed if there is an affirmative defense)
1. Plaintiff adduces evidence
2. Defendant adduce evidence in support of defense,
rd
counterclaim, cross-claim and 3 party complaint
rd
3. 3 party defendant adduce evidence
th
4. 4 party, and so forth adduce evidence
5. Parties against whom any counterclaim/cross-claim has
been pleased adduces evidence
6. Parties respectively adduce rebutting evidence only
a. Unless court for good reasons permits to adduce
evidence on original case
7. Admission of evidence, deemed submitted for decision
a. Unless court directs parties to argue or submit
respective memoranda/pleadings
• Judge personally receives evidence. Instances when clerk can
receive:
1. In default proceedings
2. Ex parte hearing (unless imbued with public interest like
adoption)
3. Parties agree in writing (no power to rule of objections)
RULE 31 Consolidation or Severance
• Consolidation – join pending actions involving common
questions of law or fact
o Cases will be consolidated in court having the case with
the lowest docket number (filed first)
• Separate trials, when allowed
o In furtherance of convenience or
o To avoid prejudice
RULE 32 Trial by Commissioner
• Reference by consent: both parties give written consent to
appoint commissioner to be agreed upon parties or appointed by
the court
• Reference on motion or motu propio (no consent)
1. Case requires examination of a long account
2. Taking of account necessary for court’s information for it to
render judgment/execution
3. There’s a question of fact, other than upon pleadings, arising
from motion or otherwise
• Commissioners mandatory in expropriation cases (just
compensation), and permissible in partition
• Powers of commissioner outlined in order of reference
• If parties fail to appear before commissioner: may proceed ex
parte or adjourn at his discretion
• Relevant periods:
o First meeting with commissioner: within 10 days after
date of order of reference
o Object to commissioner’s report: within 10 days after
notice of findings
• Court’s actions after hearing on report:
1. Adopt, modify or reject report in whole or in part
2. Recommit it with instructions
3. Require parties to present further evidence before
commissioner or court
RULE 33 Demurrer to Evidence
• Demurrer to Evidence – motion to dismiss on ground of
insufficiency of evidence
• When to apply:
o Civil cases – after plaintiff has completely presented his
evidence/after formal offer of object of evidence
o Criminal cases – after prosecution rests its case
• Ground: upon facts and law, plaintiff has shown no right to relief
• Leave of court not necessary
• Effect of MTD:
o If denied – defendant can present evidence
Atty. Tranquil Salvador
o If granted but reversed on appeal – defendant deemd to
have waived the right to present evidence
o Grant is considered an adjudication of merits
• Implications of grant of MTD
o Civil – losing party has to file an appeal
o Criminal losing party can’t appeal since deemed as an
acquittal
RULE 32 Judgment on the Pleadings
• Based solely on the pleadings
• When it can be availed (no issue at all):
1. Answer fails to tender an issue, (admitted but failed to raise
an affirmative defense) or
2. Answer admits the material allegation of the adverse party’s
pleading
• Must be done on motion of a party
• Not available in cases of:
o Declaration of nullity of marriage
o Annulment of marriage or
o Legal separation
• When to file:
o If plaintiff – after answer
o If defendant on counterclaim – any time
RULE 35 Summary Judgments
• Availed of when no genuine issue as to a material fact, except as
to amount of damages (there’s an issue but fictitious, ostensible
or a sham)
• When to file:
o Claimant: after answer has been served
o Defendant: any time
• Can use in any action except annulment, declaration of nullity of
marriage or legal separation
• Material dates:
o Time to serve motion: at least 10 days before time
specified for hearing
o Time for adverse party to serve opposing affidavits: at
least 3 days before hearing
• Partial judgment is allowed
• If filed affidavit in bad faith, may require party/counsel to pay
expenses and may adjudge guilty of indirect contempt
RULE 36 Judgments, Final Orders and Entry Thereof
• Requisites of judgment
1. In writing
2. Personally and directly prepared by judge
3. Stating clearly and distinctly facts and law as basis
4. Signed by judge
5. Filed with clerk of court
• Judgments are immutable and can’t be modified once final and
executory. Except:
1. Nunc pro tunc (judgment doesn’t speak truth)
2. Clerical/typo errors
3. Void judgments
4. Those that transpire after finality which make enforcement
unjust or inequitable
5. Judgments which don’t obtain finality (like support)
• Date of finality of judgment is the date of entry in book of entries
of judgments
RULE 37 New Trial or Reconsideration
• Period to file: 15 days from receipt of decision
o Cannot be extended
o Service to counsel service to petitioner
o Filing of a valid motion interrupts running period of
appeal
o A pro forma motion will not toll reglamentary period of
appeal
o Fresh period rule (Neypes ruling) – after denial, given a
fresh period of 15 days to appeal (applies to all Petition
for Review, except if with SC since inherent in its rules)
o A second MNT is allowed, only on a ground not existing
or available when first motion was made
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o No second MR allowed
• Grounds for Motion for New Trial (MNT)
1. Fraud (extrinsic) – if ground is FAME, affidavit of merit
(under oath) is necessary
2. Accident
3. Mistake
4. Excusable Negligence
5. Newly discovered evidence
a. Couldn’t have been discovered and produced at
trial with reasonable and negligence
b. If presented, would probably alter result
• Grounds for Motion for Reconsideration (MR)
1. Damages awarded are excessive
2. Evidence insufficient to justify decision or final order
3. Decision or final order is contrary to law
• Requirements of a valid motion
1. Relief
2. Grounds
3. Supporting affidavits
4. Notice of hearing
• MNT in appellate courts
o CA – yes, with different rules.
§ Only ground is newly discovered evidence
§ Period to file: as long as case is active
o SC – generally no. Matter of discretion
• Period to decide: within 30 days from time submitted for
resolution
• Remedy if denied: not appealable. Can only appeal from the
judgment
RULE 38 Relief from Judgments, Orders, or Other Proceedings
• 2 Kinds of petition for relief
1. From judgment, order or other proceedings
2. From denial of appeal
a. If FAME is not the ground, file an MR and if
denied, file under Rule 65
• Grounds for both: FAME
• File petition before the court that rendered judgment
• Only parties/with legal interest to the proceedings can file
• When to file: within 60 days from knowledge of decision but no
more than 6 months from entry of judgment
o Can file only after entry of judgment
o Can only file when there are no available relief.
• Period to answer petition for relief: 15 days from receipt
• Court can grant a preliminary injunction during petition but
petitioner must file a bond
• Effect of resolution
o If petition for relief from judgment
§ Granted – deemed as if judgment was never
rendered. Proceed as if timely MNT or MR
had been granted
§ If denied – judgment stands
o If petition for denial of an appeal
§ Granted – lower court required to give due
course to appeal and elevate record of
appeal case as if timely appeal was made
RULE 39 Execution, Satisfaction and Effect of Judgments
• 2 kinds of execution
1. As a matter of right – when judgment is final and executor
2. Discretionary – judgment final but not yet executor
a. Pending appeal, or
b. A several/partial judgment
• Where to apply for writ: court that originally rendered judgment.
Can apply in the appellate court only when interest of justice so
requires. In such a case, appellate will not issue writ but merely
direct court of origin to issue it
• Exceptions to rule that execution order can not issue in
interlocutory orders:
1. Party claims he is an indigent and discovered not to be one
2. Support pendente lite
• Issue only upon motion of the winning party
Atty. Tranquil Salvador
o Exception: labor cases (final and immediately
executory)
• Requisites for execution pending appeal/several/separate/partial
judgments
1. Trial court must still have jurisdiction
2. Within appeal period
3. Records/record on appeal still with trial court
4. For good reasons
5. Reasons stated in a special order after due hearing
• How to stay and execution
o Matter of right – you can’t, unless get an injunction or
TRO claiming GADALEJ
o Discretionary – filing a supersedeas bond
§ Available only in ordinary civil actions
§ Judgment and orders must be capable of
pecuniary estimation
• Judgments not stayed by appeal
1. Injunction
2. Receivership
3. Accounting and support
4. Others declared as immediately executor
5. Labor cases
• Discretionary Execution
o Available in election cases but provision on staying it is
not available
o Not available in final judgments against government
o Mere hearing needed
o Remedy for grant/denial: Rule 65
• When to file motion for exection:
o Within 5 years from entry of judgment, and
o Before barred by statute of limitations (10 years)
o If after 5 years, must file an independent action to
execute (revival of judgment)
• Modes to enforce judgment:
o Within 5 years: mere motion
o After 5 year: need to file an independent action
§ Can’t alter original
• Execution in case of death
o Obligee dies: executor/admin/successor in interest
applies
o Obligor dies: execution against
executor/admin/successor in interest if judgment is
recovery of property or enforcement of lien
o Obligor dies after levy effected: sell the same for
satisfaction of judgment obligation
• Enforcement of judgments:
1. Immediate payment on demand
2. Satisfaction by levy
a. Levy – act of officer of setting apart property of
judgment property for purpose of selling later
b. Obligor can choose which property, if doesn’t
make a choice, sheriff chooses with personal
property as priority
3. Garnishment of debts and credits
a. Garnishee shall make a report within 5 days if
obligor has enough credits with garnishee
• Duty of sheriff prior to enforcement of execution
1. Prepare an estimate of expenses to be incurred in executing
writ (must be approved by court)
2. Render an accounting
3. Issue an OR for total amount received from obligor
• Execution for specific act
1. Conveyance, delivery of deeds; vesting title
2. Sale of real or personal property
3. Delivery or restitution of real property
a. All persons claiming rights under obligor must
peaceably vacate property within 3 working days
4. Removal or improvements on property subject of execution
5. Delivery of personal property
• Contempt applies only for refusal to comply with a special
judgment
• Property exempt from execution
o If mortgaged any, no longer exempt
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o Libraries or professionals – not more than 300k
o Family furniture – not more than 100k
o Provisions – only up to 4 months
o Jewelry not exempt
o Tombstones exempt but not mausoleums
• Life of writ: 5 years from entry of judgment
o Sheriff required to make reports every 30 days
• Notice of sale to public
Posting Time
Perishable Goods 3 public places Reasonable time
Personal Property 3 public places Not less than 5
days
Real Property (P50k 3 public places 20 days
below)
Real Property No posting but Once a week for 2
(>P50k) publication consecutive weeks
o Notice to obligor: at least 3 days before sale
§ Except if perishable goods, notice any time
before sale
o Time of sale: 9am-2pm
o Where: Office of clerk of court
§ If personal property capable of manual
deliver, where property is located
•
rd
If property claimed by 3 person, oblige must file a bond in
amount not less than value of property to continue
o
rd
3 party must file an affidavit
o Period to enforce damage claims against bond: within
120 days from date of filing bond
o Sheriff not liable if bond was posted
• Penalty for selling without notice or removing or defacing notice
1. Pay punitive damages in amount of P5,000 to person injured
2. Pay actual damages
• If purchaser at auction (winning bidder) refuses to pay, may be
cited for contempt
• Sheriff can’t adjourn sale without consent of both parties
• Execution and delivery of certificate of sale mandatory only in
conveyance to purchaser of personal property not capable of
manual delivery
• Who may redeem real property sold:
1. Judgment obligor, or his successor in interest
a. Redeem within 1 year from date of registration of
certificate of sale
b. Pay full amount plus 1% per month interest
c. Once he redeems, no further redemption allowed
2. Redemptioner - creditor having a lien by virtue of an
attachment subsequent to lien under which property was
sold
a. Property so redeemed may again be redeemed
within 60 days after last redemption
b. Pay sum paid on last redemption with 2% interest
in addition
c. Must present proof of right to redeem
• Judgment obligor has right to possession and entitled to fruits and
profits during redemption period
• Upon expiration of period to redeem without redemption,
possession will be given to purchaser/last redemptioner unless a
rd
3 party is actually holding property adversely
• Option of purchaser in case sale is not effective
1. Recover in separate action from oblige the price paid to him
with interest
2. File a motion in the same case to revive judgment in his
name against judgment obligor for said amount
• Obligee’s remedies in case proceeds of property sold at auction is
not enough to satisfy judgment
1. Have judgment obligor examined by an order
2. Have obligor of judgment obligor examined by order
3. Have anyone else appear to be examined by order or
subpoena under pain of contempt
4. Court can also appoint a receiver
• When entry of satisfaction of judgment by clerk is made:
1. Writ is returned fully satisfied, or
2. Written acknowledgement of obligee or his counsel
Atty. Tranquil Salvador
3. Indorsement of such admission on the face of the record of
the judgment, or
4. Order of court after notice and motion, whenever a judgment
is satisfied in fact other than upon execution
• Effect of domestic judgments or final orders
1. Conclusive
a. If specific thing or
b. In respect to probate of a will or
c. In respect of personal, political, or legal status of a
person
d. Relationship of a person
2. Conclusive between parties and successors by title
subsequent to commencement of action with respect to
matter directly adjudged or any other matter that could’ve
been raised in relation
3. In any other litigation between same parties (in personam),
conclusiveness of judgment only to that which was adjudged
or those actually or necessarily included therein
• Effect of foreign judgments
1. Upon specific thing: conclusive
2. Upon a person, or rights between parties: presumptive only
• How to enforce foreign judgment:
o File verified petition in RTC
o Prove law of the foreign court
• How to impugn foreign judgment
1. Want of jurisdiction/notice to party
2. Collusion
3. Fraud
4. Clear mistake of law or fact
Overview of Remedies
• During Reglamentary Period (15 days)
nd
1. MR (no 2 MR)
2. MNT
3. Appeal
a. Ordinary Appeal (Rules 40 &41)
i. Notice of Appeal – within 15 days (no
extension of period)
ii. Record on Appeal – within 30 days (no
extension except when there’s an
authorized alteration or modification of
the record)
b. Petition for Review (Rules 42 & 43) – within 15
days (can extend once, additional 15 days; no
second extension except for most compelling
reasons and in which case shall not exceed 15
days)
i. RTC (appellate jurisdiction) appealed to
CA
ii. Quasi-judicial agencies
c. Petition for Review on Certiorari (Rule 45)
• After entry of judgment (60 days after knowledge but within 6
months from entry of judgment)
o Petition for Relief of Judgment (Rule 38)
• After period to file PRJ (4 years/equity)
o Petition for Annulment of Judgment (Rule 47)
RULE 40 Appeal from MTC to RTC
• Where to appeal: file notice and record of appeal with the court
that rendered decision
• Period to appeal interrupted by timely filing of MR or MNT
• Contents of Notice of Appeal
1. Indicate parties
2. Judgment or final order appealed from
3. Material dates showing timeliness of appeal
4. Pay docket and other lawful fees
• 15 days for MTC clerk to transmit original record to RTC
• Procedure in RTC
1. Upon receipt of complete record or record on appeal, clerk
shall notify parties
2. File appellant’s memorandum within 15 days from notice
3. File appellee’s memorandum within 15 days from receipt
4. Case considered submitted for decision
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Civil Procedure Memory Aid
RULE 41 Appeal from RTC
• RTC as court of original jurisdiction
o If RTC acting as a Special Agrarian Court – petition for
review to CA (CARL)
o Acting as a Commercial Court – petition for review to
CA (2005 SC Circular)
• Subject of appeal:
1. Judgment or final order that completely disposes of the case,
or
2. Particular matter when declared by Rules to be appealable.
• Prohibited appeals: (can file under Rule 65 instead)
1. Order denying petition for relief of judgment
2. Interlocutory order
3. Order disallowing or dismissing appeal
4. Denying motion to set aside judgment based on any ground
vitiating consent
5. Order of execution
6. Judgment against one or more several parties or in separate
claims while main case is pending unless court allows
7. Dismissing an action without prejudice
• Must not involve issues purely of law
• Record on Appeal – sequential compilation of pleadings, orders
etc. of judge. Requires approval. Usually required in case of
multiple appeals or a special proceeding since records are in a
different court
o Period to file objection: within 5 days
o If court orders amendment of record, amend within 10
days
o Extension only allowed if court orders amendment
• Perfection of appeal – effect: court loses jurisdiction
o Notice – upon filing in due time
o Record – upon approval of record which was filed on
time
• Duty of clerk of lower court upon perfection of appeal:
1. Verify correctness and make certification
2. Verify completeness of records to be transmitted
3. If incomplete, take measures to complete
4. Transmit records. If incomplete, give reasons and steps
taken to complete (within 30 days from perfection of the
appeal)
• Grounds for dismissal (motu propio or on motion)
1. Appeal taken out of time, or
2. Non-payment of fees within period
RULE 40 Ordinary Appealed Cases (Procedure in CA)
• Material dates
o Original record or record on appeal within 30 days
after perfection of appeal
o Appellant files approved record within 10 days from
receipt of notice of docketing of case
o Appellant’s brief – file within 45 days from receipt of
notice that all evidence are attached to record
§ 7 copies
§ Proof of service of 2 copies to appellee
o Appellee’s brief – filed within 45 days from receipt of
appellant’s brief, same number of copies required
o Appellant’s reply brief (not required) – 20 days
o Extension for filing of briefs not allowed except:
§ For good and sufficient, and
§ Motion for extension filed before expiration of
time sought to extend
o In certiorari, prohibition, mandamus, quo warranto and
habeas corpus cases, file memoranda – within 30
days (non-extendible)
• Contents of appellant’s brief
1. Subject index
2. Assignment of errors
3. Statement of case
4. Statement of facts
5. Issues
6. Arguments
7. Relief prayed for
8. Appendix (copy of judgment)
Atty. Tranquil Salvador
• Contents of Appellee’s brief
1. Subject index
2. Statement of Facts/Counter-statement of facts
3. Arguments
RULE 42 Petition for Review from RTC to CA
• 2 Kinds of petition for review (verified)
1. Rule 42 (MTC to RTC to CA)
2. Rule 43 (quasi-judicial agencies)
• Applies to cases when RTC acted in appellate jurisdiction
• File verified petition with the CA, pay docket fees and P500 for
costs within 15 days from notice of decision
o Can be extended for an additional 15 days
nd
o No 2 extension except of the most compelling reasons
and shouldn’t exceed 15 days
• Content of Petition
1. Full names of parties (don’t implead original court)
2. Specific material dates
3. Statement of matters involved and arguments
4. Clearly legible duplicate originals or true copies of judgment
of lower court (certified)
5. Certificate of non-forum shopping
6. Proof of payment of docket fees
7. Serve copy of petition to adverse party and original court
8. File in 7 copies
9. If filing/service is not personal, include explanation
• Contents of comment of respondent
1. Whether he accepts statement of matters involved
2. Point out insufficiencies or inaccuracies
3. State reasons why petition shouldn’t be given due course
• Material dates:
1. Respondent file a comment (not a MTD) – within 10 days
2. Clerk elevates original record if deemed necessary – within
15 days from notice
3. Submit memoranda when required – 15 days
• Perfection of appeal
1. Upon timely filing of petition
2. Payment of corresponding fees
• Petition shall stay the judgment appealed unless CA, the law or
rules provide otherwise and in cases decided under Rule on
Summary Procedure (immediately executory)
RULE 43 Appeals from CTA and Quasi-Judicial Agencies to the
CA
• No longer applies to CTA since now same rank as CA. File with
the SC
• Material dates:
o Period of appeal: within 15 days from notice of
judgment or date of its publication if required by law for
its effectivity
§ May grant additional period of 15 days
§ No further extension except for most
compelling reason and in no case to exceed
15 days
o File comment if required – within 10 days in 7 legible
copies
o Transmittal of record by lower court/agency – within 15
days
o Submit memoranda if required – within 15 days from
notice
• Contents of petition
1. Full names of parties without impleading court of origin
2. Statement of facts, issues involved and grounds
3. Clearly legible duplicate original or certified true copy of the
judgment
4. Sworn certificate of non-forum shopping
• Contents of Comment
1. Point out insufficiencies or inaccuracies in statement of facts
and issues
2. State reasons why petition should be denies or dismissed
3. Clearly legible certified true copies of material portions of
record with supporting papers
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Civil Procedure Memory Aid
• Findings of QJA when supported by substantial evidence is
binding on the CA
• Effect: shall not stay judgment unless CA orders so
RULE 45 Appeal by Certiorari to the SC
• Material dates
o File petition – within 15 days from notice or denial of
MR or MNT
§ May grant extension of 30 days
§ Only one extension allowed
o Elevate records – within 15 days from notice
• Rule 65 not a substitute, except when:
1. Filed within reglamentary period for petition for review on
certiorari
2. Alleged errors of judgment
3. Sufficient reason to justify relaxation of rules
• Contents of Petition (file in 18 copies)
1. Full name of parties without impleading original court
2. Material dates
3. Statement of matters involved and reasons or arguments
4. Clearly legible duplicate original or certified true copy of
judgment certified by clerk
5. Certificate of non-forum shopping
• Grounds for dismissal (motu propio or on motion)
1. Appeal is without merit
2. Prosecuted manifestly for delay, or
3. Questions raised are too unsubstantial to require
consideration
• Only way to go up to the SC, except in criminal cases where
penalty imposed is death, RP or life imprisonment
PROCEDURE IN THE CA
RULE 47 Original Cases
• Original jurisdiction of CA, over:
1. Rule 65 cases against RTC (concurrent with SC)
2. Habeas corpus, habeas data, writ of amparo, quo warranto,
Rule 65 against lower courts (concurrent with SC & RTC)
3. Annulment of judgments of RTC (exclusive)
• Contents of petition (in 7 clearly legible copies)
1. Full names and actual addresses of parties
2. Statement of matters involved
3. Factual background of case
4. Grounds relied on for relief prayed for
5. Clearly legible duplicate of original or certified true copy of
judgment
6. Other relevant documents
7. Sworn certification of non-forum shopping
8. Pay docket and lawful fees
• Acquisition of jurisdiction over respondent
1. Proper service of order/resolution
2. Voluntary submission
• Court may require respondent to file comment – within 10 days
from notice
• All other pleading may be filed only with leave of court
• May delegate reception of evidence to any member or to
appropriate court/agency
RULE 48 Preliminary Conference in the CA
• Any time during pendency of case, court may call for PC to:
1. Consider possibility of amicable settlement except when
prohibited by law to compromise
2. Define, simplify and clarify issues
3. Formulate stipulations of facts
4. Other matters to aid court in prompt disposition
• Product of PC = Record of conference
• Objection to use of resolution - within 5 days
RULE 29 Oral Argument
• When allowed:
1. At own instance or
2. Upon motion of a party
• Period to file objections to motion: 5 days from service
Atty. Tranquil Salvador
o Upon expiration of period, motion deemed submitted for
resolution
o No need for hearings on motions unless directed
otherwise
RULE 50 Dismissal of Appeal
• Grounds for dismissal (motu propio or on motion, merely directory
not mandatory)
1. Failure of record to show appeal was taken within period
fixed
2. Failure to file notice of appeal or record on appeal within
period fixed
3. Failure to pay fees required
4. Unauthorized alterations, omissions or additions in approved
record
5. Failure to serve and file required number of copies
6. Absence of assignment of errors or page references
7. Failure to take necessary steps for correction of completion
of record within time limited
8. Failure to appear at PC or comply with other orders of the
court without justifiable cause
9. Order/judgment appealed from is not appealable
10. Improper mode of appeal – appeal erroneously taken shall
not be transferred to appropriate court but will be dismissed
outright
• Withdrawal of appeal
o As a matter of right – before filing of appellee’s brief
o Discretionary – after filing of appellee’s brief
RULE 51 Judgment
• When case deemed submitted for judgment
o Ordinary appeals
a. No hearing on merits of main case is held – filing
of last pleading/brief/memorandum required or
expiration of period to file
b. Where hearing held – upon termination or upon
filing of last pleading/memorandum as required or
expiration of period to file
o Original actions and Petitions for Review
a. No comment filed – upon expiration of period
b. No hearing held – upon filing of last required
pleading or expiration of period to file
c. Where hearing on merits is held – upon
termination or upon filing of last
pleading/memorandum required or expiration of
period to file
• Rendered by: members of court who participated in deliberation
on merits
• Quorum
o Division: 3 justices
§ Decision: unanimous vote
§ If not, presiding judge designates 2 more
Justices to sit. Majority vote necessary.
• Execution of judgment
o Original action: writ accompanied by certified true copy
of decision and addressed to officer for enforcement
o Appealed case: where motion for execution pending
appeal is filed in CA, resolution granting it shall be
transmitted to lower court with directive for such court to
issue writ for enforcement
RULE 52 Motion for Reconsideration
• Material dates
o For filing – within 15 days
§ No second MR allowed
o For resolution – within 90 days from date when court
declares it submitted for resolution
• Grounds:
1. Damages awarded are excessive
2. Evidence insufficient to justify decision
3. Decision contrary to law
• Pendency of MR will stay execution of judgment (no similar
provision in Rule 37)
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RULE 53 New Trial b. Period: 4 years from discovery
• Period for filing: any time after appeal from lower court has been 2. Lack of jurisdiction
perfected and before CA loses jurisdiction over the case a. Period: before barred by laches/estoppel
• Ground: newly discovered evidence only • Contents (7 clearly legible copies)
• Motion shall be resolved within 90 days from declaration of 1. Verified
submission for resolution 2. Affidavit of merit
3. Certificate of NFS
RULE 54 Internal Business 4. Certified true copy of judgment
• Quorum of en banc – majority of actual members • Limitations of higher court
• Decision/resolution – affirmative votes of majority of members 1. Can’t resolve merits of case
present 2. Can’t substitute its own findings
• Annulment is without prejudice and be filed
RULE 55 Publication of Judgments and Final Resolution
• Publish in: PROVISIONAL REMEDIES
1. Official Gazette and • Ancillary to principal action
2. Court of Appeals Reports • No principal action of preliminary attachment, except
a. Each volume shall not be less than 700 pages o Receivership in Corporation or Banking Law
o Arbitration Law
RULE 56-A Original Cases in the SC • Provisional Remedies available:
• Original cases that can be filed in the SC 1. Preliminary attachment – “secure”
1. Rule 65 (certiorari, prohibition and mandamus) 2. Preliminary injunction – “enjoin or stop”
2. Quo warranto 3. Receivership – “preserve”
3. Habeas corpus 4. Replevin
4. Habeas data 5. Support Pendente Lite
5. Writ of amparo
6. Disciplinary proceedings against members of judiciary and RULE 57 Preliminary Attachment
attorneys • 3 stages of attachment
7. Cases affecting ambassadors, and other public ministers 1. Court issues order of grant
and consul 2. Writ of attachment issues
8. Constitutionality of a law, treaty, ordinance, or EO 3. Implementation of writ (only stage where jurisdiction over
• Procedure: (Same as CA) defendant is acquired)
1. Preliminary conference • Grounds for attachment
2. Oral arguments 1. Any claim for money or damages (except moral and
3. Judgment exemplary) with claim arising from obligation and defendant
4. MR is about to depart from Philippines with intent to defraud
• Limitations 2. Embezzlement/abuse of trust by one with a fiduciary
o No MNT unless based on its equity jurisdiction relationship (estafa)
o Can’t annul judgment of CA 3. Action to recover property and there is a willful fraudulent
concealment of property (attach any property)
RULE 56-B Appealed Cases in the SC 4. Fraud
• Mode of appeal: petition for review on certiorari except in criminal a. In contracting the obligation
cases where penalty imposed is death, RP or life b. In performance of obligation
• Grounds for dismissal (motu propio or on motion) 5. Action against a person who remove/conceals property or is
1. Failure to file within reglamentary period about to do so with intent to defraud
2. Lack of merit 6. Defendant is a non-resident, or on whom summons by
3. Failure to pay required fees/deposit publication is made
4. Failure to comply with proof of service and contents • Contents of affidavit
5. Failure to comply with circulars, directives or order of SC 1. Cause of action
without justifiable cause 2. Grounds mentioned
6. Error in choice of mode of appeal 3. No other sufficient security for claim sought to be enforced
7. Case not appealable to SC by action
• No oral arguments in appealed cases 4. Amount due to applicant
• Procedure if opinion equally divided 5. Post bond
o Re-deliberate • How to discharge attachment (no ex parte discharge allowed)
o If still no decision, 1. Post a counter-bond (attachment must already be enforced)
§ Original action commence dismissed in amount equal to value of subject matter of action
§ Appealed case, judgment appealed from 2. Motion to set aside based on improper, irregular or
stands affirmed excessive attachment; or bond insufficient
§ Incidental matters/petition, denied a. Improper: grounds not present
b. Irregular: wrong process
rd
RULE 47 Annulment of Judgments or Final Orders and • Vindicating claim by 3 party can be done in same or separate
Resolutions action (in execution, only in separate)
• Annulment by: • If properties attached are not sufficient, court can proceed with
o CA over RTC, or ordinary execution
o RTC over MTC • Recovery upon counter-bond shall be resolved after notice and
o No similar provision for SC summary hearing
• Not an appeal but an original action since already lost opportunity • Damages that can be recovered from improper, irregular or
to appeal = last remedy excessive attachment (applies to all except support pendente lite):
• File with the higher court 1. Wrongful attachment: actual damages
• Grounds for annulment 2. Malicious: actual, moral & exemplary
1. Extrinsic fraud 3. Attorney’s fees only when there’s moral or exemplary, except
a. Won’t be available if availed of or could’ve been when party incurs expenses to lift wrongfully issued writ
availed of in a MNT or petition for relief
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Civil Procedure Memory Aid Atty. Tranquil Salvador

 
RULE 58 Preliminary Injunction • Requirements for replevin
• Preliminary injunction – require party or court to refrain from a 1. Applicant is the owner or entitled to possession of thing
particular act 2. Property wrongfully detained
• Preliminary mandatory injunction – require performance or a 3. Property not lawfully taken
particular act 4. FMV of property contained in motion
• When to file: at any stage prior to judgment 5. File bond: double value of property
• Who may grant: court where action is pending • To release property: file counter-bond 2x value of property
• Types:
1. Preliminary injunction to prohibit: maintain status quo RULE 61 Support Pendente Lite
2. Preliminary mandatory injunction: requires something to be • File at any time prior to judgment
done to maintain status quo • File verified application stating grounds and financial conditions of
3. Restraining Order – issued to preserve status quo until both parties
hearing on application for PI o Bond not required
• Requisites for PI o No claim for damages against petitioner
1. Clear and unmistakable right o If wrongfully claimed, ask for reimbursement
2. Right violated and invasion is material and substantial • Material dates:
3. Urgent and permanent necessity for writ to prevent great or o File comment by Adverse party – within 5 days
irreparable injury o Set hearing – not more than 3 days after
• Enforced only within jurisdiction of court • In case of failure of adverse party to comply, can issue a writ of
• Grounds execution, even in the absence of a final judgment
1. Applicant entitled to relief • May be ordered in criminal rape cases for offspring as a
2. Commission, continuance or non-performance will work consequence of rape
injustice to applicant
3. Someone is violating the rights of applicant and it tends to SPECIAL CIVIL ACTIONS
render judgment of main case ineffectual RULE 62 Interpleader
• Only sampling evidence necessary • Reasons to file: protection from double vexation for one liability
• Requirements: 1. Conflicting claims upon same subject matter
1. Verified application 2. Against person who either:
2. File a bond a. Claims no interest
• 2 Kinds of TRO b. Or his interest is not disputed
1. 72-hour TRO 3. Conflicting claimants called to interplead and litigate among
a. Ground: matter of extreme urgency and applicant themselves
will suffer grave injustice and irreparable injury • Material dates
b. Issued by executive judge (multi-sala court) or o Motion to dismiss, shall toll period to file answer,
presiding judge (single sale) remaining period shall not be less than 5 days
c. Without hearing o Claimant file answer: within 15 days from service of
d. Automatically expires but can be extended after summons
hearing • Failure to file compulsory counterclaim is waiver
2. 20-day TRO • Pre-trial shall be conducted
a. Ground: great or irreparable injury • Writ of possession does not necessarily follow an adjudication
b. Issued by regular court judge after raffle • Fees to be paid by applicant but entitled to lien on judgment
c. Following service of complaint and summons award to reimburse him for fees since not a real party
d. Also without notice and hearing
e. Cannot be extended, automatically expires RULE 63 Declaratory Relief and Similar Remedies
• Period of TROs if granted • 2 scenarios:
o Lower court: 20 days 1. Declaratory Relief – file with RTC
o CA: 60 days 2. Other Similar remedies – file depending on which court has
o SC: until further orders jurisdiction
• Ground to Object: insufficiency of application a. Reformation
• Ground to Object or Dissolve: b. Quieting of title
1. File affidavits showing there’s no reason for PI c. Removal of cloud
2. File counterbond and affidavit (and undergo hearing) that d. Consolidate ownership
party will suffer more damage than applicant • Requisites for Declaratory Relief
• Final injunction granted: perpetual restraint on party to continue 1. Subject matter of controversy must be:
acts, or confirm preliminary mandatory injunction a. Deed, will, contract or other written instrument
b. Statute, EO, regulation or ordinance
RULE 59 Receivership 2. Terms and validity are doubtful and require judicial
• Can apply post-judgment, even if final and executor construction
• Requires 2 bonds 3. No breach yet
1. Applicant’s bonds 4. Actual justiciable controversy or ripening of one between
2. Receiver’s bond – can agree to dispense with adverse parties
• Grounds: 5. Ripe for judicial determination
1. Proper in danger of being lost 6. Adequate relief not available elsewhere (admin remedies)
2. Property mortgaged in danger of being wasted and security • Purpose:
in mortgage no enough to cover value 1. Declare rights/duties
3. Stipulation in mortgage contract 2. Interpretation/construction
4. Preserve property during appeal or to aid execution 3. Determination of validity
5. Other reasons for most convenient and feasible means • Can file a counterclaim, or execution
• Notice
RULE 60 Replevin o If Statute, EO or regulation – notify OSG
• Covers only specific personal property o If local ordinance:
• When: at commencement of action or any time before answer § Validity: notify respective prosecutor
• Main action is recovery of possession of property § Constitutionality: notify OSG
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Civil Procedure Memory Aid Atty. Tranquil Salvador
 

 
• For DR, court can motu propio or on motion refuse to exercise ordinary speedy,
power if: remedy ordinary
1. Would not terminate uncertainty, or available remedy
2. Declaration not necessary or proper available
• If breach before final termination, converted into an ordinary civil • Petition does not interrupt the proceedings in the principal case
action unless a TRO or PI has been issued
• Dismissal of petition (motu propio or on motion)
RULE 64 Review of Judgments and Final Orders or Resolutions of o If patently without merit, or made for delay, or too
the COMELEC and the COA unsubstantial
• File within 30 days from notice of judgment o Treble costs can be awarded against petitioner and
o Non-extendible period counsel
o Filing of MNT or MR, if allowed under rules of o May impose disciplinary sanction based on re ipsa
commission, shall interrupt period loquitur
o May file within remaining period in which case shall not
be less then 5 days RULE 66 Quo Warranto
• Pays fees and deposit P500 for costs • Quo Warranto – prerogative writ by which government can call
• Petition: 18 legible copies upon any person to show by what warrant he holds a public office
o All attachments certified true copies or exercises a public franchise
• Who commences action (verified petition brought in name of the
RULE 65 Certiorari, Prohibition and Mandamus Republic of the Philippines):
• Not an appeal, special action 1. President, directing OSG
• Concurrent jurisdiction 2. OSG in the name of the government when he has good
o If decision of MTC – RTC, CA and SC reason
o If decision of RTC – CA and SC 3. OSG upon relation and request of another person
o Ordinarily filed with lower courts first, and then SC 4. Individual if and only when he claims to be entitled to
• Petition for Certiorai position usurped by another
o Against who: tribunal, board, officer • Why file:
o Questioning judicial or quasi-judicial function 1. Usurpation of public office, position or franchise
o Relief sought: nullify, set-aside or modify proceeding 2. Public officer does an act which constitutes ground for
§ Generally, no damages forfeiture of office
o Requisites: 3. Association not duly or legally incorporated, or without lawful
1. GADALEJ authority to act
2. No plain, speedy, ordinary remedy available • Where to file:
• Petition for Prohibition 1. RTC where respondent resides
o Against who: tribunal, board, officer, corporation, 2. CA
person 3. SC
o Questioning: judicial, quasi-judicial or ministerial 4. If OSG commences action, may be filed in the RTC of Manila
functions • Prescriptive period: 1 year from cause of ouster or right of
o Relief sought: desist from further proceedings petitioner arose
§ Generally no damages
o Requisites RULE 67 Expropriation
1. GADALEJ • Who can expropriate:
2. No plain, speedy, ordinary remedy available 1. National government
• Petition for Mandamus 2. LGU (through an ordinance)
o Against who: tribunal, board, officer, corporation, 3. Government instrumentality
person • Where to file: RTC has original jurisdiction
o Questioning: ministerial function or exclusion of another • What to allege:
from use and enjoyment of a right or office to which the 1. Right and purpose of expropriation
other is entitled (possible that party excluding is 2. Description of property
different from person holding office) 3. Names of persons:
o Relief sought: command to do the act required a. Owning or claiming to own
§ With damages b. Possessing it, or
o Requisite: no plain, speedy, ordinary remedy available c. Having interest over it
Certiorari Prohibition Mandamus 4. Petition verified
Against who tribunal, board, tribunal, tribunal, board, • Withdrawal allowed so long as no order of expropriation yet
officer board, officer, officer, • 2 stages:
corporation, corporation, 1. Validity of expropriation
person person 2. Determination of just compensation (judicial function)
Questioning judicial or judicial, quasi- ministerial • Exceptions to rule that entry can only be made upon judgment
what quasi-judicial judicial or function or and payment of just compensation:
function ministerial exclusion of 1. Under Rule 67
functions another from use a. File complaint and due notice
and enjoyment of b. Deposit with authorized government depositary
a right or office to 100% of assessed value
which the other is 2. Under LGC
entitled a. File complaint sufficient in form and substance
Damages No No Yes b. Deposit amount equivalent to 15% of FMV of
Relief sought desist from desist from command to do property based on latest tax declaration
further further the act required 3. Under R.A. 8974 (applies to national government
proceedings proceedings infrastructure projects)
Requisites 1. GADALEJ 1. GADALE No plain, speedy, a. File complaint
2. No plain, J ordinary remedy b. Immediate payment of 100% of zonal or market
speedy, 2. No plain, available value of property and improvements

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Civil Procedure Memory Aid Atty. Tranquil Salvador
 
c. If no zonal value and expropriation is of utmost c. Bond necessary if personal property
importance, pay proferred value • Parties can agree to partition
• Defendant may object or not, in either case may still present o If they agree, treated as extrajudicial, must be
evidence at determination of just compensation stage published
• Order of expropriation can be appealed (record on appeal) o If not, they will be referred to commissioners
o But will not prevent court from determining just § Not more than 3 competent and
compensation disinterested persons
• Determination of just compensation § 10 days to file objections to report of
o Court appoints not more than 3 competent and commissioners
disinterested persons as commissioners
§ Objections to appointment – file within 10 RULE 70 Forcible Entry and Unlawful Detainer
days from service • Venue for ejectment cases: MTC where property situated unless
§ Resolve objection within 30 days there’s a stipulation
o Assess consequential damages and deduct from • Summary procedure
assessed consequential benefits • Forcible Entry:
§ In no case shall benefits > damages o Possession by reason of Force, Intimidation, strategy,
o Commissioners file report within 60 days from threats or stealth (FISTS)
notification of appointment o Prior physical possession when it was deprived
§ File objections to report within 10 days o Period to file: within 1 year from discovery of entry
o Must be the value of property, whichever came first: • Unlawful Detainer
1. Date of taking o Previous lawful possession but by violation of contract
2. Date of filing of complaint or expiration of period, became unlawful
• Filing of appeal will not delay entry upon property, but if reversed, o Demand letter necessary:
entitled to damages § To pay unpaid rentals or comply with
conditions of lease, and
RULE 68 Foreclosure of Real Estate Mortgage § Vacate property within 15 days if land, or 5
• Where to file: court that has jurisdiction based on assessed value days if building
of property and place where located § Can dispense with when ground is expiration
• 2 Kinds of foreclosure of contract
1. Judicial • Pleadings allowed (all must be verified)
o No Right of redemption, only equity of redemption 1. Complaint
o Pay after court order to pay: period of not less than 90 2. Compulsory counterclaim and cross-claim pleaded in the
days nor more than 120 days from entry of judgment answer
rd
o Mortgagor continues to be in possession of property *No 3 party complaints
2. Extrajudicial (Act 3135) • Prohibited pleadings:
o Right of Redemption: 1 year from registration of 1. MTD, except:
confirmation of sale a. Ground of lack of jurisdiction over subject matter,
o Obligor continues to be in possession or
• Redemption periods if lender/mortgagee is a Bank b. Failure to comply with requirement of referral for
1. Mortgagor is a individual conciliation
a. Whether judicial or extrajudicial: 1 year 2. Bill of particulars
b. Bank entitled to possession prior to redemption 3. MNT, MR, or reopening of trial
unless mortgagor posts a bond 4. Relief from judgment
2. Mortgagor is a corporation 5. Extension of time to file pleadings
a. Period if judicial: 1 yr 6. Memoranda
b. Period if extrajudicial: 3 months/90 days, or until 7. Certiorari, mandamus or prohibition against interlocutory
registration of certificate of sale, whichever comes orders issued
first 8. Declare defendant in default
• Disposition of proceed of sale: 9. Dilatory motions for postponement
1. Deduct costs of sale 10. Reply
2. Pay person foreclosing 11. Third-party complaints
3. Balance or residue goes to junior encumbrances in order of 12. Interventions
priority • Material dates
a. No right to residue if extrajudicial, may only o File answer within 10 days from service of summons
redeem § Defenses not pleaded are waived except for
4. If no junior mortgagors, return balance to mortgagor lack of jd over subject matter
o File answer to counterclaims or cross-claims within 10
RULE 69 Partition days
• 2 Kinds of partition o Hold preliminary conference no later than 30 days
1. Judicial after last answer filed
a. All persons interested must be impleaded as • Cases when court can grant preliminary injunction:
indispensible parties 1. Within 5 days from filing complaint: to recover possession in
b. Covers both real and personal property the pendency of the case
c. Any co-owner can institute 2. Within 10 days from perfection of appeal: if court
d. Bond not necessary determines that defendant’s appeal is merely dilatory or that
2. Extrajudicial plaintiff is entitled to possession
a. Usually co-owners created by death of an • Can touch on issue of ownership but only provisionally, not
ascendant binding on subsequent questions of ownership
b. Requisites: • Decision is immediately executor (but not final)
i. No will o Can be stayed by:
ii. No debt 1. Filing notice of appeal and paying filing fees
iii. If there are minors, appointment of 2. Posting supersedeas bond – cover rentals in
guardians arrears
iv. Contested within 2 years
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Civil Procedure Memory Aid Atty. Tranquil Salvador  
 
3. Paying rent due from time of breach to time of
judgment
o Upon appeal to RTC, RTC’s decision cannot be stayed
even on appeal

RULE 71 Contempt
1. Direct – punished summarily
a. An act of disrespect in the presence or so near the
court
b. As to obstruct or interrupt proceedings before the same
c. Penalty:
i. RTC & up:
1. Fine: not exceeding P2,000 and/or
2. Imprisonment: not exceeding 10
days
ii. MTC
1. Fine: Not exceeding P200 and/or
2. Imprisonment: not exceeding 1
days
d. Remedy:
i. No appeal.
ii. File certiorari/prohibition (Rule 65)
iii. Stay execution by filing bond
2. Indirect – requires notice and hearing
a. Violation of an order or lawful process of court
b. How charged:
i. Motu propio formal charge of judge against
whom contempt was committed
ii. Verified complaint filed and docketed
separately; if incident to case, with option to
consolidate with main
c. Where to file:
i. If against RTC: file in RTC
ii. Against MTC: file in RTC, or MTC(subject to
appeal to RTC)
d. Maybe released from custody upon filing a bond in
amount fixed by court
i. Maybe released if it appears that public
interest will not be prejudiced
e. Penalty:
i. RTC & up:
1. Fine: not exceeding P30,000
and/or
2. Imprisonment: not exceeding 6
months
ii. MTC
1. Fine: Not exceeding P5,000
and/or
2. Imprisonment: not exceeding 1
month
iii. If contempt consists in refusal to do an act
which he is capable of performing, may be
imprisoned until performance
f. Remedy:
i. Appeal
ii. But judgment stayed only with a bond is
posted
• Contempt in quasi-judicial agencies
o First, check the rules of such QJA because that will
govern
o In absence thereof, such rule will apply suppletorily
o Special rule on venue: RTC where contempt was
committed

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