REMEDIAL LAW

CIVIL PROCEDURE
SEC. 3: CASES GOVERNED: govern the procedure to be
RULE 1 observed in actions, civil or criminal and special
proceedings.
General Provisions
1) CIVIL ACTION: suit for the enforcement or
Section 1. Title of the Rules. — These Rule shall be protection of a right (di pa nangyari), or the
known and cited as the Rules of Court. (1) prevention or redress of a wrong (there is already a
delict or wrong or it was already done to you).
Section 2. In what courts applicable. — These Rules shall a) ORDINARY:
apply in all the courts, except as otherwise provided by the b) SPECIAL:
Supreme Court. (n)

Section 3. Cases governed. — These Rules shall govern ORDINARY CIVIL ACTION SPECIAL CIVIL ACTIONS
the procedure to be observed in actions, civil or criminal
and special proceedings. Both are governed by the rules for ordinary civil actions,
subject to specific rules prescribed for a special civil
(a) A civil action is one by which a party sues another action.
for the enforcement or protection of a right, or the Rule 62:
prevention or redress of a wrong, (1a, R2)
a) Interpleader
A civil action may either be ordinary or special. Both are b) Declaratory relief and
governed by the rules for ordinary civil actions, subject to similar remedies
the specific rules prescribed for a special civil action. (n) c) Review of judgments
and final orders or
(b) A criminal action is one by which the State resolutions of the
prosecutes a person for an act or omission COMELEC and COA
punishable by law. (n) d) Certiorari, prohibition,
(c) A special proceeding is a remedy by which a party and mandamus
seeks to establish a status, a right, or a particular e) Quo warrant
fact. (2a, R2) f) Expropriation
g) Foreclosure of real
Section 4. In what case not applicable. — These Rules estate mortgage
shall not apply to election cases, land registration, h) Partition
cadastral, naturalization and insolvency proceedings, and i) Forcible entry and
other cases not herein provided for, except by analogy or unlawful detainer
in a suppletory character and whenever practicable and j) Contempt
convenient. (R143a)
2) CRIMINAL ACTION: one by which the State
Section 5. Commencement of action. — A civil action is prosecutes a person for an act or omission
commenced by the filing of the original complaint in court. punishable by law.
If an additional defendant is impleaded in a later pleading, 3) SPECIAL PROCEEDINGS: a remedy by which a
the action is commenced with regard to him on the dated party seeks to establish a status, a right, or a
of the filing of such later pleading, irrespective of whether particular fact.
the motion for its admission, if necessary, is denied by the
court. (6a)
ACTION SPECIAL PROCEEDING
Section 6. Construction. — These Rules shall be liberally
construed in order to promote their objective of securing a Requires the filing of a Relief may be obtained by a
just, speedy and inexpensive disposition of every action formal pleading mere application or petition
and proceeding. (2a) Always two definite and There is a definite
particular adverse party: petitioner, but there is no
PLAINTIFF (demands the definite party as it is usually
SEC. 1: 1997 Code of Civil Procedure. right); defendant (to whom against the whole world
the right is sought)
 When the Court makes a comparison with the old Petition for land
one and this one. registration:
 Effective: July 1, 1997.
ACTION: a civil action is one by which a person sues
SEC. 2: apply in all courts, except as otherwise provided another.
by the SC.
 An ordinary action is a suit in court.
 Is CTA governed by the ROC? YES, as it is not a  ACTION v. SUIT → can be used interchangeably.
quasi-judicial body, but a full-fledged court.  Suit: pursuit for a claim or demand.

CLASSIFICATION OF ACTIONS:

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1) As to their NATURE: ORDINARY or SPECIAL. property, to (application and disposition of the
2) As to their CAUSE/FOUNDATION: REAL ACTION recover a sum of petition) – to property of the
or PERSONAL ACTION, some authors include money. establish the fact defendant,
MIXED. that you are the whether
owner of fee voluntarily
simple, or a right (mortgage) or
REAL ACTION PERSONAL MIXED of being a naked involuntarily (by
ACTION ACTION owner in a attachment issue
property. by the court).
One that is On that is founded on Mixed of real
founded on privity of contracts or and personal:
privity of real quasi-delict, such as pertain to CHING V. COURT OF APPEALS: an action for
estate for the action to recover sum some degree reconveyance after the land was sold to Ching, who died
purpose of of money, or to real and in the US.
affecting title to recover damages, or personal.
or possession of for the enforcement EXAMPLE: o Because the plaintiff was not sure whether Ching is
real property or of a contract, or for a recovery of still alive, he amended his complaint by adding his
any interest recovery of a land, and estate, as they cannot serve summons personally.
therein. personal property. damages.  Served summons by publication, which was
No. 2 No. 8 allowed by the court.
 Ching was declared in default after 60 days.
3) As to PLACE OF FILING: LOCAL or TRANSITORY o RTC: rendered judgment on default.
o This action was filed 13 years from the death of
Ching.
LOCAL TRANSITORY o When the judgment became final and executory, the
son of Ching filed a verified petition to set it aside
One which must be brought Follows the party wherever for lack of jurisdiction.
with a particular place, like he may reside. o RULE: in actions in personam, the court must
a real action. acquire jurisdiction over the person.
 Publication was only allowed for in rem
and quasi-in rem.
4) As to OBJECT: IN PERSONAM and IN REM, o SC: did not acquire jurisdiction over the person, as
QUASI-IN REM the person already died, and he ceased to be.
o Distinction between in personam and in rem.
o IMPORTANT: even if it involves a real property, it
IN PERSONAM IN REM QUASI IN REM does not necessarily mean that it is already an
action in rem, or quasi in rem.
The object there The object is to Directed to the o REASON: it still remains in personam as it seeks a
of the suit is to BAR indifferently thing, still, like in claim against a particular individual, as it seeks a
establish a ALL who might rem, as the judgment that is binding only upon the party
claim against a be reminded to judgment is on impleaded in the case.
particular make an the thing. Quasi
person and that objection of any (almost) in rem.
you are seeking a sort against a The judgment IN PERSONAM IN REM
judgment for him right, fact or a remains
to be held liable. status sought to conclusive only Directed against a specific Directed against the thing
be established. against the person. as against the real world.
parties, not Action to recover a parcel
against the whole of land, even if it is a real
world. action.
Binds his body; If anyone in the In here, an
only certain whole has the individual is o The fact that another petition in rem is pending: the
persons are right to be heard named as petition for the settlement of the estate with the
1
entitled to be on the strength of defendant . The Pasay City Court, and that is PUBLIC.
heard. alleging facts to purpose of the  The plaintiff should have made the
Seeks personal be true shows an proceeding is to administrator of the estate the defendant,
claim against a inconsistent subject his and to whom service of summons should be
particular interest to that property to an made.
individual. petitioner. obligation or lien  There is constructive knowledge of an in rem
burdening it. proceeding.
An action to Land registration Sole object: the
2
recover a case sale or

1
Unlike in in rem. But both of them, the object is against the thing.
2
Not to confer ownership, but to CONFIRM ownership. Object of the
suit is to bar indifferently all individuals. Otherwise, when the decree of
registration is handed by the court, after the person of one day, his title
to the property becomes indefeasible, unassailable, and
imprescriptible.

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PADERANGA V. BUISAN: the leased property was
located in Ozamis City.
o The lessee (plaintiff) filed for an action for damages
and to fix the period of the lease in CFI of
Zamboanga del Norte, based in Dipolog City (which
is the residence of the plaintiff).
o A Motion to Dismiss was filed, as petitioner
contends that the suit must be filed in Ozamis,
which is the location of the property → real action.
 That venue was improperly laid.
o QUESTION: is this a real action, or a personal
action?
o SC: in personam → where the plaintiff resides.
 Only affects the parties alone, not the whole
world.
o Fixing of the period of lease will result to
repossession of the property → does not follow that
it is already a personal action.
o SC: while it may be that the complaint does not
explicitly pray for the recovery of possession of the
real property, such is the necessary consequence in
this case as the instant action hereto is to recover ½
portion that was earlier repossessed by the lessor.
o ULTIMATE PURPOSE: seeks recovery of
possession, such an action be a real action, and
such shall be filed where it lies.
 Effect of the judgment is to recover the ½
portion he has earlier repossessed.
o ACTION IN PERSONAM, but REAL ACTION.
o SC: RTC must dismiss the case for improper venue.
NOTE: While it may be that the instant complaint does not
explicitly pray for recovery of possession, such is the
necessary consequence thereof. The instant action
therefore does not operate to efface the fundamental and
prime objective of the nature of the case which is to
recover the one-half portion repossessed by the lessor,
herein petitioner. Indeed, where the ultimate purpose of an
action involves title to or seeks recovery of possession,
partition or condemnation of, or foreclosure of mortgage
on, real property, such an action must be deemed a real
action and must perforce be commenced and tried in the
province where the property or any part thereof lies.
AUGUST 1, 2016
SEC. 5: COMMENCEMENT OF ACTION: commenced by
the filing of the original complaint in court.
CABRERA V. TEJANO: the sale was executed on July 2,
1947.
o An action for Partition & Recovery of Real Estate
with Damages was filed on June 20, 1957.
o Defendant claimed that the action was already
prescribed, as it was brought ten years from the
purchase (he received the summons on July 2,
1957).
o SC: the action was deemed commenced at the time
of the filing of the original complaint, not at the time
of the service of summons.
o Under ART. 1155 of the CC, which provides for
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prescription of actions, when the time is interrupted:
upon filing in court or written demand.
 The 10-year period has not yet elapsed when
the complaint was filed in court.
o The fact the summons was served at the end of the
10-year period is of no consequence as a civil
complaint is deemed filed upon the filing of the
complaint docketing of the complaint.
FILING OF THE COMPLAINT: it is not enough that you
file the original complaint in court.
 ―FILING‖ → not just the mechanical presentation of
the pleading in court.
 There must also be proper payment of the
required docket fees.
AYALA V. MADAYAG: is there failure to pay prescribed
docket fee and failure to specify in the body and the prayer
the amount of exemplary damages they sought.
o Plaintiff only paid P1,616.
o Argument of Sabio: it is not necessary → if the
judgment subsequently awards a claim not specified
in the pleadings, and the same is left for the
determination of the court, then the filing fee shall
merely constitute a lien on the judgment, to be
enforced by the Clerk of Court.
 As per Sun Insurance v. Asuncion.
o Sustained by the SC? NO.
o Tacay v. RTC of Tagum: refers only to ―damages
arising AFTER the filing of the complaint or similar
pleading.‖
o SC: limited only to the damages that may arise
AFTER the fling of the complaint → they are
damages arising pendente lite, that accrues after
the filing of the complaint.
 As it will be impossible for the claimant to
specify the amount thereof.
o Refers only to those damages that will arise
pendente lite (during the pendency of the litigation).
o RULE: in Manchester Development: where the
appropriate docket fee is not paid, then the court
shall not acquire jurisdiction over the action.
SUN INSURANCE V. ASUNCION: if there is non-payment
of docket fees, the court does not acquire jurisdiction over
the complaint.
o RULES:
1. It is not simply the filing of the complaint or
appropriate initiatory pleading, but the
payment of the prescribed docket fee, that
vests a trial court with jurisdiction over the
subject matter or nature of the action. Where
the filing of the initiatory pleading is not
accompanied by payment of the docket fee,
the court may allow payment of the fee within
a reasonable time but in no case beyond the
 REMEDIAL LAW
CIVIL PROCEDURE
applicable prescriptive or reglementary
3
period .
2. The same rule applies to permissive
4
counterclaims , third-party claims and
similar pleadings, which shall not be
considered filed until and unless the filing fee
prescribed therefor is paid. The court may
also allow payment of said fee within a
reasonable time but also in no case beyond
its applicable prescriptive or reglementary
period.
3. Where the trial court acquires jurisdiction
over a claim by the filing of the appropriate
pleading and payment of the prescribed filing
fee but, subsequently, the judgment awards
a claim not specified in the pleading, or if
specified the same has been left for
determination by the court, the additional
filing fee therefor shall constitute a lien on the
judgment. It shall be the responsibility of the
Clerk of Court or his duly authorized deputy
to enforce said lien and assess and collect
the additional fee.
o If not reasonably paid → reasonable time, as long
as the prescriptive period has not yet lapsed.
HODGES V. COURT OF APPEALS: three attorneys filed
a complaint for damages for defamatory statements.
o Special appearance by the defendant: only P32 was
paid as docket fees.
o SC: judgment must be set aside.
o Lazaro v. Endencia: an appeal is not deemed
perfected if the appellate court docket fee is not fully
paid.
o Magaspi v. Ramoleta: a case is deemed filed only
upon payment of the docket fee regardless of the
actual date of its filing in court.
SEC. 33, BP 129: requirement of stating the amount of
damages.
 EXCLUSIVE: when pertaining to jurisdiction.
 BUT its specific amount must be alleged as it shall
be included in the determination of filing fees.
SALIENTES V. COURT OF APPEALS: mixed action.
o The petitioner filed a complaint seeking to recover
possession of a portion of a real property (P500k)
AND damages (not less than P500k).
o RTC: Dismissed the complaint for failure to pay
docket fees.
o CA: not a fixed amount, and dismissed the petition.
o SC: NOT correct, and the RTC can only dismiss the
case for the action for damages, not for the
recovery of the real property as they paid the docket
fees for the real action.
 The docket fee for the real action was paid.
3
Provided it has not yet lapsed.
4
Only permissive, and not compulsory.
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o If the damages are not specified, then only that
action can be dismissed.
o The court has jurisdiction for the action for the real
property and not divested of that authority when it
did not acquire jurisdiction over the case for
damages.
o What should have been done is to expunge the
claim for damages which amount are not specified
as basis for the amount of payment of docket fees
or to order additional claims.
Filing fees for criminal cases?
MAERSK-TABACALERA SHIPPING V. COURT OF
APPEALS: damages were awarded which are not
specified in the complaint.
o Contract of carriage → unloaded the goods without
notice.
o TC: Judgment was rendered for plaintiff for breach
of contract.
o CA: affirmed.
o On appeal, the losing party questioned the
jurisdiction of the TC.
o SC: If you do not raise the lack of payment of
docket fee in the TC, you cannot anymore raise that
for the first time on appeal → defect is deemed
waived.
o When the judgment awarding a claim not specified /
left to the determination of the court → just
constitute a lien on the judgment.
 The filing fee shall constitute a lien on the
judgment (maunang bayaran).
o The counsel was reprimanded for not specifying the
damages in the body and the prayer of the
complaint to defraud the Government of the proper
fee for docketing said complaint.
ORIGINAL DEVELOPMENT V. COURT OF APPEALS: a
claim for breach of contract, but the amount of damages
were unspecified.
o MTD: non-payment of docket fees.
o It paid, but not the whole.
 Based on P2M → representing the amounts
due to the plaintiff for take out proceeds.
 Prayed for damages, without specifying their
amounts, which will be proved in the trial.
o Required to amend → equivalent to 25% of the total
monetary liability and other expenses of litigation.
o SC: it is evident that the complaint did not state
enough facts and sums to enable the COC of the
lower court to compute the docket and other fees.
o The plaintiff must ascertain in his own the fees.
o SC: left to the judge mere guesswork as to the
amount, which is FATAL.
INTERNATIONAL INDUSTRIAL MANAGEMENT V.
COURT OF APPEALS: the filing fees for the additional
claims of damages must be specified and paid.
 REMEDIAL LAW
CIVIL PROCEDURE
CRIMINAL CASES: is there a filing fee? DEPENDS,
whether the civil action arising from the offense charged is
deemed instituted with the criminal case.
 If it is, there is payment.
 If none, there is no payment.
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction. (5a)
Section 6. Misjoinder of causes of action. — Misjoinder of
causes of action is not a ground for dismissal of an action.
A misjoined cause of action may, on motion of a party or
on the initiative of the court, be severed and proceeded
with separately. (n)

SEC. 4: shall not apply to election cases, land registration

and cadastral proceedings, naturalization and CAUSE OF ACTION: what is required of every ordinary
naturalization cases, and other cases herein provided for, civil action?
etc.
 SEC. 1: every ordinary civil action must be based
SEC. 6: objective → to secure a just, speedy, ad on a cause of action.
inexpensive disposition of every action and proceeding.  SEC. 2: the act or omission by which a party
violates a right of another.
 If there is a call for interpretation, and there is no  Should every action be based on a cause of
specific rule on that point, you can you this. action? Only on ORDINARY civil actions.
 Liberal → to promote the purpose.  NOT included: special civil actions, where
there is no act or omission yet (essence of
RULE 2: declaratory relief).
 A.K.A delict or wrong committed by the
defendant in violation of the plaintiff’s right.
Civil Actions  BASIS: the rule is judicial power can only be
exercised if there is only a controversy
Ordinary Civil Actions (actual case or justiciable controversy).
 When it involves right which are
RULE 2 enforceable and demandable.
 If there is a violation, a controversy is
Cause of Action created.
 If there is an impending violation, it
Section 1. Ordinary civil actions, basis of. — Every will still involve a right (he still has the
ordinary civil action must be based on a cause of action. locus standi).
(n)  What are the ESSENTIAL REQUISITES OF
A CAUSE OF ACTION:
Section 2. Cause of action, defined. — A cause of action 1) Right vested on the plaintiff
is the act or omission by which a party violates a right of 2) A corresponding duty on the part of
another. (n) the defendant to respect plaintiff’s
right
Section 3. One suit for a single cause of action. — A party 3) The act or omission of the defendant,
may not institute more than one suit for a single cause of by which the primary right and duty
action. (3a) have been violated

Section 4. Splitting a single cause of action; effect of. — If

two or more suits are instituted on the basis of the same RIGHT OF ACTION CAUSE OF ACTION
cause of action, the filing of one or a judgment upon the
merits in any one is available as a ground for the dismissal Right of the plaintiff to Refers to the act or
of the others. (4a) bring/institute an action, or omission committed by the
to prosecute that action to defendant.
Section 5. Joinder of causes of action. — A party may in final judgment.
one pleading assert, in the alternative or otherwise, as 1) The plaintiff must
many causes of action as he may have against an have a valid/right
opposing party, subject to the following conditions: cause of action
2) He must have
(a) The party joining the causes of action shall comply performed all
with the rules on joinder of parties; condition precedent
(b) The joinder shall not include special civil actions or to the filing of the
actions governed by special rules; action
(c) Where the causes of action are between the same 3) The right to institute
parties but pertain to different venues or the action must be in
jurisdictions, the joinder may be allowed in the plaintiff (he is the real
Regional Trial Court provided one of the causes of party in interest)
action falls within the jurisdiction of said court and Determined by substantial Determined by the
the venue lies therein; and law. pleadings.
(d) Where the claims in all the causes action are

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CIVIL PROCEDURE
May be taking away by the Such does not affect the  PURPOSE: to prevent repeated litigations in regard
running of the statute cause of action. to the same parties, and same objects.
limitation, estoppel, or other  To protect the defendant from unnecessary
circumstances. litigation.
 To prevent multiplicity of suits.
RELIEF:  TEST: how to determine whether a cause of action
is single → when they refer to one and the same
obligation.
RELIEF REMEDY  There is only one delict or wrong.
 When there is only one delict or wrong, or
The redress sought or The appropriate legal form one act or omission, there is but ONE single
prayed for by the plaintiff of relief whereby a cause of action, regardless of the number of
(his prayer). remediable right may be rights violated, and all of the rights violated
enforced. must be alleged in one complaint, as there is
In one action, there can be only one act.
many remedies.  Whether the case falls within and without the
rule in splitting depends whether the wrong
SUBJECT MATTER OF THE ACTION: is one and the same in both actions, and not
upon whether different grounds for relief for
the same wrong are set for.
CAUSE OF ACTION SUBJECT MATTER  Single act or omission must only be
committed in a single contract or separate
The delict or wrongful act The physical facts, the contracts.
or omission committed by thing real or personal, the  EXAMPLE: A contracted one loan
the defendant in violation money, lands, chattels, from B, covered by a PN. Then A
of the primary rights of the and the like, in relation to contracted another, covered by
plaintiff. which the suit is another PN. When A violate both, two
prosecuted, and not the actions can be filed as there are two
delict or wrong committed omissions (non-payment), which is in
by the defendant. violation of the act of the plaintiff.
Refers to the thing or
OBJECT in dispute.
INDUSTRIAL FIANANCE CORP. V. APOSTOL: trucks
NATURE OF THE ACTION and JURISDICITON OF THE were secured by PN, chattel mortgage and REM.
COURT: allegations of the complaint and the reliefs
prayed for. o They then failed to pay, and a collection suit was
filed against them.
 The nature of the action, as constituted in the o The debtor-spouses sold a property subject of the
allegation of the complaints → cannot change. REM to a third person.
 Same theory, always. o In TCT, a mortgage lien was annotated in the
 If you are the defendant, and you are the Certificate of Title the third person bought, so they
defense, you must formulate the theory of asked for the cancellation of the mortgage lien.
your case, and your legal basis. o The creditor opposed the cancellation, as it is not
 PRESENT RULES: the allegations of the complaint yet paid.
as well as the reliefs prayed for. o SC: should the prayer or petition for cancellation be
granted? YES.
SEC. 3: How many suits may a party institute for a single o The action to recover the debt, the mortgage claim
cause of action? NOT MORE THAN ONE SUIT. is deemed abandoned, and the inscription may now
be stricken off.
SEC. 4: SPLITTING A SINGLE CAUSE OF ACTION: o Why is there abandonment? The filing of the
consequences of splitting of cause of action. collection suit will constitute an abandoning of the
mortgage, otherwise, that will constitute splitting of
 ―Splitting‖: Plaintiff files two or more suits are the cause of action because there is only one delict
instituted for one cause of action. or wrong.
 The practice of dividing one cause of action  If there is no abandonment, he can proceed
into different parts, and each part is a subject to the second remedy.
of a separate action. o REASON: if it is not abandoned, you are allowing
 EFFECT: a ground for the dismissal of the other the creditor to pursue the second remedy, and
actions. allowing such, then that is a second action for ONE
 The filing of the first may be pleaded in DELICT, which is non-payment.
abatement of the other/s. o Creditor has two remedies for non-payment:
 Lis pendentia: if other’s do not yet 1) Collection, OR
2) Foreclosure of mortgage.
have judgment.
 If there is already a judgment in one, then o There is only one delict or wrong committed by the
that judgment is available as a bar to the defendant; to pursue one means abandoning the
other/s → invoke res judicata. other.

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IMPORTANT: to know the basic difference between a
cause of action and a remedy for its enforcement.
 Splitting: plaintiff must not pursue all remedies,
whether simultaneously or successively.
 BREACH OF CONTRACT: single cause of action.
Remedies:
1) Specific performance, or
2) Rescission
 ONLY alternative remedies.
 If containing several stipulations:
 GENERAL RULE: contract only constitutes
single cause of action.
 EXCEPTION: a contract which provides
several obligations at different times gives
rise to many causes of actions as there are
violations.
 HOWEVER, even if a contract provides for
several stipulations to be performed at
different times, all obligations already
matured at the time of the suit must be
integrated as one, and those not included
will be bared under the rules of splitting a
cause of action.
EXAMPLE: PN to be paid in different installments. If one
installment is not paid, can you already sue? YES, as
there is already an omission.
o If the second installment is not paid, can you sue?
YES.
o Unless, it has an escalation clause, which renders
the entire amount due and demandable.
o If when the complaint was filed, three installments
are pending, you need to file that in one complaint.
BAYANG V. COURT OF APPEALS: Bayang filed quieting
of title with damages against Biong.
o Pending the case, Biong succeeded in possessing
the lot.
o TC: in favor of Biong.
o CA: declared Bayang owner of the land, and entitled
to the share of proceeds of copra, and the judgment
became final.
o Bayang filed for recovery of income.
o SC: plaintiff’s second action is barred by the first
judgment.
o Splitting causes of action is not allowed.
BACHRACH V. ENCARANGAL: same as INDUSTRIAL
V. APOSTOL.
o Recovery of ownership of land without claiming the
produce, or the principal without the interest, a
subsequent action to collect the produce or interest
is BARRED, otherwise, such will constitute splitting.
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SEC. 5: JOINDER OF ACTIONS: all the causes of action
must arise from same contract, same obligation, or same
relations of the parties.
 What if the plaintiff in one complaint sued for a (1)
collection of unpaid loan, (2) specific performance
of contract A, (3) rescission of contract B, and (4)
recovery of damages for quasi-delict? Can they be
joined?
 YES, as the rules do not prohibit such.
 The rule on permissive joinder is only subject
to four rules.
 Does not mention that it must arise from the
same relations of the parties.
 ONLY LIMITATIONS/Conditions which will govern
in permissive joinder:
1. The party joining the causes of action shall
comply with the rules on joinder of parties,
2. The joinder shall not include special civil
actions or actions governed by special rules,
3. Where the causes of action are between the
same parties but pertain to different venues
or jurisdictions, the joinder may be allowed in
the RTC provided one of the causes of
actions falls within the jurisdiction of said
court and the venue lies therein,
4. Where the claims in all the causes action are
principally for recovery of money, the
aggregate amount claimed shall be the test
of jurisdiction.
JOINDER OF CAUSES OF ACTION:
When is there a PERMISSIVE joinder of parties?
1) There is a right to relief in favor of or against the
parties joined in respect to or arising out of the
same transaction or series of transactions, AND
2) There is a question of law or fact common to all of
such parties.
EXAMPLE: A and B, as passengers rode Bus 1. Bus 1
collided Bus 2.
o A and B can filed separate actions.
o But they can also join in one action.
o REASON: the right to relief is in relation to arises
out of the same transaction or contract.
 One transaction, one incident: the same
vehicular accident.
o Is there a common question of fact? Of law in all the
parties? YES, all the same evidence, and same law
to be applied.
A, an owner of a land, wanted to sell his land. Since he
does not have the network, he went to a real estate
broker, X. If X is able to sell, he agrees to pay him 3%, but
only for a period of 1 month, otherwise, A will find another
brokers. X then went to B (sub-agent), who knows many
rich people around. X told him that B will get half of the
commission. Through the efforts of B, the land was sold.
 REMEDIAL LAW
CIVIL PROCEDURE
A, the landowner, withdrew the agency.
o X and B filed a complaint against A for the
commission.
o A filed a Motion to Dismiss, to drop B, as there is
misjoinder of parties.
o Can the sub-agent sue and join the agent? YES, as
the rules only require two elements.
 The old Rules prohibited such, as there is a specific
requirement.
NO. 2: special civil actions and special rules have different
rules than ordinary civil actions.
NO. 3:
1) Same parties,
2) Only applicable when it is filed with the TC, not with
the MTC.
NO. 4: all the causes of action are principally for recovery
of money.
 Test of jurisdiction: aggregate amount → defendants? YES.
TOTALITY RULE.
FLORES V. MALLARE-PHILLIPS: plaintiff, a dealer of
tires, loaned A P11K and B P10K.
o That time, the jurisdictional threshold is P20K, and
by sheer computation, he filed in in the RTC.
o Defendants filed a MTD on the ground that the RTC
has no jurisdiction over the case.
o RTC has jurisdiction? YES, present rule.
 SEC. 33 (1), BP 129: TOTALITY RULE for
the demand for the test of jurisdiction.
 For purposes of jursidiciton, the totality of the
amount of money claim, even if it arose of
different transaction owing/owed by different
parties, it is the totality rule which is
applicable.
o Test of jurisdiction: totality of all of the claims.
o RTC HAD jurisdiction, BUT is there proper joinder of
parties? NO.
1) Right to relief must arise from same
transaction, and
2) There is a question of fact and law common
to all parties joined.
o Once parties are dropped, the complaint shall be
amended, and the original ceases to exist.
o Since the claim is below P20K, then the case is
properly dismissed by the RTC.
SEC. 6: Is misjoinder of causes of action a ground for a
dismissal of action? NO.
 May be severed, or dropped, or proceeded with
separately.
 Duty of the court to order their separation.
 The dismissal of one does not affect others if there
is no legal ground to dismiss the same.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 8 of 270
 Each action must be based according to its own
merit.
HOW MAY CAUSES OF ACTION BE JOINED?
ALTERNATIVELY or OTHERWISE.
 ―Otherwise‖ → CUMULATIVELY.
CUMULATIVE ALTERNATIVE
Action for declaration of Breach of action or tort.
paternity and for support.
INSURANCE V. WARNER: there is an admiralty case
here, and Security Bank ordered spare parts from London
and was shipped on board belonging to Warner.
o Upon arrival, the items were damaged.
o Security Bank sought to be compensated by the
marine insurance, and the marine insurance was
taken by Insurance Company of North America.
o ISSUE: was there proper joinder of party
o In the ALTERNATIVE.
o BASIS OF CAUSE OF ACTION:
1) Against Warner: based on breach of contract,
IN THE ALTERNATIVE
2) Against the Bureau of Custom: based on
quasi-delict.
o There is proper joinder of causes of action as it can
be in the alternative or otherwise.
Is joinder of causes of action here compulsory or
permissive? Merely PERMISSIVE, as there is no law
which compels a party to join his causes of action and
bring them in one or at one and the same time.
RULE 3
Parties to Civil Actions
CLASSES OF PARTIES:
1) Real Parties in Interest
2) Representative Parties
3) Permissive Parties
4) Indispensable Parties
5) Necessary Parties
SEC. 1. Who may be parties; plaintiff and defendant.
Only natural or juridical persons, or entities authorized by
law may be parties in a civil action. The term plaintiff may
refer to the claiming party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.)-party plaintiff. The term
defendant may refer to the original defending party, the
defendant in a counterclaim, the cross-defendant, or the
third (fourth, etc.)-party defendant. (1a)
―Only natural or juridical persons‖
Q: When does personality begin?
 REMEDIAL LAW
CIVIL PROCEDURE
A: At birth
Q: When does it end?
A: Upon death.
Q: Can you sue a dead person?
A: NO, as he is not anymore a natural person. He is
already a dead meat; he has no more personality.
In Ching vs. CA, one of the reasons given by the Court as
to why there was no proper jurisdiction over the defendant
Ching was because he was already six feet below the
ground. He was already substituted by his administrator
(the estate of the deceased Ching). There was publication
of the notice of hearing for the petition for the settlement of
estate. The summon was never served to him, therefore
the Court never acquired jurisdiction over his person.
Q: What is a juridical person?
A:
ART. 44, CIVIL CODE
The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and
establishments for public interest or purpose,
created by law; their personality begins as soon
as they have been constituted according to law;
(3) Corporations, partnerships and associations for
private interest or purpose to which the law
grants a juridical personality, separate and
distinct from that of each shareholder, partner or
member. (35a)
Juridical persons are not natural persons but they are
given rights because they are created by law.
One example of a juridical person is a corporation. Hindi
mo masasampal yan, o masisipa yan kasi hindi mo nga
makita eh. But if you buy say, a beer, in a store and you
don’t pay, that corporation na pinagbilihan mo can sue
you. And the Court will award it damages for you to pay
kasi „di ka nagbayad.
―Entities authorized by law‖
Entities authorized by law are those created directly by
law, e.g. MWSS or waterworks district.
Remember, a juridical entity may be created by a
GENERAL LAW or by a SPECIAL LAW. For instance,
NAWASA, electric cooperatives. Under the Local
Government Code, a municipal government may sue and
be sued.
―The term plaintiff may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third
(fourth, etc.)-party plaintiff. The term defendant may
refer to the original defending party, the defendant in
a counterclaim, the cross-defendant, or the third
(fourth, etc.)-party defendant‖
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The term PLAINTIFF refers to the one who has a claim
while the DEFENDANT is the person against whom a
claim is demanded.
But a plaintiff also includes the party claiming in a
counterclaim, in a cross claim, or third (fourth, etc.)-party
complaint.
A defendant may be an original defending party, a
defendant in a counterclaim, or defendant in a cross claim
or third (fourth, etc.)-party complaint.
SEC. 2. Parties in interest.
A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in
interest.
―A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit‖
Q: Who is a real party in interest?
A: One who stands to be benefited or injured by the
judgment of the court.
Q: Why may an action be only prosecuted and
defended in the name of a real party in interest?
A: Because an action always relates to a RIGHT.
An ACTION is that by which one prosecutes another for
the enforcement or protection of a right or prevention or
redress of a wrong (because of a right violated).
We all know that the courts may exercise judicial power in
cases where there is an actual controversy involving
RIGHTS which are legally demandable and enforceable.
How can you demand if you don‟t have a right? How can
you be a defendant if you did not violate a right? So, the
basis is RIGHT.
―Or the party entitled to the avails of the suit‖
A REAL PARTY IN INTEREST is:
1) the party who stands to benefited or injured by
the judgment in the suit, OR
2) the party entitled to the avails of the suit
Others may not be benefited or injured yet the law allows
them to prosecute a case – those who are suing in a
REPRESENTATIVE CAPACITY.
Q: What is an example of an instance where a party,
although he is not directly benefited or injured,
nonetheless the law allows them to the avails of the
suit?
A: A derivative suit
o In a derivate suit, the corporation is the real party
in interest, but the one suing is the minority
stockholder.
A corporation is a juridical person having separate
personality from the stockholders or officers. In a derivate
 REMEDIAL LAW
CIVIL PROCEDURE
suit, the law allows the party to sue even if he will not be
benefited or injured (someone else will be benefited or
injured by the judgment of the court). So they are entitled
to the avails by the suit.
―Unless otherwise authorized by law or these Rules‖
GENERAL RULE: Only juridical persons may be allowed
to sue. If there is an aggrupation of persons and they want
to sue (e.g. AUF Saturday Dance Club – not
incorporated), ALL of them should be parties.
EXAMPLE:
Suppose we formed the AUF Saturday Dancing and
Drinking Club, where every Saturday, we hire a hotel
where we dance and drink.
Suppose the food and drinks that were served were
not in accordance to what we and the hotel have agreed
upon (e.g. kulang ang cake, kulang ang drinks, etc.)
Now we want to sue the hotel (or the hotel wants to
sue us). Who should be parties? ALL of us should be
named plaintiffs and defendants, because we are not
juridical persons – we are natural persons.
In other words, there is proper JOINDER OF
PARTIES because:
1) there is a right to relief for the parties joined;
2) in respect to or arising out of the same
transaction or series of transaction; and
3) there is a common question of law or fact.
SO ALL OF US SHOULD BE
IMPLEADED.
EXCEPTIONS (to the rule requiring the impleading of all
real parties in interest, if there are plenty, considering they
are not juridically incorporated or established):
1) CLASS SUIT (Sec. 12)
SEC. 12. Class suit.
When the subject matter of the controversy is
one of common or general interest to many
persons so numerous that it is impracticable to
join all as parties, a number of them which the
court finds to be sufficiently numerous and
representative as to fully protect the interests of
all concerned may sue or defend for the benefit
of all. Any party in interest shall have the right to
intervene to protect his individual interest.
o When the parties are so numerous that
it is impracticable to bring them all
before the court, in which case some
may be made parties if they represent
sufficiently the interest of all.
o In other words, the subject matter of the
action is common to many and this
―many‖ is so numerous that it would be
impracticable to bring them all to the
court so that in such an instance, only a
few or some that are sufficiently
representative of the interest of all may
bring the suit to the court.
2) SUIT UNDER A COMMON NAME (Sec. 15)
SEC. 15. Entity without juridical personality
as defendant.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 10 of 270
When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known.
In the answer of such defendant, the names and
addresses of the person composing said entity
must all be revealed. (15a)
o When two or more persons are being
sued under a common name, having
entered into a transaction
o Under the old rule, what was provided
was ―two or more persons associated in
a business transact such business
under a common name.‖ The word
―business‖ was removed because that is
for profit. But now, you just transact,
there is no business
o In our example (Saturday
Dance Club), we hire the hotel
to entertain ourselves. There
was no business. We will not
profit financially. Although there
is a psychological profit, e.g.
rest, recreation, there is no
financial profit. We can be sued
under a common name: AUF
Saturday Dance Club – the
name under which we
transacted
3) EJECTMENT (Art. 487, Civil Code)
ART. 487.
Any one of the co-owners may bring an action in
ejectment.
o Allows anyone of the co-owners to bring
an action for ejectment
―Every action must be prosecuted or defended in the
name of the real party in interest‖
Q: In whose name must an action be prosecuted and
defended?
A: In the name of the real party in interest.
Take note that the law does not require the principal to file
the case because, the law does not say ―every action must
be prosecuted and defendant BY the real party in
interest.‖ Hindi naman sinabing “by” eh. So an attorney-in-
fact can prosecute or defend a party but in the name of the
real party in interest. The real party in interest has
submitted to the jurisdiction of the court by filing the
complaint through his lawyer.
SEC. 3. Representative as parties
Where the action is allowed to be prosecuted or defended
by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest.
A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his
 REMEDIAL LAW
CIVIL PROCEDURE
own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except
when the contract involves things belonging to the
principal.
Q: May an agent sue alone?
A: YES.
1) WHEN HE ACTS IN HIS OWN NAME (Art.
1883, Civil Code)
ART. 1883
If an agent acts in his own name, the principal
has no right of action against the persons with
whom the agent has contracted; neither have
such persons against the principal. In such case
the agent is the one directly bound in favor of the
person with whom he has contracted, as if the
transaction were his own, except when the
contract involves things belonging to the
principal. The provisions of this article shall be
understood to be without prejudice to the actions
between the principal and agent.
2) WHEN HE EXPRESSLY BINDS HIMSELF (Art.
1897)
ART. 1897
The agent who acts as such is not personally
liable to the party with whom he contracts, unless
he expressly binds himself or exceeds the limits
of his authority without giving such party sufficient
notice of his powers
3) WHEN HE EXCEEDS THE LIMITS OF HIS
AUTHORITY without giving the other party
sufficient notice of his powers (Art. 1897)
But an agent can be sued in his own name, if he acts in
his own name, meaning undisclosed principal. But later
on, if it was discovered that the things subject of the
litigation belong to some other persons, then the court
may order an AMENDMENT by impleading the real party.
Q: So in case the agent is authorized by the principal
to bring the action, in whose name must the action be
prosecuted?
A: In the name of the PRINCIPAL, because the principal
is the real party in interest.
Q: Is an assignee of a right of action a real party in
interest?
A: YES. A right of action is assignable. Therefore, an
assignee, for valuable considerations is a real party in
interest even if the assignment is only for the purpose of
collection. Articles 1624-1624
ART. 1624.
An assignment of creditors and other incorporeal rights
shall be perfected in accordance with the provisions of
article 1475. (n)
ART. 1625.
An assignment of a credit, right or action shall produce no
effect as against third persons, unless it appears in a
public instrument, or the instrument is recorded in the
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 11 of 270
Registry of Property in case the assignment involves real
property. (1526)
EXAMPLE:
You have a promissory note. „Yung mga bad debts
iniipon, meaning hindi na nagbabayad yan, hindi na
makasingil. Pina-pacakage nila „yan then they assign it to
a collecting agency. If the agency is able to collect, they
will get a percentage of whatever is collected. Pero malaki
pa ung parte nila, sobra pa sa 50-50, kasi actually bad
debts nay an. It was even already claimed as a loss.
Nadeduct na sa taxes nila yan for purposes of computing
their taxable income. Pero kung may makuha, ok lang.
Contract
The real parties in interest in a contract are those who, in
the face of the contract, appear to be parties thereof.
Heirs of a deceased
Q: Are the heirs of a deceased person real parties in
interest?
A: YES, they are real parties in interest if:
1) The action arises out of a right pertaining to the
deceased;
2) The action is one that survives, meaning it is not
extinguished by the death of the decedent.
SEC. 16. Death of party; duty of counsel.
Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be
the duty of his counsel to inform the court within
thirty (30) days after such death of the fact
thereof, and to give the name and address of his
legal representative or representatives. Failure of
counsel to comply with his duty shall be a ground
for disciplinary action.
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring
the appointment of an executor or administrator
and the court may appoint a guardian ad litem for
the minor heirs.
Generally, any right pertaining to the deceased by
succession is also inherited. If you are a plaintiff, it is to
the extent of the right of the deceased. If you are a
descendant, it is to the extent of the estate that the heirs
have inherited.
Q: Give examples of certain actions that do not
survive, meaning those that also die with a person.
1) CRIMINAL LIABILITY
o But in civil liability, heirs are still liable by
reason of act or omission. How about
civil liability arising from the offense
charged? Does it survive? NO, it is also
extinguished. How can you charge civil
liability arising from offense if there is no
more offense?
o You have to distinguish. Prior to the
judgment becoming final and executory,
namatay pending the case. Can the
offended party go against the heirs to
 REMEDIAL LAW
CIVIL PROCEDURE
recover civil liability arising from the
offense charged?
i. Kung after, may finality of
judgment, pwede because it is
just a matter of execution.
ii. Pero before the nullity of
judgement? Can the offended
party still seek liability from the
heir the civil liability from the
offense charged? NO more,
because there can be no
more civil liability. Because
the civil liability arising from
the offense charged is
dependent upon the
existence of that same
criminal liability. If the
criminal liability has been
extinguished by death, how
can you award civil liability of
something that is not existent?
o Read People vs. Sumaya
COMMENT:
Q: May the bad son be a party to an action to annul
the sale on the ground that it is simulated?
Q: When the son was initially sued, was he a real party
in interest?
A: YES, because he has a right. He would either be
benefited if he wins the case or injured if he loses the
case.
On appeal, the RTC ruled that the sale was fictitious
so the court allowed the annulment. On appeal, the CA
ruled initially that the judgment of the trial court was
correct because he was deprived of his legitime.
But in the meantime, the will of the deceased father
was probated by the probate court and ruled disinheriting
the bad son. So when the disinheritance was confirmed by
the probate court was valid, then a motion for . The
disinheritance appearing in the will was confirmed by the
probate court as valid disinheritance.

HELD:
2) ACTION FOR SUPPORT
The bad son ceased to be a real party in interest. A
validly disinherited heir, and not claiming to be a creditor
3) LEGAL SEPARATION
of his deceased father, Pedro Ralla had no legal
o What can be a more permanent
personality to question the deed of sale between Ralla and
separation than death itself?
Pablo. Legally speaking, Pedo was a stranger to the
transaction as he did not stand to benefit from its
4) ANNULMENT
annulment. His disinheritance had rendered him hors de
combat.
In an action derivatively brought by the minority
stockholders against the board of directors to redress the
wrong done to the corporation, the real party in interest is IBONILLA vs. CA
the corporation itself. The minority stockholders who bring G.R. No. 97463, June 26, 1992
and actively prosecute the action is merely a nominal Grino-Aquino, J.
plaintiff. So the minority stockholders are persons entitled
to the avails of the suit. FACTS:
The Province of Cebu donated 40 parcels of land to
Q: Is it required that a civil action be prosecuted and Cebu Agricultural School (CAS) subject to two conditions:
defended by the real party in interest? (1) that if the school ceases to operate, the ownership of
the lots will automatically revert to the Provincial
TUASON vs. BULANOS Government of Cebu, and (2) that the School cannot
G.R. No. L-4935, May 28, 1954 alienate, lease or encumber the properties.
Reyes, J.
A law was passed and Cebu Agricultural School
HELD: became an extension of the Cebu State College of
The law only requires that it must be prosecuted ―in Agriculture. The province of Cebu demanded the return of
the name of, NOT necessarily ―by‖, the real party in the lands on the ground that the donation was void ab
interest, so the only mandatory requirement is that it must ignition since CAS did not have the personality to be a
be in the name of. done of the real property.
On the matter of real parties in interest, let’s go to some
cases to understand it better. The plaintiffs (officials, faculty and employees of
CAS, parents of enrolled student, and various school
RALLA vs. RALLA organizations) opposed the rescission of the donation.
G.R. No. 78646, July 23, 1991 They filed an action for quieting of title to the lots.
Cruz, J. The RTC dismissed the complaint on motion of the
Province on the ground that the case has become moot
FACTS: and academic and that the Province and CAS have
A father had two sons, one is good (Rosendo) one is already entered into a memorandum of agreement.
bad (Pedro). The father decided to give everything to the Plaintiffs appealed to the appellate court and the
good son. He executed a deed of sale in favor of the good appellate court affirmed the dismissal of the lower court.
son over of 149 parcels of land. When he died, the bad So they elevated the matter to the SC.
son filed a complaint to annul the deed of sale on the
ground that the contract of sale is simulated. ISSUE: WON petitioners are real parties in interest. NO.

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 REMEDIAL LAW
CIVIL PROCEDURE
HELD:
The numerous petitioners are admittedly not the
owners of the lots in question. They do not claim any
interest in them that was violated, nor have they suffered
any injury that might warrant a grant of relief. Clearly, the
finding of the appellate court and the trial court that they
are not real parties in interest who may sue to quiet the
title to the properties in question, is correct.
Only a real party in interest is allowed to prosecute
and defend an action in court (Sec. 2, Rule 3 of the Rules
of Court).
COMMENT:
Since the action is for quieting of the title, it is only the
owner who can file such. How can you ask to quiet title if
you are not the one claiming to be owner of the property in
question? So they did not claim any interest in the
property in question. They cannot even claim any interest
in the subject or the right that was violated nor have they
suffered any injury that might warrant a grant of relief.
In other words, if you are asking to recover title to property
or to recover property or erase a cloud in ownership or
title, the party there must be the OWNER.
Halimbawa, ito may-ari ayaw mag-sue sa usurper
(pumasok sa property). Ikaw ngayon, nakikialam ka. Nag-
sue ka against the owner, “Oy ibalik mo sa kanya!” Yung
may-ari nga hindi na nagrereklamo. Ikaw pa. Anong rights
mo? You are not claiming to be the owner. How can you
be a plaintiff in an action for quieting of title? That is point.
VSC COMMERCIAL ENTERPRISE vs. CA
G.R. No. 121159, December 16, 2002
Austria-Martinez, J.
FACTS:
Plaintiffs (as leseees) filed a complaint for reversion
against VSC Commercial (as lessor) on the ground that
defendant’s title is "fraudulent, spurious and highly
questionable." In other words, nakialam ang lessees,
saying na dapat daw ibalik sa State because the lessors
acquired title to the property through fraud.
They prayed for the cancellation of VSC's title over
the subject property to qualified applicants in accordance
with law.
Plaintiffs alleged that they the bona-fide stallholders
inside the 'Pamilihang Sentral ng Sta. Mesa', for about 10
years and they have been paying their market fees to
defendant VSC Commercial Enterprises, Inc. under the
latter's claim that it is the registered owner of the lot and
building known as the 'Pamilihang Sentral ng Sta. Mesa.
Defendant VSC filed a Motion to Dismiss on the
ground that plaintiffs are not the real parties in
interest, as such, they have no cause of action against
the corporation.
RTC dismissed the complaint. Plaintiffs appealed to
CA. The appellate court reversed and set aside the
order of dismissal and remanded the case to the court
of origin for further proceedings.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 13 of 270
Defendant filed a Motion for Reconsideration, but was
denied. Hence, the present petition imputing grave abuse
of discretion on the part of the appellate court in allowing
respondents to prosecute the case despite the clear
allegations that respondents are not the real parties in
interest
ISSUE: WON plaintiffs are real parties in interest. NO.
HELD:
Under Rule 3, Section 2 of ROC, a real party in
interest is defined as "the party who stands to be
benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit." "Interest" within
the meaning of the rule means material interest, an
interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved,
or a mere incidental interest. The interest of the party
must also be personal and not one based on a desire
to vindicate the constitutional right of some third and
unrelated party. Real interest, on the other hand, means
a present substantial interest, as distinguished from a
mere expectancy or a future, contingent, subordinate,
or consequential interest.
Plaintiffs are mere lessees of the property in
question. As such, they have no present substantial
and personal interest with respect to issues involving
ownership of the disputed property. The only interest
they have, in the event that petitioner's title over the
subject property is cancelled and ownership reverts to the
State, is the hope that they become qualified buyers of
the subject parcel of land. Undoubtedly, such interest is
a mere expectancy.
Even the plaintiffs themselves claim that in case of
reversion of ownership to the State, they only have "pre-
emptive rights" to buy the subject property; that their real
interest over the said property is contingent upon the
government's consideration of their application as buyers
of the same. It is only the government that has the
personality to bring an action for the cancellation of
petitioner's title and reversion of ownership of the
subject property to the State. Section 101 of the Public
Land Act categorically declares that only the government
may institute an action to recover ownership of a public
land.
COMMENT:
Only the State can ask for reversion of title, being the
owner. Another person cannot ask for reversion of title
because he does not even claim to be the owner.
Q: If ever, according to the Court, what right do the
lessees have?
A: The right is merely an INCHOATE right. In other words,
when you say interest, what kind of interest does the
person have to be a real party in interest? It must be
DIRECT and MATERIAL interest, and not merely
inchoate.
Q: In what sense do they have inchoate rights?
A: As qualified applicants, assuming later on the title will
be reverted to the State, they can later on apply to have
 REMEDIAL LAW
CIVIL PROCEDURE
the property. In the future pa „yan. But to ask title to be
reverted can be claimed only by the owner, who is the real
party in interest. Kung hindi ka may-ari, hindi ka
makakapag file ng action for reversion of title. Neither can
you be a defendant if you are not claiming adverse title to
the property, adverse to that of the owner.
EXAMPLE:
For instance, a property is being tenanted. Now you
claim to be the owner of the property. Can you sue the
tenant? Of course not! Sabihin ng tenant, ―I don’t claim
that I am the owner, so how can you demand for me to
return title to you when I don’t have title?‖ ―I will not be
injured kung kukunin mo „to sakin. But you respect my
right of possession (iba yun) because I have an
agreement and it is annotated in the Certificate of title: my
leasehold rights.‖ But if you are asking for reversion or
reconveyance of title, that’s a different thing.
SEC. 4. Spouses as parties.
Husband and wife shall sue or be sued jointly, except as
provided by law. (4a)
Q: What are those instances when a husband and wife
may sue separately and when they may be sued
separately?
A:
1) When they are judicially separated (there is a
judgment of legal separation); or
2) When there has been a separation of property
agreed upon in the ante-nuptial agreement where
the property regime is absolute community
property; or
3) When they have been in fact separated for at
least 1 year; or
4) When the litigation is between the husband and
the wife (how can they be joined eh magkalaban
nga sila?); or
5) GENERAL RULE: When the suit concerns only
the separate property of either husband or wife
(syempere walang pakelam ung isa „dun)
EXCEPTION: But usually, if there is an income,
you should also sue the other spouse because
the income of the property owned separately by
the spouses will belong to the community
property or to the conjugal partnership of gains;
or
6) When the action is upon civil liability arising from
a criminal offense; or
7) If the litigation is incidental to the profession,
occupation, or business of one spouse; or
8) In an action upon quasi-delict.
Q: May a married woman sue alone to recover
damages for the use of her paraphernal property?
A: If a married woman claims damages for the use of her
paraphernal property, such damages pertain, however, to
the conjugal partnership, and the husband must be joined
also in the suit.
Q: So, may a married woman also sue alone to
recover conjugal property?
A: As a GENERAL RULE, a married woman should join
her husband to recover conjugal property. She may sue
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 14 of 270
alone if, for instance, the husband abandons her with
another woman. The husband need not be made a party
because it is precisely from his fault and inability to act
that the wife derives her cause of action to recover it.
Q: What is the effect if there is non-joinder of the
husband or the wife in a suit affecting the community
property?
A: The Supreme Court ruled that that it is merely a
FORMAL DEFECT, it can be corrected even for the first
time on appeal.
So if a spouse, as a real party in interest, has the capacity
to sue, even if the other is not joined, that defect is merely
procedural and may be corrected by amendment at any
stage of the action.
Q: May the husband, maintain alone, a suit with
respect to the paraphernal or exclusive property of the
wife?
A: Alone, he may not. He may not maintain an action of
any kind with respect to the paraphernal or exclusive
property of the wife because he is NOT the owner.
SEC 5. Minor or incompetent persons.
A minor or a person alleged to be incompetent, may sue
or be sued, with the assistance of his father, mother,
guardian, or if he has none, a guardian ad litem. (5a)
Q: May a minor sue alone?
A:
GENERAL RULE: NO, he has no legal capacity.
EXCEPTION: He may sue or be sued, with the assistance
of his father, mother, guardian, or if he has none, a
guardian ad litem.
A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his
own name and for the benefit of an undisclosed principal
may sue or be sued without joining the principal except
when the contract involves things belonging to the
principal.
Going back to Sec. 3, among those enumerated there
suing in a capacity, are… a GUARDIAN. Pero „pag minor,
specific ang guardianship. The father and the mother are
the legal guardian of their minor children.
Art. 2225 (?) of the Civil Code
The father and the mother are also the legal guardian of
the properties belonging to their minor children. It is such
kind of guardianship, they need not secure judicial
appointment; it is the law itself that appoints them.
―A minor or a person alleged to be incompetent‖
Q: Who is an incompetent?
A:
Sec. 2, Rule 92:
Under this rule, the word incompetent includes:
1) Persons suffering the penalty of civil interdiction
(like a minor – you cannot sue and be sued, but a
guardian can be appointed)
 REMEDIAL LAW
CIVIL PROCEDURE
2) Who are hospitalized lepers (may leprosy ka,
pero sa ospital. Kung sa bahay ka lang, hindi ka
“hospitalized”)
3) Prodigals,
4) Deaf and dumb who are unable to read and write,
5) Those who are of unsound mind, even though
they have lucid intervals, and
6) Persons not being of unsound mind, but by
reason of age, disease, weak mind, and other
similar causes, cannot, without outside aid, take
care of themselves and manage their property,
becoming thereby an easy prey for deceit and
exploitation
Take note of the words ―ALLEGED TO BE
incompetent‖, meaning the incompetence need NOT be
judicially declared. It is enough that you just allege a party
to be incompetent. Ok na „yun. Then, they can already be
represented by their father, mother, guardian, or if none,
seek the appointment of a guardian ad litem. Kung orphan
na or kung incompetent, walang guardian, you secure a
guardian ad litem (―for that litigation only‖, a guardian TO
THE litigation).
FOREIGN CORPORATION
Q: May the State be sued?
A: Generally, NO.
Q: But when can you not sue the State? What is the
extent of non-suability? When can the State invoke
non-suability?
A: When you invoke a claim for DAMAGES.
Suppose you believe that a law passed by the Congress is
unconstitutional, can you not sue the State to declare the
law unconstitutional?
When the State sues you, then you CAN file a counter-
claim for damages for the unfounded suit. You can do that
because the State has reduced itself to an ordinary
person. If you are being sued, pantay na kayo. Hindi
naman pwedeng lamang pa rin siya.
Q: What is the rule on foreign corporations having
access to our courts?
A: It depends on whether they are engaged in trade or
business in the Philippines.
Q: If a private foreign juridical entity is doing business
in the Philippines, can they have access to our courts
(can they sue)?
A: Private foreign juridical entity can have access to our
courts (it can sue), if it has a LICENSE to do business in
the Philippines. Otherwise, they cannot sue.
Q: What is the rule on isolated transaction? What do
you mean by isolated transaction?
A: If the foreign corporation is NOT engaged in business
in the Philippines, it can sue.
HANG LUNG BANK vs. SAULONG
G.R. No. 73765, August 26, 1991
Fernan, C.J.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 15 of 270
FACTS:
Hang Lung Bank (plaintiff) lent money to Worlder
Enterprises, a corporation in Hong Kong. The loan was
also secured by a surety, by the name of Cordova Chin
San in Hong Kong. For failure of the principal debtor to
pay the obligation, Hang Lung Bank filed a collection suit
against the debtor corporation and the surety with the SC
of Hong Kong.
A judgment was rendered in favor of Hang Lung
Bank. Unable to execute the judgement in Hong Kong
(because debtor had no properties in Hong Kong), Hang
Lung Bank filed a suit in the Philippines against the surety
who had now visible assets in the Philippines. It was an
action for the enforcement of a foreign judgment – a
judgment in Hong Kong.
The surety filed a motion to dismiss on the ground
that Hang Lung Bank cannot file have access to our courts
because it had no license to do business in the
Philippines.
The RTC dismissed the case on the ground that since
Hang Lung Bank had no license to do business in the
Philippines, it cannot sue.
ISSUE: WON Hang Lung can sue before our courts. YES.
HELD:
SEC. 69: ―No foreign corporation or corporation
formed, organized, or existing under any laws other than
those of the Philippines shall be permitted to transact
business in the Philippines or maintain by itself or
assignee any suit for the recovery of any debt, claim, or
demand whatever, unless it shall have the license
prescribed in the section immediately preceding.‖
It is not the lack of the prescribed license (to do
business in the Philippines) but doing business without
license, which bars a foreign corporation from access to
our courts.
***
A foreign corporation not licensed to do business in
the PH may not be denied the right to file an action in our
courts for an isolated transaction.
***
Since plaintiff foreign banking corporation was not
doing business in the PH, it may not be denied the
privilege of pursuing its claims against defendant for a
contract which was entered into and consummated
outside the Philippine courts. Otherwise, we will be along
the law to serve as protective shield for unscrupulous
Filipino citizens who have business relationships abroad.
***
The complaint appears to be one of the enforcement of
the Hongkong judgement because it prays for the grant of
the affirmative relief given by said foreign judgment.
However, a foreign judgment may not be enforced if it is
not recognized in the jurisdiction where affirmative relief is
being sought. Hence, the complaint should be considered
a petition for the recognition of the Hong Kong judgment
under Sec. 50(b) Rule 39 of the Rules of Court in order
that defendant may present evidence of lack of
jurisdiction, notice, collusion, fraud, or clear mistake of fact
and law.
COMMENT:
Foreign private juridical entities are not altogether
prohibited, with license to do business in the Philippines,
 REMEDIAL LAW
CIVIL PROCEDURE
from suing or maintaining an action in our courts. What the
law seeks to prevent is foreign corporation doing business
in the Philippines without a license (one barred from
claiming access to our PH courts.
It is not the lack of the prescribed license (to do
business in the Philippines) but doing business without
license, which bars a foreign corporation from access to
our courts.
Q: Why?
A: Because there is such a thing as isolated transaction
rule. You are not doing business here, but you can sue in
our courts. Why? Because again, it is not the lack of the
prescribed license to do business, but rather, it is the
doing business without a license is the one that bars a
foreign juridical entity from having access to our courts.
Q: Hang Lung Bank was not doing business here. Can
it sue in our courts?
A: YES, because it does not require a license. There is no
necessity for it to secure a license – it is not doing banking
business in the Philippines. Wala naman siyang branch
dito. It is suing under the ISOLATED TRANSACTION
RULE.
CONVERSE RUBBERS SHOES vs. UNIVERSAL
RUBBER PRODUCTS
G.R. No. L-27906, January 8, 1987
Fernan, J.
FACTS:
Defendant Universal Rubber Products, Inc. filed an
application with the Philippine Patent office for registration
of the trademark "UNIVERSAL CONVERSE AND
DEVICE" used on rubber shoes and rubber slippers.
Plaintiff Converse Rubber Corporation (foreign
corporation) filed its opposition to the application for
registration on grounds that:
1) The trademark sought to be registered is
confusingly similar to the word ―converse‖ which
is part of plaintiff’s corporate name;
2) That the registration will cause irreparable injury
to plaintiff
Defendant filed an answer where it stated that plaintiff
has no cause of action since it is not licensed to do
business in the Philippines and it is not doing business
here.
Director of Patents ruled in favor of defendant on the
ground that since plaintiff is not license to do business in
the country and is actually not doing business on its own
in the PH it has no name to protect in the forum and thus,
it is futile for it to establish that CONVERSE as part of its
corporate name.
Plaintiff filed a Motion for reconsideration, but it was
denied.
HELD:
The rule is that it is not the lack of license but doing
business without a license is the bar from suing in our
courts. Since there is an ISOLATED TRANSACTION here,
plaintiff can sue.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 16 of 270
A foreign corporation which has never done any
business in the Philippines and which is unlicensed to do
business here, but is widely and favorably known in the
Philippines has a legal right to maintain an action in the
Philippines to restrain the residents thereof from
organizing a corporation therein bearing the same
name as the foreign corporation, when it appears that
they have personal knowledge of the existence of such
a foreign corporation, and it is apparent that the purpose
of the proposed domestic corporation is to deal and trade
in the same goods as those of the foreign corporation
(Western Equipment vs. Reyes).
That company is not here seeking to enforce any
rights arising from any business which it has transacted in
the Philippine Islands. The sole purpose of the action is to
protect its reputation, its corporate name, its goodwill, its
property right, a right which it may assert and protect
against all the world, in any of the courts of the world even
in jurisdictions where it does not transact business-just the
same as it may protect its tangible property, real or
personal against trespass, or conversion. Since it is the
trade and not the mark that is to be protected, a trademark
acknowledges no territorial boundaries of municipalities or
states or nations, but extends to every market where the
trader's goods have become known and Identified by the
use of the mark. Thus, just because Converse is not
licensed to do business here and is actually not doing
business here, it does not mean that its goods are not
being sold here or that it has not earned a reputation as
regards its products.
In consonance with the Convention of the Union of
Paris for the Protection of Industrial Property to which the
Philippines became a party on September 27, 1965.
Article 8 thereof provides that "a trade name [corporate
name] shall be protected in all the countries of the Union
without the obligation of filing or registration, whether or
not it forms part of the trademark."
COMMENT:
What the law prohibits in barring foreign corporations from
having access to our courts is foreign corporations doing
business in the Philippines without a license.
Again, it is not the lack of prescribed license to do
business in the Philippines, rather, it is the doing business
without a license that bar foreign entities from having
access to our courts.
Q: Let us say Hang Lung Bank came here just to sue
to enforce a judgment secured from Hong Kong court.
May Hang Lung Bank be sued in our courts?
A: NO, it cannot be sued because our courts cannot
acquire jurisdiction.
Q: In Ching vs. CA, what is the nature of the suit? Say
you sued Hang Lung Bank for damages?
A: It is an action in personam, ergo, summons must be
served by personal service of summons.
In extra-territorial service of summons, the action is either
in rem or quasi-in rem.
COMMISSIONER OF CUSTOMS vs. K.M.K. GANI
G.R. No. 7372, February 26, 1990
 REMEDIAL LAW
CIVIL PROCEDURE
Sarmiento, J.
FACTS:
Two containers loaded with certain cartons of
merchandise consigened to KMK Gani and Indrapal. The
cargoes were seized and subjected to seizure and
foreclosure proceedings for technical smuggling by the
Commissioner of Customs.
Atty. Armando Padilla entered his appearance for the
consignees KMK Gani and Indrapal. Records of the case
do not show any appearance of the consignees in person.
He moved for the transshipment of the cargoes consigned
to his clients. The SolGen, on the other hand, averred that
defendants did not present any testimonial evidence.
The Collector of Customs ruled for the forfeiture of all
the cargoes in said containers. Atty. Padilla appealed to
the Commissioner of Customs. The latter affirmed the
Collector’s decision, on the ground that there was an
intention to import said goods in violation of the
Dangerous Drugs Act and to smuggle goods into our
country.
Atty. Padilla appealed before the CTA contending that
the goods were never intended importations into the
Philippines. Also, defendants averred that they are suing
upon a singular transaction and isolated transaction:
that K.M.K. Gani is “single proprietorship doing business in
accordance with the laws of Singapore” with a specified
address and that Indrapal is “a firm doing business in
accordance with the laws of Singapore” with a specified
address.
The CTA reversed the decision of the Commissioner of
Customs. The Commissioner filed a petition for review
before the SC contending that defendants failed to
establish their personality to sue in a representative
capacity, hence making their action dismissible.
ISSUE: WON the defendants failed to establish their
personality to sue in a representative capacity. YES.
HELD:
The law is clear: "No foreign corporation transacting
business in the Philippines without a license, or its
successors or assigns, shall be permitted to maintain or
intervene in any action, suit or proceeding in any court or
administrative agency of the Philippines; but such
corporation may be sued or proceeded against before
Philippine courts or administrative tribunals on any valid
cause of action recognized under Philippine laws."
However, a foreign corporation not engaged in
business in the Philippines may not be denied the
right to file an action in the Philippine courts for an
isolated transaction.
The fact that a foreign corporation is not doing
business in the Philippines must be disclosed if it
desires to sue in Philippine courts under the "isolated
transaction rule." Without this disclosure, the court
may choose to deny it the right to sue. Under this rule,
it must also prove LEGAL EXISTENCE or JURIDICAL
PERSONALITY as a foreign corporation before it can
qualify for availment of the said isolated transaction rule.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 17 of 270
IN THE CASE AT BAR, the private respondents K.M.K.
and INDRAPAL aver that they are "suing upon a singular
and isolated transaction." But they failed to prove their
legal existence or juridical personality as foreign
corporations.
Counsel Armando S. Padilla stated before the
respondent CTA that his clients are "suing upon a singular
and isolated transaction." But there is no proof to show
that K.M.K. and INDRAPAL are indeed what they are
represented to be. It has been simply stated by Attorney
Padilla that K.M.K. Gani is "a single proprietorship," while
INDRAPAL is "a firm," and both are "doing business in
accordance with the laws of Singapore ... ," with specified
addresses in Singapore. In cases of this nature, these
allegations are not sufficient to clothe a claimant of
suspected smuggled goods of juridical personality and
existence. The "isolated transaction rule" refers only to
foreign corporations.
In other words, the allegations of your complaint, you
put that you are a foreign juridical entity not doing
business and therefore suing under the isolated
transaction rule. You have to prove also your existence as
a foreign juridical entity.
CONCLUSION: The petition is granted.
***
SINGLE PROPRIETORSHIP
Only natural and juridical persons may be sued.
A single proprietorship cannot be sued in court. While the
law recognizes the existence of sole proprietorship as a
form of business conducted for profit by a single individual,
it does NOT, however, vest juridical or legal personality
upon the sole proprietorship and therefore, it has no power
to file or defend an action in court. The action must be in
the name of the PROPRIETOR or OWNER.
For example, ―Juan Dela Cruz Sari-sari Store.‖ You cannot
sue that because it is not a juridical person, nor is it a
natural person. While the law recognizes it as a form of
business organization, nonetheless, it is not empowered to
sue or be sued in that name.
JUASING VS. MENDOZA
G.R. No. L-55687, July 30, 1982
Guerrero, J.
FACTS:
Juasing Hardware, a single proprietorship
represented by its manager Ong Bon Yong, filed a
complaint for the collection of a sum of money against
Pilar Dolla.
Defendant filed a Motion for Dismissal of Action
(Demurrer to Evidence) on the ground that plaintiff has no
legal capacity to sue, that it is a single proprietorship, not a
corporation or a partnership duly registered in accordance
 REMEDIAL LAW
CIVIL PROCEDURE
with law, and therefore is not a juridical person with legal
capacity to bring an action in court.
Plaintiff filed an Opposition and moved for the
admission of an Amended Complaint. CFI dismissed the
case for plaintiff’s lack of legal capacity to sue, petitioner
not being either a natural nor a juridical person. Hence,
this petition.
ISSUE: WON Juasing Hardware has the capacity to sue.
NO.
HELD:
Sec. 1, Rule 3:
Who may be parties
Only natural or juridical persons or entities authorized by
law may be parties in a civil action."
Petitioner is definitely not a natural person; nor is it a
juridical person as defined in the New Civil Code of the
Philippines thus:
Art. 44. The following are juridical persons:
1) The State and its political subdivisions;
2) Other corporations, institutions and entities for
public interest or purpose, created by law; their
personality begins as soon as they have been
constituted according to law;
3) Corporations, partnerships and associations for
private interest or purpose to which the law
grants a juridical personality, separate and
distinct from that of each shareholder, partner or
member.
There is no law authorizing sole proprietorships
like petitioner to bring suit in court. The law merely
recognizes the existence of a sole proprietorship as a form
of business organization conducted for profit by a single
individual, and requires the proprietor or owner thereof to
secure licenses and permits, register the business name,
and pay taxes to the national government. It does not vest
juridical or legal personality upon the sole proprietorship
nor empower it to file or defend an action in court.
Thus, the complaint in the court below should
have been filed in the name of the owner of Juasing
Hardware. The allegations in the body of the complaint
would show that the suit is brought by such person AS
proprietor or owner of the business conducted under the
name and style "Juasing Hardware". The descriptive
words "doing business as `Juasing Hardware'" may be
added in the title of the case, as is customarily done.
SEC. 15. Entity without juridical personality as
defendant.
When two or more persons not organized as an entity with
juridical personality enter into a transaction, they may be
sued under the name by which they are generally or
commonly known.
In the answer of such defendant, the names and
addresses of the persons composing said entity must all
be revealed.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 18 of 270
―When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known‖
Section 15 is an EXCEPTION to the rule that requires that
only natural or juridical persons may be parties to a civil
action.
Q: What is the exception?
A: When two or more persons not organized as an entity
with juridical personality enter into a transaction, they may
be sued under the name by which they are GENERALLY
OR COMMONLY KNOWN.
Q: If two or more persons are acting without a juridical
personality, if they want to sue or be sued, who
should be made parties?
A: ALL such persons, because they are natural persons.
When two or more persons enter into a transaction under
a COMMON NAME, but they are not juridically
incorporated, the law allows that they may be sued under
a common name.
Take note of the word, ―THEY MAY BE SUED.‖
Q: What is the implication?
A: It means that these ―two or more persons‖ are
DEFENDANTS. They can never be plaintiffs.
o The rule that not all the members of
unincorporated society, pwede silang defendants.
But they cannot sue as plaintiffs under their
common name.
o The law only allows that they may be sued as
defendants under their common name, but never
as plaintiffs under that common name.
CHIANG KAI SHEK vs. CA
G.R. No. L-58028, April 18, 1989
Cruz, J.
FACTS:
Plaintiff was illegally dismissed without just cause.
She sued the school for separation pay and other benefits.
Chiang kai shek had been in existence before 1932, but it
was not incorporated. Chiang Kai Shek filed a motion to
dismiss on the ground that it cannot be sued. CFI
dismissed the complaint. On appeal, CA reversed CFI and
held that the school is suable and liable. School filed a
MFR, denied.
ISSUE: WON a school that has not been incorporated
may be sued by reason alone of its long continued
existence and recognition by the government. NO.
HELD:
We hold against the petitioner. Rule 3, Sec. 1 clearly
provides that ―only natural or juridical persons may be
parties in a civil action.‖ It is not denied that the school had
not been incorporated. But this omission should not
prejudice plaintiff in the assertion of her claims against the
school.
As a school, defendant was governed by Act No.
2706 as amended by CA 180: ―any private school
recognized by the government shall be incorporated within
 REMEDIAL LAW
CIVIL PROCEDURE
90 days after the date of recognition.‖ It appears that
defendant had not done so at the time the complaint was
filed notwithstanding that it had been in existence even
earlier than 1932. It cannot now invoke its own non-
compliance with the law to immunize it from the plaintiff’s
complaint.
Having contracted with plaintiff for 32 years and
thus represented itself as possessed of juridical
personality to do so, the defendant is now estopped
from denying such personality to defeat her claim
against it. Art. 1431 of the CC, ―through estoppel an
admission or representation is rendered conclusive upon
the person making it and cannot be denied or disproved
as against the person relying on it.‖
CONCLUSION: The petition is denied.
COMMENT:
DOCTRINE: When two or more persons without juridical
personality enter into a transaction, they may be sued
under a name by which they are generally or commonly
known.
EXAMPLE:
Suppose I buy bread from a store named ―Luisa and
Sons.‖ Assuming that after I ate the bread, my stomach
hurt and I got sick. I then sued ―Luisa and Sons‖ in their
common name. What is the purpose?
o To protect the public kasi hahanapin pa „yan.
Sino ba si Luisa? Sino bang mga anak niyan?
That is too burdensome for the public to be
doing.
o That is why Sec. 15 gives an EXCEPTION to the
rule na pwede muna initially, to sue “Luisa and
Sons” bakery because that is the common name
that they are doing business in. But in their
answer, kailangan sabihin nila kung sino si Luisa
(nanay), and kung sino ang sons niya, kung ilan
ba sila, etc.
MERRILL vs. CA
G.R. No. 97816, July 24, 1992
Narvasa, C.J.
DOCTRINE: If a foreign juridical entity is doing business in
the Philippines, in order to have access to our courts, it
must have license. If it is doing business but without a
license, it cannot sue BUT it may be sued. So service of
summons can be made.
FACTS:
Merrill Lynch , a non-resident foreign corporation, not
doing business in the Philippines, agreed to act as a
broker for the futures trading in the US of the Lara
spouses. For failure of Lara spouse to pay, Merrill Lynch
filed a complaint with the RTC Quezon City against the
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 19 of 270
Lara spouses for the recovery of a debt, interest,
damages, and attorney's fees.
Lara spouses filed a motion to dismiss on the
ground:
1) that Merrill Lynch had no legal capacity to sue
because the transactions subject of the complaint
were entered by them not with MLFUTURES but
with ML PIERCE FENNER & SMITH, INC.
2) that the complaint states no cause of action
RTC granted the motion to dismiss. MFR filed by
Merrill Lynch was denied. Merrill Lynch appealed to the
Court of Appeals. Affirmed RTC.
COMMENT:
Q: What is a contract of futures?
A: In a contract of futures, you are selling commodities,
e.g. soya bean, coffee, sugar.
Q: Why do you say futures?
A: Because coffee are still being planted in the mountains
of Colombia or Kenya. So bili ka ngayon in the hope na
pagharvest time, tataas yung presyo. So you play with the
market. Sometimes, you pray also that there would be a
typhoon in Colombia, Kenya, or Nigeria, para ang supply
ng coffee kokonti, tataas ang presyo ng futures mo. Kung
binili mo ng 100, tataas ng 500. This is the contract in
which the parties entered into.
Merril Lynch has been doing business in the
Philippines without a license in the Philippines for the past
7 years and this fact was known to the defendant spouses.
Alam nila na walang lisensya.
ISSUE: WON Merrill Lynch may sue before the Philippne
courts to enforce its rights against Lara spouses. YES.
HELD:
Lara Spouses are now estopped to impugn Merrill
Lynch’s capacity to sue because they willingly transacted
with MLFUTURES knowing that it is a foreign corporation
doing business in the PH without a license. ONE WHO
HAS DEALT WITH A CORPORATION OF FOREIGN
ORIGIN AS A CORPORATE ENTITY IS ESTOPPED TO
DENY ITS CORPORATE EXISTENCE AND CAPACITY
TO SUE. The court is convinced that the Lara’s transacted
business with Merrill Lynch through its agent in the
Philippines. The fact is that ML FUTURES dealt with US
stocks for and in behalf of Lara spouses.
The rule is that a party is estopped to challenge the
personality of a corporation after having
acknowledged the same by entering into a contract
with it. And the "doctrine of estoppel to deny corporate
existence applies to foreign as well as to domestic
corporations. One who has dealt with a corporation of
foreign origin as a corporate entity is estopped to deny its
corporate existence and capacity."
COMMENT:
The court here applied the principle of estoppel because it
found that Merril Lynch has been doing business in the
Philippines without a license for the past 7 years and that
fact was known to the defendant who benefited and
profited from their transactions.
 REMEDIAL LAW
CIVIL PROCEDURE
Assuming that Merril Lynch has been doing business in
the Philippines and assuming that defendants were aware
from the outset that it had no license to do so, it would be
inequitable for the defendants to evade payment of their
obligation on the plea that Merrill Lynch had no license to
do so.
Defendants will be in estoppel to deny plaintiff’s
corporation existence in an action involving such claim
and this applies to foreign as well as to domestic
corporations. Otherwise, it would violate a more basic rule
on unjust enrichment.
SEC. 6. Permissive joinder of parties.
All persons in whom or against any right to relief in respect
to or arising out of the same transaction or series of
transactions is alleged to exist, whether jointly, severally,
or in the alternative, may, except as otherwise provided in
these Rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact common
to all such plaintiffs or to all such defendants may arise in
the action; but the court may make such orders as may be
just to prevent any plaintiff or defendant from being
embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (6)
REQUIREMENTS of PERMISSIVE JOINDER OF
PARTIES:
1) Right to relief for or against the parties joined;
2) Relating to or arising out of a series of
transactions; and
3) A question of fact or law common to all parties
EXAMPLE:
If all of us were riding a bus that met an accident, then
ALL of us can sue. Pwede tayo mag-join pero pwede din
tayo kanya kanya, especially, kung kanya-kanya, kung
„ung iba taga-San Fernando, ung iba taga-Angeles. Pero
pwedeng dtto nalang lahat, isang abogado nalang. Para
mas mura kung tayong lahat. Kasi kung kanya kanya,
mahal yun, pareho lang naman ebidensya. That is known
as PERMISSIVE.
Q: Is there an instance under the rules where joinder
is mandatory?
A:
SEC. 7. Compulsory joinder of indispensable parties.
Parties in interest without whom no final determination can
be had of an action shall be joined either as plaintiffs or
defendants. (7)
―Parties in interest without whom no final
determination can be had of an action‖
Q: How are these parties called?
A: INDISPENSABLE PARTIES.
Q: Again, who are indispensable parties?
A: Parties in interest without whom no final determination
can be had of an action.
Q: What makes a party indispensable such that no
final determination can be had?
EXAMPLE:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 20 of 270
Suppose we there are two buses involved. We are
riding Bus A. Bus B is the other bus with whom we
collided, the other errant vehicle. Can we only sue Bus A?
Or should we sue Buses A and B?
Q: Give an example of a situation where a party is
indispensable.
A: In an action to recover title to a property, the registered
owner is an indispensable property
o You can only sue the owner and not the tenant.
Why can you not sue the tenant supposing that
the property is tenanted?
o Suppose a property is being leased to a lessee.
Here comes a fellow who is seeking to recover
title to the property. You cannot sue the tenant,
why? Because he is not the real party in interest.
The real owner is the real party in interest.
Therefore, he is an indispensable party.
We talk here of joinder. Meron ng isa, isasali mo pa ang
isa, either party-plaintiff or party-defendant. In other words,
meron ng isa, pero meron pang indispensable na
kailangan mong isali.
Sec. 6 is permissive. Pwede naman tayong hindi mag-join
in suing, pwedeng kanya-kanya. That is only permissive.
Hindi „yan mandatory.
Q: Give an instance where there is mandatory joinder.
A: In an action for partition, all co-owners must be
impleaded.
o Halimbawa, co-owners tayo, gusto mo mag-
partition, dapat lahat tayo.
o Let us assume that one was not included as an
indispensable party, will that be a ground for the
dismissal of the case?
METROBANK vs. CA
G.R. No. 89909, September 21, 1990
Regaladao, J.
FACTS:
X is the owner of a property. He went to the bank and
borrowed money. To secure the payment of the loan, X
mortgaged his property to Metro Bank. The mortgage lien
was annotated in the certificate of title. Subsequently Mr.
Y claiming to have a better right of interest in the property
of X, which was mortgaged to the bank, filed suit for
annulment of title. The Bank was not impleaded. A
judgment was rendered by the trial court annulling the title
of X and ordered X to recover the property to Y. The
matter reached the SC, which was questioned by
MetroBank.
HELD:
Judgement was null and void because Metrobank is
an indispensable party. It was a mortgagee who was not
impleaded in an action for annulment.
Why is Metrobank an indispensable party for which no
final determination can be had of an action? Because the
mortgage was annotated in the certificate of title, so if you
annul the certificate of title in favor of X, it will also annul
the right of the mortgagee. And the mortgagee bank, not
being impleaded, is deprived a property right without
due process of law.
 REMEDIAL LAW
CIVIL PROCEDURE
A mortgage has a property right and the law requires
that no person shall be deprived of right, liberty or property
without due process. If you allow the annulment, the effect
is you will be depriving the mortgagee bank of his property
right without due process of law. He was never heard of.
***
Q: So what is the test to determine whether a party is
indispensable?
A: If a party is not impleaded, HIS RIGHTS WILL BE
PREJUDICED.
o This is what is meant by ―no final determination
can be had of an action‖
o That is why the ruling of the SC, if an
indispensable party is not impleaded, a
judgement is null and void
SERVICE WIDE SPECIALISTS INC. vs. CA
G.R. No. 103301, December 8, 1995
Vitug, J.
FACTS:
Bondoc bought a motorcycle with Carmark
Philippines. He executed a promissory note worth
P66,000. To secure the loan, he executed a chattel
mortgage in favor of the seller, which promissory note,
chattel mortgage were later assigned to Filinvest
Corporation with Bondoc’s conformity.
Later, Bondoc transferred his obligation to Cesar
Dollente, who in turn, likewise transferred his obligation
and chattel mortgage to Ernesto Dollente. The said chattel
mortgage was annotated and registered because it was a
deed of sale of motor vehicle with assumption of
mortgage. So ang sisingilin na, kasi may assumption, si
Ernesto. So when Ernesto defaulted, Servicewide (to
whom Filinvest had transferred his right) filed a suit with a
petition for replevin against Ernesto and a certain Amando
Custodio.
COMMENT:
Filinvest is a financing corporation. In-assign niya yung
promissory note pati chattel mortgage kay Servicewide,
another financing company.
It appears that Custodio subsequently bought the
questioned motorcycle from Ernesto. Upon the grant of the
replevin, Custodio filed a counter-bond para ma-release
yung motorcycle. Meanwhile, the suit against Ernesto was
dismissed as he no longer can be served with summons.
But considering that Ernesto Dollente cannot be served
with summons anymore, Servicewide filed a motion to
dismiss to drop the case against Ernesto for the case to
proceed against Custodio alone. When that happened,
Custodio filed a motion to dismiss on the ground that
Ernesto Dollente, being an indispensable party, therefore,
no valid judgment can be rendered against him.
ISSUE: Is Ernesto, the mortgagor, an indispensable party
in a replevin suit? YES.
COMMENT:
In order that a court can grant a writ of replevin (remedy to
recover personal property, it is a possessory action), the
plaintiff must allege and prove that either:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 21 of 270
1) he is the owner of the chattel sought to be replevined,
or
2) he is entitled to the possession of the chattel.
Q: When may a person be entitled to possession even
if he is not the owner?
A: Mortgage, lease, loan in commodatum
Q: What is essential in a mortgage?
A: It is the creation of an agency.
Q: What kind of agency?
A: Irrevocable agency. Generally, agency can be revoked,
except when it is irrevocable. What are the instances
when it is revocable? When it is coupled with interest, in
which case, agency continues even after the death of the
principal.
In every case, the mortgagor is creating a lien, a burden
voluntarily on his property. Meaning, when he is unable to
pay his obligation, this property now which he mortgaged,
will now answer. That is why, a salient feature of a
contract of mortgage is that you are establishing the
mortgagee as the mortgagee – that in the even the
principal (mortgagor) fails to pay, the attorney-in-fact may
have the property foreclosed. That is why in a chattel
mortgagee, the mortgagee has a CONSTRUCTIVE
POSSESSION.
Q: Why is the mortgagor now an indispensable party?
A: You cannot immediately foreclose a chattel mortgage
because if you foreclose it, nobody will buy it. In a chattel,
if you don’t see the condition of the car, television,
motorcycle, or whatever, walang bibili, hindi mo pa nga
alam ang hitsura o condition eh.
As a preliminary step before foreclosure, the mortgagee,
having constructive possession, must first acquire actual
possession so that later on, he must first file a
possessory action called REPLEVIN. Hindi pa yan
foreclosure, it is just a first step before foreclosure.
Q: Now, what is the nature of replevin suit as a
possessory action?
A: The plaintiff must allege and prove that either he is the
owner of the chattel or he is entitled to the possession
thereof.
Q: In a foreclosure of a chattel mortgage, is the
mortgagor an indispensable party?
A: YES, in a suit for replevin, a clear right of possession
must be established. What he claims is that he has the
right of possession or right to possession of the chattel.
How can he prove that? He must establish a clear right to
possess the property. How can he establish that?
(possessory palang ito)
HELD:
In a suit for replevin, a clear right of possession must
be established. A foreclosure under a chattel mortgage
may properly be commenced only once there is default on
the part of the mortgagor of his obligation secured by the
mortgage. The replevin in the instant case has been
sought to pave the way for the foreclosure of the object
covered by the chattel mortgage.
 REMEDIAL LAW
CIVIL PROCEDURE
The conditions essential for that foreclosure
would be to show, firstly, the existence of the chattel
mortgage and, secondly, the default of the mortgagor.
These requirements must be established since the
validity of the plaintiff's exercise of the right of
foreclosure are inevitably dependent thereon
(meaning you must first secure possession, but the p
must establish his clear right to possession).
It would thus seem, considering particularly an
adverse and independent claim of ownership by private
respondent, that the lower court acted improvidently when
it granted the dismissal of the complaint against Dollente,
albeit on petitioner's (then plaintiff) plea, on the ground
that the "non-service of summons upon Ernesto Dollente
(would) only delay the determination of the merits of the
case, to the prejudice of the parties."
In Imson v. Court of Appeals, we have explained:
― . . . An indispensable party is one whose interest will be
affected by the court's action in the litigation, and without
whom no final determination of the case can be had. The
party's interest in the subject matter of the suit and in the
relief sought are so inextricably intertwined with the other
parties' that his legal presence as a party to the
proceeding is an absolute necessity. In his absence there
cannot be a resolution of the dispute of the parties before
the court which is effective, complete, or equitable.‖
"Conversely, a party is not indispensable to the suit if
his interest in the controversy or subject matter is distinct
and divisible from the interest of the other parties and will
not necessarily be prejudiced by a judgment which does
complete justice to the parties in court. He is not
indispensable if his presence would merely permit
complete relief between him and those already parties to
the action or will simply avoid multiple litigation." Without
the presence of indispensable parties to a suit or
proceeding, a judgment of a court cannot attain real
finality.‖
This case provides us a SECOND TEST to determine
whether a party is indispensable. The FIRST TEST is if it
will prejudice the right of the party not so impleaded.
The SECOND TEST here is if an issue cannot be
resolved without impleading a party.
Here a mortgagor must be impleaded in a replevin
suit because the only way to establish plaintiff’s clear right
of possession is FIRST to prove that there was a loan
secured by a chattel mortgage and SECOND, that there
was default. You cannot ask for possession under the
concept of constructive trust unless the mortgagor is
impleaded. That is the only way to establish your clear
right. You cannot establish this without first impleading the
mortgagor.
In passing, the failure of summons upon Ernesto
Dollente, per the Sheriff's Return dated July 19, 1983, is
said to have been due to defendant's being no longer a
resident "at the given address as per information gathered
from the present occupant of the premises." It appears
that the remedial measures provided in Rule 14 of the
Rules of Court regrettably have not been properly availed
of; for instance, substitute service of summons under
Section 8 thereof.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 22 of 270
***
So there are TWO TESTS to determine the
indispensability of a party.
Q: Suppose X is the owner of the property. He sold it
to Y. Mr. A claiming to have a better title to the
property, sued Y (the buyer). Is X (seller) an
indispensable party?
A: NO.
Q: Is X a real party in interest?
A: NO, because he already transferred his rights to Y. A
final determination can be had in the case if A (plaintiff) is
able to prove his superior right to the property.
***
Q: Who is a necessary party?
A:
SEC. 8. Necessary party.
A necessary party is one who is not indispensable but who
ought to be joined as a party if complete relief is to be
accorded as to those already parties, or for a complete
determination or settlement of the claim subject of the
action. (8a)
Q: What makes a party a necessary party?
A: That joining him will accord complete relief to those
already parties or for complete determination or settlement
of the case subject of the action.
Q: Give an example of a necessary party.
A: In an action for collection of debt, the creditor sues the
debtor alone, the surety is merely a necessary party.
Q: Suppose the creditor sues only the surety without
impleading the principal debtor, is that valid?
A: YES, because complete relief can be had in the action
by the creditor against the surety.
Q: Suppose he is just a guarantor? Can the guarantor
be sued alone without joining the debtor?
A: NO.
Q: Is the principal debtor an indispensable party when
the loan is secured only by a guarantor and not a
surety?
A: YES, the debtor is an indispensable party in a
guaranty.
Q: What is the nature of surety as opposed to
guarantor?
A: Complete relief can be had by the creditor against the
surety.
o In guaranty, the creditor must first secure a
judgment against the principal debtor and
exhaust all his properties. Hindi ka pwede
dumeretso sa guarantor.
o In fact, you cannot sue the guarantor ahead of
the principal debtor because you do not have a
CAUSE OF ACTION. Wala pang act or omission,
delict or wrong. „Pag wala na siya principal
property, demand ka na kay guarantor.
NECESSARY PARTY – A necessary party is one who is
not indispensable but who ought to be joined as a party to
the case, if complete relief is to be accorded as to those
 REMEDIAL LAW
CIVIL PROCEDURE
already parties, or for a complete determination or
settlement of the claim subject of the action.
e.g. Q: Can you sue the Surety, alone? Or, can you
sue the principal debtor, alone?
A: Yes,you can sue the surety alone, without joining the
principal debtor. Likewise, you can sue the principal debtor
alone, without joining the surety. Neither is indispensable
since the plaintiff can seek relief from either party.
However, either the surety or principal is an necessary
party since, without one of them, the action would not
accord complete relief to all the parties. Since if you only
sue the surety, it would still be necessary for the surety to
subsequently sue to recover from the principal debtor.
- In otherwords, the whole idea of joining a
necessary party is to avoid multiplicity of suit-
Distinction between an indispensable party and a
necessary party
Indispensable party Necessary Party
An indispensable party A necessary party should
must be joined under any be joined whenever
and all conditions; possible
In other words, an indispensable party must be joined
because the court cannot proceed without him. Hence, his
presence is mandatory. The presence of a necessary
party is not mandatory because his interest is separable
form that of indispensable party
NON- JOINDER OF PARTIES
Sec 9 Nonjoinder of necessary parties to be pleaded-
Whenever in any pleading in which a claim is asserted a
necessary party is not joined, the pleader shall set forth
his name, if known, and shall state why he is omitted.
Should the court find the reason for the omission
unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be
obtained.
The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of the
claim against such party.
The non-inclusion of a necessary party does not prevent
the court from proceeding in the action, and the judgment
rendered therein shall be without prejudice to the rights of
such necessary party. (8a, 9a)
Q: What is the effect of non-joinder of a necessary
party?
A: Whenever in any pleading in which a claim is asserted
a necessary party is not joined-
i. The pleader shall set forth his name,
if known, and shall state why he is
omitted.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 23 of 270
- Should the court find the reason for the omission
unmeritorious,
i. The court may order the inclusion of
the omitted necessary party if
jurisdiction over his person may be
obtained.
- in other words if the omission is
unmeritorious AND the court may
acquire jurisdiction over his person,
then, the court can order
inclusion(require the pleader to file the
necessary amended pleading to include
a necessary party)
Q: What is the effect should the pleader fail to comply
with the order of the court to implead a necessary
party?
A: i. The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of
the claim against such party.
- So wala ka ng right against the necessary party.
Illustration
Q: You only sued the principal debtor. And the
court found that the non-joinder of the surety is
unmeritorious, the court therefore issued an order
for the pleader to include the surety. But the
pleader failed to comply with the order of the
Court. What would be the consequence?
A: The pleader would have deemed to have
waived his claims against the surety.
NOTE: General rule, if one fails to comply
with the order of the court, the court can
order the dismissal of the case in
5
accordance with sec. 3, Rule 17. The rule
in non-joinder of necessary party is an
exception to the said rule since the rule
specifically states its effects. The only
sanction is that the failure to comply would
only result in the waiver of the claim against
the omitted party.
NOTE: ii. The non-inclusion of a necessary party does
not prevent the court from proceeding in the action,
and the judgment rendered therein shall be without
prejudice to the rights of such necessary party.
- Effect of failure to include w/o justifiable
cause : deemed a waiver of the claim against
sought
- Hence, where there’s failure of party to to comply
with court’s order re inclusion of indispensable
parties = maybe ground for dismissal.
Section 10. Unwilling co-plaintiff. — If the consent of any
5
Section 3- Dismissal due to fault of plaintiff. — If, for no justifiable
cause, the plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without prejudice to the
right of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court.
 REMEDIAL LAW
CIVIL PROCEDURE
party who should be joined as plaintiff can not be
obtained, he may be made a defendant and the reason
therefor shall be stated in the complaint.
- This is very important in cases where the party
who refuses to be joined is an indispensable
party.
Illustration
Q:magkakapatid, ung matanda, inako nia na
lahat ng property from the parents. Ngayon,
matapang-tapang ung bunso, sabi ng bunso, filan
natin yang si kuya ng action for partition. Ayaw
ng ibang kapatid, takot si kuya. Now, kung ikaw
ung bunso, what do you do?
A: You implead them as defendants. Make them
defendants and state the reason therefor in the
complaint.
MISJOINDER AND NON-JOINDER OF PARTIES
Section 11. Misjoinder and non-joinder of parties. —
Neither misjoinder nor non-joinder of parties is ground for
dismissal of an action. Parties may be dropped or added
by order of the court on motion of any party or on its own
initiative at any stage the action and on such terms as are
just. Any claim against a misjoined party may be severed
and proceeded with separately. (11a)
-
6
That is why in Flores v. Mallare-Phillipps, there
was misjoinder. drop the party, then ung nadrop
can proceed separately.
- numerous persons in the same plight, however,
Q: is misjoinder or non-joinder a ground for
dismissal?
A: No, because the rules provide that in case of non-
joinder, or misjoinder, the proper procedure is either to
require the joinder, or the dropping of the misjoined parties
as the case may be. But initially, it is not a ground for the
dismissal of the case.
Q: Thus, if an indispensable party is not joined would
that be a ground for a motion to dismiss?
A: No, it is not a ground for a motion to dismiss, because
the procedure is in sec. 11. The court will merely order the
joinder in case of non-joinder. In case of mis-joinder, the
court will order the dropping of parties.
CAVEAT: Q: But if the court orders the dropping or the
adding of an indispensable party (not merely
necessary party), and plaintiff/pleader fails to comply with
the order of the court, may the court dismiss?
A: YES, under rule 17, sec. 3, failure to comply with the
order of the court is a ground for the dismissal of the case.
And such dismissal is with prejudice.
Misjoinder of parties – A party is misjoined when he is
made a party to the action although he should not be
impleaded.
A: The non-joinder of a necessary party does not prevent
the court from proceeding in the action, and the judgment
6 Polistico, as president-treasurer, every Sunday a sum of
G.R. No. L-66620, September 24, 1986
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 24 of 270
rendered therein shall be without prejudice to the rights of
such necessary party.
- Illustration: Mr. A, owner of property sells to B. X
sued B(the buyer). Is the seller an indispensable
party. No. He will not be benefited or injured by
any judgment of the court. Because he already
parted his right. Class Suit: when the parties are
so numerous that it is impractible to bring them
into court
- When can a party properly intervene? When B
impleads him via third-party complaint.
CLASS SUIT- this is an exception to the rule that all real-
parties in interest must be impleaded.
Q: What is a class suit?
A: Sec. 12
Sec 12. Class suit. — When the subject matter of the
controversy is one of common or general interest to
many persons so numerous that it is impracticable to
join all as parties, a number of them which the court finds
to be sufficiently numerous and representative as to fully
protect the interests of all concerned may sue or defend
for the benefit of all. Any party in interest shall have the
right to interveneto protect his individual interest.
- So the right to intervene is always there. (hindi na
join ang term, kasi class suit e)
- Exceptional situation where there are
the strict application… The rule proceeds when a
class is represented to deal with the court
properly for the interest of all;
Q: When can there be a class suit?
A:REQS:-ito lang naman dalawang requirement
i. the subject matter of the controversy is one
of common or general interest to many
persons;
ii. the parties are so numerous that it is
impracticable to bring them all to bring in court
NOTE: In which case, a number of them (hindi pwedeng
isa lang) which the court finds to be sufficiently numerous
and representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all
- e.g taxpayer suit; Mijares, et al. v. Estate of
Ferdinand Marcos- a suit for damages as victims
during martial law years-pinagaawayan pa kung
sino ung mga victims, may committee ngayon
dian. Kahit dati, hindi sila actually kasama dun sa
suit, pero pwede sila magclaim, kasi class suit.
Illustrative cases
Borlasa vs Polistico, G.R. No. L-22909 January
28, 1925
FACTS: The plaintiffs and defendants, together with
several hundred other persons, formed an association
under the name of Turuhan Polistico & Co. Vicente
Polistico, the principal defendant herein, was elected
president and treasurer of the association, Under the by-
laws each member obligated himself to pay to Vicente
 REMEDIAL LAW
CIVIL PROCEDURE
money.The inducement to these weekly contributions was
that a lottery should be conducted weekly among the
members of the association and that the successful
member should be paid the amount collected each week,
from which, however, Polistico was to withheld the sum of
P200 as funds of the society. After several years, so much
funds have been accumulated, and the members became
so numerous, that the whereabouts of many cannot even
be ascertained anymore. An action was filed by some of
the members against Polistico for the purpose of securing
the dissolution of a voluntary association named Turuhan
Polistico & Co., and to compel the defendants to account
for and surrender the money and property of the
association in order that its affairs may be liquidated and
its assets applied according to law.
HELD: This is a proper case of a class suit. The subject
matter of litigation is of common general interest among
the members, that is, the money and asset of the
corporation. Moreover, the members are so numerous that
it’s impracticable to bring them in court.
Acar v. Rosal, G.R. No. L-21707, March 18, 1967
HELD: The SC allowed 10 farm labourers to maintain a
class suit. This case involves claims by the sugar
farmworkers of their share in the Sugar Amelioration Fund
(Acar vs Rosal). In this case, a suit was filed in the Court
of First Instance by ten persons for their own behalf and
that of 9,000 other farm laborers to recover their alleged
participations or shares in the sugar, molasses, bagasse
and other derivatives based on the provisions of Republic
Act 809 (The Sugar Act of 1952)- that is, the sugar
amelioration fund.
ALTERNATIVE DEFENDANTS
Q: when is alternative joinder of defendants proper?
Sec. 13. Alternative defendants. Where the plaintiff is
uncertain against who of several persons he is entitled to
relief, he may join any or all of them as defendants in the
alternative, although a right to relief against one may
be inconsistent with a right of relief against the other.
- We have already discussed this in passing when
we were taking up joined parties, in relation to
joined causes of action. But here sec. 13 is more
on the defendant side.
- You know, joinder can be both party-plaintiffs,
and party-defendants. But sec. 13 is more
specific on defendants.
NOTE: If youre not sure of which the defendant is
liable, you can sue them even if the basis of the claim
against one might be inconsistent with the basis of
another.
Illustrative case:
Insurance Co of America v Warner, G.R. No. L-24106,
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 25 of 270
October 31, 1967
FACTS: Security Bank imported or bought some spare
parts for ford on board the SS "Saikyo Maru". They
ordered it from Ford London. The vessel arrived at the port
of Manila and allegedly discharged the shipment into the
custody of the Bureau of Customs as arrastre operator.
The goods were then delivered to the consignee in
damaged condition. Insurance company paid security
bank. Then as subrogee of the rights of the consignee the
plaintiff sued, as alternative defendants, Warner, Barnes &
Co., Ltd., operator of SS "Saikyo Maru",(for breach of
contract/admiralty) and the Republic of the Philippines
and/or Bureau of Customs and/or Customs Arrastre
Service (
for quasi-delict). The defendants other than Warner,
Barnes & Co., Ltd. moved for the dismissal of the
complaint on the ground that the court had no jurisdiction
over them and over the subject matter of the suit. The trial
court granted the motion as aforesaid, holding that the
Bureau of Customs, being an agency of the government,
cannot be sued without its consent and that the amount of
the claim was below the limit cognizable by the Court of
First Instance.
HELD: 1. On the first ground the order of
dismissal is correct. A long line of decisions has affirmed
the non-suability of the Bureau of Customs in a case like
the present. Bureau of Customsis neither a natural nor a
juridical person nor an entity authorized by law to be sued.
An arm of the Department of Finance, it has no personality
of its own, apart from the national government. Arrastre
service, it is true, is a proprietary function. But just the
same, it is a necessary incident to the primary
governmental job of assessing and collecting lawful duties,
fees, charges, fines, and penalties. Thus, regardless of the
merits of plaintiff's case, obvious reasons of public policy
dictate that the present action should not be allowed
standing in court it is a claim for money against the State
itself. And the State has not consented to the suit.
2. On the question of the lower court's jurisdiction
over the subject matter of the suit the appeal must be
sustained. The cause of action against Warner, Barnes &
Co., Ltd. as operator of the carrying vessel is one of
admiralty and hence is within the jurisdiction of the Court
of First Instance. Although the claim against the Bureau
of Customs as arrastre operator is an ordinary civil
suit which would be outside such jurisdiction by
virtue of the amount involved, the two may be joined
in one action alone. Since one of the causes of action
is cognizable by the Court of First Instance the suit
should be filed, as was correctly done by the plaintiff,
in said court, notwithstanding that the other cause of
action — if standing alone — would fall within the
jurisdiction of the municipal court, by reason of the
amount of the demand. In International Harvester Co.
of the Philippines v. Judge Aragon, where a similar
action was filed with the municipal court, we held that
 REMEDIAL LAW
CIVIL PROCEDURE
the municipal court lacked jurisdiction over the case
inasmuch as one of the alternative causes of action,
against the shipping firm, was an action in admiralty,
cognizable by the Court of First Instance.
HYPOTHETICAL EXAMPLE
- There is a vehicular collision. The other vehicle, you are
not sure who between the drivers are negligent. Basis: bus
where you are a passenger-contract of carriage and on
the other car: tort
- In this case, the plaintiff can join the owner of the bus and
the owner of the other vehicle. This can be done even if
the right of relief to one is based on contract while the
other is based on quasi-delict. even causes of action are
inconsistent, eg .suing in the alternative causes of action
- May persons be joined as plaintiffs in the alternative?
YES. Plaintiffs maybe joined as alternative plaintiffs under
this rule; In fact, it is also sanctioned by the rule on
permissive joindero f parties. E.g Principal and Agent may
sue in the alternative.
Sec. 14. Unknown identity or name of
defendant.Whenever the identity or name of a defendant
is unknown, he may be sued as the unknown owner, heir,
devisee, or by such other designation as the case may
require; when his identity or true name is discovered, the
pleading must be amended accord.
Sec. 15. Entity without juridical personality as
defendant.
When two or more persons not organized as an entity
with juridical personality enter into a transaction, they
may be sued under the name by which they are generally
or commonly known.
In the answer of such defendant, the names and
addresses of the persons composing said entity must all
be revealed
 2 or more persons, transact business as an entity
but not really organized as an entity, they may be
sued under the name by which they are commonly
known;
 Any transaction even not for profit, if two or more
persons transact under a common name may be sued
under that common name;
 PURPOSE: not to unduly burden the plaintiff;
 e.g if you go in the store, Warner Bros
 Q: May the unregistered Association sue by its
common name? A: NO. Because the rule applies
only to defendants who are sued under their common
name since they don’t have juridical personality.
 eg. May ABC and Co sue the bank? no, bec no
juridical personality;
 This applies only when the defendant is unorganized
entity but not as plaintiff. Why? this is for the
protection of the public.
 eg. Luisa and Sons bakery: assume it is a dept store,
someone bought TV from them, if you are the public,
you will no longer ask who are these Luisa and Sons,
but later you found out that there is a defect in the TV,
you sue Juan dela Cruz v ― Unknown defendants
doing business under the name of Luisa and Sons‖.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 26 of 270
 NOTE: this provision refers only to entities w/o
juridical personality. but these juridical personality can
not sue in that name
RULES IN CASE OF DEATH OF A PARTY.
Sec. 16. Death of party; duty of counsel.
Whenever a party to a PENDING action dies, AND the
claim is not thereby extinguished, it shall be the duty of
his counsel to inform the court within thirty (30) days after
such death of the fact thereof, and to give the name and
address of his legal representative or representatives.
Failure of counsel to comply with this duty shall be a
ground for disciplinary action.
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the
appointment of an executor or administrator and the court
may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a
period of thirty (30) days from notice.
If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the
opposing party, within a specified time to procure the
appointment of an executor or administrator for the estate
of the deceased and the latter shall immediately appear
for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing
party, may be recovered as costs.
- The situation in sec. 16 is this. That the party’s
death occurred during the PENDENCY of the
action. The situation IS NOT that the DEATH
occurred BEFORE the filing of the action.
- This rule applies to death occurring pendente lite,
if death occurred prior the filing of the action,
you DO NOT APPLY SEC. 16
Q: What happens to a case when a party dies? If your
are lawyer, assuming your client is the plaintiff, will
the case be dismissed because of the death of the
client? Does the death of the party also result in the
death of the case? Do the action also die due to the
death of the party?
A: NO, but only if the action surives. However, there are
cases where the case does not survive. (In other words,
pag namatay ang party, patay din, namely, the
personalisimo actions, those without the person, the action
cannot prosper).
Q: what are the examples of personalismo
actions?
A: i. Action for support.-If the either of the party
dies. Sino pa isusupport mo?, patay na nga e.
kung namatay na ung magbibigay ng support,
papano pa sia magbibigay ng support ?(but note,
estate of the one obliged to give suppor
survives); ii. Legal separation-what is more
permanent separation than death; iii. Action to
annul marriage. These actions cannot be
 REMEDIAL LAW
CIVIL PROCEDURE
transmitted by succession. Whereas in other
actions, it can be transmitted. Such actions
survive.
Q: kaya nga ang tanong natin one time,
are the heirs of the deceased, real
parties in interest?
A: Yes, if it involves the right of the
decedent in an action the survives.
Q: What is the effect of death of the party to an action?
A: an action which is purely personalismo in character,
such as an action for support or legal separation, is
extinguish by the death of the party. Where the claim
however is not extinguish by death, the law provides that
the legal representative or representatives or heirs of the
deceased may be substituted as party.
Substantive aspect of this rule:
i. Whenever a party to a PENDING action
dies,
ii. AND the claim is not thereby
extinguished,
PROCEDURAL:
STEP ONE: It shall be the duty of his counsel (deceased’
counsel): TWO DUTIES OF COUNSEL
i. to inform the court within thirty (30) days
after such death of the fact of death, AND;
ii. to give the name and address of his legal
representative (singular) or
representatives.(plural)
NOTE: Failure of counsel to comply with
this duty shall be a ground for
disciplinary action.
-note, technically pag legal representative,
pwedeng isa lang, kung meron na estate
proceedings and the court has appointed an
executor (with will) or administrator(without
will) or special administrator(prior probate of
will). Kung sino representative ng estate of
the deceased. Estate of the deceased is a
juridical person, personality continues but
only for the purpose of liquidating his assets,
paying the debt, and if there be remainder, to
distribute it to the persons entitled thereto,
kung may will, to the persons in the will,
kung walang will to the intestate heirs.
-representatives, kung walang naappoint na
executor, kamamatay lang ng deceased e,
pag di pa nakapagfile ng settlement of
estate. Ang kanyang heirs ngayon ang
representatives. By succession. Thus, ―the
heirs of the deceased may be allowed to be
substituted for the deceased, without
requiring the appointment of an executor or
administrator and the court may appoint a
guardian ad litem for the minor heirs.‖
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 27 of 270
STEP TWO: The court shall forthwith order said legal
representative or representatives to appear and be
substituted within a period of thirty (30) days from
notice.
-itong rule na to, usually kung ang namatay ay
ang defendant. After the court has been notified
of the fact of death, and the names and
addresses of the representatives. Then the court
will order these heirs to appear and be
substituted within 30 days from notice. Pero
pwede karin kusang loob.
-usually, kung ang plaintiff ang namatay, ang
heirs, pasok. They ask the court for the
substitution without even the counsel informing
the court.
NOTE: If no legal representative is named by the counsel
for the deceased party (e.g. pag di alam ng counsel name
ng representatives or addresses nila), or if the one so
named shall fail to appear within the specified period (dito
alam, pero failed to appear within 30 days),
Q: In this case, will the substitution take effect?
A: NO, hindi yan automatic, dapat magappear ka talga. In
such case, the court may order the opposing party
(ung buhay), within a specified time to procure the
appointment of an executor or administrator for the estate
of the deceased and the latter (the executor or
administrator) shall immediately appear for and on behalf
of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be
recovered as costs
- kung ang namatay ang defendant, at walang
representative na naname ang counsel, ang
ioorder ng court ay ung plaintiff to procure the
appointment of executor or administrator.
- But if namatay plaintiff, and ikaw defendant,
would you bother? Of course you would not
bother, Why would you bother,
-
SUMMARY:
When death occurs during the pendency of the case
and if it survives SUBSTITUTION
Duty of counsel to inform the court of the
i. death of the party
ii. give the names and address of his
legal representative
The court shall order legal representative to appear for
substitution.
If the representative refuse to appear, the court will
order the opposing party to appoint a representative. In
which case, the cost for such appointment shall be
charged as cost of suit.
 REMEDIAL LAW
CIVIL PROCEDURE
RULE 3, SEC. 19 IS APPLICABLE ONLY WHEN THE
DEATH OF THE PARTY OCCURS DURING THE
PENDENCY OF THE ACTION; ORDER TO AMEND FOR
THE INCLUSION OF THE INDISPENSABLE PARTY
PROPER IF DEATH OF THE PARTY OCCURS PRIOR
THE FILING OF THE COMPLAINT; NON-COMPLIANCE
WITH THE ORDER TO AMEND, A PROPER GROUND
FOR DISMISSAL UNDER RULE 17, SEC. 3
DAEL vs TEVES, G.R. No. L-34124 April 30, 1985
FACTS: In this case, petitioners filed an action for
recovery of ownership of real property plus damages. It
appears however that two of the defendants who are
indispensable parties, because of the allegation in the
complaint that the said defendants have inheritted the
disputed property from their parents, were already
deceased even before filing of the complaint. In this case,
the court ordered the amendment of the complaint to
include the heirs or represtatives of the deceased
defendant, who are indispensable parties. Upon the lapse
of the period given, and no amendment was made by the
peititioner, the trial court upon motion ordered the
dismissal of the complaint for failere to comply with the
order to amend. In this case, the petitioner argues that the
failure to amend the complaint was due to the failure of the
defendant to inform the court of the names of the heirs or
representatives of the defendants pursuant to sec. 16 or
rule 3.
ISSUE: WON it was correct for the trial court to dismiss
the case since its order for the plaintiff to amend the
complaint to include the heirs of the deceased defendant
correct?
HELD: YES, the proper procedure here is amendment
because death occurred prior to the filing of the complaint.
Rule 3, Section 16 of the Rules applies to a situation
where a party (whether plaintiff or defendant) dies after the
filing of the complaint and during the pendency of the
case. This is not the situation in the case at bar since the
two defendants, whose heirs are to be impleaded died
even before the filing of the complaint.
NOTE: SEC 16 applies only if the party dies during the
pendency of the action. Sec. 16 Rule 3, the rule requiring
the counsel to inform the court of the fact of death, does
not apply where the persons to be impleaded have already
died before the filing of the complaint, If death occurred
prior the filing, you apply the general rule on amendment.
Where plaintiffs failed to comply with a court order
ordering the amendment of complaint to include heirs of
deceased defendants who are indispensable parties, order
of dismissal of complaint for failure to comply with the
order to add the indispensable party is proper pursuant to
7 unless otherwise declared by the court.
rule 17, sec. 3.
7
Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable
cause, the plaintiff fails xxxx to comply with xxx any order of the court,
the complaint may be dismissed upon motion of the defendant or upon
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 28 of 270
8
REITERATION: Relate this to rule 3, sec. 9, where the
non-compliance with the order of the court to join a
necessary party merely constitutes a waiver of claim
against such party, and not the dismissal of the action.
ORDER LEGAL REPRESENTATIVES TO APPEAR AND
BE SUBSTITUTED, NOT ORDER AMENDMENT
Illustrative case: Take note of the process of
substitution, the procedure in case of death pendente
lite is not to order amendment but to order the heirs or
representatives to be substituted.; There is no
obligation on the part of the plaintiff to amend, even if
ordered by the court since the procedure is for the
court to order the heirs or representatives to appear
and be substituted.
CASENAS vs ROSALES, G.R. No. L-18707
February 28, 1967
DOCTRINE: The procedure in case of death pendent lite
is not amendment, but to require the heirs or
representatives to appear in court to be substituted. No
Res Judicata because the order of dismissal in the first
case is null and void because the order to amend is not
the proper procedure in substituting a deceased party.
FACTS: Rodolfo Aranas and Agustin Casenas filed a civil
action against sps. Jose rosales and concepcion sanchez.
The action is for specific performance and enforcement of
deed of sale (Civil Case No. 261). After answer has been
filed but before trial, counsel for the plaintiff gave notice to
the court that plaintiff Aranas and defendant jose rosales
died. The court issued an order directing plaintiff casenas
to amend his complaint, to effect the necessary
substitution of the parties (para palitan parties). When the
surviving plaintiff failed to comply with the order of the
court, the court dismissed the case, Later on, casenas
filed another complaint against the widow and heirs of
defendant rosales over the same property, alleging the
same cause of action. Defendant filed a motion to dimiss
alleging res judicata which the trial court granted in
accordance with sec. 3 rule 17, to wit:
―Section 3. Dismissal due to fault of plaintiff. — If,
for no justifiable cause:
i. the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or;
the court's own motion, without prejudice to the right of the defendant
to prosecute his counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the merits,
8
Section 9. Non-joinder of necessary parties to be pleaded.
— xxxx
The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against such
party.
 REMEDIAL LAW
CIVIL PROCEDURE
ii. to prosecute his action for an unreasonable length of
time, or;
iii. to comply with these Rules or;
iv.any order of the court,
the complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court.‖-meaning
9
dismissal with prejudice.
ISSUE: Was the trial court correct in dismissing the
subsequent case?
HELD: No. there was no obligation on the part of the
plaintiff to amend his complaint, and any such imposition
or order by the trial court is void. Because the proper
procedure of substitution is not by amendment, rather,
substitution by notifying the court of the names and
addresses of the heirs, and the court will order them to
appear within 30 days. Not to amend. Since the order of
the court is not in accordance with sec. 16 rule 3, that was
not a valid order. Therefore, failure to comply with such
void order is not a ground for dismissal without prejudice
Excerpts: Instead of ordering the substitution of the
deceased's legal representatives in accordance with Rule
3, section 16 of the Rules of Court, the trial court directed
the surviving plaintiff to amend the complaint and when
the latter failed to comply therewith, the said court
dismissed the complaint for such non-compliance. We
must hold, therefore, xxx that inasmuch as there was no
obligation on the part of the plaintiff-appellant herein to
amend his complaint in Civil Case No. 261, any such
imposition being void, his failure to comply with such an
order did not justify the dismissal of his complaint.
Grounded as it was upon a void order, the dismissal was
itself void.
NON-SUBSTITUTION NULLIFIES THE PROCEEDING
Q: What happens if there is no substitution, will the court
continue hearing the case?
A: No, If there is no substitution, the proceedings had in
court would be null and void for the simple reason that
there is violation of due process.
Q: What happens if there is no substitution, will the court
continue hearing the case?
A: If there is no substitution, the proceedings had in court
would be null and void for the simple reason that there is
violation of due process.
Illustrative case: Non-substitution nullifies the entire
proceeding, it being a violation of due process;
substitution is indeed a mandatory requirement in
actions surviving the deceased
9
XPN to this rule is the rule on necessary parties. In such case, the non-
compliance with the order would not result in the dismissal of the case.
The rules merely provides that the failure to comply with the order for
his inclusion, without justifiable cause, shall be deemed a waiver of the
claim against such party.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 29 of 270
VDA DELA CRUZ, G.R. No. L-41107, February 28, 1979
FACTS: This is an action for ejectment and collection of
rentals filed by the land owner against tenant Felix Jose
and 114 co-defendants; After the answer was filed but
before the termination of the case, defendant felix Jose
died and no substitution by legal representative or heirs
was effected after his demise. Judgment was rendered in
favor of the plaintiff. When the judgment became final and
executory, a writ of execution was issued against the
property of deceased jose. The judgment rendered as well
as execution is now being questioned on jurisdictional
grounds, that the same cannot be enforced against his
heirs for want of substitution
ISSUE: WON the judgment cannot be enforced against
felix jose’s heirs for want of substitution
HELD: Yes, the need for substitution is based on the right
of a party to due process. The substitution must be
effected, if it is not effected and the court continues to hear
evidence, then, all proceedings there are null and void.
Summing up then the previous ruling of this Court in the
afore-cited cases, and noting that Rule 3, Sec. 16,
Revised Rules of Court uses the word "shall", one infers
that substitution is indeed a mandatory requirement in
actions surviving the deceased. It has been held that in
"statutes relating to procedure every act which is
jurisdictional or of the essence of the proceedings or is
prescribed for the protection or benefit of the party
affected, is mandatory. Since there has been no
substitution here, the judgement, as well as the writ of
execution are null and void.
Substitution is a mandatory requirement in actions
surviving the deceased. It may still be ordered even after
judgment has been rendered since provided proceedings
may still be taken.
VDA DE HABERER vs CA, G.R. Nos. L-42699 to L-
42709 May 26, 1981
DOCTRINE: Since no administrator of the estate of the
deceased appellant had yet been appointed as the
same was still pending determination in the Court of
First Instance of Quezon City, the motion of the
deceased's counsel for the suspension of the running
of the period within which to file appellant's brief was
well-taken.
FACTS: Florentina vda. De haberer lost a case in the trial
court. Appealed to CA the adverse decision against her.
Her attys. were given 90 days to file appellants brief.
However, during that period, appellant florentina died. As
a result, counsel gave notice of death to the court, and ask
the court for the suspension of the running of the period
within which to file appellants brief, pending appointment
of the executor of the estate of the deceased client which
is pending with the rtc of quezon city where the petition for
the probate of the will of the deceased was pending. Later
on, since the motion was unacted upon, when the 90-day
period was about to expire, the counsel again filed a
 REMEDIAL LAW
CIVIL PROCEDURE
motion asking for extension of 60 days or suspension of
the running of the period. The CA denied the request for
extension, and dismissed the appeal for failure to file an
appellant brief. The dismissal of the appeal was
questioned before the SC
ISSUE: WON CA committed GAD
HELD: Yes, Section 16, Rule 3 of the Rules of Court sets
the rule on substitution of parties in case of death of any of
the parties. Under the Rule, it is the court that is called
upon, after notice of a party's death and the claim is not
thereby extinguished, to order upon proper notice the legal
representative of the deceased to appear within a period
of 30 days or such tlme as it may grant. Since no
administrator of the estate of the deceased appellant
had yet been appointed as the same was still pending
determination in the Court of First Instance of Quezon
City, the motion of the deceased's counsel for the
suspension of the running of the period within which
to file appellant's brief was well-taken. More, under the
Rule, it should have set a period for the substitution of the
deceased party with her legal representative or heirs,
failing which, the court is called upon to order the
opposing party to procure the appointment of a legal
representative of the deceased at the cost of the
deceased's estate, and such representative shall then
"immediately appear for and on behalf of the interest of the
deceased. . Thus, it has been held that when a party
dies in an action that survives, and no order is issued
by the court for the appearance of the legal
representative or of the heirs of the deceased in
substitution of the deceased, and as a matter of fact
no such substitution has ever been effected, the trial
held by the court without such legal representatives
or heirs and the judgment rendered after such trial are
null and void because the court acquired no
jurisdiction over the persons of the legal
representatives or of the heirs upon whom the trial
and the judgment would be binding.
As discussed in the previous case, the need of substitution
is base from the right of a party to due process. This
procedure of substitution is mandatory.
Inasmuch as appellant died during the pendency of
appeal, the courts are required to order the opposing party
to procure appointment of legal representative to
represent the estate of a deceased party.
ATTY-CLIENT RELATIONSHIP IS EXTINGUISHED
UPON DEATH; ATTY NO AUTHORITY TO REPRESENT
DECEASED CLIENT; ACTIONS OF ATTY., VOID.
Q: When a party dies during the pendency of the case,
what is the effect in the lawyer-client relationship?
A: It is terminated. The agency is terminated. Counsel has
no more authority to represent the deceased party. Death
of client extinguishes lawyer-client relationship since it is
fiduciary in nature.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 30 of 270
Illustrative case; death of the client extinguishes
lawyer-client relationship, hence lawyer can no longer
represent the deceased
BARRAMEDA vs BARBARA, G.R. No. L-4227
January 28, 1952
DOCTRINE: As the defendant had died, the attorney
representing him could not file a motion to dismiss
for, his client being dead, he had no longer any
standing in court; he had no personality and could not
have been represented by an attorney
DOCTRINE2: The order of the court requiring the
plaintiffs to make substitution without previously
ordering the attorney for the deceased defendants to
name the legal representative and ordering the latter
to appear, was a violation of Rule 3 Secs 16, and was
therefore void. It is only after the failure of the legal
representative to comply with said order that the court
will order the opposing party to procure the
appointment of a legal representative within the time
to be specified by the court, to appear in behalf of the
interest of the deceased party.
REITERATION: It is the duty of the deceased‘ counsel
to inform the court of the 1) fact of death AND 2) name
and addresses of the legal representatives
FACTS: The counsel for the deceased defendant did not
inform the court of the name and addresses of the legal
representatives of the deceased. The court directly
ordered the plaintiff to make the substitution without
requiring the counsel for the defendant to name the
deceased’ legal representatives. Although seven months
had elapsed since the plaintiffs were notified of said order,
they had failed to comply with it. Thereafter, counsel for
the deceased defendant Julian Barrameda filed a motion
for dismissal on the ground that in failing to file an
amended complaint, the plaintiffs in said case, R-119
(defendants-appellants herein), showed lack of interest in
prosecuting the case. The court granted the motion
dismissing the case
HELD: The order of the court requiring the plaintiffs to
make substitution without previously ordering the
attorney for the deceased defendants to name the
legal representative and ordering the latter to appear,
was a violation of Rule 3 Secs 16, and was therefore
void. It will be seen that it was the duty of the attorney for
the deceased Julian Barrameda to inform the court of
Barrameda's death and furnish it with the name and
residence of the executor, administrator, guardian, or legal
representative of the deceased. The attorney of the
deceased or somebody else, who does not appear of
record, may have informed the court of the death of Julian
Barrameda, but said attorney did not furnish the name and
residence of the executor, administrator, guardian, or legal
representative of the deceased client, in accordance with
section 16, Rule 3, above quoted. This rule must have
taken into consideration the fact that the attorney for the
deceased party is in a better position than the attorney of
 REMEDIAL LAW
CIVIL PROCEDURE
the other party to ascertain who are the legal
representatives or heirs of his deceased client. This duty
should not be shifted to the plaintiff or his attorney. As a
consequence of section 16, the court orders the legal
representative of the deceased party, whose name must
have been furnished before hand by his attorney, to
appear and substitute the deceased within thirty days. It is
only after the failure of the legal representative to
comply with said order that the court will order the
opposing party to procure the appointment of a legal
representative within the time to be specified by the
court, to appear in behalf of the interest of the
deceased party.
In the present case, although the attorney for the
deceased Barrameda did not furnish the name of the legal
representative of his deceased client, the court directly
ordered the plaintiffs to make the substitution without
previously requiring the defendants to do so.
Consequently, the order of the court requiring the plaintiffs
to make the substitution without previously ordering the
attorney for the defendants to name the legal
representative and ordering the latter to appear, was a
violation of Rule 3, sections 16 and was, therefore, void.
The non-compliance with that order could not be
considered as failure to prosecute. The fault of the
defendants should not be attributed to the plaintiffs,
making the latter suffer the serious consequences
that are claimed to have ensued. (in the first place, bakit
ang plaintiff ang gagawa ng substitution?)
NOTE2: It is stated in the appealed decision:‖So on May
7, 1947, counsel for the defendant Julian Barrameda filed
a motion for dismissal.‖ As the defendant had died, the
attorney representing him could not file a motion to
dismiss for, his client being dead, he had no longer any
standing in court; he had no personality and could not
have been represented by an attorney.
PRESENTATION OF EVIDENCE BY THE OPPOSING
PARTY NULL AND VOID FOR BEING MADE DESPITE
THE MANIFESTATION OF THE COUNSEL FOR THE
DECEASED OTHER PARTY OF THE FACT OF DEATH
AND THE NONE REHIRING BY THE
REPRESENTATIVES
Illustrative case:
LAWAS vs CA, G.R. No. L-45809 , December 12, 1986
FACTS: Private respondent Pacifico Pelaez filed a
Complaint against petitioner's father, Pedro Sepulveda, for
ownership and partition of certain parcels of land. During
trial, defendant Speulveda died. Lawas was appointed as
administratix. However, at the hearing after lawas has
been appointed of 27 Nov, Attys. Antigua and Branzuela
for respondent deceased sepulveda manifested that with
the death of their client, their contract with him terminated
and that none of his children renewed their contract, but
instead engaged the services of another lawyer. This
manifestation notwithstanding, the judge ordered the
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 31 of 270
substitution. The judge now substituted the heirs, despite
the lack of order of appearance. (dito, wala pa mang order
to appear, pinasubstitute nia na) Then judge ordered the
counsel for the plaintiff to present evidence. (umalis na
sina atty. Antigua kasi di na daw sila ung abogado, patay
na client nila, and di sila ni rehire ng heirs. Sabi ng court,
alis kayo? Sige bahala kayo, inorder plaintiff to present
evidence). This was followed with an order authorizing
counsel for the plaintiff to present his evidence in the
absence of Attys. Antigua and Branzuela, and lastly, an
order treating the case as submitted for decision. A
judgment was rendered against defendant. After judgment
rendered, the children and widow moved for
reconsideration which the judge granted. But when the
heirs moved for reinstated, the judge revived its previous
decision. CA affirmed the order of the trial judge reviving
the judgment against the defendant.
ISSUE: WON the evidence presented during the trial were
valid evidence?
HELD: NO, when they were presented, there was
absence of proper substitution. In short there was violation
of due procees.
NOTE: Is the revival of judgment valid? NO. Both TC &
CA erred in considering former counsels as counsels of
the heirs, upon death of a party, counsel ceased to be his
attorney. The attorneys for the party ceased to be the
attorneys for the deceased upon the death of the
latter, the principal. Since an administratix has already
been appointed for the estate of the deceased, the
administratrix should have been substituted, because
under the rules the executor or administratix, as legal
representatives, has the priority.(Comment: because
when the person dies, his executor or administrator, shall,
in the right of the deceased, prosecute and defend for or
10
against the deceased)
NOTE: Under the said Rule, priority is given to the legal
representative of the deceased, that is, the executor or
administrator of his estate. It is only in cases of
unreasonable delay in the appointment of an executor or
administrator, or in cases where the heirs resort to an
extrajudicial settlement of the estate, that the court may
adopt the alternative of allowing the heirs of the deceased
to be substituted for the deceased.
Sec 2 of Rule 87 provided that if there’s an appointed
administrator, he may bring or defend.
Escolin‘s view: Where defendant dies, proper
substitution can only be effected if the court acquired
jurisdiction of the the person of defendant by Summons
prior to death.
10
Rule 87, Section 2. Executor or administrator may bring or defend
actions which survive. — For the recovery or protection of the property
or rights of the deceased, an executor or administrator may bring or
defend, in the right of deceased, actions for causes which survive.
 REMEDIAL LAW
CIVIL PROCEDURE
(1) DECISION IS NOT NULLIFIED DESPITE THE NON-
SUBSTITUTION OF THE DECEASED IF THE DEATH
OCCURRED AFTER PRESENTATION OF EVIDENCE
AND WHEN THE CASE HAS ALREADY BEEN
SUBMITTED FOR DECISION, AND WHEN THE TRIAL
COURT WAS NOT INFORMED OF THE DEATH; (2)
NOTICE OF APPEAL FILED BY COUNSEL OF
DECEASED, AN UNAUTHORIZED PLEADING
Illustrative case:
HEIRS OF REGOSO vs CA, G.R. No. 91879, July 6,
1992
FACTS: Belen Cruz-Regoso filed an action for judicial
partition of property with accounting and damages against
her husband, Maximo Regoso. During the trial, after
presentation of evidence and the case has already been
submitted for decision, the husband died. However, no
notice of his death was filed until the decision was
rendered by the court.After promulgation of decision,
defendant counsel, atty. Javier, filed a notice of appeal
which the trial court approved. Plaintiff filed a motion to
dismiss the appeal on the ground that the defendant
ceased to have legal personality when he died, and that
Attorney Javier's authority to represent him was
terminated or expired upon his demise, hence, when atty.
Javier filed the notice of appeal, the same was invalid, a
worthless piece of paper.
ISSUE: WON the notice of appeal was ineffectual
HELD: YES, The supervening death of the defendant,
Maximo Regoso, did not extinguish his wife's action for
partition of their conjugal assets, for it is an action that
survives. The trial of the case on the merits was
already finished before the defendant died. Since it
was not informed about that event, the trial court may
not be faulted for proceeding to render judgment
without ordering the substitution of the deceased
defendant. Its judgment is valid and binding upon the
defendant's legal representatives or successors-in-
interest, insofar as his interest in the property subject of
the action is concerned.
Attorney Javier's appeal from the decision of the trial
court was correctly dismissed by the appellate court
for upon the death of Maximo Regoso, Attorney
Javier's authority to represent him also expired. Then
notice of appeal, which Attorney Javier filed on behalf
of the decedent was an unauthorized pleading, hence,
invalid
COMMENT: Ibigsabhin, evidence presented were valid.
Remember, death occurred here after presentation of
evidence and when the case has already been submitted
for decision. Differentiate this from Lawas v. CA, death
occurred in Lawas during trial, and when the attys. in
lawas manifested that they are withdrawing due to the
death and not rehired, hence null and void ang
proceedings. Dito sa Heirs of Regoso, tapos na ang
presentation, submitted na for decision, and take note of
the fact here na there was no notice of the fact of death
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 32 of 270
ESCOLIN‘S VIEW: FLAWS: While it is a valid judgment,
because the evidence was presented when the other party
was still alive. However, did the judgment become final?
For me, no. the judgment is not yet final and executory.
When the court came to know of the fact of death, the
court should have ordered the appearance and
substitution. There should still be proper substitution.
Why? If indeed lawyer-client rel was terminated upon
death, ergo service upon the deceased is also null and
void. Hence, the running of the period is suspended until it
is served. The copy of the decision should have been
furnished to the substitute, so that the period will now start
to run. Dito, di pa final, dapat niremand case sa trial court
at ninotify ang heirs of the judgement. Di pa kasi
nagexpire ung period to appeal since null and void ung
notice of appeal by atty Javier and di pa nabigyan copy
heirs.
Q: Supposed the deceased party is a defendant
for damages. Are the heirs personally liable?
A: Depends. Purpose of substitution: protection of the
right of every party to due process. When are the
heirs liable? When the heirs received their
inheritance.
Q: If the Legal Representative failed to appear,
what happens? A: the court will order the OTHER
party to initiate settlement of the estate proceedings in
order that the executor/ administrator shall now
appear in the person of the deceased party.
If no legal representative is named by the counsel for
the deceased party, or if the one so named shall fail
to appear within the specified period, the court may
order the opposing party, within a specified time, to
procure the appointment of an executor or
administrator for the estate of the deceased and
the latter shall immediately appear for and on
behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the
opposing party, may be recovered as costs.
Q: What happens to the lawyer-client relationship
upon death of the party?
A: Extinguished. Because it is a fiduciary relationship,
agency-death of principal terminates the agency, lalo
na ito fiduciary.
Effets of the death of a defendant in a civil suit are
dependent upon:
i. Nature of the action
ii. Time of his demise (death before or after
judgment)
EFFECT OF DEATH OF A PARTY WHEN INVOLVED
A PERSONAL ACTION (one for recovery of money,
debt or interest thereon)
BEFORE final judgment AFTER final judgment of
of RTC RTC
 REMEDIAL LAW
CIVIL PROCEDURE
- It shall be - The action is not granted. and the representative shall
dismissed to be dismissed, and an immediately appear for and
prosecuted in the appeal may be on behalf of the interest of
manner taken by or the deceased.
especially against the
provided in these administrator. The court charges involved
ru;es (Sec 21 - BUT, if in procuring such
Rule 3) thejudgment appointment, if defrayed by
- The ―especial‖ against the the opposing party, may be
manner of the deceased recovered as costs.
prosecution of becomes final
said money and executor , it The heirs of the deceased
claims against shall be enforced may be allowed to be
the decedent is not by execution substituted for the
set forth in Rule under Rule 39 but deceased, without requiring
86 of the Rules in accordance the appointment of an
of Court, in with Section 5 of executor or administrator
connection with Rule 86, e.g by and the court may appoint
the judicial presenting as a guardian ad litem for the
proceedings for claims against the minor heirs
the settlement of estate.
the estate of a DEATH OR SEPARATION OF A PARTY WHO IS A
deceased PUBLIC OFFICER
person.
RATIO for the dismissal
Section 17. Death or separation of a party who is a
of the case: that upon
the death of the public officer. — When a public officer is a party in an
defendant a testate or action in his official capacity and during its PENDENCY
intestate proceeding dies, resigns, or otherwise ceases to hold office, the
shall be instituted in the action may be continued and maintained by or against his
proper court wherein all successor if, within thirty (30) days after the successor
his creditors must takes office or such time as may be granted by the court, it
appear and file their is satisfactorily shown to the court by any party that there
claims which shall be is a substantial need for continuing or maintaining it and
paid proportionately out that the successor adopts or continues or threatens to
of the property left by adopt or continue to adopt or continue the action of his
the deceased. It is, predecessor. Before a substitution is made, the party or
therefore, to avoid
officer to be affected, unless expressly assenting thereto,
useless duplicity of
shall be given reasonable notice of the application therefor
procedure that the
ordinary action must be and accorded an opportunity to be heard. (18a)
wiped out from the
ordinary courts.

EFFECT OF DEATH OF A PARTY WHEN INVOLVED

REAL ACTION (one for recovery of personal property or Q: What is the situation here?
to enforce a lien thereon and actions to recover damages A: That the public officer is being sued in his
for an injury to person or property, real or personal) under official capacity, and he ceases to hold office.
RULE 3 SEC 16 Now, the action may continued when there is a
substantial need for continuing or maintaining it
GR: If defendant dies, the claim against him is NOT
and that the successor adopts or continues or
thereby extinguished and the action will not be dismissed
but continue against the decedent‟s legal representative. threatens to adopt or continue to adopt or
continue the action of his predecessor.
LEGAL OPPOSING PARTY
REPRESENTATIVE PROCUREMENT OF - NOTE: Before a substitution is made, the party or
REPRESENTATIVE officer to be affected, unless expressly assenting
thereto, shall be given reasonable notice of the
The court shall order, upon If the legal representative application therefor and accorded an opportunity
proper notice, the legal fails to appear within said to be heard.
representative of the time, the court may order  In other words, tatanungin ung successor
deceased to appear and to the opposing party to kung tinutuloy nia ba ung ginagawa ng
be substituted for the procure the appointment of predecessor.
deceased, within a period a legal representative of the - PERIOD: Within thirty (30) days after the
of thirty (30) days, or within deceased within a time to successor takes office or such time as may be
such time as may be be specified by the court, granted by the court,

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 33 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
INCOMPETENCY/INCAPACITY
Section 18. Incompetency or incapacity. — If a party
becomes incompetent or incapacitated, the court, upon
motion with notice, may allow the action to be continued
by or against the incompetent or incapacitated person
assisted by his legal guardian or guardian ad litem. (19a)
- During the pendency of the case, nabuwang
/incapacitated/incompetent, or nacivil interdiction,
ano mangyayari dian? A: dapat imanifest sa
court.
- upon motion with notice may allow the action to
be continued, such party must be assisted by
legal guardian or guardian ad litem;
- Purpose: protect the interest of inacapacitated
party
TRANSFER OF INTEREST
Section 19. Transfer of interest. — In case of any
transfer of interest, the action may be continued by or
against the original party, unless the court upon motion
directs the person to whom the interest is transferred to be
substituted in the action or joined with the original party.
(20)
- The transfer of interest must also occur
pendente lite
- (c)
Q: Supposed there was no substitution, will the
decision bind the successor in interest pendente lite?
A: Yes
Q: Even if he was not included by amendment?
A: Yes
A DECISION INVOLVING THE PREDECESSOR IN
INTEREST IS CONCLUSIVE UPON THE SUCCESSOR
EVEN IF THERE WAS NO SUBSTITUTION, PROVIDED
THAT THE TRANSFER OCCURS DURING THE
PENDENCY OF THE ACTION (Subsequent the
commencement of the action)
BASIS: RULES ON RES JUDICATA (Sec 19) in
relation to Rule 39, Sec. 47(b) which provides
that:
Section 47. Effect of judgments or final
orders. — The effect of a judgment or final order
rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final
order, may be as follows:
(a) In case of a judgment or final order
(i)against a specific thing, or in respect to the
(ii)probate of a will, or the (iii) administration of
the estate of a deceased person, or (iv)in respect
to the personal, political, or legal condition or
status of a particular person or his relationship to
another, the judgment or final order is
conclusive upon the title to the thing, the will
or administration or the condition, status or
relationship of the person, however, the
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 34 of 270
probate of a will or granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate;-COMMENT: this refers to action in
rem.
(b) In other cases, the judgment or final
order is, with respect to the matter directly
adjudged or as to any other matter that could
have been missed in relation thereto, conclusive
between the parties AND THEIR
SUCCESSORS in interest, by title
SUBSEQUENT to the commencement of the
action or special proceeding, litigating for the
same thing and under the same title and in the
same capacity; and-;-COMMENT: this refers to
action in personam. NOTE: the transfer must be
made subsequent to the commencement
(pendente lite) of the action for the decision to be
conclusive upon the successor in interest. If the
transfer occurred prior the commencement of the
action, the transfer will not bind the transferee. If
the transfer occurred pendente lite, the
judgement is conclusive not only upon the parties
but also upon their successor in interest by title
subsequent to the commencement of the action.
In any other litigation between the same
parties or their successors in interest, that only is
deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which was
actually and necessarily included therein or
necessary thereto. (49a)
NOTE: in rel to Rule in Res Judicata, Rule 39 Sec 47,
(refer to audio + codal) The transfer of interest must be
pendent lite, if it’s prior, it is not conclusive because the
principal is not the real party in interest.
Illustrative case:
Jocson v. CA, G.R. No. 88297 March 22, 1990
FACTS: Petitioner Preston V. Barbasa bought a brand
new car from Southern Motors with Filinvest Finance and
Leasing Corp. (FFLC) financing the account. This account
was later assigned to Filinvest Credit Corp. The car was
later repossessed by FFLC. Later on, petitioner Barbasa
filed a complaint for damages against FFLC claiming that
it had acted illegally and maliciously in repossessing the
car. Subsequently, the Bank of the Philippine Islands
Credit Corporation (BPICC) having bought FCC, the
complaint was amended to include (BPICC) as co-
defendant. During the pendency of the case, the Bank of
the Philippine Islands (BPI) acquired all the assets of its
wholly owned subsidiary, BPICC. But BPI was not formally
included or substituted as party defendant for BPICC.
After trial, judgment was rendered in favor of Barbasa, and
on motion, a partial execution was granted by RTC. Now,
FFLC and BPICC filed a notice of appeal. The writ of
 REMEDIAL LAW
CIVIL PROCEDURE
partial execution was served against the BPI. BPI then
filed several motions to recall the issued writ, arguing that
it was null and void because BPI had never been notified
of the proceedings.
ISSUE: WON the decision cannot be executed against
BPI, it being not impleaded in main case
HELD: No, the decision can be executed against BPI. This
Court has declared in a number of decisions that a
transferee pendente lite stands in exactly the same
position as its predecessor-in-interest, the original
defendant, and is bound by the proceedings had in
the case before the property was transferred to it. It is
a proper but not an indispensable party as it would in any
event be bound by the judgment against his predecessor.
This would follow even if it is not formally included as a
defendant through an amendment of the complaint.
COMMENT: This is precisely because of the effects of res
judicata, sec 47(b), rule 39: that the judgement is
conclusive not only upon the parties but also upon their
successor in interest by title subsequent to the
commencement of the action
ESCOLIN: However, I have a different opinion in cases of
properties covered by the Torrens title
SITUATION: The property which covered by the torrens
title was the subject of a case. Hindi nagpaannotate sa
registry of deeds ung may-ari ng lis pendens-pag there is
a case involving real property, paannotate mo na subject
to civil case, so that the buyer would also be bound.
Subsequently, it was transferred pendete lite. So when the
purchaser bought the property, malinis ung titulo, walang
nakaannotate na lien. Natalo ung defendant.
ISSUE: Will the transferee be bound by the judgement of
the court?
HELD: NO. If the property is covered by the torrens title,
and you are a purchaser in good faith and for value, you
are protected by the law. Although the transfer of property
occurred pendente lite, the rule under rule 39 sec. 47(b)
cannot be higher than a substantive right. If you are a
buyer in good faith and for value, you are protected under
the torrens system of registration. So this is now a case of
substantive law v. procedure law.
ACTION AND CONTRACTUAL MONEY CLAIMS
Section 20. Action and contractual money
claims. — When the action is for recovery of money
arising from CONTRACT, express or implied, and the
defendant dies before entry of final judgment in the
court in which the action was pending at the time of such
death, it shall not be dismissed but shall instead be
allowed to continue until entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall
be enforced in the manner especially provided in these
Rules for prosecuting claims against the estate of a
deceased person. (21a)
Q: What is the nature of the action comtemplated in this
section?
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 35 of 270
A: An action for recovery of money arising from contract,
whether express or implied.
-NOTE: Obligations for money can come from 5
sources. E.g. from law, contract, quasi-contract,
delict, quasi-delict. But here, the action is one
arising from CONTRACT, express or implied
―When the action is for recovery of money‖
- This section only contemplates action for
recovery of money NOT PROPERTY. PERA
LANG
―arising from CONTRACT, express or implied‖
- Jurisprudence provides that those arising from
law and those arising from quasi-contract are
considered implied contract.
- J. Roberto-concepcion, in Maclan v. Garcia (G.R.
No. L-7622, May 27, 1955), when the rule says
―contract, express or implied‖, it should not be
taken in its strict civil law sense, but it should be
taken in its common law sense since its origin is
common law. And under common law, implied
contracts include those arising from law and
11
quasi-contract.
e.g. Warranty, as if kasama sa contract.
- Ang hindi kasali dito, delict and quasi-delict, di na
yan contract talaga.
―and the defendant dies before entry of final judgment‖
- Death occurred before the entry of final judgment
- Remember, ang namatay dito ay defendant, kung
ang plaintiff ang namatay ibang usapan na.
- This section contemplates a defendant who dies
pendente lite. And not death of a plaintiff. If the
plaintiff is the one who died, this is not applicable.
―it shall not be dismissed but shall instead be allowed
to continue until entry of final judgment‖
- Under the present rule, the action shall not be
dismissed.
―A favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in
these Rules for prosecuting claims against the estate of
a deceased person.‖
- Execution could nolonger be enforced by the
court which rendered the money judgment.
- Rather, the judgement may only be prosecuted in
the manner especially provided in these Rules for
prosecuting claims against the estate of a
deceased person.
11
2. ID.; ID.; ID.; CLAIM FOR NECESSARY EXPENSES AS ARISING FROM
IMPLIED CONTRACT; TO BE FILED IN SETTLEMENT OF DOCUMENT’S
ESTATE. — Plaintiff’s contention that claim for repairs should not have
been filed in the proceedings for the settlement of the estate of the
decedent since only money claims arising from contracts expenses or
implied are enforceable in said proceedings is untenable because said
obligation arises from Law. Plaintiff’s argument seemingly, stems from
misconception of the nature of "implied contracts" as the term is used
in the provision of Section 5 of Rule 87 of the Rules of Court.
Obligations arising ex lege are in the common law system merged into
the category of obligations imposed by law and all are denominated
implied contracts.
 REMEDIAL LAW
CIVIL PROCEDURE
NOTE: Sec. 20 must be read in relation to our study in
jurisdiction.
- As we said, jurisdiction is the power of the court
or tribunal to resolve a controversy, AND to
carry out its judgement into effect
 To carry judgement into effect means that it
is also the same court which rendered the
judgment which has the authority to enforce
the judgment, (pero may proviso na ngayon)
unless otherwise provided by law. This
section is one of the example.
INDIGENT PARTY
Section 21. Indigent party. — A party may be
authorized to litigate his action, claim or defense as an
indigent if the court, upon an ex parte application and
hearing, is satisfied that the party is one who has no
money or property sufficient and available for food,
shelter and basic necessities for himself and his
family.
Such authority shall include an exemption from payment of
docket and other lawful fees, and of transcripts of
stenographic notes which the court may order to be
furnished him. The amount of the docket and other lawful
fees which the indigent was exempted from paying shall
be a lien on any judgment rendered in the case
favorable to the indigent, unless the court otherwise
provides.
Any adverse party may contest the grant of such authority
at any time before judgment is rendered by the trial court.
If the court should determine after hearing that the party
declared as an indigent is in fact a person with sufficient
income or property, the proper docket and other lawful
fees shall be assessed and collected by the clerk of court.
If payment is not made within the time fixed by the court,
execution shall issue or the payment thereof, without
prejudice to such other sanctions as the court may
impose. (22a)
- Upon an exparte application and hearing
- Exemption from payment of docket and other
lawful fees, and of transcripts of stenographic
notes which the court may order to be furnished
him.
Q: Who is an indigent?
A: one who has no money or property sufficient and
available for food, shelter and basic necessities for himself
and his family. Persons who have no property or
source of income sufficient for their support aside
from their own labor, though self-supporting when
able to work and in employment". (Acar v. Rosal)
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 36 of 270
NOTE: dati ang word use ay ―Pauper‖
Illustrative case: who is an indigent.
Acar v. Rosal, G.R. No. L-21707, March 18, 1967
FACTS: A suit was filed in the Court of First Instance of
Negros Oriental by ten persons for their own behalf and
that of 9,000 other farm laborers working off and on in
sugar cane plantations. Plaintiffs asked that the
aforementioned court authorize them to sue as pauper
litigants. The Court of First Instance denied the same upon
the ground that the plaintiffs have regular employment and
sources of income and, thus, can not be classified as poor
or paupers. In denying petitioners' motion to litigate as
paupers, respondent Judge adopted the definition at
"pauper" in Black's Law Dictionary (at p. 1284) as "a
person so poor that he must be supported at public
expense".
ISSUE: WON the petitioners in this case can be
considered as paupers(now indigent) despite their
employment and regular source of income.
HELD: Yes. The interpretation of the lower court does not
fit with the purpose of the rules on suits in forma pauperis
and the provision of the Constitution, in the Bill of Rights,
that: "Free access to the courts shall not be denied to any
person by reason of poverty." As applied to statutes or
provisions on the right to sue in forma pauperis, the term
has a broader meaning. It suffices that plaintiff is
indigent though not a public charge. And the difference
between "paupers" and "indigent" persons is that the latter
are "persons who have no property or source of income
sufficient for their support aside from their own labor,
though self-supporting when able to work and in
employment".
COMMENT: In other words, if your source of income is
only your labor, then you are considered as indigent.
Because you have no property or source of income
sufficient for support than your own labor. Kung may sari-
sari store ka, di ka indigent.
Pauper Indigent
a person so poor that he persons who have no
must be supported at public property or source of
expense income sufficient for their
support aside from their
own labor, though self-
supporting when able to
work and in employment
Section 22. Notice to the Solicitor General. — In
any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or
regulations, the court, in its discretion, may require the
appearance of the Solicitor General who may be heard in
person or a representative duly designated by him. (23a)
 REMEDIAL LAW
CIVIL PROCEDURE
RULE 4 VENUE OF ACTIONS
VENUE – place where the action must be instituted and
tried;
If it is personal, the venue is deemed transitory, thus,
generally depends upon the residence of the parties. If it is
real, the venue is local and thus, generally the venue is
the place where the property or any portion of the same is
situated.
REAL – founded on the privity of real property; affects title
to, or possession of real property or an interest therein;
(e.g unlawful detainer, forcible entry, accion publiciana,
accion reinvindicatoria, quieting of title or removal of a
cloud on a title) Note however, that not every action
involving real property is a real action because if it’s only
incidental to the subject matter of the suit, it is a personal
action. (e.g action for damages to real property)
PERSONAL – one that’s on privity of contract, not
involving real property or interest therein
TWO KINDS OF ACTION:
1) Real action
2) Personal action
VENUE DEPENDS UPON THE KIND OF ACTION
I. Venue in case of a real action
Section 1. Venue of real actions. — Actions
affecting title to or possession of real property, or interest
therein, shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the real
property involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be commenced
and tried in the municipal trial court of the municipality or
city wherein the real property involved, or a portion
thereof, is situated.
Q: What are real actions?
A: Real actions are actions affecting title to or
possession of real property, or interest therein.
Q: What is the venue in real actions?
A: In the proper court which has jurisdiction over the
area wherein the real property involved, or a portion
thereof, is situated.
NOTE: The same rules on venue are applicable in forcible
entry and detainer actions. Forcible entry and unlawful
detainer actions are real actions since forcible entry and
unlawful detainer cases are actions affecting prossession
of real property
Forcible and Unlawful Detainer – action must be filed
where the property is situated although the jurisdiction in
such case is in MTC.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 37 of 270
ACTION TO ANNUL REAL ESTATE MORTGAGE
EXTRAJUDICIAL FORECLOSURE SALE IS A REAL
ACTION SINCE ONCE THE SALE IS ANNULED, THE
TITLE OVER THE REAL PROPERTY IS REVERTED TO
MORTGAGOR FROM THE HIGHEST BIDDER
Illustrative case:
Fortune Motors v. CA, G. R. No. 76431 October 16,
1989
FACTS: Private respondent Metropolitan Bank extended
various loans to petitioner Fortune Motors. Said loan was
secured by a real estate mortgage on the Fortune building
and lot in Makati, Rizal. For failure of the petitioner to pay
the loans, the respondent bank initiated extrajudicial
foreclosure proceedings. Mortgagee Bank was the highest
bidder. Three days before the expiration of the redemption
period, petitioner Fortune Motors filed a complaint with
RTC Manila for annulment of the extrajudicial foreclosure
sale alleging that the foreclosure was premature because
its obligation to the Bank was not yet due, the publication
of the notice of sale was incomplete, there was no public
auction, and the price for which the property was sold was
"shockingly low". Private respondent Bank filed a motion
to dismiss the complaint on the ground that the venue of
the action was improperly laid in Manila for the realty
covered by the real estate mortgage is situated in Makati,
therefore the action to annul the foreclosure sale should
be filed in the Regional Trial Court of Makati.
ISSUE: whether petitioner's action for annulment of the
real estate mortgage extrajudicial foreclosure sale of
Fortune Building is a personal action or a real action for
venue purposes.
HELD: It is a real action. Since an extrajudicial
foreclosure of real property results in a conveyance of
the title of the property sold to the highest bidder at the
sale, an action to annul the foreclosure sale is
necessarily an action affecting the title of the property
sold. It is therefore a real action which should be
commenced and tried in the province where the property
or part thereof lies.
Q: Is an action to annul a real estate mortgage (e.g. on the
ground of fraud) involving a real property a real action?
A: If the action to annul the real estate mortgage is made
before a foreclosure sale, the action is a personal action
since at that point in there, there is no issue yet as to the
title to or possession of real property, or any interest
therein.
SITUATION: debtor-mortgagor filed an action to annul the
REM on the ground of fraud. She’s resident in AC while
defendant creditor is resident of manila. Debtor-mortgagor
filed in Manila for the annulment of REM. Defendant
creditor filed a motion to dismiss contending that the
action must be in AC where the property is located.
ISSUE: WON the action to annul REM must be filed in AC
 REMEDIAL LAW
CIVIL PROCEDURE
A: NO. there’s no question of title or possession hence
PERSONAL action. Thus, the action may be filed in
Manila
Where the annulment is filed after the foreclosure suit,
where public auction already happened, it is a REAL
ACTION. If the effect is reversion of title to or possession
of real property, the action is real.
―title to or possession of real property, or interest
therein‖
- The phrase ―or interest therein‖ must be
understood on the basis of ejusdem generis. In
otherwords, it should of the same character and
nature of the enumeration, namely, title or
possession.
CAVEAT: Thus, it DOES NOT necessarily mean that
when the contract involves a real property, that the action
is already a real action. As long as the issue does not
involve title to or possession of real property, it is not a
real action.
- Thus, what is important here is the determination
whether there exists an issue of title or
possession.
THE ACTION IS NECESSARILY ALSO FOR THE
PURPOSE OF SECURING THE REPOSSESSION OF
THE ½ PORTION OF THE SUBJECT PROPERTY
EARLIER TAKEN OVER THE LESSEE, SINCE THE
EFFECT OF FIXING THE LEASE PERIOD OVER THE
ENTIRE PROPERTY MAY ALSO RESULT IN THE
REPOSSESSION OF THE ½ PROPERTY TAKEN OVER.
THEREFORE, THE ACTION IS A REAL ACTION.
Illustrative case:
Paderangga v. Buissan, G.R. No. L-49475, September
28, 1993
FACTS: petitioner PADERANGA and private respondent
ELUMBA INDUSTRIES COMPANY entered into an oral
contract of lease for the use of a commercial space within
a building owned by petitioner in Ozamiz City.
PADERANGA subdivided the leased premises into two (2)
by constructing a partition wall in between. He then took
possession of the other half, which repossession was said
to have been undertaken with the acquiescence of the
local manager of ELUMBA, lthough private respondent
maintains that this is not the case. Accordingly, Private
respondent instituted an action for damages which, at the
same time, prayed for the fixing of the period of lease at
five (5) years, before the then court of First Instance of
Zamboanga del Norte based in Dipolog City. Petitioner, a
resident of Ozamiz City, moved for its dismissal
contending that the action was a real action which should
have been filed with the Court of First Instance of Misamis
Occidental stationed in Ozamiz City where the property in
12
question was situated.
12
PADERANGA argues that inasmuch as ELUMBA seeks to recover
possession of the portion surrendered to him by the local manager of
private respondent, as well as to fix the period of lease at five (5) years,
Dipolog City could not be the proper venue of the action. it being a real
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 38 of 270
ISSUE: Whether the action for damages and the fixing of
the period of lease is a personal or real action.
HELD: The action is a real action. While it may be that the
instant complaint does not explicitly pray for recovery of
possession, such is the necessary consequence
thereof. The instant action therefore does not operate to
erode the fundamental and prime objective of the nature of
the case which is to recover the one-half portion
repossessed by the lessor, herein petitioner. Indeed,
where the ultimate purpose of an action involves title to or
seeks recovery of possession, partition or condemnation
of, or foreclosure of mortgage on, real property, 15 such
an action must be deemed a real action and must perforce
be commenced and tried in the province where the
property or any part thereof lies.
COMMENT: The action is necessarily also for the purpose
of securing the repossession of the ½ portion of the
subject property earlier taken over the lessee, since the
effect of fixing the lease period over the ENTIRE property
may also result in the repossession of the ½ property
taken over. Therefore, the action is a real action.
TIP: One must be able to determine whether the action is
real action or personal action for purposes of venue, but
before you determine that, you must have clear concept of
Personal and Real action.
PANDERANGA vs BUISSAN
Personal Action and Real In Personam and In Rem
Action
Determines the venue The binding effect of a
decision the court may
render over a party,
whether impleaded or not
H: Action affecting parties alone is an action in personam
where judgment is binding upon properties impleaded.
Action for damages and to fix period of lease is not
necessarily a personal action for a personal action may
not necessarily be action in personam and a real action
not necessarily in rem.
THE FACT THAT PLAINTIFF IS SEEKING THAT A
DEED OF SALE OVER A REAL PROPERTY CLEARLY
SHOWS THAT THE PRIMARY OBJECTIVE AND
NATURE OF THE ACTION IS TO RECOVER REAL
PROPERTY WHICH IN THE FINAL ANALYSIS
REVOLVES ITSELF IN THE ISSUE OF OWNERSHIP
Illustrative case:
action, venue is laid in the court having jurisdiction over the territory in
which the property lies.
ELUMBA counters that the present action is chiefly for damages arising
from an alleged breach in the lease contract; hence, the issue of
recovery of possession is merely incidental. ELUMBA further argues
that the action is one in personam and not in rem. Therefore venue
may be laid in the place where plaintiff or defendant resides at the
option of plaintiff.
 REMEDIAL LAW
CIVIL PROCEDURE
TORRES v. TUASON, G.R. No. L-19668, October 22,
1964
FACTS: In this case, Dominga Torres filed an action in the
CFI of Manila praying that the defendant JM Tuason and
company be ordered to execute a deed of sale over a
parcel of land in situated in Matalahib, Tatalon and
Masambong, Quezon City. (kasi magkakampi Araneta and
Tuason on one hand, and Torres and Deudor on the
other.) It was alleged that it was the Deudor which
subdivided the land. On of the buyers from Deudor is the
predecessor of interest of Dominga Torres. Torres claimed
that he bought it from the original buyers from Deudor.
Then Dominga assumed the obligation. Upon the
completion of payment, Dominga now claims to be the
owner and wants that a deed be executed and certificate
of title be issued in her name. It appeared that there was a
family feud between the Tuason and Deudor as to who
owned the property. They settled the case wherein the
Deudor were paid by the Tuason for the property. Thus,
Dominga torres now sued JM Tuason and co. claiming
that she acquired the property from Eustaquio Alquiros
whose predecessor, the Deudor had previously filed an
action against the same defendant over the same land
and defendant in the said case had settled the case by
paying to deudor. The plaintiff Domingo Torres now flied
an action for specific performance to compel the
defendant to execute a deed of sale of real property, and
considered the payment by Alquiros as partial payment for
the lot, and that the certificate of title be issued in the
name of the plaintiff Torres. Sustaining a motion to dismiss
of defendant J. M. Tuason & Co., Inc., the Court of First
Instance of Manila, ordered the dismissal of the complaint
for improper venue stating that it should have been filed in
the propery court which has jurisdiction over the area
where the property is located, namely, Quizon city.
ISSUE: Whether the action for specific performance in this
case is a personal or real action.
HELD: The action in this case is a real action.
Accordingly, it should have been filed in the CFI in Quizon
City. Although appellant‘s complaint is entitled to be
one for specific performance, yet the fact that she
asked that a deed of sale of a parcel of land situated in
Quezon City be issued in her favor and that a transfer
certificate of title covering said land be issued to her
shows that the primary objective and nature of the
action is to recover the parcel of land itself because to
execute in favor of appellant the conveyance
requested there is need to make a finding that he is
the owner of the land which in the last analysis
resolves itself into an issue of ownership.
COMMENT: Prior to the payment, you only have what is
known as a conditional sale or a ―contract to sell‖ or
promise to sell. Hindi pa yan sale, title is still with seller.
After payment of the purchase price, that is the time that
the seller will now execute the deed of absolute sale.
IF THE ULTIMATE OBJECTIVE OF THE ACTION IS TO
OBTAIN TITLE TO OR POSSESSION OF REAL
PROPERTY, OR INTEREST THEREIN, THE ACTION IS
A REAL ACTION
Illustrative case:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 39 of 270
Lizares v. Caluag, G.R. No. L-17699, March 30, 1962
FACTS: This case involves a sale in installment basis of a
lot located in Bacolod City. Respondent Cacnio bought
from petitioner, on installment, Lot 4, Block 1 of the
Sinkang Subdivision in Bacolod City, making therefor a
downpayment, the balance to be paid in installments.
Petitioner demanded 7000 pesos as arrears. Accordingly,
Respondent Cacnio issued a check in the amount of 5000
only in favor of said petitioner since according to
respondent, he has already paid a downpayment.
However, petitioner Lizares returned said check and
"refused the tender of payment" aforementioned.
Accordingly, Flaviano Cacnio instituted a Civil Case before
the CFI of Rizal praying, among others, that petitioner be
ordered "to accept the payment being made" by him
(Cacnio). Petitioner moved to dismiss the complaint upon
the ground that "venue is improperly laid," for the action
affects the title to or possession of real property located in
Bacolod City, which was the subject matter of a contract,
between petitioner and Cacnio, made in said City.
ISSUE: WON the action should have been filed in Bacolod
where the property is situated since the action is a real
action.
HELD: Yes, the action in this case being a real action.
Although the immediate remedy sought by Cacnio is to
compel petitioner to accept the tender of payment
allegedly made by the former, it is obvious that this
relief is merely the first step to establish Cacnio's title
to the real property adverted to above. Moreover,
Cacnio's complaint is a means resorted to by him in order
that he could retain the possession of said property. In
short, venue in the main case was improperly laid and the
Court of First Instance of Rizal, Quezon City Branch,
should have granted the motion to dismiss.
COMMENT: What is involved in this case is a contract to
sell, a contract of conditional sale since the payment was
not yet complete.
CAVEAT: Illustrative case:
Hernandez v. DBP, G.R. No. L-31095, June 18, 1976
FACTS: Petitioner Hernandez was an employee of private
respondent Development Bank of the Philippines (DBP)
for twenty-one (21) years until his retirement. Prior his
retirement, the private respondent awarded to the
petitioner a lot in West Avenue, Quezon Cit. After his
retirement, he returned to his home province, batangas.
Pursuant to an award, he sent to DBP a Check No. 77089
to cover the cash and full payment of the purchase price of
the lot and house awarded to him. However, DBP returned
to the petitioner ,the aforementioned check, informing him
that DB had cancelled the award on the ground that
Petitioner is can no longer avail thereof since he was no
longer an employee. Accordingly, the petitioner filed a
complaint in the Court of First Instance of Batangas
against the private respondent seeking the annulment of
the cancellation of the award of the lot and house in his
favor and the restoration of all his rights thereto. DBP filed
a motion to dismiss the complaint on the ground of
improper venue, contending that since the petitioner's
action affects the title to a house and lot situated in
Quezon City, the same should have been commenced in
 REMEDIAL LAW
CIVIL PROCEDURE
the Court of First Instance of Quezon City where the real A: An action other than a real action. In other words, one
property is located and not in the Court of First Instance of which does not involve title to or possession of real
Batangas where petitioner resides. The respondent Court property, or interest therein.
sustained the motion to dismiss filed by private respondent
on the ground of improper venue. Q: What is the venue in personal action?
ISSUE: Whether the action is correctly filed in Batangas, it
being a personal action A: If defendant is a resident of the PH, the venue is
HELD: Yes, the action is a personal action. A close determined by the residence of plaintiff or defendant, at
scrutiny of the essence of the petitioner's complaint in the the election of the plaintiff. On the other hand, if the
court a quo would readily show that he seeks the defendant is a non-resident, the venue is where the
annulment of the cancellation of the award of the defendant non-resident may be found.
Quezon City lot and house in his favor originally given
―defendant who is a resident of PH‖
him by respondent, in pursuance of his contention that
he had acquired a vested right to the award which cannot - the venue is determined by the residence of
be unilaterally cancelled by respondent without his plaintiff/principal plaintiffs or residence of
consent. The Court agrees that petitioner's action is not a defendantprinicpal defendants, at the election of
real but a personal action. As correctly insisted by the plaintiff.
petitioner, his action is one to declare null and void the
cancellation of the lot and house in his favor which Q: What are the two kinds of ―non-resident defendant‖?
does not involve title and ownership over said A: i) non-resident defendant who may be found in the Phil,
properties but seeks to compel respondent to and ii) non-resident defendant not found in the Phil.
recognize that the award is a valid and subsisting one
which it cannot arbitrarily and unilaterally cancel and ―Non-resident defendant who may be found in the
accordingly to accept the proffered payment in full which it Phil.‖
had rejected and returned to petitioner.Such an action is a - Transient. Nagbakasyon lang, pero hindi taga
personal action which may be properly brought by dito.
petitioner in his residence. - ―where he may be found‖ indicates that he is in
the Philippines.
Q: What is the venue in case the defendant is a non-
COMPARISON:
resident who is found in the Phil. in case of personal
LIZARES vs CALUAG HERNANDEZ vs DBP
action?
- - In this case, there was -a In this case, there was no A: i) Where the non-resident defendant may be found; OR
contract to sell which was issue as to the title to or ii) Where the plaintiff resides, at the election of plaintiff.
already partially executed. possession of the real
The respondent has already property or interest Section 3. Venue of actions against
paid a downpayment. therein. In fact, petitioner nonresidents. — If any of the defendants does not reside
- - While apparently the action hernandez himself and is not found in the Philippines, and the action affects
is to compel to accept the recognized that he was the personal status of the plaintiff, or any property of
check, it is a first step to not yet the owner of the said defendant located in the Philippines, the action may
establish the ownership. property but merely be commenced and tried in the court of the place where
invokes that he was an
the plaintiff resides, or where the property or any portion
awaradee. At that point in
thereof is situated or found.
time, there was no
question yet of title over a
real property. In this ―Non-resident defendant who is not found in the Phil.‖
case, Hernandez admits Q: May an action be filed against a non-resident
that DBP is the owner of defendant not found in the Phil.?
the property, but alleges A: It depends. If the action is an action personam, an
that it was illegal on the action cannot be filed against such a defendant since the
part of DBP to unilaterally court cannot acquire jurisdiction over the person of such
cancel the award defendant.
CAVEAT: However, if the action is an accion in rem or
II. Venue in case of a personal action accion quasi-in rem, action against a defendant non-
Section 2. Venue of personal actions. — All other resident who cannot be found in Phil can prosper.
actions may be commenced and tried where the plaintiff or - If the action involves the status of the plaintiff
any of the principal plaintiffs resides, or where the against a non-resident who is not found in the
defendant or any of the principal defendants resides, or in phil., in such case, the action will prosper
the case of a non-resident defendant where he may be because the action in this case is a accion in rem
found, at the election of the plaintiff. (the res here is the status)
Q: What if may asawa ka, non-resident not found
Q: What is a personal action? in the phil. iniwanan ka, nagfile ka ngayon ng
action to declare marriage void ab initio on the

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 40 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
ground of psychological incapacity, in such case,
where should the action be filed?
A: Where the plaintiff resides.
Q: What if it involves the property of the non-
resident defendant who is not found in the phil.
located in the Philippines, What is the venue?
A: Where the property, or portion thereof, is
located.
MEANING OF THE TERM ―RESIDES‖; TO BE
UNDERSTOOD IN POPULAR SENSE; PERSONAL,
ACTUAL, PHYSICAL HABITATION, NOT DOMICILE.
Illustrative case:
RAYMOND v. CA, G.R. No. 80380, September 28, 1988
FACTS: A complaint for damages was filed with the
Regional Trial Court of Iloilo by Santiago Bitera against
Carlos Bell Raymond and Agustin Alba. All of whom
parties are employees of UPSUMCO compound located in
Bais City, Negros Oriental. The respondents moved to
dismiss the action on the ground of improper venue. The
respondents argued that although Bitera's complaint gives
his address as Iloilo City (domicile), he is, and for many
years has been actually residing at the so-called
UPSUMCO Compound, Bais City, he being the officer-in-
charge of the business firm known as UPSUMCO. The
Trial Court however denied their motion to dismiss.
ISSUE: Whether the action should have been filed in Iloilo,
or in Bais City
HELD: In Bais City. The term "resides" should be viewed
or understood in its popular sense, meaning the personal,
actual or physical habitation of a person, actual
residence or place of abode. It signifies physical presence
in a place and actual stay thereat. In this popular sense,
the term means merely residence, that is, personal
residence, not legal residence or domicile. Residence
simply requires bodily presence as an inhabitant in a given
place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile.
COMMENT: In common parlance, your residence is the
place where you go home after work.
PERSONAL ACTION
The matter of venue in personal action is where the
plaintiff resides or defendant resides. Resides means
personal, actual habitation in the particular place, intention
to stay as distinguished from domicile which is the
permanent home, where he has animus revertendi =
intention to return. (RAYMOND vs CA)
e.g ESCOLIN studied and lived in ROXAS CITY 
domicile  can run Congressman :D because he has
animus revertendi. ESCOLIN now a lawyer, practicing in
metro manila  file in courts of Metro Manila  his actual
residence now.
ESUERTE vs CA, G.R. No. L-53485, February 6, 1991
FACTS: The claim for damages arose when private
respondent Ma. Beverly Tan, a Junior Resident Physician
of Corazon Locsin-Montelibano Memorial Hospital,
Bacolod City, without any justifiable reason shouted at,
humiliated and insulted the petitioner, Patria Esuerte,
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 41 of 270
Head Nurse and as a result of the said incident, said
petitioner complained to the Chief of the Hospital, Dr.
Teodoro P. Motus, in writing. The other petitioner,
Herminia Jayme, who was one of those who were present
at the time of the incident also sent a letter. As a result
thereof, private respondent was advised to explain in
writing by the Chief of the Hospital, but private respondent
instead of explaining only her side of the incident also
complained against the petitioners. An action for
damages was filed by private respondent Beverly Tan
against herein petitioners Patria Esuerte and Herminia
Jayme with the Court of First Instance (now Regional Trial
Court) of Cebu (domicile of Respondent Beverly Tan).
Esuerte and Jayme filed a motion to dismiss the complaint
on the ground of improper venue. The trial court denied
the motion to dismiss.
ISSUE: Whether the action should have been filed in
Bacolod or Cebu City
Held: In Bacolod. "Resides" in the rules on venue on
personal actions means the place of abode, whether
permanent or temporary, of the plaintiff or defendants as
distinguished from "domicile" which denotes a fixed
permanent residence. Venue of personal actions should
be at the place of abode or place where plaintiffs
actually reside, not in domicile or legal
residence.There is no question that private respondent as
plaintiff in the Civil Case is a legal resident of Cebu
City.However, it cannot also be denied that at the time of
her filing of the complaint against petitioners, she was a
temporary resident of Bacolod City. The private
respondents were all residents of Bacolod City at the time
of the bringing of the action. What is of paramount
importance is where he actually resided at the time he
brought the action, to comply substantially with the
requirements of Sec. 2(b) of Rule 4, Rules of Court, on
venue of personal actions
NOTE: The rules on venue for personal actions are
generally made to depend on the residence of the parties.
The residence referred to is the place where the plaintiff
actually resides at the time where the action is instituted,
not his permanent home, domicile, or legal residence. The
residence of a person is his personal, actual, physical
place of habitation or abode, whether permanent or
temporary, provided that in cases of temporary, the
party should have reside with continuity and
consistency at that particular time. There should have
been an intention to be there at that time. Intention is
manifested by continuity albeit temporary.
MERE SOJOURNERS ARE NOT RESIDENTS
Illustrative case:
Bejer v. CA, G.R. No. 79404, January 27, 1989
(katarungang pambaranggay case)
FACTS: The petitioner came from Batangas. He had
some apartments in Pandacan. Occasionally, the parents
would stay in Pandacan since their children is studying in
Manila. The other apartment which they owned, they filed
an unlawful detainer.
ISSUE: WON the parents who stay in Manila occasionally
are considered residence
 REMEDIAL LAW
CIVIL PROCEDURE
HELD: NO, they are merely sojourners. Petitioners cannot
even be accurately categorized as temporary residents but
as mere periodic and brief sojourners who only used to
come to visit and attend to their children's needs while in
school. From all the foregoing disquisitions, therefore, we
cannot confer in the existence of the requisite residential
or, for purposes of the issue involved, the legal nexus
between the petitioners and the Pandacan barangay
involved.
―PRINCIPAL PLAINTIFFS/ PRINCIPAL DEFENDANTS‖;
REAL PARTY IN INTEREST; NOT MERE NOMINAL
PARTY; RESIDENCE THEREOF, BASIS OF VENUE
- Applied when there are two or more
defendants or plaintiffs,
TRUSTEE, MERELY A NOMINAL PARTY; ACTING IN
REPRESENTATION OF BENEFICIARY; BENEFICIARY
THE REAL PARTY IN INTEREST
Illustrative case:
MARCOS-ARANETA v. CA, G.R. No. 154096
August 22, 2008
FACTS: Ambassador Roberto S. Benedicto, now
deceased, and his business associates (Benedicto Group)
organized Far East Managers and Investors, Inc. (FEMII)
and Universal Equity Corporation (UEC), respectively.
Both corporations were alleged organized pursuant to a
contract whereby Benedicto, as trustor, placed in his name
and in the name of his associates, as trustees, the shares
of stocks of FEMII and UEC with the obligation to hold
those shares and their fruits in trust and for the benefit of
Irene. Several years after, Irene, through her trustee-
husband, Gregorio Ma. Araneta III, demanded the
reconveyance of said stockholdings, but the Benedicto
Group refused to oblige. Irene thereupon instituted before
the RTC Batac, Ilocos Norte two similar complaints for
conveyance of shares of stock, accounting and
receivership against the Benedicto Group.Respondents
filed a Motion to Dismiss on the ground that venue was
improperly laid. The lower court dismissed the case since
Irene nor the respondents were residents of Ilocos Norte.
Because of the dismissal, Irene filed an amended
complaint impleading co-plaintiffs who are actually
residing in Ilocos Norte and who are her trustees.
ISSUE: whether or not venue had properly been laid
HELD: No. When there is more than one plaintiff in a
personal action case, the residences of the principal
parties should be the basis for determining proper
venue. The word ―principal‖ has been added in order
to prevent the plaintiff from choosing the residence of
a minor plaintiff or defendant as the venue. Eliminate
the qualifying term "principal" and the purpose of the Rule
would be defeated where a nominal or formal party is
impleaded in the action since the latter would not have the
degree of interest in the subject of the action which would
warrant and entail the desirably active participation
expected of litigants in a case. There can be no serious
dispute that the real party-in-interest plaintiff is Irene. As
self-styled beneficiary of the disputed trust, she stands to
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 42 of 270
be benefited or entitled to the avails of the present suit. It
is undisputed too that petitioners Daniel Rubio, Orlando G.
Reslin, and Jose G. Reslin, all from Ilocos Norte, were
included as co-plaintiffs in the amended complaint as
Irene's new designated trustees. As trustees, they can
only serve as mere representatives of Irene. They may
13
be accorded, by virtue of Sec. 3 of Rule 3, the right to
prosecute a suit, but only on behalf of the beneficiary who
must be included in the title of the case and shall be
deemed to be the real party-in-interest. In the final
analysis, the residences of Irene's co-plaintiffs cannot be
made the basis in determining the venue of the subject
suit.
COMMENT: When there is more than one plaintiff(or
defendant) in a personal action case, the residences of the
principal parties would be the basis for determining the
proper venue. When you say principal, that means that a
party who is a real party in interest. They are merely
trustees who are merely acting in a representative
capacity of the beneficiary.
DOMESTIC CORPORATIONS
IN PERSONAL ACTIONS INVOLVING DOMESTIC
CORPORATIONS, for the purpose of venue, what is
controlling is the principal place of the corporation.
NOT the branch office or Branch place of business.
(Sy v. Tyson Enterprises, G.R. No. L-56763 , December
15, 1982)
NON-RESIDENT CORPORATION
Q: May a non-resident plaintiff sue in our courts?
A: Yes.
NOTE: However, if the non-resident plaintiff who wants to
sue in the Philippines is a juridical entity, the corporation
must be, if doing business here, with a license.
LICENSE, NECESSARY ONLY IF THE NON-
RESIDENT PLAINTIFF CORP IS DOING BUSINESS
IN PHIL
Q: Is it necessary for a juridical entity to secure a
license in order to sue?
A: No, if it is not doing business in the Philippines, it
can have acces to our courts under the isolated
transcation rule, the only condition there is that it
must prove its juridical existence. On the other hand,
if it is doing business without a license, he cannot be
sue as plaintiff before our courts, the only exception in
such case is the principle of estoppel
Q: May a non-resident foreign corporation file an
action in courts as plaintiff?
A: IT DEPENDS. It cannot file if it is doing business
13
Section 3. Representatives as parties. — Where the action is
allowed to be prosecuted and defended by a representative or
someone acting in a fiduciary capacity, the beneficiary shall be included
in the title of the case and shall be deemed to be the real property in
interest. A representative may be a trustee of an expert trust, a
guardian, an executor or administrator, or a party authorized by law or
these Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
except when the contract involves things belonging to the principal.
 REMEDIAL LAW
CIVIL PROCEDURE
without a license. If not doing business, he can under
the isolated transaction rule.
Q: Can a juridical entity doing business without a
license be a defendant?
A: Yes
Q: In such case, can it file a counterclaim?
A: No, because he is doing business without license.
Q: Supposed the plaintiff is a non-resident juridical
entity but is allowed to sue here under the isolated
transcation rule. Where is the venue of the personal
action?
A: The venue in such case is a the residence of the
defendant. The alternative venue available is not
available in this case since apparently the plaintiff is a
non-resident juridical entity
Q: How about in real action?
A: In the proper which has jurisdiction over the area
where the property, or portion thereof, is located.
WHEN RULE NOT APPLICABLE
Section 4. When Rule not applicable. — This
Rule shall not apply.
(a) In those cases where a specific rule or law
provides otherwise; or
(b) Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue
thereof. (3a, 5a)
Sec. 4. When Rules under sec. 1, 2, and 3 are not
applicable.
This Rule shall not apply:
(a) In those cases where a specific rule or law provides
otherwise; or
eg. Actions for damages arising from libel, whether a
criminal actions has been instituted or not, as provided
14
for in art. 360 of RPC.
14
Xxx The criminal and civil action for damages in cases of written
defamations as provided for in this chapter, shall be filed
simultaneously or separately with the court of first instance of the
province or city where the libelous article is printed and first published
or where any of the offended parties actually resides at the time of the
commission of the offense: Provided, however, That where one of the
offended parties is a public officer whose office is in the City of Manila
at the time of the commission of the offense, the action shall be filed in
the Court of First Instance of the City of Manila, or of the city or
province where the libelous article is printed and first published, and in
case such public officer does not hold office in the City of Manila, the
action shall be filed in the Court of First Instance of the province or city
where he held office at the time of the commission of the offense or
where the libelous article is printed and first published and in case one
of the offended parties is a private individual, the action shall be filed in
the Court of First Instance of the province or city where he actually
resides at the time of the commission of the offense or where the
libelous matter is printed and first published: Provided, further, That
the civil action shall be filed in the same court where the criminal action
is filed and vice versa: Provided, furthermore, That the court where the
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 43 of 270
- Which ever action comes first, dun yan
magcoconsolidate. The general rule on
consolidation, usually ang absorbing case ay
criminal. Pero sa libel, kung ano ang naunang
case ang magaabsorb. Kung ang naunang case
ay civil, kung san ung civil case dun ang criminal.
- The venue in this case is where the offended
party/plaintiff actually resides OR where the
libelous article is printed and first published
- When the plaintiff is a public officer- where he is
holding office OR where the libelous material is
first published.
o ―first published‖-where the article is first
made known.
(b) Where the parties have validly agreed in writing
BEFORE the filing of the action on the EXCLUSIVE
VENUE THEREOF.
- This rule may is applicable to both personal and
real action.
 e.g. in real action, if there is a stipulation in
the contract on venue which is exclusive,
that should be followed even if it is not the
place where the property is situated.
THE STIPULATION MUST PROVIDED AN EXCLUSIVE
VENUE; NOT MERELY OPTIONAL OR PERMISSIVE,
OPTIONAL VENUE IS NOT A WAIVER OF RULES
Illustrative case:
Polytrade v. Blanco, G.R. No. L-27033, October 31,
1969
FACTS: Suit before the CFI of Bulacan on four causes of
action to recover the purchase price of rawhide delivered
by plaintiff to defendant. Plaintiff corporation has its
principal office and place of business in Makati, Rizal.
Defendant is a resident of Meycauayan, Bulacan.
Defendant moved to dismiss upon the ground of improper
venue. He claims that by contract suit may only be lodged
in the courts of Manila. The Bulacan court overruled him.
According to defendant, plaintiff and defendant, by written
contracts covering the four causes of action, stipulated
that: "The parties agree to sue and be sued in the Courts
of Manila.‖ Defendant says that because of such covenant
he can only be sued in the courts of Manila.
ISSUE: WON Manila is the exclusive venue.
HELD: NO. "The parties agree to sue and be sued in the
Courts of Manila," does not preclude the filing of suits in
the residence of plaintiff or defendant. The plain meaning
is that the parties merely consented to be sued in Manila.
Qualifying or restrictive words which would indicate
that Manila and Manila alone is the venue are totally
absent therefrom. We cannot read into that clause that
plaintiff and defendant bound themselves to file suits with
respect to the last two transactions in question only or
exclusively in Manila. For, that agreement did not
change or transfer venue. It simply is permissive. The
parties solely agreed to add the courts of Manila as
tribunals to which they may resort. They did not waive
criminal action or civil action for damages is first filed, shall acquire
jurisdiction to the exclusion of other courts: And, provided, finally, That
this amendment shall not apply to cases of written defamations, the
civil and/or criminal actions which have been filed in court at the time
of the effectivity of this law. xxx
 REMEDIAL LAW
CIVIL PROCEDURE
their right to pursue remedy in the courts specifically
mentioned in Section 2(b) of Rule 4.
Capati v. Ocampo, G.R. No. L-28742, April 30, 1982
FACTS: Plaintiff Virgilio Capati a resident of Bacolor,
Pampanga, was the contractor of the Feati Bank for the
construction of its building in Iriga, Camarines Sur. Plaintiff
entered into a sub-contract with the defendant Dr. Jesus
Ocampo, a resident of Naga City, whereby the
latterundertook to construct the vault walls, exterior walls
and columns of the said Feati building. Claiming that
defendant belatedly finished the construction in question,
plaintiff filed in the Court of First Instance of Pampanga an
action for recovery of consequential damages. Defendant
filed a motion to dismiss the complaint on the ground that
venue of action was improperly laid. The motion was
premised on the stipulation printed at the back of the
contract which reads: ―That all actions arising out, or
relating to this contract may be instituted in the Court of
First Instance of the City of Naga.‖ Plaintiff filed an
opposition to the motion, claiming that their agreement to
hold the venue in the Court of First Instance of Naga City
was merely optional to both contracting parties. In support
thereof, plaintiff cited the use of the word "may" in relation
with the institution of any action arising out of the contract.
ISSUE: WON Naga city is the exclusive venue
HELD: NO.It is well settled that the word "may" is merely
permissive and operates to confer discretion upon a
party. Under ordinary circumstances, the term "may be"
connotes possibility; it does not connote certainty. The
stipulation as to venue in the contract in question is simply
permissive. By the said stipulation, the parties did not
agree to file their suits solely and exclusively with the
Court of First Instance of Naga. They merely agreed to
submit their disputes to the said court, without
waiving their right to seek recourse in the court
specifically indicated in Section 2 (b), Rule 4 of the
Rules of Court.
COMMENT: In other words, the word ―shall‖ should have
been used as a qualifying or restrictive word. The
indication of exclusivity is ―shall‖ or ―must‖ as against
―may‖
STRICT RULE: USE OF WORD ―SHALL‖ PER SE
INSUFFICINET, THERE MUST BE ADDITIONAL
WORDS DEFINITELY DENOTING EXCLUSIVITY; e.g
―EXCLUSIVELY‖, ―SOLELY‖
Illustrative case:
Unimasters v. CA, G.R. No. 119657. February 7, 1997
FACTS: Respondent KUBOTA and petitioner
UNIMASTERS entered into a "Dealership Agreement for
Sales and Services" of the former's products in Samar and
Leyte Provinces. The contract contained, among others,
that ―All suits arising out of this Agreement shall be filed
with / in the proper Courts of Quezon City," Thereafter,
UNIMASTERS filed an action in the RTC of Tacloban City
against KUBOTA for damages for breach of contract, and
injunction with prayer for temporary restraining order.
KUBOTA filed two motions. One prayed for dismissal of
the case on the ground of improper venue
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 44 of 270
ISSUE: WON Quezon City is the exclusive venue because
of the word ―shall‖
HELD: NO. Absent additional words and expressions
definitely and unmistakably denoting the parties'
desire and intention that actions between them should
be ventilated only at the place selected by them,
Quezon City -- or other contractual provisions clearly
evincing the same desire and intention -- the stipulation
should be construed, not as confining suits between the
parties only to that one place, Quezon City, but as
allowing suits either in Quezon City or Tacloban City, at
the option of the plaintiff
COMMENT: In other words, it is not enough to use the
auxiliary word ―shall‖ to indicate an exclusive venue. By
itself, the use thereof is not sufficient, there must be words
such as ―exclusively‖, ―solely‖, ―limited to‖, ―only‖ or ―to the
exclusion of‖.
RULES IN CONTRACTS OF ADHESION AS TO
EXCLUSIVITY OF VENUE
- A contract of adhesion is a contract which is
solely prepared, usually in printed form, by one
party, and the acceptance thereof is offered to
the other. The only choice of the other party is to
accept or reject it. ―Take it or leave it‖(e.g.
Insurance, bus tickets)
RULE: Contract of Adhesion regarding exclusivity of
venue are valid and enforceable. The GR in contract of
adhesion is valid because you can reject it. In the case
of Sweet Line,however, the stipulation in the contract of
adhesion is void and unenforceable since it is contrary to
public polic..
Vitug: the only thing to remember is that if there’s
ambiguity, it must be ruled against who created the
contract. (Pil Tel v. Tecson)
CAVEAT: PUBLIC POLICY CONSIDERATION IN
CASES OF CONTRACT OF ADHESION IS NOT
APPLICABLE WHEN THE PARTY IS IN THE POSITION
TO CARRY OUT LITIGATION IN THE VENUE AGREED
UPON
Illustrative case:
HOECHST v. Torres, G.R. No. L-44351 May 18,
1978-(NOTE: this is before Unimasters case)
FACTS: Private respondent, Francisco Torres, filed with
CFI of Isabela a complaint alleging breach of a
distributorship contract on the part of petitioner, Hoechst
Philippines, Inc. Petitioner Hoechst filed a motion to
dismiss said complaint based on the ground that as the
contract provides that "In case of any litigation arising out
of this agreement, the venue of any action shall be in the
competent courts of the Province of Rizal", venue has
been improperly laid in respondent court. Respondent
court denied the motion to dismiss. It is the position of
respondent judge that inasmuch as the contract was "a
prepared standard form by Hoescht and it only remains
upon party-distributor Torres to stamp his approval to the
whole contract. The word "shall" in the stipulation in
question should be construed to be merely permissive and
not mandatory. It is argued that this construction serves
 REMEDIAL LAW
CIVIL PROCEDURE
not only the exclusive interests of petitioner but also that of
private respondent.
ISSUE: WON venue in the case filed in Isabela was
improperly laid since, as per contract, Rizal is the
exclusive venue
HELD: Yes, Rizal is the exclusive venue. A cursory inquiry
into the respective economic conditions of the parties
herein as reflected in the record before Us does not
show that private respondent Francisco Torres is
really in no position to carry on a litigation in the
Province of Rizal, because of his residence or place of
business being in Isabela province. The volume of
business covered by the Distributorship Agreement in
question and to be handled by private respondent Torres
is P700,000. The amount sought to he recovered by said
respondent in his complaint totals more than P300,000.
These circumstances preclude the need to apply
equitable considerations to the case of respondent
Torres. It is quite obvious that his economic condition
does not warrant non-enforcement of the stipulation
as to venue that he has agreed to. His pretension that
he had no alternative but to agree, even if true, does not
merit relief. Considering the nature and volume of the
business he has with petitioner, there is nothing
oppressive in his being required to litigate out of his
province.We are convinced both parties agreed to the
venue in controversy with eyes wide open.
COMMENT: The contract is binding. Respondent Torres
cannot be said to be a poor man so at to apply to him the
public policy.
STIPULATION OF ADHESION AS TO VENUE MAY BE
CONSIDERED VOID AND UNENFORCEABLE IF
CONTRARY TO PUBLIC POLICY
Sweetlines v. Teves, G.R. No. L-37750 , May 19,
1978
FACTS: Private respondents Atty. Leovigildo Tandog and
Rogelio Tiro bought tickets for voyage from petitioner, a
shipping company transporting inter-island passengers
and cargoes, at Cagayan de Oro City. In view of a breach
of contract, private respondents sued petitioner for
damages and for breach of contract of carriage before CFI
of Misamis Oriental. Petitioner moved to dismiss the
complaint on the ground of improper venue. This motion
was premised on the condition printed at the back of the
tickets, i.e., Condition No. 14, which reads: ―It is hereby
agreed and understood that any and all actions arising out
of the conditions and provisions of this ticket, irrespective
of where it is issued, shall be filed in the competent courts
in the City of Cebu.‖
ISSUE: WON Cebu is the exclusive venue pursuant to
Condition No. 14.
HELD: There is no question that there was a valid contract
of carriage entered into by petitioner and private
respondents and that the passage tickets, upon which the
latter based their complaint, are the best evidence thereof.
All the essential elements of a valid contract, i.e., consent,
cause or consideration and object, are present. However,
condition No. 14 printed at the back of the passage tickets
should be held as void and unenforceable for the following
reasons first, under circumstances obligation in the inter-
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 45 of 270
island shipping industry, it is not just and fair to bind
passengers to the terms of the conditions printed at the
back of the passage tickets, on which Condition No. 14 is
Printed in fine letters, and second, Condition No. 14
subverts the public policy on transfer of venue of
proceedings of this nature, since the same will prejudice
rights and interests of innumerable passengers in
different s of the country who, under Condition No. 14,
will have to file suits against petitioner only in the City
of Cebu. Condition No. 14, if enforced, will be subversive
of the public good or interest, since it will frustrate in
meritorious cases, actions of passenger cants outside of
Cebu City, thus placing petitioner company at a decided
advantage over said persons, who may have perfectly
legitimate claims against it. The said condition should,
therefore, be declared void and unenforceable, as contrary
to public policy — to make the courts accessible to all who
may have need of their services. Considering the expense
and trouble a passenger residing outside of Cebu City
would incur to prosecute a claim in the City of Cebu, he
would most probably decide not to file the action at all.
The condition will thus defeat, instead of enhance, the
ends of justice.
COMMENT: Due to scarcity of ship, wala ka talagang
choice, pilit ka.
CONTRACT OF ADHESION, NOT PER SE INVALID; AS
BINDING AS ORDINARY CONTRACT
Pil Tel v. Tecson, G.R. No. 156966. May 7, 2004
FACTS: Respondent Delfino C. Tecson applied for six (6)
cellular phone subscriptions with petitioner Pilipino
Telephone Corporation (PILTEL) which applications were
each approved.Thereafter respondent filed with RTC of
Iligan City, Lanao Del Norte, a complaint against petitioner
for a Sum of Money and Damages. Petitioner moved for
the dismissal of the complaint on the ground of improper
venue, citing a common provision in the mobiline service
agreements to the effect that –―Venue of all suits arising
from this Agreement or any other suit directly or indirectly
arising from the relationship between PILTEL and
subscriber shall be in the proper courts of Makati, Metro
Manila. Subscriber hereby expressly waives any other
venues.‖ The RTC of Iligan City, Lanao del Norte, denied
petitioners motion to dismiss
ISSUE: WON Makati is the exclusive venue, the
stipulation being valid.
HELD: Yes, The contract herein involved is a contract
of adhesion. But such an agreement is not per se
inefficacious. The rule instead is that, should there be
ambiguities in a contract of adhesion, such
ambiguities are to be construed against the party that
prepared it. If, however, the stipulations are not obscure,
but are clear and leave no doubt on the intention of the
parties, the literal meaning of its stipulations must be held
controlling. A contract of adhesion is just as binding as
ordinary contracts. It is true that this Court has, on
occasion, struck down such contracts as being assailable
when the weaker party is left with no choice by the
dominant bargaining party and is thus completely deprived
of an opportunity to bargain effectively. Nevertheless,
contracts of adhesion are not prohibited even as the
 REMEDIAL LAW
CIVIL PROCEDURE
courts remain careful in scrutinizing the factual to the venue in a motion to dismiss, the venue cannot
circumstances underlying each case to determine the be truly said to have been improperly laid, as for all
respective claims of contending parties on their efficacy. In practical intents and purposes, the venue, though
the case at bar, respondent secured six (6) technically wrong, may be acceptable to the parties for
subscription contracts for cellular phones on various whose convenience the rules on venue had been devised.
dates. It would be difficult to assume that, during each The trial court cannot pre-empt the defendant's
of those times, respondent had no sufficient prerogative to object to the improper laying of the venue
opportunity to read and go over the terms and by motu proprio dismissing the case.
conditions embodied in the agreements. Respondent COMMENT: Venue is for the convenience of the parties.
continued, in fact, to acquire in the pursuit of his Accordingly, even if the case is inconvenient for the court
business subsequent subscriptions and remained a (case load yan e), it cannot motu priopio dismiss the case
subscriber of petitioner for quite sometime. unless there was a motion to dismiss. Venue does not
COMMENT: The Court here did not apply the doctrine in relate to jurisdiction.
Sweetline. In sweetline, there the passengers have no
other option but to avail the services of scarce shipping VENUE v. JURSIDICTION IN CIVIL CASES
services. (DACOYCOY vs IAC)
NOTE: In criminal cases, the venue also relates to
jurisdiction
THE TRIAL COURT CANNOT MOTU PROPIO DISMISS - Unlike in criminal cases, venue does not relate to
A CASE ON THE GROUND OF IMPROPER VENUE; jurisdiction, there is clear cut distinction between
RULES ON VENUE IS FOR THE CONVENIENCE OF the two.
THE PARTIES AND THUS MAY BE WAIVED. -
DACOYCOY vs IAC, G.R. No. 74854, April 2, 1991 Venue Jurisdiction
FACTS: Petitioner Dacoycoy, a resident of Balanti, Cainta,
Place where the action is to be - Jurisdiction over the
Rizal, filed before the Regional Trial Court Antipolo, Rizal, instituted and tried subject matter means
a complaint against private respondent Rufino de Guzman the power of the court
praying for the annulment of two (2) deeds of sale to hear the particular
involving a parcel of riceland situated in Barrio Estanza, case as defined by law.
Lingayen, Pangasinan, the surrender of the produce
thereof and damages for private respondent's refusal to Matter of procedural law Matter of substantive
have said deeds of sale set aside upon petitioner's law,
demand. Before summons could be served on private
respondent as defendant therein, the RTC Executive A relation between plaintiff and Establishes a relation
Judge issued an order requiring counsel for petitioner to defendant or petitioner and between the court and
confer with respondent trial judge on the matter of venue. respondent the subject matter
After said conference, the trial court dismissed the
complaint on the ground of improper venue. It found, May be conferred by the acts or Is fixed by law
based on the allegations of the complaint, that petitioner's agreement of the parties; May
action is a real action as it sought not only the annulment be waived.
of the aforestated deeds of sale but also the recovery of
The Court cannot motu proprio -
ownership of the subject parcel of riceland located in
dismiss on the ground of
Estanza, Lingayen, Pangasinan, which is outside the
improper venue without a
territorial jurisdiction of the trial court.
motion to dismiss filed by the
ISSUE: WON the order of the court dismissing the case is
defendant.
proper
HELD: No, The motu proprio dismissal of petitioner's - Generally, a court
complaint by respondent trial court on the ground of cannot dismiss motu
improper venue is plain error, obviously attributable to propio. There must
its inability to distinguish between jurisdiction and venue. It first be a motion filed
is said that the laying of venue is procedural rather than by the defendant. But
substantive. Provisions relating to venue establish a there are exceptions
relation between the plaintiff and the defendant and not
between the court and the subject matter. Venue relates RULE 5
to trial not to jurisdiction, touches more of the UNIFORM PROCEDURE IN TRIAL COURTS
convenience of the parties rather than the substance
of the case. Where defendant fails to challenge timely Section 1. Uniform procedure. — The procedure in the
the venue in a motion to dismiss, and allows the trial Municipal Trial Courts shall be the same as in the
to be held and a decision to be rendered, he cannot on Regional Trial Courts, excep:
appeal or in a special action be permitted to challenge (a) where a particular provision expressly or impliedly
belatedly the wrong venue, which is deemed applies only to either of said courts, or
waived.Thus, unless and until the defendant objects

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 REMEDIAL LAW
CIVIL PROCEDURE
(b) in civil cases governed by the Rule on Summary Section 3. Complaint. — The complaint is the
Procedure. (n) pleading alleging the plaintiff's cause or causes of action.
The names and residences of the plaintiff and defendant
Section 2. Meaning of terms. — The term "Municipal Trial must be stated in the complaint.
Courts" as used in these Rules shall include Metropolitan
Trial Courts, Municipal Trial Courts in Cities, Municipal - Complaint, in other words, is a written statement
Trial Courts, and Municipal Circuit Trial Courts. of plaintiff’s cause or causes of action.

A. RULES ON PLEADINGS
Q: What is the test for determining the sufficiency of
the facts alleged in the complaint constituting
RULE 6 RULES ON PLEADINGS
plaintiff‘s cause of action?
Q: What are pleadings? A: The test applied to determine the sufficiency of the
Section 1. Pleadings defined. — Pleadings are the facts alleged in the complaint constituting the cause of
written statements of the respective claims and defenses action is whether upon such facts a valid judgment may be
of the parties submitted to the court for appropriate rendered against the defendant.
judgment. (1a)
Q: When may the facts lead to a valid judgment
A PLEADING MUST NOT BE CONFUSED WITH A against the defendant?
MOTION; DISTINCTIONS
A: We go back to our understanding of what a cause of
Pleadings Motion
action is. What again is a cause of action? A cause of
- Written statements -
of Application for relief other action has been defined as the act or omission committed
ultimate facts constituting than a pleading- A motion by the defendant in violation of the plaintiff’s right.
the parties’ cause of action is not a pleading, it is a
and defense motion. - When we our discussing cause of action, we said
that there are three elements of a cause of
action, namely, i) right of the plaintiff (e,g if the
- Always relates to a cause of- A motion does not
right is based on a contract, then state it); ii) the
action, either in support of it necessarily relate to the
corresponding obligation on part of the defendant
like a complaint, or to defeat cause of action because it
to respect plaintiff’s right; iii) the act or omission,
it like an answer may be an application for
or the delict/wrong committed by the defendant in
- COMMENT: what do we an order or other relief not
violation of the plaintiffs right.
say again, every action has included in the judgment.
THEREFORE: To determine the sufficiency of the facts
a cause of action. - E.g. a motion for
alleged constituting the cause of action, the test is where
postponement.
upon such facts a valid judgement may be rendered
Q: What are the kinds of pleadings? against the defendant. And a valid judgement may be
rendered against the defendant if there is an allegation of
Section 2. Pleadings allowed. — The claims of a party
i) right, ii) obligation, iii) or act or omission.
are asserted in a complaint, counterclaim, cross-claim,
third (fourth, etc.)-party complaint, or complaint-in- Q: Is the prayer for relief a part of the cause of action?
intervention.
The defenses of a party are alleged in the answer to the A: A prayer for relief though a part of the complaint is not
pleading asserting a claim against him. part of the cause of action. And it does not give its
An answer may be responded to by a reply. character. However, in certain cases, it was held that the
prayer may give light as to the nature of the action
THERE ARE TWO KINDS OF PLEADING instituted, whether it is real or personal action. But
1. Pleading that asserts claims- ito ung claimant (par.1) generally, the prayer is not constitutive of a cause of
 e.g. In (i)complaint, (ii)counter-claim, action. A prayer is a relief- yan ang hinihingi mo sa court.
On the other hand, the cause of action is the bare
(iii)cross claim, (iv) third (fourth, etc.)-party
allegations regarding the right of the plaintiff, obllgation of
complaint, or (v) complaint-in-intervention.
defendat, and act or omission.
COMMENT: Wag na dagdagan to. A
pleading must not be confused with a Basic in pleadings – you aver to material facts, ultimate
motion. and essential facts constituting the plaintiff’s cause of
2. Pleadings that allege defenses- defensive or action. It is essential if it cannot be strickened out without
responsive pleading.(par. 2) leaving the statement of cause of action insufficient.
 e.g. (i) in the answer to the pleading Hence, vulnerable to motion to dismiss on the ground of
asserting a claim against him. An answer failure to state a cause of action.
may be responded to (ii) by a reply. ANSWER- First kind of defensive pleading, a pleading
COMMENT: dalawa lang, answer and reply which defeats a claim.

Q: What is a complaint? Q: What is an answer?

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 47 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
Section 4. Answer. — An answer is a pleading in
which a defending party sets forth his defenses.
TWO KINDS OF ANSWERS, viz, Negative, and
Affirmative defense.
Section 5. Defenses. — Defenses may either be
negative or affirmative.
(a) A negative defense is the specific denial of the
material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.
(b) An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the material
allegations in the pleading of the claimant, would
nevertheless prevent or bar recovery by him. The
affirmative defenses include fraud, statute of limitations,
release, payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance. (5a)
Kinds of defenses
1. NEGATIVE DEFENSE
―the specific denial‖- specifically deny the truth of the
material fact. To make it a specific denial, it must comply
with the requirements to make it a specific denial. If not in
accordance with sec. 10 Rule 8, not a specific denial.
―of a material fact‖
Q: When is a fact, material? When is it immaterial?
A: A fact is material when it relates to the right of
the plaintiff, the obligation of the defendant to respect
the right, and the act or omission by the defendant
violating the right. These are the fact which (again,
go back to the basics, the elements of a cause of
action)
MATERIAL AVERMENTS NOT SPECIFICALLY
DENIED, DEEMED ADMITTED:
Q: What is the effect of failure to make a specific denial in
accordance with sec. 10, Rule 8?
15
A: Sec. 11 of Rule 8. provides that the material averment
in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when
not specifically denied. In otherwords, the effect of a
general denial, or of a failure to specificially deny is
admission.
- Effect of general denial – deemed to admit
XPN: the amount of unliquidated damage
THREE WAYS OF SPECIFIC DENIAL(Sec 10, rule 8)
Q: How do we make a specific denial?
15
Section 11. Allegations not specifically denied deemed
admitted. — Material averment in the complaint, other than those as
to the amount of unliquidated damages, shall be deemed admitted
when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under
oath.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 48 of 270
A: Three ways. The rules provides for three ways,
Rule 8 Sec. 10. Specific denial.
Section 10. Specific denial. — A defendant must
specify each material allegation of fact the truth of
which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon
which he relies to support his denial.
Where a defendant desires to deny only a part of an
averment, he shall specify so much of it as is true and
material and shall deny only the remainder.
Where a defendant is without knowledge or
information sufficient to form a belief as to the truth of
a material averment made to the complaint, he shall
so state, and this shall have the effect of a denial.
(10a)
MODE1: (1) specify each material allegation of fact, the
truth of which the defendant does not admit, AND (2) state
the substance of the matter upon which he relies to
support his denial.
- it is not enough to state that you deny, must also
state the basis of such denial.,meaning, state the
truth in so far as you are concerned
 ― I issued the PN, that pursuant to PN he
should pay it on or before.‖
 ―I paid, I deny the allegation, the truth Is that
I already paid it.
- it is not enough to deny it is necessary to state
the basis of such denial.
 truth is that I never did it.‖
- you specifically deny the material averment but
should also state the basis of such denial
e.g di ko pirma yan. forgery ang pirma sa
promissory note.
- must specify each material allegation of fact the
truth of which he does not admit, and whenever
practical
 e.g I deny this fact = not sufficient; Must
state your basis. Hence, I deny the
allegations set forth in par 3, the truth of the
matter is I’ve paid on 7 August so plaintiff
has forged.
MODE2: Where a defendant desires to deny only a part
of an averment, he shall specify so much of it as is true
and material and shall deny only the remainder.
- only a part of an averment. If you admit, you shall
also state.
 e.g admits par. 5 of complaint but deny the
other allegations
- if you deny the remainder you must also state the
material allegations the truth of which you do not
admit, and setforth the substance of the matter
upon which the denial is based. Pareho din ng
number one.
MODE3: LACK OF KNOWLEDGE- Where a defendant is
without knowledge or information sufficient to form a
belief as to the truth of a material averment made in the
 REMEDIAL LAW
CIVIL PROCEDURE
complaint, he shall so state, and this shall have the
effect of a denial.
- Ito simple lang, you just state that you have no
knowledge sufficient to form a belief as to the
truth of a particular averment and therefore
denies it. This would already constitute a specific
denial.
- Q: How shall the defendant plea lack of
knowledge or information to constitute a sufficient
and effective spefic denial?
A: To constitute a sufficient and effective spefic
denial of the allegations disclaiming knowledge or
information sufficient to form a belief, must refer
specifically to such averment of the complaint as
are to be met by that particular form of plea.
- Moreover, lack of knowledge shall be invoked in
good faith, that a person is not really in the
position to know the material facts alleged The
statement ―I denied all the claims for lack of
knowledge‖ = insufficient (CAPITOL MOTORS
vs YABUT)
Situation: There was an accident. The victim
sustained injuries and was hospitalized. The
plaintiff was now claiming for hospital bills,
medicine bills and etc. He states in the complaint
that by reason of the reckless driving of the
defendant, the plaintiff sustained injuries and as a
result he was hospitalized for 2 months and
incurred the following expense i. hospital bill,
100k; ii. Medicine, 200k. Defendant says ―I deny
for lack of knowledge as to the hospital bills‖, is
the denial sufficient?
A: YES. The defendant was not in the hospital to
know the real bills. He can invoke the lack of
knowledge. No knowledge as to the fees, medical
cost. Not reasonably expected to know them.
LACK OF KNOWLEDGE SUFFICIENT TO FORM A
BELIEF MAY ONLY BE INVOKED IF THE DEFENDANT
IS NOT IN THE POSITION TO KNOW THE MATERIAL
ALLEGATIONS; MUST NOT BE EXPECTED TO KNOW
Illustrative case:
Capitol Motors v. Yabut, G.R. No. L-28140, March 19,
1970
FACTS: Capitol Motors Corporations filed a complaint
against respondent Yabut. It was therein averred that the
defendant executed in favor of the plaintiff a promissory
note; that the defendant defaulted in the payment, and
likewise failed to pay the interest due on the promissory
note; and that in spite of demands by the plaintiff, the
defendant failed and refused to pay the said principal sum
and interest due. Prayer was made that the defendant be
ordered to pay the plaintiff. The defendant filed an answer
which reads: ―DEFENDANT through counsel alleges: 1.
Paragraph 1 of the complaint is admitted. 2.Paragraphs 2,
3, 4, 5, 6 and 7 of the complaint are specifically denied for
lack of knowledge sufficient to form a belief as to the truth
thereof.WHEREFORE, it is respectfully prayed that the
Complaint be dismissed with costs against the plaintiff.‖
Thereafter, plaintiff filed a motion for judgment on the
pleadings, on the ground that the defendant, not having
set forth in his answer the substance of the matters relied
upon by him to support his denial, had failed to deny
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 49 of 270
specifically the material allegations of the complaint,
hence, must be deemed to have admitted them.
ISSUE: WON it proper to render a judgment on the
pleadings
HELD: YES. The answer that the defendant has no
knowledge or information sufficient to form a belief as to
the truth of an averment and giving such answer the effect
of a denial, does not apply where the fact as to which
want of knowledge is asserted, is so plainly and
necessarily within the defendant's knowledge that his
averment of ignorance must be palpably untrue.
COMMENT: You can invoke the third mode only if you are
expected to not to know the material allegations. If you are
reasonably expected to know the material allegations then
you invoke lack of knowledge, that would be deemed an
admission. Dapat, ang sinabi ni mr. yabut ay he did not
buy a car. Kung bumili siya ng sasakyan, kung nagissue
sia ng PN, kung nagbayad ba siya, he is reasonably
expected to know such facts.
EXTRA: In relation to JUDGMENT based on pleadings
i. when the answer fails to tender issue
ii. otherwise admit the material allegations
of the complaint
EXAMPLES OF INSUFFICIENT DENIAL (viz. failure to
specify basis)-effect of which is the admission of the
material averment in the plaintiff‘s complaint
1) A general denial does not become specific simply
because of the use of the word ―specifically‖
2) A denial ―denies generally or specifically each
allegations contained in each par. Of the
complaint‖ without specifying the basis of the
denial
3) A denial ―of each allegations in the complaint
without prejudice of filing later an amended
answer with all the necessary details after data
have been gathered‖
4) A denial ―of each allegations in the complaint
without prejudice of filing later an amended
answer in due time‖
REASON FOR THE REQUIREMENT OF SPECIFIC
DENIAL IN ACCORDANCE WITH RULE 8, SEC. 10:
LIMIT THE ISSUE, AND AVOID DELAY
- To compel the defendant to specifiy the matters
which he intends to disprove, and disclose the
matters upon which he relies to support his
denial. Thus, it will limit the issue, and avoid
unnecessary delays later on during the trial.
2. AFFIRMATIVE DEFENSE
– an allegation of a new matter which, while
hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent
or bar recovery by him.
- In other words, an allegation of a new matter
which would prevent or bar recovery by the
claimant.
- The one who asserts an affirmative defense is
hypothetically admitting the material allegations
in the pleading of the claimant.
 REMEDIAL LAW
CIVIL PROCEDURE
―allegation of a new matter‖
 Ibigsabihin bago. One not mentioned in the
complaint.
 It is considered new since this allegation was
never mentioned or stated in the complaint.
Unlike in the negative defense where a
material fact alleged is denied.
―hypothetically admitting the material allegations
in the pleading‖
 Hypothetical lang, sa tagalog, palagay mo na
tama kung ano kinkwento mo, pero di ka
parin makarecover.
Affirmative defenses include:
i) fraud,
ii) statute of limitations,
iii) release,
iv) payment,
v) illegality, -sugal yan
vi) statute of frauds, -uneforceability
vii) estoppel,
viii) former recovery,
ix) discharge in bankruptcy,
x) and any other matter by way of confession
and avoidance
 Accordingly, the enumeration here is not
exclusive. e.g. res judicata,
unconstitutionality, ultravires act.
IF THE DEFENDANT FAILS TO FILE AN ANSWER;
NOT DEEMED TO HAVE ADMITTED; MAY BE
DECLARED IN DEFAULT UPON MOTION
Q: If the defendant fails to file an answer, should he be
deemed to have admitted the material allegations in the
complaint?
A: NO. However, in such case, the defendant may be
declared in default. If declared in default, ex parte
proceedings na.
COMPULSORY COUNTERCLAIM NEED NOT BE
ANSWERED; MAY NOT BE DECLARED IN DEFAULT
Q: If the defendant plead a counterclaim in the answer, is
it necessary for the original plaintiff to file an answer to the
counterclaim?
Q2: Pag di niya sinagot, pwede bamadefault ba plaintiff?
A: It depends. If the counterclaim is permissive, an aswer
is ALWAYS required. If it does not rise out of or connected
with the transaction or occurrence which constitutes the
subject matter of the opposing parties claim, it is
necessary for the original plaintiff to answer since the
issues therein are new. Accordingly, failure to answer a
counterclaim is a ground to be declared in default.
However, if the Counterclaim is compulsory and the issues
of that counterclaim are so inseparable from those raise in
the complaint and the answer, that such counterclaim
partakes the nature of special defense, then an answer
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 50 of 270
thereto is not necessary. In the latter case, the complaint
itself would be deemed the answer of the plaintiff in the
counterclaim because the issues are so inseparable.
Illustrative cases:
Navarro v. Bello G.R. No. L-11647, January 31, 1958
FACTS: Petitioners-plaintiffs filed a complaint with the
Court of First Instance praying for the annulment of
transfer certificates of and the corresponding deeds of
sale executed by respondents in favor of co-respondents.
Petitioner claimed ownership of said parcels of land, and
alleged actual possession. The petitioner alleged that it
was upon a writ of possession issued by the court of
Pangasinan that they wre placed back in the possession
thereof by the provincial sheriff. (Nanalo sila sa isang kaso
sa pangasinan, ung property in question, binigay sakanila
ng sheriff, yan ung basis ng ownership) Respondents filed
their answer also claiming ownership over the questioned
lots with a counterclaim for the damages allegedly arising
out of the unlawful usurpation of the possession of the
above described parcels of land by the petitioners through
force and intimidation. Petitioner failed to answer the
counterclaim, because of that they were declared in
default with regard the counterclaim. Upon hearing ex
parte, the court rendered judgement awarding damages in
the counterclaim, declaring defendant as owners of the
land in question and dismissing petitioner’s complaint
ISSUE: WON the ruling of the trial court is correct
HELD: NO. There was no need for petitioners to answer
respondents' counterclaim, considering that plaintiffs, in
their complaint, claimed not only ownership of, but also the
right to possess, the parcels in question, alleging that
defendants through force and intimidation, wrested
possession thereof from their tenants, and that it was upon
a writ of possession issued by the CFI of Pangasinan that
they were placed back in possession by the provincial
sheriff. These averments weredenied by defendants in
their answer, in turn they asserted ownership in
themselves and illegal deprivation of their possession by
plaintiffs, and as counterclaim, prayed for damages
allegedly suffered because of plaintiffs'alleged usurpation
of the premises.
It thus appears that the issues of the counterclaim are
the very issues raised in the complaint and in the
answer (where ownership by defendant is also asserted),
and said counterclaim is based on the very defenses
pleaded in the answer. To answer such counterclaim
wouldrequire plaintiffs to replead the same facts
already alleged in their complaint.
COMMENT: In such an instance, the complaint stands in
place of an answer in the counterclaim.
Gojo v. Goyola, G.R. No. L-26768, October 30, 1970
FACTS: Plaintiff Gojo filed a complaint for consolidation of
ownership of land which defendant and wife had conveyed
 REMEDIAL LAW
CIVIL PROCEDURE
to by ―Deed of Pacto de Retro Sale" executed ten years
earlier. Defendant fails to repurchase within the stipulated
one year period. Defendant filed an answer with
counterclaim alleging that the transaction in question was
in fact an equitable mortgage and not sale, and that the
plaintiff Gojo refused to resell when they tried to
repurchase. Counsel for respondent Goyala filed a
manifestation informing the trial court that the named
defendant (respondent) Antonina Almoguera was already
dead, and named her surviving nearest kin. As a
consequence, the trial court, ordered requiring the counsel
for the plaintiff to submit an amended Complaint
substituting therein for one of the defendants, Antonina
Almoguera, now deceased her successors in interest as
party defendants, within the reglementary period. When
plaintiff failed to comply with the order, the court, upon
motion, dimissed the complaint, and declared the plaintiff
in default in the counterclaim, and ordered the
presentation of evidence exparte with respect the
counterclaim.
ISSUE: WON the defendants’ counterclaim is compulsory
HELD: YES, there can be no doubt that appellant's
counterclaim was a compulsory one in as much as it
arises out of or is necessarily connected with transaction
or occurrence that is the subject matter of the complaint.
The counterclaim was merely inconsistent with and
directly controverted; the whole theory and basic
allegations of the complaint..
COMMENT: Ang sabi ng plaintiff, he was now the owner
on the basis of the Deed Pacto de Retro, and the
defendant failed to repurchase. Ang sagot naman ng
defendant, equitable mortgage lang to and not sale, and
you refused to allow us to repurchase
ISSUE2: Was it necessary to answer the compulsory
counterclaim?
HELD: NO, appellant's complaint stood as the answer to
appellee's counterclaim
ISSUE3: May the appellant be declared in default to
failure to answer
HELD3: No. Since it is not necessary for him to answer as
the complaint stood as the answer to the counter claim.
Moreover, it is now settled that a plaintiff who fails or
chooses not to answer a compulsory counterclaim may
not be declared in default, principally because the
issues raised in the counterclaim are deemed
automatically joined by the allegations of the
complaint
Ballecer v. Bernardo, G.R. No. L-21766 September
30, 1966
FACTS: Petitioners Ballecer instituted a Civil Case against
respondent Bernardo, to recover damages allegedly
caused by him in consequence of the destruction and
demolition of a portion of a wall of the petitioners, as well
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 51 of 270
as to recover possession of a portion of petitioners lot
which was allegedly encroached upon by the wall
subsequently erected by Bernardo in place of the one he
had destroyed. Bernardo filed his answer denying
petitioners' averments, and alleging the exact opposite of
petitioner’s allegations, namely, that petitioners were the
parties who had encroached upon and occupied a portion
of Bernardo's property. The petitioners failed to answer the
counterclaim. As a consequence, they were declared in
default.
ISSUE: whether the lower court has gravely abused its
discretion in declaring the petitioners in default and in
rendering judgment against them on Bernardo's
counterclaim after an ex parte hearing.
HELD: YES. Bernardo's counterclaim was predicated
upon allegations of fact which are inconsistent with, and,
hence, controverted by, the allegations in petitioners'
complaint. The counterclaim of Bernardo cannot be
decided without passing upon the truth of the allegations
in the complaint, which petitioners are entitled to prove,
whether they had answered Bernardo's counterclaim or
not. In other words, the issues raised in the
counterclaim were inseparable from those posed in
the complaint, and so it was not absolutely necessary
for the petitioners to file an answer to the
counterclaim.
COMMENT:In otherwords, sa Court, walang makulit,
bawal paulit-ulit, nalagay na exact opposite sa complaint.
COUNTERCLAIM
Q: What is a counterclaim?
Section 6. Counterclaim. — A counterclaim is any
claim which a defending party may have against an
opposing party. (6a)
- claims of defendant against plaintiff; generally if
it’s already existing and due, it must be alleged in
the answer. If its properly taken, it is a distinct
and independent cause of action, when it is
properly interposed the defendant will be
claimant. Hence, there will be two simultaneous
actions wherein each are both a plaintiff and
defendant.
Q: What is the nature of a counterclaim?
A: It is a complaint by the defendant against the plaintiff.
Although it is alleged in the answer, it is not part of the
answer. It is a distinct and independent cause of
action.
- When the counterclaim is properly interposed,
the defendant becomes, in respect to the matters
he pleaded, the suer, the actor, the claimant.
- In such an instance, there would be two
actions pending between the same parties.
Wherein each is at the same time both a
plaintiff and a defendant.
- In connection with the kinds of pleadings, there is
i) a pleading which asserts a claim, ii)
responsive/defensive pleading. The pleadings
 REMEDIAL LAW
CIVIL PROCEDURE
which asserts a claim are (i)complaint,
(ii)counter-claim, (iii)cross claim, (iv) third (fourth,
etc.)-party complaint, or (v) complaint-in-
intervention. The defensive/responsive pleadings
are (i) answer, or (ii) reply- sagot lang mga to, di
nag assert ng claim.
KINDS OF COUNTERCLAIM- i) Compulsory; ii)
Permissive Counterclaim.
1. COMPULSORY COUNTERCLAIM
Q: What is a compulsory counterclaim?
Section 7. Compulsory counterclaim. — A
compulsory counterclaim is one which, being cognizable
by the regular courts of justice, arises out of or is
connected with the transaction or occurrence constituting
the subject matter of the opposing party's claim and does
not require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction. Such a
counterclaim must be within the jurisdiction of the court
both as to the amount and the nature thereof, except that
in an original action before the Regional Trial Court, the
counter-claim may be considered compulsory regardless
of the amount. (n)
suit as counterclaim? No he cannot, the lack of jurisdiction
of RTC relates to the nature since the MTC has exclusive
jurisdiction over ejectment cases
Q: Is it necessary that a counterclaim must arise in the
same transaction?
A: NO. it need not necessarily arise out of the same
transaction. Basis: The rules allow for permissive
counterclaim.
Q: How about in cross-claims?
A: Yes, it is necessary since cross claims are always
compulsory.
A COMPULSORY COUNTERCLAIM, OR A CROSS-
CLAIM, NOT SET UP IN THE ANSWER SHALL BE
BARRED. (RULE 9, Sec. 2)
Q: Where do you allege a counterclaim, or a cross -claim?
16
A: must be alleged in the answer (Rule 11, Sec. 8)
Q: What happens if you failed to allege a COMPULSORY
counter-claim, or a cross-claim in the answer?
A: They shall be barred. (Rule 9, Sec. 2)
17

- Kaya tawag compulsory, dahil obligado kang

CROSS CLAIM ilagay sa answer.
Q: What is a cross claim? - If you did not plea in the answer, barred forever
Section 8. Cross-claim. — A cross-claim is any
claim by one party against a co-party arising out of the Q: When is a counterclaim, compulsory? ALSO APPLIES
transaction or occurrence that is the subject matter either TO CROSS-CLAIM
of the original action or of a counterclaim therein. Such A: A counterclaim is compulsory when: ELEMENTS-ALL
cross-claim may include a claim that the party against OF THESE MUST BE PRESENT
whom it is asserted is or may be liable to the cross- i. It arises out of or is connected with the
claimant for all or part of a claim asserted in the action transaction or occurrence constituting the
subject matter of the opposing party‘s claim;
against the cross-claimant. (7)
ii. Does not require for its adjudication the
- a claim by a party against a co-party. (Usually its presence of third parties of whom the court
defendant aginst co-defendnat) cannot acquire jurisdiction;
- always arising out of the transaction or iii. Must be within the jurisdiction of the court
occurrence that is the subj. matter of the original iv. It has already matured
action or counterclaim.
- e.g A creditor filed an action for recovery of debt ELEMENT1: It arises out of or is connected with the
against debtor and surety. The surety shall filed a
transaction or occurrence constituting the subject
cross claim against the principal debtor.
matter of the opposing party‘s claim;
COUNTERCLAIM v. CROSSCLAIM
Q: Plaintiff files an action to recover real property +
COUNTERCLAIM CROSS-CLAIM
fruits thereof. Defendant claims that he is possessor
- a counterclaim may - A cross-claim is in the concept of an owner. What is the nature of the
either be permissive or ALWAYS compulsory counter claim?
compulsory. A: Compulsory Counterlcaim. The taking of recovery
- A counterclaim is a - A cross-claim is a claim of property, it arose out of or necessarily connected
claim by a defending by a defending against with plaintiff’s claim.
party against the a co-defending party
claimant SCENARIOS: COMPULSORY OR PERMISSIVE

GR: Counterclaim is subject to the law on jurisdiction both

as to amount [BP129 Sec 19(8) and nature (Sec19
1,2,3,5,6,7) thereof
XPN: if an original action before RTC regardless of the
amount (only as to the amount not nature for e.g. plaintiff
files an action for recovery of property, defendant claims
that pinarenta kita and you fail to file, can he file ejectment
16
Section 8. Existing counterclaim or cross-claim. — A
compulsory counterclaim or a cross-claim that a defending party has at
the time he files his answer shall be contained therein
17
Section 2.Compulsory counterclaim, or cross-claim, not set up barred.
— A compulsory counterclaim, or a cross-claim, not set up shall be
barred.

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 52 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
Q: If plaintiff files an action against the defendant for
recovery of ownership or possession of real property.
Is a demand/claim to recover necessary expenses for
the preservation of the land as the defendant claims
to be the owner but in the alternative a possessor in
good faith. Is the alternative demand for
reimbursement for all the expenses incurred, and
things built as sower, planter, builder, a compulsory
counterclaim?
Q2: What if he did not claim for the reimbursement
and he lost in the civil action, can he subsequently
claim for reimbursement in a separate civil action?
A: Yes, the action is compulsory. All the four
elements are present. In this case, the claim for
reimbursement is connected with the plaintiff claims
for ownership. Since the reimbursement is the effect
of the ousting of the possessor in goodfaith.
Transaction dito, ung ownership. And under the law
you have the right to claim reimbursement if some
other person has better title.
A2: Since it is a compulsory counterclaim, the failure
to plead in the answer constitutes a bar.
Q: May isang tao, pinahospital niya isang anak. Ung
anak niya daw nahulog sa hospital, di inalagaan ng
nurses, so nasugatan. Kinasuhan ngayon ang
hospital for the damages resulting from the injury of
the child. Nagcounterclaim ang hospital for unpaid
hospital bills. Is this a compulsory counterclaim?
A: Yes, compulsory. Counterclaim arises out of or
connected with the transaction constituting the subject
matter of the claim of the mother. The transaction in
this case is the hospitalization of the child. Because of
the hospitalization and the negligence of the nurses,
nahulog. Due to hospitalization, may unpaid bills.
Consider the vinculum juris which binds them. Dito
may contract. Un ung transaction.
NOTE: We are saying that the cause of action relates to a
right, obligation to respect that right, and act/omission
violating that right. So ang unang hanapin mo, ano ba
basis nian ng right. Contract, quasi-contract, delict, quasi-
delict, law.
Illustrative case:
SANTO TOMAS UNIVERSITY HOSPITAL vs. CESAR
ANTONIO Y. SURLA and EVANGELINE SURLA,
Issue: WON there should be cert of forum shopping
P- bec of the negligence of D, their child fell.
child incurred damages, pain
P- fright, fear – moral damages
Counterclaim:
D- first : not yet paid- hospital bills - dapat meron,
wala kasi yan sa complaint- sagutin mo yan
second: harassment, to destroy reputation of the
hospital. - not initiatory
nd st
Vitug- technically the 2 is not initiatory, 1 – dapat
meron, wala kasi yan sa complaint- sagutin mo yan-
compulsory- arose out of the same tran- paghospital ng
bata
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 53 of 270
Gen Rule – even compulsory claim must be answered bec
it is considered as a complaint of the defendant
except when the answer is just to complete what was
alleged in the orig complaint
ELEMENT2: Does not require for its adjudication the
presence of third parties of whom the court cannot
acquire jurisdiction
- If required presence of 3rd person, it presumes
that court has jurisdiction.
ELEMENT3: ―That it must be within the jurisdiction of
the court both as to amount and nature‖
XPN: except that in an (i) original action before the
Regional Trial Court, the counter-claim may be
CONSIDERED COMPULSORY (ii) regardless of the
amount.
―regardless of the amount‖
- Even if the counter-claim is not within the
jurisdiction of the RTC as to amount, (NOT AS
TO NATURE) the RTC may entertain the
counter-claim. The counterclaim in such case is
compulsory.
- The RTC may allow a counter-claim not within its
jurisdiction if the lack of jurisdiction only relates
as to amount.
- If the lack of jurisdiction of the RTC relates as to
the nature of the subj. matter, then, it cannot
entertain the counter-claim.
NOTE: Threshold amount in Manila, RTC if it
exceeds 400k; outside manila, 300k
Q: What if finile ang original action sa RTC, ang
counter claim is only 250k, can the RTC entertain
that?
A: Yes, because it is only with respect of the
amount
Q: What if an action was filed with the RTC for
recovery of ownership, nagfile ng counter-claim
for ejectment (Unlawful detainer or forceable
entry), can the RTC entertain the counter-claim?
A: NO. The lack of jurisdiction already relates to
nature. RTC cannot entertain unlawful detainer or
18
forceable entry. (Sec. 19(2) of BP 129)
―within the jurisdiction of the court‖; XPN: ―original
action before the RTC‖
Q: What if plaintiff files an action before the MTC
for collection of sum of money in the amount of
300000 kasama interest, file ngayon si defendant
ng counter-claim alleging malicious complaint,
18
Section 19. Jurisdiction in civil cases. – Regional Trial Courts shall
exercise exclusive original jurisdiction: xxx (2) In all civil actions which
involve the title to, or possession of, real property, or any interest
therein, where the assessed value of the property involved exceeds
Twenty thousand pesos (P20,000.00) or for civil actions in Metro
Manila, where such the value exceeds Fifty thousand pesos (50,000.00)
except actions for forcible entry into and unlawful detainer of lands or
buildings, original jurisdiction over which is conferred upon
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts;
 REMEDIAL LAW
CIVIL PROCEDURE
thereby claim 1 million as damages. May the
MTC entertain the counterclaim for 1 million? Ok
parin ba, kahit beyond na ng jurisdiction of MTC
ang counterclaim?
A: Yes, but the excess amont would be deemed
to have been waived. (Agustine v. Bacalan)
WHEN DEFENDANT RAISES A COUNTERCLAIM
BEYOND JURISDICTIONAL AMOUNT OF MTC, IT
DOES NOT MEAN THAT MTC DID NOT ACQUIRE
JURISDICTION OF ENTIRE COUNTERCLAIM. IT ONLY
MEANS THE PARTY WAIVED THE EXCESS.
Note: it relates only as to amount.
Illustrative case:
Agustin v. Bacalan, G.R. No. L-46000, March 18, 1985
FACTS: Defendant Bacalan is a lessee of a one-door
ground floor space in a building owned by the late Susana
Agustin. Due to nonpayment of rentals despite repeated
demands an action to eject him was filed by Agustin
before the City Court of Cebu. In his answer, the
defendant-appellee included a counter-claim alleging that
by virtue of the unwarranted and malicious filing of this
action by the plaintiff against the defendant, the latter
suffered 50000 as damages. The City Court of Cebu
subsequently rendered judgment dismissing the
counterclaim and ordering the defendant to vacate the
premises. From this decision, the defendant filed an
appeal with CFI of Cebu. CFI reversed the decision on the
unlawful detainer and awarded the countercalim. CA said
that the reversal was correct. However, the CA said that it
was not correct for the RTC to have awarded the
counterclaim since it was for the amount of 50000, when,
at that time, the threshold amount of MTC is only up to
10000. Since the MTC has no jurisdiction over
counterclaim, therefore the RTC acting as appellate court
is bound by the jurisdictional limits of MTC, the court of
origin.
ISSUE: WON the ruling of the CA as to the counterclaim is
absolutely correct
HELD: No, Thus, by presenting his claim voluntarily
before the City Court of Cebu, the defendant-appellee
submitted the same to the jurisdiction of the court. He
became bound thereby. The amount of P10,000.00 being
the jurisdictional amount assigned the City Court of Cebu,
whose jurisdiction the defendant-appellee has invoked, he
is thereby deemed to have waived the excess of his claim
beyond P10,000.00. It is as though the defendant-appellee
had set up a counterclaim in the amount of P10,000.00
only.
COMMENT: In such case, the excess shall be deemed
waived.
For e.g unlawful detainer and forcible entry cannot be
sued in a Counterclaim in RTC. But if for a sum of money
e.g plaintiff sues for 1M. Defendant says nabayaran na
yan, entitled ako sa moral at exemplary but aksing only for
less than 300k or 400k in Metro Manila, pwede n rin sa
RTC kasi sa RTC na din na file original action. IF sa MTC
nafile, apply AGUSTIN vs BATACLAN
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 54 of 270
ELEMENT4: ―That it must have already matured‖
- The counterclaim has already matured; the
pleader is obliged to raise it in the answer.
- That the counterclaim is due and demandable
SCENE1: MATURED AFTER ANSWER; FILE
SUPPLEMENTAL PLEADING
Q: Supposed the counterclaim has matured after the
answer has been filed, may it still be pleaded?
A: Yes, by a SUPPLEMENTAL complaint. (Not by an
amended answer) Same thing with a cross-claim.
- If the maturity of the counterclaim or cross-claim
came about after an answer has already been
filed, then it may still be pleaded by way of
supplemental complaint. (Sec. 9, Rule 11)
Section 9. Counterclaim or cross-claim
arising after answer. — A counterclaim or a
cross-claim which either matured or was acquired
by a party after serving his pleading may, with
the permission of the court, be presented as a
counterclaim or a cross-claim by supplemental
pleading before judgment. (9, R6)
 Basta supplemental pleading, with leave of
court parati.
 After-acquired compulsory counterclaim and
cross-claim and involved dito. Not yet
existing at the time of filing answer.
SCENE2; OMMITED COMPULSORY COUNTERCLAIM
OR CROSS-CLAIM; FILE AMENDED ANSWER
NOTE: A compulsory counterclaim, or a cross-claim, not
set up shall be barred. (rule 9, Sec. 2)
Q: What if you forgot to plea an existing
compulsory counter-claim or crossclaim, may the
defending party still plead it? If so, how?
A: Yes, it may still be pleaded by an amended
answer. (Sec. 10, Rule 11)
Section 10. Omitted counterclaim or
cross-claim. — When a pleader fails to set up a
counterclaim or a cross-claim through oversight,
inadvertence, or excusable neglect, or when
justice requires, he may, by leave of court, set
up the counterclaim or cross-claim by
amendment before judgment. (3, R9)
COMPULSORY COUNTERCLAIM; ALL OF THE FOUR
ELEMENTS MUST BE PRESENT. WHERE ANY ONE
OF THE ELEMENT IS MISSING, THE COUNTERCLAIM
IS MERELY PERMISSIVE.
Illustrative case:
Calo v. Ajax Int‘l, G.R. No. L-22485, March 13, 1968
Note: before, the threshold amount is P10000. In the old
rules, binibilang din lahat ng amount kahit incidental.
FACTS: Plaintiff-appellant Calo ordered from defendant-
appellee Ajax International, Inc., 1,200 ft. of John Shaw
wire rope. When the wire rope was delivered to Butuan
City, the same was found short of 300 ft. Thereafter, a
complaint was filed in the Municipal Court of Manila by
one Adolfo Benavides who claimed to have acquired the
outstanding credit account of Calo from defendant Ajax
 REMEDIAL LAW
CIVIL PROCEDURE
International, Inc, and claimed the subsisting obligation in 2. PERMISSIVE COUNTERCLAIM
the amount of P.855. On the other hand, Plaintiff Calo filed Q: When is a counter claim permissive?
in the CFI of Agusan a complaint against defendant asking A: A counterclaim is permissive if any of the elements of
(1) that the latter either effect complete delivery or that she compulsory counterclaim is absent. But the most
be relieved from paying P855.00 and (2) that the latter commonly treated feature is its absence of a logical
indemnify her for P12,000 as attorney's fees, damages connection with the subject matter of the complaint. e.g, it
and expenses of litigation. Defendant moved for the does not arise out of or is not connected with plaintiff’s
dismissal of Civil Case on the ground, inter alia, that the
cause of action
subject thereof was involved and intimately related to that
- Being merely permissive, there is no obligation to
in Civil Case of the Municipal Court of Manila. The CFI of
Agusan sustained the motion and dismissed the case. The raise the same in the answer
dismissal of CFI Civil Case No. 860 by the court a quo - Since there is not obligation to raise it in the
because of the pendency of Civil Case in the municipal answer, a person is not barred from raising it in
court of Manila is predicated on the supposition that the same proceeding.
plaintiff's claim is a compulsory counter-claim that should Q: How may a counterclaim not within the jurisdiction of
be filed in the latter case. the court be pleaded?
ISSUE: WON the dismissal of the Civil Action by the CFI A: You can plead that in a separate action.
(now RTC) of Agusan is correct Q: How may a counterclaim not within the jurisdiction of
HELD: NO. There is no question that it arises out of the the RTC as to the amount be pleaded?
same transaction which is the basis of the complaint in A: You must plead that in the answer. It is allowed by the
Civil Case in City court of manila and does not require the law. The reason for the rule is that the said counterclaim is
presence of third parties over whom the municipal court of pleaded as an offset to reduce plaintiff’s claim.
Manila could not acquire jurisdiction. However, Plaintiff's Q: In what actions shall the compulsory counterclaim or
claim is not a compulsory counterclaim in Civil Case
cross-claim be set up?
in City of Manila because that the amount thereof
A: It must be set up in the same action. That is why the
(P12000) exceeds the jurisdiction of the municipal
court. The rule that a compulsory counterclaim not set up rule says that it shall be pleaded in the answer, otherwise
is barred, when applied to the municipal court, they shall be barred. (Rule 9, Sec. 2)
presupposes that the amount involved is within the said NOTE: On the otherhand, a mere permissive counterclaim
court's jurisdiction. Otherwise, we would come to the may be set up in a separate action.
absurd situation where a claim must be filed with the
municipal court which it is prohibited from taking COMPULSORY PERMISSIVE
cognizance of, being beyond its jurisdiction.
A party has at the time the Not subject to the same
COMMENT: The rule in Rule 9, sec. 2 applies only to
answer is filed, shall be rule. Hence, it may be set
COMPULSORY counterclaim. A permissive counterclaim
contained in the answer up as an independent
not pleaded in the answer is not barred. One element is
because a compulsory action and it will not be
missing in this case, namely, that the counterclaim be
counterclaim not set up barred if not contained in
within jurisdiction.
shall be barred. the answer to the
ESCOLIN: The civil case is also for a specific
complaint.
performance. The plaintiff is asking for the delivery. So in
some extent, incapable of pecuniary estimation. Not an initiatory pleading Considered as initiatory
Magdeliver ka, hindi kwarta-kwarta yan. If incupable of
pecuniary estimation, the nature of the action is not within Cannot be independently should be accompanied by
the jurisdiction of MTC set updoes not require a certification against
certificate (forum forum-shopping and
NOTES: shopping/K.brgy) because it wehenevr required by law,
1) Where counterclaim exceeds court’s jurisdiction of the is not initatory in character. also a certificate to file
trial court, the rule that a compulsory counterclaim not action issued by K.
set up is barred does not apply; The rule on Pambaranagay.
Compulsory Counterclaim presupposes that the
Failure to answer in CC is Must be answered by the
amount involved is within court’s jurisdiction. (CALO
not a cause for default party against whom it is
vs AJAX) declaration interposed otherwise he
2) When you answer questions in the bar, Icite lahat ng may be declared default as
requisites, make a checklist. The ruling in Calo vs to the counterclaim;
Ajax is still valid and a good law.
3) Reason for permitting counterclaims – to avoid Docket and other lawful Docket and other lawful
multiplicity of suits e.g plaintiff filed an action for fees must be paid also fees must be paid by for a
collection of sum of money. Defdandt defense: he permissive counterclaim
paid.

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 55 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
COUNTER-COUNTERCLAIMS AND COUNTER-
CROSSCLAIMS
Section 9. Counter-counterclaims and counter-
crossclaims. — A counter-claim may be asserted against
an original counter-claimant.
A cross-claim may also be filed against an original cross-
claimant. (n)
- kapag kinounterclaim ka, pwede ka bang
magcounterclaim? Yes, tawag dian, counter-
counterclaim
- kapag Kinross claim ka, pwede ka din magcross
claim laban sa cross-claimant
REPLY
Q: What is a reply?
Section 10. Reply. — A reply is a pleading, the
office or function of which is to deny, or allege facts in
denial or avoidance of new matters alleged by way of
defense in the answer and thereby join or make issue as
to such new matters. If a party does not file such reply, all
the new matters alleged in the answer are deemed
controverted.
If the plaintiff wishes to interpose any claims arising out of
the new matters so alleged, such claims shall be set forth
in an amended or supplemental complaint. (11)
- this is the second kind of a responsive/defensive
pleading.
- Pleading the function of which is to 1) deny or
2)alleged facts of denials of new matters
asserted by way of defense in answer and
thereby raising new issue. Thereby, joining
issues in the answer.
- In other words, a reply is a response to the
affirmative defense raised in the answer. There
are two kinds of defense, namely, negative and
affirmative. Affirmative defenses are the new
matters which would prevent or bar recovery,
e.g. fraud, illegality, etc.
- Q: What part of a reply is directed or controverts?
A: If it raise new matters as to affirmative defense
raised it in the answer. It is a responsive
pleading.
- Who files? The plaintiff.
―If a party does not file such reply, all the new matters
alleged in the answer are deemed controverted.‖
Q: What is the effect of failure to file a reply?
A: Filing of a reply is option, and failure to do so
amounts to a denial of all the matters alleged in the
answer.
XPN: i) ACTIONABLE DOCUMENT; USURY(OLD
RULES)
Q: Are there instances when a reply is compulsory?
A: Yes, e.g.
i. When an answer is absed on actionable
document
- in which case, in order to deny the genuiness
and due execution of the actionable document, it
must be denied under oath.
- Pag di ka nagreply diyan, deemed admitted ang
genuiness and due execution (only)
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 56 of 270
ii. It must be noted that RE USURY is not
anymore a compulsory reply. The rules now
provides, as opposed the old rules, that
Allegations of usury in a COMPLAINT to
recover usurious interest are demed admitted if
not denied or oath. (Rule 8 Sec 11);
- The second instance under the OLD RULES, is
when the ANSWER avers the issue of usury. E.g.
collection of sum of money, raises usury
- Note: No longer applicable. Wording ng rule now
is allegation of usury in a complaint, not ―in an
answer‖
Q:Accordingly, if the defendant in a
collection suit avers in the answer the issue
of Usury, and the plaintiff fails to specifically
deny a reply. Will the usury be deemed
admitted?
A: The usury is not deemed admitted, since
the answer is not a complaint. Under the
present rules, the allegations of used must
be raised in a complaint not aswer
―If the plaintiff wishes to interpose any claims arising
out of the new matters so alleged, such claims shall
be set forth in an amended or supplemental
complaint‖
Q: Mayplaintiff set up in his reply claims arising from
the new matters raised in the answer?
A: NO, plaintiff cannot set up in his reply claims
arsising from the new matters raised in the
answer. Sec. 10 Par. 2, thus, said claims must be set
forth in an amended or supplemental complaint, not in
the reply.
THIRD PARTY COMPLAINT
Section 11. Third, (fourth, etc.)—party complaint.
— A third (fourth, etc.) — party complaint is a claim that a
defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth,
etc.) — party defendant for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim. (12a)
- The requirement is you must file a motion for
admission of third party complaint
- It is filed by a defending party against person not
a party to the action
- He is called third (forth) party defendant
- For the purpose of contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim.
- Must always be in respect to opponent’s claim
- Yung hindi pa party, sinsali mo, the initiative is to
drag in a third party. It is always by leave of court.
- On the otherhand, if the inititiative comes from
third party, you call it intervention.
 REMEDIAL LAW
CIVIL PROCEDURE
Q: In connection with the purpose, what are therefore the
tests?
A: TESTS:
i. FOR CONTRIBUTION- The third (fourth…)
party complaint must arise out of the SAME
TRANSACTION on which the plaintiff’s claim
is based.
 e.g. Thus if X and Y are guilty of quasi-delict
and the injured party filed an action for
damage against X only, X may file against Y
for contribution joint tortfeasor = joinly liable.
The transaction in this case is the quasi
delict. And the purpose of the third party
complaint is for contribution.
ii. FOR INDEMNITY- when though arises out of
different transaction, it is CONNECTED
WITH PLAINTIFF‘S CLAIM
 When you speak of indemnity, the third party
claim, although it arises out of another
transaction or contract but nonetheless
CONNECTED with plaintiff’s claim.
 e.g. a surety is sued for recovery of debt by
the creditor. The surety who is sued only
may file a third party claim against the
principal debtor for indemnity. In this case,
the claim of the surety against the third-party
(principal debtor) arise out of another
contract or transaction other than that of the
loan granted by the creditor, but the claim is
connected with plaintiffs claim.
 Separate ang contract of surety sa contract
of loan itself. Pero connected.
iii. FOR SUBROGATION- The third party
defendant would be liable to palintiff’s claim
against the original defendant although the
third party defendant’s liability arises out of
another transaction.
 e.g In a CONTRACT OF LEASE, The
lessee undertook to shoulder the cost of
repairs in the leased premises. Ang ginawa
ngayon ng lessee ay pinasublease nia ung
property. In the sublease agreement, the
lessee passed on the obligation to make the
repairs to the sub-lessee. Since the repairs
were not done. Lessee is sued by the lessor
for the cost of repairs in a case where under
contract of lease, the lessee obligated
himself to bear the cost of the repairs. The
lessor sues the lessee for cost of repairs.
Defendant lessee may file a third party
complaint for subrogation against a sub-
lessee who has assumed the obligation to
make the repairs which the latter did not do.
iv. OTHER RELIEFS- In such instance, the
third-party defendant, as claimant now, may
assert any defense which the third-party
plaintiff has, or may have, against the
plaintiff’s claim.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 57 of 270
 E.g. In an action for recovery of real
property, the defendant there may file a
third-party complaint against his vendor for
warranty against eviction.
SUBJECT TO RULES ON JURISDICTION; XPN:
ORIGINAL ACTION IN RTC, THIRD-PARTY
COMPLAINT NEED NOT BE WITHIN ITS
JURISDICTION; MERELY ANCILLARY
Q: Must a third-party complaint be within the jurisdiction of
the court where the principal action is pending?
A: Generally Yes. But where the action is pending in the
RTC, the thirdparty complaint need not be within the
jurisdiction of that court. The reason is that a thirdparty
complaint is merely a continuation of and ancillary to the
prinicipal action. The jurisdiction in the principal suit
embraced all incidental matters arising therefrom or
connected therewith.
 E.g. In a thirdparty complaint for contribution,
let’s assume that there are may sureties.
Let’s say tatlo. Ang agreement, kung di
magbayad principal debtor, hati sila, 1/3
each. Now, only one surety was sued. That
surety can file a third party complaint for
contribution to the extent of their participation
of 1/3 each. Assuming that the 1/3 is below
the amount within the jurisdiction of RTC
(viz. 300k+/400k+). The RTC can still take
cognizance of this.
 Transcriber’s comment: it seems that the xpn
is only as to amount, and not as to nature.
BRINGING NEW PARTIES IN THE DETERMINATION
OF COUNTER CLAIM OR CROSS CLAIM.
Section 12. Bringing new parties. — When the
presence of parties other than those to the original action
is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court
shall order them to be brought in as defendants, if
jurisdiction over them can be obtained.
ANSWER TO THIRD-PARTY COMPLAINT
Section 13. Answer to third (fourth, etc.)—party
complaint. — A third (fourth, etc.) — party defendant may
allege in his answer his defenses, counterclaims or cross-
claims, including such defenses that the third (fourth, etc.)
— party plaintiff may have against the original plaintiff's
claim. In proper cases, he may also assert a counterclaim
against the original plaintiff in respect of the latter's claim
against the third-party plaintiff. (n)
Q: Can a third-party defendant file a counterclaim?
A: YES
Q: How about a crossclaim?
A: YES
- He may also allege such defenses that the third
(fourth, etc.) — party plaintiff may have against
the original plaintiff's claim.
 REMEDIAL LAW
CIVIL PROCEDURE
- In proper cases, he may also assert a
counterclaim against the original plaintiff in
respect of the latter's claim against the third-party
plaintiff.
RULE 7
PARTS OF PLEADING
CAPTION
Section 1. Caption. — The caption sets forth the
name of the court, the title of the action, and the docket
number if assigned.
The title of the action indicates the names of the parties.
They shall all be named in the original complaint or
petition; but in subsequent pleadings, it shall be sufficient
if the name of the first party on each side be stated with an
appropriate indication when there are other parties.
Their respective participation in the case shall be
indicated. (1a, 2a)
- Caption –the heading or introductory part of the
pleading, motion, depositions or other legal
instrument which indicates the:
i. Name of the Court – ―Republic of the Philippines,
Third Judicial Region, RTC,‖
ii. Title of the Action
 Indicates the names of the parties.
 Title – distinctive appellation by which any
cause in court, or other juridical proceedings,
is known and distinguished from others;
Name of the parties and the respective
participation of parties
 Only in original complaint that parties must
all be named. In subsequent pleadings (e.g.
answer, counterclaim), words indicating
there are still other such as etc., and others,
et al. may be used
 Lagay mo nalang, juan dela cruz, et al.
 Lagay mo din participation, e.g. ―plaintiff‖,
―petitioner‖
iii. The docket number, if assigned
BODY
Section 2. The body. — The body of the pleading sets
forth its designation, the allegations of the party's claims or
defenses, the relief prayed for, and the date of the
pleading. (n)
(a) Paragraphs. — The allegations in the body of a
pleading shall be divided into paragraphs so numbered to
be readily identified, each of which shall contain a
statement of a single set of circumstances so far as that
can be done with convenience. A paragraph may be
referred to by its number in all succeeding pleadings. (3a)
(b) Headings. — When two or more causes of action
are joined the statement of the first shall be prefaced by
the words "first cause of action,'' of the second by "second
cause of action", and so on for the others.
When one or more paragraphs in the answer are
addressed to one of several causes of action in the
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 58 of 270
complaint, they shall be prefaced by the words "answer to
the first cause of action" or "answer to the second cause
of action" and so on; and when one or more paragraphs of
the answer are addressed to several causes of action,
they shall be prefaced by words to that effect. (4)
(c) Relief. — The pleading shall specify the relief
sought, but it may add a general prayer for such further or
other relief as may be deemed just or equitable. (3a, R6)
(d) Date. — Every pleading shall be dated. (n)
Body:
 Designation- e.g. ―Complaint‖; ―complaint in
intervention‖; ―Answer‖; ―Answer with
crossclaim‖; ―third pary complaint‖
 Allegations of the party’s claims or defenses
- The allegations shall be divided into
paragraphs
 Relief prayed for
 Date of the pleading
- Paragraphs, wag mo ilagay lahat sa isang
sentence. Iisang paragraph mo per element ng
cause of action (viz. Right, obligation,
act/omission)
- Heading- kung marami kang cause of action
―allegations relating to first cause of action‖;
―allegations relating to second cause of action‖.
Pag answer ―by way of answer to the first cause
of action‖ etc.
- Relief- May add a general relief
- Date
SIGNATURE AND ADDRESS-ung pinakadulo ng
pleading.
Section 3. Signature and address. — Every
pleading must be signed by the party or counsel
representing him, stating in either case his address which
should not be a post office box.
The signature of counsel constitutes a certificate by him
that he has read the pleading; that to the best of his
knowledge, information, and belief there is good ground to
support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect. However,
the court may, in its discretion, allow such deficiency to be
remedied if it shall appear that the same was due to mere
inadvertence and not intended for delay. Counsel who
deliberately files an unsigned pleading, or signs a pleading
in violation of this Rule, or alleges scandalous or indecent
matter therein, or fails promptly report to the court a
change of his address, shall be subject to appropriate
disciplinary action. (5a)
Signature+Address. Address not a post office box.
- Signature constitutes as certificate:
i. that he has read the pleading;
ii. that to the best of his knowledge,
information, and belief there is good
ground to support it; and
iii. that it is not interposed for delay.
 We’ll compare this with a verifaction
- Must be signed by the party / address
―An unsigned pleading produces no legal effect.‖
- Sham pleading – an unsigned pleading
 REMEDIAL LAW
CIVIL PROCEDURE
 However, the court may, in its discretion,
allow such deficiency to be remedied if it
shall appear that the same was due to mere
inadvertence and not intended for delay.
- Whenever you change address, must notify the
court
VERIFICATION
Section 4. Verification. — Except when otherwise
specifically required by law or rule, pleadings need not be
under oath, verified or accompanied by affidavit .(5a)
A pleading is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are true
and correct of his knowledge and belief.
A pleading required to be verified which contains a
verification based on "information and belief", or upon
"knowledge, information and belief", or lacks a proper
verification, shall be treated as an unsigned pleading. (6a)
Q: Is verification required in every pleading?
A: NO. ―Except when otherwise specifically required
by law or rule, pleadings need not be under oath, verified
or accompanied by affidavit‖
 GENERAL RULE: Pleadings need not be
verified
 XPN: if provided by law or rule e.g pleadings
covered by summary procedure including
answer thereto
―A pleading is verified by an affidavit that the affiant
has read the pleading and that the allegations therein
are true and correct of his knowledge and belief.‖
Q: How is a pleading verified?
A: A pleading is verified by the affidavit:
i. that the affiant has read the pleading
ii. That the allegations in the pleading are true and
correct based on personal knowledge and
belief (hindi pwedeng sabi lang sakanya)
―A pleading required to be verified which contains a
verification based on "information and belief", or upon
"knowledge, information and belief", or lacks a proper
verification, shall be treated as an unsigned pleading.‖
Considered as sham pleading:
i. based on information and, belief;
ii. upon knowledge, information, and belief
iii. Lacks a proper verification (with verification but
not proper)
Considered UNSIGNED PLEADING- hence
considered a sham pleading.
CAVEAT: ABSENCE OF A VERIFICATION IS A MERE
FORMAL DEFECT; WILL NOT AFFECT VALIDITY OF A
PLEADING; LACK OF VERIFICATION EVEN IF
REQUIRED BY LAW IS NOT FATAL; MAY BE CURED
Q: However, where no verification is made, in a case
where it is required, will it affect the validity of the
pleading?
A: NO, in such case, it is a mere formal defect, pwede
mong pa verify. Curable kasi formal lang ang defect.
- Hindi pwede ang ―based on information and
belief‖, or ―knowledge, information and belief‖
dapat alam mo talaga.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 59 of 270
- How do you acquire knowledge? By sense
perception. Either you saw it, tasted it, heard it,
touched it, smelled it.
- In connection with evidence, hearsay evidence is
not admissible because that is tsismis, bat di ung
may personal knowledge ilagay sa witness stand
- But note, there are cases in evidence where the
evidence is not based on personal knowledge but
is admissible, e.g. pedigree. (for instance, mga
sabi ng magulang about sa birth, sinabi lang
sayo, pero you can testify about that, your
parents would not lie about that to you; pagsinabi
ng mama mo na kapatid mo si ganito, lolo mo si
ganito)
- In connection with warrantless arrest, if after
commission of arrest. Dapat may probable cause
ang arresting officer that the one being arrested
is the one who committed it, hindi sabi ng iba.
 e.g. kung may witness, nagpasketch, nakita
ng pulis ung nasa sketch, can he arrest that
person without a person? A: No, ang may
personal knowledge ay ung witness, hindi
ung police.
- Failure – mere formal and not jurisdicitional
Signature of counsel Verification by Plaintiff
i. Read the i. Read the
pleading pleading
ii. Good ground to ii. True and correct
support it. based on personal
iii. Not interposed by knowledge
delay
CERTIFICATION AGAINST FORUM SHOPPING
Section 5. Certification against forum shopping.
— The plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting a
claim for relief, or in a sworn certification annexed thereto
and simultaneously filed therewith: (a) that he has not
theretofore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-
judicial agency and, to the best of his knowledge, no such
other action or claim is pending therein; (b) if there is such
other pending action or claim, a complete statement of the
present status thereof; and (c) if he should thereafter learn
that the same or similar action or claim has been filed or is
pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not
be curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of
the case without prejudice, unless otherwise provided,
upon motion and after hearing. The submission of a false
certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of
court, without prejudice to the corresponding
administrative and criminal actions. If the acts of the party
or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct
 REMEDIAL LAW
CIVIL PROCEDURE
contempt, as well as a cause for administrative sanctions.
(n)
NOTE: Ito na ung mga periphery, ung pleading kasi un
talga ung allegation constituting the ultimate facts. Ung
verification, and certification against forum shopping,
kumbaga embellishment nalang.
- Kung walang certification against forum
shopping, dismissable yan.
- Failure to comply, effect: NOT CURABLE BY
AMENDMENT, a ground for dismissal. Ratio:
You ony amend allegations constituting the
cause of action or defense. In otherwords, only
allegations of ultimate facts may be subject of
amendment BUT the dismissal is without
prejudice. XPN: unless otherwise provided by
hearing & motion
Q: What is a certification against forum shopping?
A: A Certifiication under oath:
i. that he has not theretofore commenced any
action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no
such other action or claim is pending therein;
ii. if there is such other pending action or claim, a
complete statement of the present status thereof;
and
iii. if he should thereafter learn that the same or
similar action or claim has been filed or is
pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
- these are the contents of a certification against
forum shopping;
―Failure to comply with the foregoing requirements
shall NOT BE CURABLE BY AMENDMENT of the
complaint or other initiatory pleading but shall be
cause for the dismissal of the case WITHOUT
PREJUDICE, unless otherwise provided, upon motion
and after hearing‖
- if there is a failure to comply with the requirement
for a certification, then, that is dismissable, and it
cannot be cured by amendment. Again, the
reason behind that is that you only amend an
allegation constituting a cause of action or
defense.
- If it is dismissed, the dismissal is without
prejudiced, pag sinabing ―without prejudiced‖,
―without prejudiced to being refiled‖- so pwede
pang irefile ulit, pero bayad ka ulit ng filing fee.
- Can only be dimissed upon motion and after
hearing
―unless otherwise provided, upon motion and after
hearing‖
- In otherwords, if the order of dismissal states that
it is with prejudice, then that is with prejudice.
- However, such order can only be done if there
was a motion to declare it with prejudice, and
after hearing
- In otherwords, there should be first a hearing
whether you committed forum shopping or not.
 Magpresent ka ebidensya nameron palang
unang kaso, motion, and hearing. Only then
may the court issue an order of dismissal
with prejudice.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 60 of 270
REITERATION: The mere mechanical absence of a
certification against forum shopping is already a ground for
the dismissal of the case and not curable by amendment.
But that dismissal is without prejudice and may only be
made upon motion
―The submission of a false certification or non-
compliance with any of the undertakings therein shall
constitute indirect contempt of court, without
prejudice to the corresponding administrative and
criminal actions.‖
- Non-compliance with any of the undertakings
therein (it na ung hearing‖
- Indirect contempt
- Administrative and criminal actions.
Administrative, sa abogado
NOTE: Criminal kasi pwede ka maperjury, under
oath e.
Q: When is there forum shopping?
A: When there is either i) litis pendentia; or ii) res
judicata.
TWO FORMS OF FORUM SHOPPING
1) Litis pendentia – two cases pending at the
same time;
-That there are two actions involving the
same parties.
Elements:
i. Identity of parties
ii. Identity of rights asserted, the two cases
are based on the same right
iii. The judgment in either case, whoever is
the winner, will constitute resjudicata.
-Litis pendentia involving the same parties,
the same cause of actions, reliefs based on
the same right, the same delict/wrong. In
otherwords, the last element, that the
pending case, a judgement in any one of
them, whoever party is successful will
constitute resjudicata upon the other or
others
2) Res judicata – talo ka na then punta ka pa
sa ibang court.
-May unang kaso, final na and executory,
nagfile ka again, involving the same parties,
the same right, the same cause of action.
NOTE: hence, sa pleading, there can only be one action
for a single cause of action. It can never be two. Because
if there are two actions, that can either constitute litis
pendentia, or resjudicata. Hence kung may simultaneous
cases, you are shopping from one court to another to get
what you want.
NOTE: A splitting, file ka to recover the principal, nanalo
ka na tapos, then you file another case to recover the
interest. That cannot be done, kasi splitting of cause of
action
Q: What is the test to determine whether the action is
a single cause of action?
A: If it is based on the same act or omission
e.g. Meron promissory note, ang sabi sa promissory
note, magbayad ng principal amount, at interest.
Nagasunto muna to recover principal, then nanalo,
tapos, naningil ulit based on interest. Splitting yan,
 REMEDIAL LAW
CIVIL PROCEDURE
kasi meron lang one delict/wrong, i.e the failure to
pay, isa lang ang omission.
―The plaintiff or principal party shall certify under
oath‖
Q: Who should issue the certification?
A: The plaintiff or the principal party.
Q1: If there are many plaintiffs, are they all required to
sign?
Q2: If only some and not all signed. Is the certification
insufficient? Hence, there is deemed no certication?
A1:Yes
A2:Yes, it would be insufficient, therefor initiatory.
Q: Pwede bang ang abogado ang magcertify against
forum shopping?
A: NO, a counsel is not a plaintiff nor a petitioner.
XPN: In one case, the lawyer of the solicitor general who
was assigned by a particular gov’t instrumentality signed
the certification. Kasi abogado yan ng gov’t
ESCOLIN: pero para sakin, pinilit lang ung decision.
RULE1: if the plaintiff or principal party is a juridical
person, the signatory must be an authorized
representative.
Q: In case the principal party is a juridical person, who
shall be the signatory?
A: Must be an authorized officer, namely, the person
designated by the board or governing body,
 Therefore, if it’s a corporation, there must be
a board resolution certified to by the
corporate secretary under oath that the
board of directors are authorizing the
President to issue the certification against
forum shopping. Even the president is not
presumed to be an authorized officer. There
must still be a corporate secretary certificate.
RULE2: Where the parties are suing under a common
cause of action, it is not necessary that all must sign.
 For e.g SPOUSES as to their common
property Husband lang pumirma, hindi ung
wife, pwede na daw. Substantial compliance
na because both of them are the
administrator of the common property.
 The contract is between the principal
employer, and the OFW, Under the migrant
act. Solidarily liable ang recruiter. Nagfile
ang employee sa POEA, nanalo, nagappeal
sa NLRC, nanalo parin si employee talo both
recruiter and principal recruiter. Nagfile
ngayon ng certiorari, si recruiter lang
pumirma, ung arabo na principal employer
hindi, nagfile ngayon ng motion to dismiss.
HELD: Sabi ng SC, pwede na yan. May
commonality.
MARCOS-ARANETA v. CA, G.R. No. 154096
August 22, 2008
FACTS: Certification of non-forum shopping in a petitioner
for certiorari before the CA was only signed by only the
daughter and not the mother.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 61 of 270
HELD Regarding the certificate of non-forum shopping,
the general rule is that all the petitioners or plaintiffs in a
case should sign it. However, the Court has time and
again stressed that the rules on forum shopping, which
were designed to promote the orderly administration of
justice, do not interdict substantial compliance with its
provisions under justifiable circumstances. As has been
ruled by the Court, the signature of any of the
principal petitioners or principal parties, as Francisca
is in this case, would constitute a substantial
compliance with the rule on verification and
certification of non-forum shopping. It cannot be
overemphasized that Francisca herself was a principal
party in Civil Case No. 3341-17 before the RTC and in the
certiorari proceedings before the CA. Besides being an
heir of Benedicto, Francisca, with her mother, Julita, was
substituted for Benedicto in the instant case after his
demise.
And should there exist a commonality of interest among
the parties, or where the parties filed the case as a
collective, raising only one common cause of action or
presenting a common defense, then the signature of one
of the petitioners or complainants, acting as
representative, is sufficient compliance. We said so in
Cavile v. Heirs of Clarita Cavile. Like Thomas Cavile, Sr.
and the other petitioners in Cavile, Francisca and Julita, as
petitioners before the CA, had filed their petition as a
collective, sharing a common interest and having a
common single defense to protect their rights over the
shares of stocks in question.
―in the complaint or other initiatory pleading asserting
a claim for relief‖
Q: When is a certification against forum shopping
required? Is it required in all pleadings?
A: NO, a certification against forum shopping is only
required in a 1) complaint 2) or other initatory pleading
(e.g counterclaim, third-party complaint and cross-claim,
petitioner for certiorari)
Q: Does a third party complaint require a certification
against forum shopping?
A: YES, because it is an initiatory pleading. In this case,
the plaintiff in a third party complaint is asserting its own
claim.
INITIATORY PLEADING, TO INITIATE, A PLEADING
THAT STARTS A CLAIM
Q: Does an answer require a certification?
A: No, not an initiatory pleading, it is a
responsive/defensive pleading. An answer is merely for
the purpose of controverting a claim. Naumpisahan na ung
claim ng iba, ikaw, sumasagot nalang.
Q: Does a counter-claim require a certification?
A: If it is a permissive counterclaim, the lack of a
certificate of non-forum shopping is fatal. If it is a
compulsory counterclaim, the lack of a certificate of non-
forum shopping is immaterial.
 REMEDIAL LAW
CIVIL PROCEDURE
certificate of non-forum shopping is fatal. If it is a
COMPULSORY COUNTERCLAIM BASED ON compulsory counterclaim, the lack of a certificate of non-
MALICIOUS SUIT; NOT INITIATORY: INITIATED BY forum shopping is immaterial.
THE ORIGINAL COMPLAINT ITSELF, A REACTION
Illustrative case: COMMENT: If it is compulsory counterclaim, the initatory
Santo Tomas University Hospital v. Surla, G.R. No. pleading is always the complaint since under the rules, a
129718. August 17, 1998 compulsory counterclaim must always be raised in the
FACTS: Respondent spouses filed a complaint for answer. In other words, compulsory counterclaim is
obligatory. Under sec. 2 of rule 9, failure to raise a
damages against petitioner Santo Tomas University
compulsory counter claim or crossclaim shall be barred.
Hospital with the Regional Trial Court on an allegation by
Since your obliged to raise it there, it loses the character
the spouses that their son, Emmanuel Cesar Surla, while
of iniatory. The one that initiated is the complaint.
confined at the said hospital for having been born
prematurely, had accidentally fallen from his incubator
possibly causing serious harm on the child. Petitioner
PETITION FOR CERTIORARI, AN INITIATORY
hospital filed its Answer with Compulsory Counterclaim
PLEADING
asserting (i) that respondents still owed hospital bills for
Q: Is a certification against forum shopping required in a
Emmanuels confinement at the hospital and (ii) malicious
petition for certiorari?
prosecution. The counterclaim did not contain a
A: Yes becausea petition for certiorari is an intiatory
certification agains forum shopping, as a consequence,
pleading.
the respondents sought for its dismissal.
ISSUE: WON a certification against forum shopping is
TEST OF FORUM SHOPPING:
required in this counter claim.
Two kinds: 1) Litis pendentia 2) Res Judicata
HELD: The so called counterclaim of petitioner really
- Forum shopping is the act of litigant who
consists of two segregative parts: (1) for unpaid hospital repetitively avail judicial remedies in different for
bills of respondents son, Emmanuel Surla; and (2) as to increase his chances of obtaining
malicious prosecution. It is the malicious prosecution (not favourable decision.
the claim for hospital bills) which is not being initiatory in 1) Identity of parties
character. Since it is the complaint itself that precipitated 2) Identity of rights
the malicious prosecution, it is not initiatory. By the mere 3) Identity of reliefs prayed for
filing of the case, you cause the damage to the reputation 4) The identity involved that any judgment in
of the hospital, that is although compulsory, there is no one will constitute res judicata in one
need to file certification since it is not considered
inititatory. The claim under the malicious prosecution is VERIFICATION CERTIFICATION AGAINST
born out by the fact that plaintiff filed the malicious suit. NON-FORUM SHOPPING
Actually, the one that inititate the counterclaim alleging
malicious prosecution was the filing of the complaint. Had - A pleading is - A certification under
verified by an oath by the plaintiff or
it not been for the filing of the complaint, no counterclaim
affidavit that the principal party in the complaint
for malicious complaint would have been filed. The very affiant has read or other initiatory pleading
act which is considered malicious is the very act of filing the pleading asserting a claim or relief or in
the complaint. In which case, no need to have a and that the a sworn certification annexed
certification. The counterclaim is merely a reaction to the allegations thereto and simultaneously
filing of a complaint. But as to the claim for unpaid hospital therein are true filed therewith that:
bills, there must be a certifification. and correct of a) He has not
Q2: Is the claim for unpaid hospital bills, compulsory? his personal theretofore
A2: Yes, the four elements are present. The counterclaim knowledge or commenced any
arises out of or necessarily connected with the transaction based on action or filed any
or occurrence which is the subject of the plaintiff’s authentic claim involving the
complaint. The transaction in this case is the records. same issues in any
- The party need court, tribunal, or
hospitalization of the child.
not sign the quasi-judicial agency
verification. A and to the best of his
PERMISSIVE COUNTERCLAIM, LACK OF party’s knowledge, no such
CERTIFICATION, FATAL-ALWAYS REQUIRED; representative, other claim is
COMPULSORY COUNTERCLAIM, NON-FORUM lawyer or any pending therein;
SHOPPING IMMATERIAL person who b) If there’s such other
personally pending action or
Cruz-Agana v. Santiago-Lagman, G.R. No. 139018 knows the truth claim, a complete
, April 11, 2005 of the facts statement of the
alleged in the present status
HELD: The sole issue for resolution in the present case is pleading may thereof;
whether respondent's counterclaim is compulsory or sign the c) If he should
permissive. If it is a permissive counterclaim, the lack of a verification; thereafter learn that
- Requirement the same or similar

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 62 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
is formal not action or claim has of the certificate of
jurisdictional. been filed/pending, non-forum shopping
Absence he shall report that constitutes
fact w/in 5 days substantial
therefrom to the compliance with the
court wherein his Rules. (SAN
aforesaid complaint MIGUEL CORP vs
or initiatory pleading ABALLA)
has been filed.
- Such reqt applies
even to corporations
- GR: (1) lack of How do you allege?
certification is RULE 8
generally not curable MANNER OF MAKING ALLEGATIONS IN PLEADINGS
by the submission Section 1. In general. — Every pleading shall
thereof after the contain in a methodical and logical form, a plain, concise
fiiling of the petition;
and direct statement of the ultimate facts on which the
(2) certificate must
be signed by ALL party pleading relies for his claim or defense, as the case
THE may be, omitting the statement of mere evidentiary facts.
PLAINTIFFS/PETITI (1)
ONERS and the
signature of only one If a defense relied on is based on law, the pertinent
of them is provisions thereof and their applicability to him shall be
insufficient; clearly and concisely stated. (n)
- Where there are two Q: What must be the form?
or more plaintiffs or A: It must be in methodical and logical form
petitioners, a Q: What is the tenor?
complaint or petition
A: Must be plain, concise, direct statement of ultimate
signed by only one of
them is defective, facts.
unless he was ―Ultimate facts‖
authorized by his co-
Q: What is the test for determining the sufficiency of
parties to represent
the facts alleged in the complaint constituting
them and to sign the
certification, plaintiff‘s cause of action?
(LOQUIAS vs
A: The test applied to determine the sufficiency of the
OFFICE OF THE
OMBUDSMAN) facts alleged in the complaint constituting the cause of
XPN: substantial action is whether upon such facts a valid judgment may be
compliance under rendered against the defendant.
certain exceptional Q: When may the facts lead to a valid judgment
circumstances against the defendant?
(MEDISERV v INC.)
For e.g where the A: We go back to our understanding of what a cause of
petitioners filed a action is. What again is a cause of action? A cause of
collective action in action has been defined as the act or omission committed
which they share by the defendant in violation of the plaintiff’s right.
common interest in
its subject matter or - When we our discussing cause of action, we said
raise a common that there are three elements of a cause of
cause of action, action, namely, i) right of the plaintiff (e,g if the
certification by one right is based on a contract, then state it); ii) the
corresponding obligation on part of the defendant
of the petitioners
to respect plaintiff’s right; iii) the act or omission,
may be deemed
or the delict/wrong committed by the defendant in
sufficient. (ESPIRITU violation of the plaintiffs right.
vs PETRON) THEREFORE: To determine the sufficiency of the facts
- Given the collective alleged constituting the cause of action, the test is where
nature of the petition upon such facts a valid judgement may be rendered
(97 complainants)
against the defendant. And a valid judgement may be
raising one common
rendered against the defendant if there is an allegation of
cause of action, the
execution of only i) right, ii) obligation, iii) or act or omission.
three of them on
behalf of the others

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 63 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
―omitting the statement of mere evidentiary facts‖ Section 13. Alternative defendants. —
- Statement of evidentiary facts must be omitted Where the plaintiff is uncertain against who of
and likewise not argumentative several persons he is entitled to relief, he may
- Must only state ultimate facts constituting the join any or all of them as defendants in the
plaintiff’s cause of action. alternative, although a right to relief against one
may be inconsistent with a right of relief against
the other. (13a)
ALTERNATIVE CAUSES OF ACTION OR DEFENSES
e.g. kung di ka sigurado kung sino may
Section 2. Alternative causes of action or
kasalanan, if sumakay ka sa bus, tas
defenses. — A party may set forth two or more
nagkamishap. Sue ung bus (contract of carriage);
statements of a claim or defense alternatively or
or sue on the basis of quasidelict
hypothetically, either in one cause of action or defense or
in separate causes of action or defenses. When two or IF ONE STATEMENT IS SUFFICIENT, THE PLEADING
more statements are made in the alternative and one of IS NOT MADE INSUFFICIENT BY THE INSUFFICIENY
them if made independently would be sufficient, the OF THE ALTERNATIVE STATEMENT
pleading is not made insufficient by the insufficiency
Illustrative case:
of one or more of the alternative statements. (2)
Gatchalian v. Pavilin, G.R. No. L-17619. October 31,
1962
―A party may set forth two or more statements of a
FACTS: Petitioner Gatchalian claims to be the owner of a
claim or defense alternatively or hypothetically, either
tract of land consisting of three lots, and that portions
in one cause of action or defense or in separate
thereof were "by means of force, strategy and/or stealth,
causes of action or defenses‖
unlawfully entered" by herein defendants-appellants. In
- This applies not only to claims but ALSO TO their answer, appellants not only denied all the material
DEFENSES
facts and allegations of the complaint but also made
e.g. Defenses raised alternatively, although not
"Affirmative and Alternative Defenses" with"
consistent with one another. Like sinisingil ka
Counterclaim", with special emphasis on the fact that said
based on a promissory note, you may raise in the
Certificate of Title of petitioner is null and void ab initio, the
alternative that there was fraud, and in the
same being a forest land at the time it was allegedly
althernative, forgery.
bought by plaintiff. Furthermore, appellants claim in their
answer that "the alleged landholding and title of the
―When two or more statements are made in the
plaintiff could not have covered defendant’s landholding"
alternative and one of them if made independently
Defenses of Pavilin:
would be sufficient, the pleading is not made
1.Considered as Forest land(part of public domain),
insufficient by the insufficiency of one or more of the
The title null and void
alternative statements‖
2.Property of defendant not covered by plaintiff’s title
E.g. if plaintiff files for reconveyance of real
Upon motion of the plaintiff, the court below declared that
property, he based his claim on the fact that he
there was no genuine issue of fact in so far as the title to
bought the real property (right based on
the property was concerned, and granted summary
contract). However, in the alternative, he claims
judgment in her favor, ordering defendants to vacate the
that he inherited it from his parents. (based on
land.
inheritance). This is proper even if the claims are
ISSUE: WON the order of the lower court is correct
incompatible with each other.
HELD: NO, the Rules of Court specifically authorizes
the pleading of alternative or hypothetical defenses,
READ IN CONNECTION WITH JOINDER OF CAUSE OF
19 and such defenses may be inconsistent with each
ACTION (RULE 2, SEC.5) , AND
other provided each is consistent in itself
ALTERNATIVEDEFENDANTS (RULE 3, SEC. 16)

ALTERNATIVES MUST BE RAISED

19
Section 5. Joinder of causes of action. — A party may in one
pleading assert, in the alternative or otherwise, as many causes of
action as he may have against an opposing party, subject to the
following conditions:
(a) The party joining the causes of action shall comply with the
rules on joinder of parties;
(b) The joinder shall not include special civil actions or actions
governed by special rules;
(c) Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder may be
allowed in the Regional Trial Court provided one of the causes of action
falls within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes action are principally for
recovery of money, the aggregate amount claimed shall be the test of
jurisdiction. (5a)
SIMULTANEOUSLY IN THE ORIGINAL COMPLAINT;
OTHERWISE THE OTHER MAY BE BARRED BY RES
JUDICATA
Illustrative case:
Marquez v. Valencia, G.R. No. L-7328, August 21, 1956
FACTS: Appellee Vicente Valencia applied for the
registration of two parcels of land, claiming that he had
acquired title thereto because the Appellant spouses
Laureano Marquez and Eusebia Capiral had failed to
repurchase the parcels of land within the period of time
stipulated in a contract Pacto de Retro (first claim).
Appellant Laureano Marquez and Eusebia Capiral
objected to the application claiming ownership over the
land, and that the parcels of land were the subject of

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 REMEDIAL LAW
CIVIL PROCEDURE
litigation between them and the applicant then pending in setup lack of jurisdiction over the person. In summary,
another Court. Another civil case involves a consolidation it is our considered view, as we now so hereby express,
of title where Appellant Spouses claim that the pacto de that — (1) Jurisdiction over the person must be
retro sale is void and is merely an equitable mortgage. seasonably raised, i.e., that it is pleaded in a motion to
Ulmately, the SC held in the said other civil case that the dismiss or by way of an affirmative defense in an answer.
contract is equitable mortgage, and ordered the appellant Voluntary appearance (by filing counterclaim-affirmative
to pay the price. Because of that SC decision, the Appelle relief) shall be deemed a waiver of this defense. The
Valencia amended his application claiming that he assertion, however, of (other) affirmative defenses shall
acquired the lot by inheritance (second claim), that he had not be constructed as an estoppel or as a waiver of such
possessed the same as owner thereof. The trial court, in defense.; (2) Where the court itself clearly has no
the land registration case, dismissed the application for jurisdiction over the subject matter or the nature of the
registration filed by the respondent, on the ground of res action, the invocation of this defense may be done at any
judicata. The CA reversed, being of the opinion that the time. It is neither for the courts nor the parties to violate or
judgment in the other civil case did not bar the filing of an disregard that rule, let alone to confer that jurisdiction, this
amended application for registration because the rules matter being legislative in character. Barring highly
allow alternative causes of action. meritorious and exceptional circumstances, such as
ISSUE: WON the civil other case did not bar the filing of hereinbefore exemplified, neither estoppel nor waiver shall
an amended application for registration because the rules apply.
allow alternative causes of action.
HELD: NO, the second claim (inheritance) albeit not
consistent with the first claim (pacto de retro) should have FACTS THAT MAY BE THOSE WHICH MUST BE
been pleaded in the original pleading. The application of AVERRED GENERALLY? ALLEGED WITH
the rules on alternative action or defenses applies if PARTICULARITY
both defenses are raised in the original pleading, the
failure to raise the second claim of inheritance in the 1) Occurrence of 1) Circumstances
original pleading bars him now to amend his petition conditions precedent constituting fraud or
23
on the ground of res judicata. The defendant having – no need to state the mistake (Sec. 5) -
failed to set up such alternative defenses and chosen or factual circumstances sabihin mo kung pano
elected to rely on one only, the overruling thereof was a regarding the condition ka niloko, o kung
precedent that you’ve pano ka nagkamali.
complete determination of the controversy between the
undergone conciliation Wag mo lang sabihin
parties which bars a subsequent action based upon an
before Katarungang na ―he committed
unpleaded defense, or any other cause of action, except Pambarangay, and no fraud‖/‖there was
that of failure of the complaint to state a cause of action conciliation was arrived mistake‖
and of lack of jurisdiction of the Court at. Wag mo na sabihin 2) Capacity of party to
date of filing etc. (sec. sue or be sued,
20
IMPROPER VENUE/LACK OF JURISDICTION OVER 3, Rule 8) authority to sue, legal
PERSON MAY BE RAISED IN THE ALTERNATIVE 2) Exhaustion of existence of
WITH OTHER AFFRIMATIVE DEFENSES WITHOUT administrative association- (Sec.
24
WAIVING THE DEFENSE OF IMPROPER VENUE/ remedies – When do 4) — In otherwords,
IMPROPER SERVICE OF SUMMONS you consider the case facts showing capacity
quasi-judicial? In order of a person to sue, so
-under the old rules, improper venue may only be raised in
to exercise judicial sabihin mo dyan ―Juan
the motion to dismiss. You can’t raise it in the answer. And
power – the first dela cruz, of legal
if raised in the motion to dismiss, it must only be the sole requirement ACTUAL age‖/‖XYZ corp, with
ground. This is based on the ground that if you raised CONTROVERSY juridical personality‖
other grounds, or raised it in the answer, you are deemed For e.g COMELEC NOTE: If you are a
to have waived improper venue by asserting the exercising juridical foreign entity
jurisdiction of the court since you are also asking a ruling administrative function, suing under the
on the other grounds (e.g. prescription). no quasi-judicial isolated transaction
Illustrative case: power. But after rule. You must allege
La Naval Drug v. CA, G.R. No. 103200, August 31, 1994 election, there’s protest your juridical existence
and prove that you are
(may actual
ISSUE: whether or not the submission of other issues in a indeed a juridical
motion to dismiss, or of an affirmative defense (as
20
distinguished from an affirmative relief) in an answer, Section 3. Conditions precedent. — In any pleading a
would necessarily foreclose, and have the effect of a general averment of the performance or occurrence of all conditions
waiver of, the right of a defendant to set up the court's lack precedent shall be sufficient. (3)
23
Section 5. Fraud, mistake, condition of the mind. — In all
of jurisdiction over the person of the defendant.
averments of fraud or mistake the circumstances constituting fraud or
HELD: NO. the submission of other issues in a motion mistake must be stated with particularity. xxxx
24
Section 4. Capacity. — Facts showing the capacity of a party
to dismiss or of an affirmative defense (as
to sue or be sued or the authority of a party to sue or be sued in a
distinguished from an affirmative relief) in an answer, representative capacity or the legal existence of an organized
does not have the effect of a waiver of the right to association of person that is made a party, must be averred (4)

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 65 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
controversy na) person. Otherwise you - that D issued PN- existence
COMELEC upon cannot have access to - obligating himself to pay P1m, copy is
resolving the issue is phil. courts. Reason is attached – substance
now exercising quasi- that the court would 2. VERBATIM COPY: said copy may with like
judicial functions. not take judicial notice effect be set forth in the pleading-the document
3) Malice, intent, of the existence of that is reproduced in the pleading itself-copy it in the
knowledge, or other juridical corp. pleading verbatim- copy attached becomes part
conditions of mind- 3) Issue as to the legal of the pleading
Bad Faith yan, ill intent, existence, capacity to - D issued PN then copy the PN verbatim
he acted maliciously, sue or be sued in a
Insane (wag mo na representative CONTESTING THE GENUINESS AND DUE EXECTION
sabihin kung bakit capacity, shall do so
OF AN ACTIONABLE DOCUMENT; EFFECT OF
insane, na by specific denial.
(Sec. 4, Rule 8)
25 FAILURE TO CONTEST IS AN ADMISSION THEREOF
nagsasayaw pa sya sa
-so sabihin mo, no Section 8. How to contest such documents. —
full moon) (Sec 5, Rule
8)
21 capacity to sue kasi When an action or defense is founded upon a written
4) Judgment/Decision - minor yan, and he was instrument, copied in or attached to the corresponding
without setting forth born on this date. pleading as provided in the preceding section, the
jurisdiction don’t say genuineness and due execution of the instrument shall be
that under B.P 129, it deemed admitted unless the adverse party, under oath
has jurisdicition to hear specifically denies them, and sets forth what he claims to
the case. (Sec. 6, Rule
22 be the facts, but the requirement of an oath does not apply
8)
when the adverse party does not appear to be a party to
the instrument or when compliance with an order for an
inspection of the original instrument is refused. (8a)
ACTIONABLE DOCUMENT
Q: How shall the adverse party contest the the genuiness
Section 7. Action or defense based on and due execution of the document? and effect of failure
document. — Whenever an action or defense is based to contest it and the manner provided by the rules ?
upon a written instrument or document, the substance of
such instrument or document shall be set forth in the A: The adverse party, under oath, must specifically
pleading, and the original or a copy thereof shall be deny them, AND set forth what he claims to be the facts
attached to the pleading as an exhibit, which shall be i. Under oath
deemed to be a part of the pleading, or said copy may with Q: In what cases when a simple specific
like effect be set forth in the pleading. (7) denial not under oath is sufficient to contest
Q: What is an actionable document? the genuiness and due execution of the
A: Actionable document is one which is the very basis actionable document?
of the cause of action or defense. The document is the A: INSTANCES where mere denial w/o
very basis of his right (cause of action) or defense. OATH is sufficient:
(1) Adverse party is not a party to the
Q: How shall an actionable document pleaded? instrument
(2) Compliance with an order for
TWO WAYS inspection of the original
instrument is refused
1. SUBSTANCE+ATTACHMENT:the substance of
ii. Specifically deny
such instrument or document shall be set forth
in the pleading, AND the original or a copy iii. Set forth the facts
thereof shall be attached to the pleading
- state its EXISTENCE and substance EFFECT of failure to deny it in such manner: the
and ATTACH AS AN EXHIBIT (i)genuineness AND (ii) due execution (ONLY) shall be
admitted.
21
e.g. if he only complies with specific denial but not under
Section 5. Xxx condition of the mind. — xxx. Malice, intent, oath, he is deemed to have admitted the But note the
knowledge, or other condition of the mind of a person may be averred
generally exceptions, viz., i) adverse party is not a party;ii)
22
Section 6. Judgment. — In pleading a judgment or decision compliance with oder to inspect is refused.
of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the judgment or decision without ―the genuineness and due execution of the instrument
setting forth matter showing jurisdiction to render it. (6) shall be deemed admitted‖
25
Section 4 –xxx A party desiring to raise an issue as to the legal
Q: What are the facts admitted by a party who fails to
existence of any party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall contest the actionable document?
include such supporting particulars as are peculiarly within the A: The genuiness and due execution ONLY.
pleader's knowledge.

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 REMEDIAL LAW
CIVIL PROCEDURE
―Genuineness and due execution‖
Q: What are the facts deemed admitted?
A: The admission of the genuineness and due execution
of an instrument means:
1. that the party whose signature it bears admits
that he signed it or that it was signed by another
for him with his authority;
- admits that he signed it. The signature is
not a forgery
- if signed by a respresentaive, such other
person is really authorized
2. that at the time it was signed it was in words and
figures exactly as set out in the pleading of the
party relying upon it;
- figures and words appearing thereon
are what they purport to be
- pag sinabing 1k , 1k yan, di 100k,
nafalsified, dinagdagan ng zero, if
nagfail to specifically deny under oath,
you can no longer prove the falsification
3. that the document was delivered; and
4. that any formal requisites required by law,
such as a seal, an acknowledgment, or revenue
stamp, which it lacks, are waived by him.
NOTE: The admission of genuiness and due execution
only relates to these four facts. Exclusive list.
DEFENSE OF ILLEGALITY OF CONSIDERATION IS A
MATTER NOT INCOSISTENT WITH GENUINESS AND
DUE EXECUTION. HENCE, NOT BARRED;
Illustrative cases:
Hibberd v. Rohde, G.R. No. 8418. December 9, 1915
FACTS: Hibberd a suit on a promissory note against the
makers. Only one of them, the defendant Rohde,
appeared and answered. Defendant did not enter a
verified specific denial of the genuineness and due
execution of the note. The defense of Rohde is the
illegality of the consideration. The plaintiff claims that
defendants’ special defense of illegality of consideration is
cut off since there is now an admission of genuiness and
due execution of the document.
ISSUE: WON defendant Rohde may no longer invoke the
illegality of consideration due to his failer to specifically
deny under oath the due execution and genuiness of the
promissory note.
HELD: NO. The special defense interposed by the
defendant of illegality of consideration is not barred by
his failure to enter a verified denial of the genuineness
and due execution of the note set out in the complaint.
The defense of illegality of consideration does not relate to
genuiness and due execution; hence, not inconsistent with
genuiness and due execution.
―Genuineness and due execution‖
Q: What are the facts deemed admitted?
A: By the admission of the genuineness and due
execution of an instrument is meant that:
1. that the party whose signature it bears admits
that he signed it or that it was signed by another
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 67 of 270
for him with his authority;
- admits that he signed it. The signature is
not a forgery
- if signed by a respresentaive, such other
person is really authorized
2. that at the time it was signed it was in words and
figures exactly as set out in the pleading of the
party relying upon it;
- figures and words appearing thereon
are what they purport to be
- pag sinabing 1k , 1k yan, di 100k
3. that the document was delivered; and
4. that any formal requisites required by law,
such as a seal, an acknowledgment, or revenue
stamp, which it lacks, are waived by him.
NOTE: The admission of genuiness and due execution
only relates to these four facts.
DEFENSES NOT ALLOWED: Hence, such defenses as
i. that the signature is a forgery; or
ii. that it was unauthorized, as in the case of an
agent signing for his principal, or one signing in
behalf of a partnership, or of a corporation; or
iii. that, in the case of the latter, that the corporation
was not authorized under its charter to sign the
instrument; or
iv. that the party charged signed the instrument in
some other capacity than that alleged in the
pleading setting it out; or
v. that it was never delivered are cut off by the
admission of its genuineness and due execution.
DEFENSES NOT BARRED: But we have held that the
section is not applicable to:
i. the indorsement on a promissory note in a suit
against the maker;
ii. nor against the heirs of a decedent who signed a
document declared upon
iii. the defense of want of consideration.
iv. the defense of illegality of consideration.
v. the date of delivery or the circumstances of the
signing as bearing on any defenses dependent
on time in any way.
LACK OF CONSIDERATION IS NOT INCONSISTENT
WITH GENUINESS AND DUE EXECUTION
Illustrative case:
BOUGH vs CANTIVEROS, G.R. No. 13300
September 29, 1919
FACTS: Matilde Cantiveros was the owner of various
parcels of realty. Matilde Cantiveros and her husband
Jose Vasquez, signed a marital contract of separation. At
this time there lived with Matilde Cantiveros, Basilia
Hanopol, a cousin and protege since childhood, who was
married to Gustavus Bough. For this reason, Gustavus
Bough was regarded by Matilde Cantiveros with great
confidence, even as her child. Through the influence of
Gustavus Bough, who brought a story to Matilde
Cantiveros that her husband Jose Vasquez was in town
and might contest the contract for the separation of the
conjugal property, Matilde Cantiveros was induced to sign
a fictitious contract of sale of all her property to Basilia
Bough. In order to reassure Matilde Cantiveros that they
would not take advantage of the fictitious sale, Gustavus
 REMEDIAL LAW
CIVIL PROCEDURE
Bough and Basilia Bough prepared and signed a return
document, which is a donation by them to Matilde
Cantiveros of all the property, to be effective in case of the
death of themselves and their children before the death of
Matilde Cantiveros. The defendant, Matilde Cantiveros,
has remained in possession of the property. Thereafter,
plaintiffs Basilia Bough and Gustavus Bough sought to
have themselves put in possession of the property.
Matilde Cantiveros answered with a general denial and a
special defense, not sworn to (Not under oath), in which
she asked that judgment be rendered declaring the
contract of sale theretofore made between herself and
Basilia Bough null. During the trial, defendant Matilde was
called to testify that the sale was a fictitious sale. The
plaintiffs now objected to the presentation of Matilde to
testify that the sale was fictitious on the ground that
Matilde admitted the genuiness and due execution of the
actionable document by failing to deny the same under
oath.
ISSUE: Can Matilde still testity that the sale was fictitious
notwithstanding the admission of the due execution and
genuiness of the sale?
HELD: YES. The defense that the sale is fictious, that
there was no consideration, and that there was fraud are
not inconsistent with the admission of the due execution
and genuiness of the actionable document.
REITERATION: Failure to make specific denial under
oath results in technical admission of the ff:
1. The signature appearing thereon is the signature of
the party who signed it was genuine or if it be signed
by a representative, such representative was duly
authorized
2. That the words and figures appearing in the document
are what as it purports to be
3. That document was delivered – that iit was duly
executed in accordance with law by the parties
4. That the formal requisites required by law (for e.g
seal, doc stamp, duly notarized) are deemed to be
waived
In other words, anything that is inconsistent with these four
are deemed admitted.
ACTIONABLE DOCUMENT MAY BE FOUND NOT
ONLY IN THE COMPLAINT BUT ALSO IN THE
ANSWER; REPLY IS MANDATORY WHEN THE VERY
BASIS OF THE DEFENSE IN AN ANSWER IS BASED
ON AN ACTIONABLE DOCUMENT
- Generally, reply is not mandatory
- In case of failure to make a reply, all the new
matters raised in the answer are deemed
controverted.
- However, where the answer is based on an
actionable document, if you want to question its
genuiness and due execution, that is one of the
rare instance when a reply becomes mandatory.
Otherwise, the effect is an admission. The reply
should also have been verified.
Illustrative case:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 68 of 270
Toribio v. Bidin, G.R. No. L-57821, January 17, 1985
FACTS: There was a property inherited by 8 children. It
would appear that the share of 3 heirs were now sold by
one of the brothers to a third person (defendant in this
case). The said 3 heirs now sued the defendant alleging
that their shares had never been sold nor in any wise
transferred or disposed to others. In their answer, the
defendants-respondents alleged that the shares of
plaintiffs-petitioners had likewise been sold to Dionisio
Toribio, the brother of the 3, who, in turn, sold the same to
Juanito Camacho and Dalmacio Ramos. (2 sales) The
alleged sale (sale1) from petitioners to Dionisio and the
sale (sale2) from Dionisio to the respondents were
evidenced by deeds of sale, xerox copies of which were
appended to and made an integral part of the respondents'
partition agreement between the respondents and also a
xerox copy of the respondents' transfer certificates of title.
While testifying during the trial, Eusebia Toribio (one of the
plaintiffs, one of the one who allegedly sold the land to the
other brother) was asked whether she executed any sale
of her share in the parcel of land in litigation to the brother.
The counsel for private respondents objected, raising the
proper mode of contesting the genuineness of an
actionable document since there was no reply made.
The trial court sustained the objection. It must be noted
that in this case, one of the plantiffs is merely the heir of
the one who sold the property.
ISSUE1: whether or not the deeds of sale allegedly
executed by the petitioners in favor of their brother
Dionisio Toribio and appended to the respondents' answer
are merely evidentiary in nature or the very foundation of
their defense which must be denied under oath by the
petitioner.
HELD1: No, they are actionable documents since they are
the very basis of the defense of the defendants in this
case.
ISSUE2: WON the rules on actionable document applies
only to the complaint. The deed of sale executed by the
petitioners in favor of their brother Dionisio is an essential
and indispensable part of their defense to the allegation
that the petitioners had never disposed of their property.
HELD2: NO, the rules on actionable document applies
also when it is the very basis of the defense
ISSUE3: WON the order of the trial court sustaining the
objection is correct
HELD3: NO. One of the exceptions to the oath
requirement under the rules on actionable document is
when the adverse party is not a party in the document. the
heirs of Olegario Toribio, his widow and minor children
represented by their mother, are among the plaintiffs-
petitioners. They are not parties to the deeds of sale
allegedly executed by their father, aunt, and uncle. They
are not required to deny the deeds of sale under oath. The
private respondents will still have to introduce evidence to
establish that the deeds of sale are genuine and that they
were truly executed by the parties with authority to dispose
of the disputed property. It bears repeating that rules of
 REMEDIAL LAW
CIVIL PROCEDURE
procedure should be liberally construed to the end that
substantial justice may be served
COMMENT: Ang nagtetestify dito, party sa document,
pero since of the the plaintiffs was not a signatory, it will
be unjust for him if toribio would be excluded. Kaya nga in
the interest of justice nalang.
TECHNICAL ADMISSION IS DEEMED WAIVED IF
PRESENTATION OF EVIDENCE IS NOT OBJECTED TO
; NO DEEMED ADMISSION ON THE PART OF THE
OTHER PARTY WHO PRESENTED EVIDENCE
Illustrative cases:
Central Surety vs Hodges, G.R. No. L-28633, March 30,
1971
FACTS: Certain lots had been sold by C. N. Hodges to
Vicente M. Layson, payable on installments. In order that
Layson could use said lots as security for a loan he
intended to apply from a bank, Layson persuaded Hodges
to execute in his (Layson's) favor a deed of absolute sale
over the properties, with the understanding that he would
put up a surety bond to guarantee the payment of said
balance. Accordingly, on the date above-mentioned,
Layson executed, in favor of Hodges, a promissory note.
To guarantee the same, the Central Surety executed in
favor of Hodges the surety bond through Mrs Mesa, the
manager. When Layson defaulted in the discharge of his
aforesaid obligation, Hodges demanded payment from
Central Surety, which, despite repeated extensions of time
granted thereto, at its request, failed to honor its
commitments under the surety bond. Accordlingly, Hodges
commenced the present action against Layson and
Central Surety, to recover from them the amount. In his
answer to the complaint, Layson admitted the formal
allegations and denied the other allegations thereof. In its
answer, Central Surety disclaimed liability under the surety
bond in question, upon the ground (a) that the same is null
and void, it having been issued by Mrs. Rosita Mesa after
her authority therefor had been withdrawn and had
expired; (b) that even under her original authority Mrs.
Mesa could not issue surety bonds in excess of P8,000.00
without the approval of petitioner's main office which was
not given to the surety bond in favor of Hodges. In other
words, the defense was lack of authority on the person to
sign the document. Nonetheless, the answer was not
verified or under oath. During the trial, Central Surety
presented evidence to establish that the manager had no
authority to sign the document.
ISSUE1: Was there an admission of the genuiness and
due execution of the actionable document?
HELD1: Yes, since the answer was not verified
ISSUE2: Can central surety still invoke lack of authority of
the manager to sign
HELD2: Yes. In this case, where a case has been tried in
complete disregard of the rule and the plaintiff having
pleaded a document by copy, presents oral evidence to
prove the due execution of the document as well as the
agent's authority and no objections are made to the
defendant's evidence in refutation, the rule will be
considered waived. Hodges had neither objected to the
evidence introduced by petitioner herein in order to
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 69 of 270
prove that Mrs. Mesa had no authority to issue a
surety bond. Hence, Hodges must be deemed to have
waived the benefits of said rule and petitioner herein
cannot be held liable in excess of the sum of
P8,000.00.
Jabalde v. PNB, G.R. No. L-18401, April 27, 1963
FACTS: Plaintiff-appellant Perfecto Jabalde seeks
recovery of P10,000.00 allegedly deposited by him with
the defendant-appellee Philippine National Bank,
P5,000.00 in genuine Philippine currency on 21 July 1941
and another P5,000.00 on 30 August 1943 in mixed
genuine Philippine currency and Japanese military notes.
The complaint recites the printed wording of plaintiff's
passbook, and allegedly reproduces page one thereof,
reciting it to be as follows:
―Philippine National Bank
Manila, Philippines
in account with
July 21, 1941 P5,000.00
AUG. 30, 1943 5,000.00‖
The defendant's answer was not under oath, and admits
the making of the foregoing deposits, but denies the dates
of deposit, alleging as the true dates 21 July 1944 and 30
August 1944, and avers that the entries in the passbook
as to the deposit dates were "knowingly, unlawfully and
maliciously" altered by the plaintiff; and that the deposits
were all in Japanese military notes not genuine ph
currency
ISSUE: whether the bank's failure to deny under oath the
entries in the passbook as "copied" in the complaint
constitutes an admission of the genuineness and due
execution of the document.
HELD: NO. Ordinarily, such failure is an admission.
However, this rule cannot apply in the present case
because the plaintiff introduced evidence purporting
to support his allegations of deposit on the dates he
wanted the court to believe, AND offered no objection
during the trial to the testimonies of defendant's
witnesses and documentary evidence showing
different dates of deposit. By these acts, the plaintiff
waived the defendant's technical admission through
failure to deny under oath the genuineness and due
execution of the document.
CONTESTING ACTIONABLE DOCUMENT; REASON
FOR THE RULE. — As early as Lim-Chingco v. Terariray
(5 Phil. 120), this Court gave the reason for the rule on
contesting actionable documents. The purpose of the
enactment (sec. 103) appears to have been to relieve a
party of the trouble and expense of proving in the first
instance an alleged fact, the existence or non-existence of
which is necessarily within the knowledge of the adverse
party, and of the necessity (to his opponent's case) of
establishing which such adverse party is notified by his
opponent's pleading. As stated earlier, the reason for the
 REMEDIAL LAW
CIVIL PROCEDURE
rule is to enable the adverse party to know beforehand
whether he will have to meet the issue of genuineness
or due execution of the document during trial. (In re
Dick's Estate, 235 N.W. 401). While mandatory, the rule is
a discovery procedure and must be reasonably construed
to attain its purpose, and in a way as not to effect a denial
of substantial justice. The interpretation should be one
which assist the parties in obtaining a speedy,
inexpensive, and most important, a just determination of
the disputed issues.
REITERATION: Q: What is meant by due execution
and genuineness?
A: The genuineness and due execution of a written
instrument, properly pleaded, is deemed admitted
unless the plaintiff or defendant, as the case may be,
shall specifically deny the same under oath. The
phrase "genuineness and due execution of the instrument"
means nothing more than that the instrument is not
spurious, counterfeit, or of different import on its face
from the one executed.
The failure of the party to file an affidavit denying the
genuineness and due execution of the document does
not estop him from controverting it by evidence of
fraud, mistake, compromise, payment, statute of
limitations, estoppel, and want of consideration.
(Bough vs Cantiveros)
SPECIFIC DENIAL
Sec 10 Specific Denial - A defendant must :
1) Specify each material allegation of fact the truth of
which he does not admit and, whenever practicable, shall
set forth the substance of the matters upon which he relies
to support his denial (not enough that you deny-must also
state the basis of denial, otherwise general denial,
deemed admitted).
2.) Where a defendant desires to deny only a part of an
averment, he shall specify so much of it as is true and
material and shall deny only the remainder. (not enough
that you deny-must also state the basis of denial,
otherwise general denial, deemed admitted).
3) Defendant is without knowledge or information sufficient
to form a belief as to the truth of a material averment
made in the complaint, he shall so state, and this shall
have the effect of a denial.
MATERIAL MATTERS NOT SPECIFFICALY DENIED,
DEEMED ADMITTED; TECHNICAL ADMISSION; XPN:
AMOUNT OF UNLIQUIDATED DAMAGES;
Section 11. Allegations not specifically denied
deemed admitted. — Material averment in the complaint,
other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically
denied. Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied under
oath. (1a, R9)
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 70 of 270
REITERATION: LACK OF KNOWLEDGE SUFFICIENT
TO FORM A BELIEF MAY ONLY BE INVOKED IF THE
DEFENDANT IS NOT IN THE POSITION TO KNOW THE
MATERIAL ALLEGATIONS; THE PARTY MUST NOT
BE EXPECTED TO KNOW
Illustrative case:
Capitol Motors v. Yabut, G.R. No. L-28140, March 19,
1970
FACTS: Capitol Motors Corporations filed a complaint
against respondent Yabut. It was therein averred that the
defendant executed in favor of the plaintiff a promissory
note; that the defendant defaulted in the payment, and
likewise failed to pay the interest due on the promissory
note; and that in spite of demands by the plaintiff, the
defendant failed and refused to pay the said principal sum
and interest due. Prayer was made that the defendant be
ordered to pay the plaintiff. The defendant filed an answer
which reads: ―DEFENDANT through counsel alleges: 1.
Paragraph 1 of the complaint is admitted. 2.Paragraphs 2,
3, 4, 5, 6 and 7 of the complaint are specifically denied for
lack of knowledge sufficient to form a belief as to the truth
thereof.WHEREFORE, it is respectfully prayed that the
Complaint be dismissed with costs against the plaintiff.‖
Thereafter, plaintiff filed a motion for judgment on the
pleadings, on the ground that the defendant, not having
set forth in his answer the substance of the matters relied
upon by him to support his denial, had failed to deny
specifically the material allegations of the complaint,
hence, must be deemed to have admitted them.
ISSUE: WON it proper to render a judgment on the
pleadings
HELD: YES. The answer that the defendant has no
knowledge or information sufficient to form a belief as to
the truth of an averment and giving such answer the effect
of a denial, does not apply where the fact as to which
want of knowledge is asserted, is so plainly and
necessarily within the defendant's knowledge that his
averment of ignorance must be palpably untrue.
COMMENT: You can invoke the third mode only if you are
expected to not to know the material allegations. If you are
reasonably expected to know the material allegations then
you invoke lack of knowledge, that would be deemed an
admission. Dapat, ang sinabi ni mr. yabut ay he did not
buy a car. Kung bumili siya ng sasakyan, kung nagissue
sia ng PN, kung nagbayad ba siya, he is reasonably
expected to know such fact.
NOTE: Claim of ignorance palpably false- if you are
expected to know something- denial is a general
admission of material averments
Q: What happens if the answer does not make
specific denial in accordance with Sec 10?
A: Under Sec 11, Material averments in the complaint
shall be admitted when not specifically denied.
EXCEPT: the amount of unliquidated damages
 What are unliquidated damages? A: Those
which have not yet proven; those which are
not yeat ascertained.
 Ung mga actual damages, may mga resibo,
liquidated
 Pero mga moral damages, unascertainable,
no proof yet.
 REMEDIAL LAW
CIVIL PROCEDURE
―Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied
under oath.‖
Q: If the allegations of usury are in the answer, is
a reply mandatory, in order to contest the
allegation of usury?
A: NO
- The present rules now provide that those
admitted are only those allegations of usury
IN THE COMPLAINT not denied under oath.
No longer allegations of the complaint in an
answer.
- The allegation is for the purpose of
RECOVERING usurious interest and not
REPELLING usurious interest.
- Hence, there is now only one instance when
reply is mandatory, that is, when the answer
is based on an actionable document.
STRIKING OUT MATTERS IN THE PLEADING
Section 12. Striking out of pleading or matter
contained therein. — Upon motion made by a party
before responding to a pleading or, if no responsive
pleading is permitted by these Rules, upon motion
made by a party within twenty (20) days after the service
of the pleading upon him, or upon the court's own initiative
at any time, the court may order any pleading to be
stricken out or that any sham or false, redundant,
immaterial, impertinent, or scandalous matter be stricken
out therefrom. (5, R9)
Upon motion made by a party:
i. before responding to a pleading
ii. if no responsive pleading is permitted by
these Rules (e.g. in a reply, no more response to
a reply) – motion within 20 days from service of
the pleading.
iii. upon the court's own initiative at any time
-not bound to the 20 day period, ―at any time‖
NOTE: The court may order any pleading to be stricken
out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out
therefrom.
NEGATIVE PREGNANT
- DEFINITION: Where a fact I alleged with some
qualifying or modifying language, and the denial
is conjucntive a negative pregnant exists and
only he qualfiication or modification is denied,
while the fact itself is admitted. Although you
deny, it is pregnant with admissions.
- e.g Allegations in the answer, defendant alleged
that he never asserted ownership of the property
nor he claimed any possessory right thereon.
Where the fact is alleged in modifying clause and
denial is conjuctive, there exists negative
pregnant, the claim of ownership is admitted.
Where the plaintiffs allegation of his inability to
take actual possession of the parcel of land due
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 71 of 270
to “an unwarranted adverse claim of rights of
ownership and possession by defendant” was
followed by an allegation of how such claim was
exercised and the defendant‟s denial is as to the
material averment contained in par 4 of the
complaint conjoined with his disclaimer of
dominical or possessory rights in the manner
alleged I the complaint, such denial is negative
pregnant equivalent to hi admission. GALOFA vs
NEE BON SING)
- Another e.g P filed collection of money to D.
Defendant answered denial but argue that he
wasn’t able to pay because of failure to collect
receivables.
TUMANG vs BAUTISTA
Is Tagalog allowed as a proper form in pleadings? NO.
Usually CA rendered their decisions in Tagalog specially
those in Tagalog-speaking provinces.
H: The language of the law is still the English language.
RULE 9
EFFECT OF FAILURE TO PLEAD
OMNIBUS MOTION RULE
Section 1. Defenses and objections not pleaded. —
Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on
record that the court has no jurisdiction over the subject
matter, that there is another action pending between the
same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the
court shall dismiss the claim. (2a)
- In relation to motion to quash. (Rule 117, Sec. 9)
―Section 9. Failure to move to quash or to allege
any ground therefor. — The failure of the accused to
assert any ground of a motion to quash before he
pleads to the complaint or information, either because
he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of
any objections except those based on the grounds
provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule. (8)‖
- (a) That the facts charged do not constitute an
offense; (b) That the court trying the case has no
jurisdiction over the offense charged; (g) That the
criminal action or liability has been extinguished [you
can only pardon after conviction]; and (i) That the
accused has been previously convicted or acquitted
of the offense charged, or the case against him was
dismissed or otherwise terminated without his express
consent.
 These may be raised even after the plea has
been entered. Even if not raised in a motion
to quash.
―Defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
 REMEDIAL LAW
CIVIL PROCEDURE
waived. However, when it appears from the pleadings
or the evidence on record that the court has no
jurisdiction over the subject matter, that there is
another action pending between the same parties for
the same cause, or that the action is barred by a prior
judgment or by statute of limitations, the court shall
dismiss the claim.‖
‖
GENERAL RULE: Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed
waived.
- Not pleaded in either:
i. Motion to dismiss
ii. Answer
 To controvert the issues raised in the
complaint, counterclaim, crossclaim or
th
third party (4 party) complaint, party-in
intervention.
- If not raised, deemed waived.
XPNS: When it appears from the face of the pleadings
or the evidence on record that:
i. The court no jurisdiction over the subject
matter
ii. litis pendentia
iii. barred by res judicata
iv. Statute of limitations (Prescription)
NOTE: In these excpetions, the court shall dismiss the
claim even without a motion. EVEN IF NOT RAISED BY
THE DEFENDANT
THE WAIVER APPLIES ONLY TO PRESCRIPTION
THAT WOULD RAISE ISSUES OF FACT NOT
APPEARING UPON THE PLEADING, THAT IS, WHEN
PRESCRIPTION IS NOT APPARENT THEREIN
Illustrative cases:
FERRER vs ERICTA, G.R. No. L-41767, August 23,
1978 (Vicarious liability)
FACTS: On January 26, 1975 (date of filing of action-
nakatatak to sa pleading, pag nagfile), plaintiff-spouses
and their daughter sued defendant-spouses and their 16-
year old son for damages arising from an accident that
occurred on December 31, 1970. The complaint alleged
that the defendants recklessly drove a car causing it to
overturn, resulting in physical injuries on plaintiffs'
daughter who was a passenger therein. Defendant
answered that their son exercised due care in driving the
car and that plaintiffs' daughter was not a passenger but
merely a joy rider. Defendants were declared ―as in
default‖ for failure to attend the pre-trial.
Respondent Judge rendered judgment against private
respondents. Subsequently, defendant filed a motion for
reconsideration on the ground that the action has
prescribed. ―that tile complaint shows on its face "that it
was filed only on January 6, 1975, or after the lapse of
MORE THAN FOUR YEARS from the date of the accident
on December 31, 1970", likewise appearing from the
complaint and, therefore, the action has already
prescribed under Article 1146 of the Civil Code‖.Plaintiffs
opposed the motion, invoking Section 2, Rule 9 which
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 72 of 270
provides that "defenses and objections not pleaded in the
motion to dismiss or answer are deemed waived." The
judge sustained the motion and absolved defendants.
ISSUE: WON the defense of prescription may stilll be
plead despite the failure to plea the same in the answer
HELD: Yes. It is true that the defense of prescription can
only be considered if the same is invoked as such in the
answer of the defendant and that in this particular instance
no such defense was invoked because the defendants
had been declared in default, but such rule does not
obtain when the evidence shows that the cause of
action upon which plaintiff's complaint is based is
already barred by the statute of limitations. Athough
such defense was not raised in the answer, where
plaintiff's own allegation in the complaint shows
clearly that the action had prescribed. Such
circumstance removes this case from the rule under Sec.
2, Rule 9 regarding waiver of defenses by failure to plead
the same.
PRESCRIPTION; DAMAGES BASED ON TORT. —
Actions for damages arising from tort prescribe in four (4)
years.
ESCOLIN: andun na nakatatak sa complaint na ganito
ngyari – klaro naman
GARCIA vs MATHIS, G.R. No. L-48577, September
30, 1980
FACTS: Complaint against Co. Mathis (Base
Commander) Complainant alleged that he was allegedly
illegaly dismissed from the job on 1956 and therefore
prayed for his reinstatement and backwages. His
complaint was failed on 1977, or 21 years after cause of
action accrued. However, defendant filed special
appearance for motion to dismiss on the gorund of lack of
jurisdicition over his person invoking that this is a suit
against the state(non-suability). This is the only issue
raised in the motion. However, the judge dismiss on the
ground of prescription. Complainant attacked the order
because the dismissal was not based on the allegations
raised in the motion to dismiss.
HELD: It is true that an action will not be held to have
prescribed if prescription is not expressly invoked.
However there are exceptions to this rule and one of
them is when the plaintiff's own allegations in his
complaint show clearly (APPARENTLY) that the action
has prescribed. In this case the complaint shows clearly
that the plaintiff's action had prescribed for he alleged that
he was removed on August 23, 1956 (par. 5) but the case
was filed only on November 18, 1977, after a lapse of
more than 21 years. Prescinding, therefore, the defense of
jurisdiction which is apparently meritorious, the complaint
was properly dismissed.
Rule that an action does not prescribe if prescriprtion is
not expressly invoked does not apply where the
 REMEDIAL LAW
CIVIL PROCEDURE
allegations in the complaint clearly show that the
action had already long prescribed.
CHUA LAMKO vs DIOSO, G.R. No. L-6923
October 31, 1955
Preliminaries: we were saying that under sec. 1, one of
the defenses which may be belatedly raised is
prescription, but what kind of prescription?
FACTS: In March 1939, Chua Lamko obtained judgment
to foreclose the mortgage debt of Eligio Dioso
(predecessor of the plaintiffs). Pursuant to the judgment,
the mortgaged property was accordingly sold by the
Sheriff, at public auction, to Chua Lamko as the highest
bidder; but he never obtained judicial confirmation of the
26
sale. He took possession of the property, and in 1946
sold it to defendants in this case. On February 22, 1950
plaintiffs instituted this action to recover the mortgaged
property, alleging ownership and nullity of the sale to Chua
Lamko and of the subsequent conveyance to the
defendants. Chua Lamko, as a third-party defendant,
interposed by way of counterclaim against plaintiffs the
judgment he had obtained in the foreclosure sale if
plaintiffs persisted in their refusal to validate the
foreclosure sale. The Court dismissed Chua Lamko's
counterclaim on the ground that it had already prescribed
for the reason that the judgment in the foreclosure sale
had been entered in 1939 and more than ten years had
already lapse it being already 1950. Chua Lamko insisted
on his counterclaim that prescription had been waived by
plaintiffs for failure to allege the same in their answer to
his counterclaim in the CFI.
ISSUE: WON plaintiffs are deemed to have waived the
defense of prescription
HELD: NO. It is true that if the defense of prescription is
not raised in the answer it is deemed waived. But the
waiver applies only to defenses of prescription "that
would raise issues of fact not appearing upon the
preceding pleading." In the present case, the plaintiffs
were not required to specifically plead prescription,
because the pleading of Chua Lamko disclosed that
the judgment had been rendered in March 7, 1939 and
it was asserted only in March, 1950; i.e., more than ten
years before. No issue of fact was involved by their
claim of prescription; these two dates were not
denied. Therefore their failure to plead it did not
constitute waiver. In this case, prescription appears on
the face of the pleading.
WAIVER OF DEFENSES- where the action does not take
issue with the complaint as to dates involved in
defendant’s claim of prescription, his failure to specifically
plead prescription in the answer does not constitute a
waiver of defense of prescription. The defense of
26
In judicial foreclosure of mortgage, the sale, the title over the real
property is vested in the name of the buyer NOT by virtue of the
sheriff’s sale, but by virtue of the confirmation sale issued by the judge.
In this case, nanalo si Chua Lamko pero hindi siya ng file ng motion for
the confirmation of the sale.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 73 of 270
prescription even if not raised in a motion to dismiss or in
the answer, is not deemd waived unless such defense
raises issues of fact not appearing upon the preceding
pleading.
NOTE: A judgement also prescribes- ten years.
DIRECTOR OF LANDS vs CA
FACTS: Sps Manlapaz filed an application for registration
of parcels of land. The director of lands, the only oppositior
appealed. In its appeal, it adduced for the first time the
defense of res judicta, that the same land was already
subject for adjudication declaring it is a public land.
HELD: The defense of res judicata not set up is deemed
waived. It can no longer be pleaded in trial or appeal
because it does not appear on the pleading or record of
the case.
COMPULSORY COUNTERCLAIM OR CROSS-CLAIM
NOT SET UP, BARRED
Section 2. Compulsory counterclaim, or cross-
claim, not set up barred. — A compulsory counterclaim,
or a cross-claim, not set up shall be barred. (4a)
COMPULSORY COUNTER CLAIM or CROSS-CLAIM
GR: Sec 2 A compulsory counterclaim, or a cross-
claim, not set up shall be barred.
- judicial policy against multiplicity of suits- splitting
of a single cause of action
ELEMENTS OF COMPULSORY COUNTERCLAIM
(1) it arises out of, or is necessarily connected with the
transaction or occurrence that is the subject matter of the
opposing party's claim;
(2) it does not require for its adjudication the presence of
third parties over whom the court cannot acquire
jurisdiction; and
(3) the court has jurisdiction to entertain the claim.
(4) mature
DECLARATION OF DEFAULT; WHEN DEFENDANT
FAILS TO TIMELY ANSWER; UPON MOTION
Sec 3 Declaration of default - If the defending party fails to
answer within the time allowed therefor, the court shall,
upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such
relief as his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of
court.
(a) Effect of order of default. — A party in default
shall be entitled to notice of subsequent proceedings but
not to take part in the trial. (2a, R18)
 REMEDIAL LAW
CIVIL PROCEDURE
(b) Relief from order of default. — A party declared
in default may at any time after notice thereof and before
judgment file a motion under oath to set aside the order of
default upon proper showing that his failure to answer was
due to fraud, accident, mistake or excusable negligence
and that he has a meritorious defense. In such case, the
order of default may be set aside on such terms and
conditions as the judge may impose in the interest of
justice. (3a, R18)
(c) Effect of partial default. — When a pleading
asserting a claim states a common cause of action against
several defending parties, some of whom answer and the
others fail to do so, the court shall try the case against all
upon the answers thus filed and render judgment upon the
evidence presented. (4a, R18).
(d) Extent of relief to be awarded. — A judgment
rendered against a party in default shall not exceed the
amount or be different in kind from that prayed for nor
award unliquidated damages. (5a, R18).
(e) Where no defaults allowed. — If the defending
party in an action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the court
shall order the prosecuting attorney to investigate whether
or not a collusion between the parties exists, and if there is
no collusion, to intervene for the State in order to see to it
that the evidence submitted is not fabricated. (6a, R18)
―If the defending party fails to answer within the time
allowed therefor‖
Q: When may a party be declared in default?
A: ONLY when the defending party fails to answer within
the time allowed therefor. There is ONLY ONE INSTANCE
when a party may be declared in default, that is, when the
defendant fails to answer within the time specified in the
rules
―upon MOTION of the claiming party with NOTICE to
the defending party, and PROOF (HEARING) of such
failure‖
Q: May a court motu proprio declare defendant in default?
A: No, because the Rules requires:
i. a motion,
ii. notice to the defending party, and
iii. proof of such failure, viz., hearing.
―Thereupon, the court shall proceed to render
judgment granting the claimant such relief as his
pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence‖
Q: After a party has been declared in default, what may
the court do?
A: The court may do TWO THINGS, either:
1. The court may proceed to render judgment
granting the claimant such relief as his pleading
may warrant, OR
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 74 of 270
2. the court in its discretion may require the
claimant to submit evidence
ELEMENTS OF A VALID DECLARATION OF DEFAULT
(Sablas v. Sablas, infra.)
1. the court has validly acquired jurisdiction
over the person of the defending party either
by service of summons or voluntary
appearance;
2. the defending party failed to file the answer
within the time allowed therefor and
3. A motion to declare the defending party in
default has been filed by the claiming party
with notice to the defending party.
RULES IN SABLAS v. SABLAS, infra.
1. WHERE THERE IS NO MOTION, THERE CAN
BE NO DECLARATION OF DEFAULT;
2. WHERE THERE IS NO DECLARATION OF
DEFAULT, ANSWER MUST STILL BE
ADMITTED EVEN IF FILED OUT OF TIME;
i. When no prejudice is caused to the plaintiff
ii. There is no showing that defendant intends
to delay the case
3. WHERE ANSWER HAS BEEN FILED, THERE
CAN BE NO DECLARATION OF DEFAULT
ANYMORE
Illustrative case:
SABLAS vs SABLAS, G.R. No. 144568, July 3, 2007
FACTS: Petitioner spouses were served with summons
and a copy of the complaint on October 6, 1999. On
October 21, 1999, they filed a motion for extension of time
requesting an additional period of 15 days, or until
November 5, 1999, to file their answer. However, they
were able to file it only on November 8, 1999 (2 days late).
While the trial court observed that the answer was filed out
of time, it admitted the pleading because no motion to
declare petitioner spouses in default was filed. The
following day, November 9, 1999, respondents filed a
motion to declare petitioner spouses in default because
there was failure to file the answer within the time provided
for by the rules. The motion was denied by the trial court.
On the other hand, the appellate court ruled that the trial
court committed grave abuse of discretion because,
pursuant to Section 3, Rule 9 of the Rules of Court, the
trial court had no recourse but to declare petitioner
spouses in default when they failed to file their answer
within the time fixed by the rules.
ISSUE: WON the court has no order choice except to
declare the defendants in default when they fail to answer
within the time fixed by the rules.
HELD: NO. The rule on default requires the filing of a
motion and notice of such motion to the defending party. It
is not enough that the defendant fails to answer the
complaint within the reglementary period. The trial court
cannot motu proprio declare a defendant in default as
the rules leave it up to the claiming party to protect
his or its interests. The trial court should not under
any circumstances act as counsel of the claiming
 REMEDIAL LAW
CIVIL PROCEDURE
party. The rule is that the defendants answer should
be admitted where it is filed before a declaration of
default and no prejudice is caused to the plaintiff.
Where the answer is filed beyond the reglementary
period but before the defendant is declared in default
and there is no showing that defendant intends to
delay the case, the answer should be admitted.
Therefore, the trial court correctly admitted the answer of
petitioner spouses even if it was filed out of time because,
at the time of its filing, they were not yet declared in
default nor was a motion to declare them in default ever
filed. Neither was there a showing that petitioner spouses
intended to delay the case.Since the trial court already
admitted the answer, it was correct in denying the
subsequent motion of respondents to declare
petitioner spouses in default.
―(a) Effect of order of default. — A party in default
shall be entitled to notice of subsequent proceedings
but not to take part in the trial. (2a, R18)‖
Q: What does it mean when the party is declared in
default, in other words, what is the effect of such
declaration?
A: The party who has been declared in default cannot any
more take part in the trial.
NOTE: However, under the present rules, he shall still be
entitled to notice of subsequent proceedings. (alam niya
lang kung ano ang ngyayari, pero di siya pwede sumali sa
nangyayari)
A PARTY DECLARED IN DEFAULT MAY STILL
TESTIFY; RULES IN CAVILI v. FLORENDO, infra.
1. ―TAKING PART IN THE TRIAL‖ MEANS THE
RIGHT TO BE A PARTY LITIGANT
The rights forfeited are:
i. right to present his defense,
ii. control the proceedings, and
iii. examine or cross-examine witnesses.
2. AS OPPOSED TO A PARTY LITIGANT, A
WITNESS IS MERELY A SPECTATOR
CALLED UPON TO TESTIFY TO WHAT HE
HAS SEEN, HEARD, OR OBSERVED. AS
SUCH, HE TAKES NO ACTIVE PART IN THE
CONTEST OF RIGHTS BETWEEN THE
PARTIES
- to be a witness is not to take active part in the
trial, merely called upon to testify what he has
observed.
3. THE INCIDENTAL BENEFIT OF GIVING THE
PARTY IN DEFAULT THE OPPORTUNITY TO
PRESENT EVIDENCE WHICH MAY
EVENTUALLY REDOUND TO HIS
ADVANTAGE IS OF MINOR CONSEQUENCE.
OF GREATER IMPORTANCE IS THE
PRESERVATION OF THE RIGHT OF OTHER
PARTIES TO SECURE THE ATTENDANCE OF
WITNESSES AND THE PRODUCTION OF
EVIDENCE IN THEIR BEHALF.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 75 of 270
Illustrative case:
CAVILI vs FLORENDO, G.R. No. 73039, October 9,
1987
FACTS: The private respondents filed a Civil Case against
herein three petitioners (defendants A, B, C) for Partition,
Accounting, and Damages. After the case was raffled,
summons was issued to the three petitioners. The
summons was served to A who also received it for B and
C. The defendants, however, failed to file their answer and
upon motion of the plaintiffs, the defendants were declared
in default, and a judgment by default was promulgated.
Thereafter, B and C filed a motion for new trial in behalf of
the defendants considering that they were not properly
served with summons. The matter was ultimately brought
up before the SC. The SC remanded the case back and
sustained the contention of B and C that there was no
proper service of summons on them and therefore the
judgment should be vacated and for the trial court to hear
27
the case. During the trial, the non-defaulting defendants,
(now petitioners) B and C, presented A as their first
witness. The respondents, through counsel moved for her
disqualification as a witness on the ground that having
been declared in default, Perfects Cavili has lost her
standing in court and she cannot be allowed to participate
in all premise the even as a witness. The court, through
the respondent judge, sustained the respondents'
contention and disqualified her from testifying.
ISSUE: WON a party who has been validly declared in
default can no longer testify as a witness since he has no
right to participate in the trial
HELD: NO, a party declared in default can still testify as a
witness. Loss of standing in court is the consequence of
an order of default. The phrase ―loss of standing‖ (or the
new phrase now ―cannot take part in the trial‖) must be
understood to mean only the forfeiture of one's rights
as a party litigant, contestant or legal adversary. A
party in default loses his right to present his defense,
control the proceedings, and examine or cross-examine
28
witnesses. There is nothing in the rule, however, which
contemplates a disqualification to be a witness or a
opponent in a case. As opposed to a party litigant, a
witness is merely a beholder, a spectator or onlooker,
called upon to testify to what he has seen, heard, or
observed. As such, he takes no active part in the
contest of rights between the parties. A party in default
may thus be cited as a witness by his co-defendants who
have the standing and the right to present evidence which
the former may provide. The incidental benefit of giving
the party in default the opportunity to present evidence
which may eventually redound to his advantage or bring
about a desired result, through his co-defendants, is of
minor consequence. Of greater concern or importance is
the preservation of the right of other parties to secure the
27
So hearing na, pero validly na declare in default si A kasi natanggap
niya ung summons.
28
Yan ang taking part in the trial
 REMEDIAL LAW
CIVIL PROCEDURE
attendance of witnesses and the production of evidence in
their behalf.
THE RULES ON DEFAULT DO NOT DICTATE THAT
JUDGMENT BY DEFAULT SHOULD ALWAYS BE IN
FAVOR OF PLAINTIFF. A DEFAULTED DEFENDANT IS
NOT ACTUALLY THROWN OUT OF COURT. THE
RULES SEE TO IT THAT ANY JUDGMENT AGAINST
THE DEFENDANT MUST BE IN ACCORDANCE W/
LAW. ALTHOUGH THE DEFENDANT IS NOT IN THE
POSITION TO OBJECT, ONLY COMPETENT AND
RELEVANT EVIDENCE SHOULD BE ADMITTED
AGAINST HIM.
Illustrative case:
PASCUA vs FLORENDO,
FACTS: Petitioners PASCUAs filed a complaint for
reconveyance with damages against the private
respondents, spouses Clemente and Juliana Castro. The
latter, as defendants, in lieu of filing an answer, filed a
motion to dismiss the complaint on the ground that the
same is already barred by the statute of limitations. The
trial court denied the respondents' motion after finding that
the grounds relied upon by them did not appear on the
face of the complaint. The court subsequently declared the
respondents in default for their having failed to file an
answer within the reglementary period. Thus, the
petitioners proceeded to present their evidence ex-parte.
After receiving the petitioners' evidence, the trial court
ruled that the action has already prescribed in view of the
fact that the deed of sale was executed on May 8, 1951, or
over twenty years before the filing of the complaint on May
31, 1973. Not satisfied with the trial court's decision,
petitioners elevated the case to this Court through this
petition. The petitioners now argue that because of the
court’s denial of the motion to dismiss, the trial court is
estopped from dismissing the case on the same ground.
Furthermore, The petitioners raise as a second issue that
the respondent court had no alternative but to grant the
relief prayed for in their complaint on the ground that Rule
9 of the Rules of Court provides that, if the defendant has
been declared in default, the court shall proceed to receive
the plaintiff's evidence and render judgment granting him
such relief as the complaint and the facts proven may
warrant.
ISSUE1: WON the trial court erred in dismissing the case
on ground of prescription although it has previously denied
a motion to dismiss based on the same ground.
HELD1: NO. The trial court denied the motion to dismiss
because the grounds relied upon by the respondents for
their motion did not appear on the face of the complaint.
There was no finding that the allegation of prescription had
no merit. It cannot be said, therefore, that the trial court
was already estopped from passing upon the issue of
prescription. The issue was not adjudicated on its merits
and the doctrine of res judicata had not set in yet.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 76 of 270
ISSUE2: WON the petitioners are automatically entitled to
the relief prayed for once the respondents are declared in
default.
HELD2: NO, nowhere in Rule 9 is it stated that the
petitioners are automatically entitled to the relief
prayed for, once the respondents are declared in
default. Favorable relief can be granted only after the
court has ascertained that the evidence offered and
the facts proven by the presenting party warrant the
grant of the same. Otherwise, it would be meaningless to
require presentation of evidence if everytime the other
party is declared in default, a decision would automatically
be rendered in favor of the non-defaulting party and
exactly according to the tenor of his prayer. This is not
contemplated by the Rules nor is it sanctioned by the due
process clause. The default or the failure of the defendant
to answer should not be interpreted as an admission by
the said defendant that the plaintiff's cause of action find
support in the law or that plaintiff is entitled to the relief
prayed for. In other words, a defaulted defendant is not
actually thrown out of court. While in a sense it may
be said that by defaulting he leaves himself at the
mercy of the court, the rules see to it that any
judgment against him must be in accordance with law.
Although the defendant would not be in a position to
object, elementary justice requires that only legal
evidence should be considered against him. The
evidence to support the plaintiff's cause is, of course,
presented in his absence, but the court is not
supposed to admit that which is basically
incompetent. If the evidence presented should not be
sufficient to justify a judgment for the plaintiff, the
complaint must be dismissed. And if an unfavorable
judgment should be justifiable, it cannot exceed in amount
or be different in kind from what is prayed for in the
complaint.
―(b) Relief from order of default. — A party
declared in default may at any time after notice thereof
and before judgment file a motion under oath to set
aside the order of default upon proper showing that
his failure to answer was due to fraud, accident,
mistake or excusable negligence and that he has a
meritorious defense. In such case, the order of default
may be set aside on such terms and conditions as the
judge may impose in the interest of justice. (3a, R18)‖‖
Q: What is the remedy if a party is declared in default?
A: A party declared in default may file a motion under oath
to set aside the order of default at any time after notice
there of but before judgment
WHAT: a motion under oath to set aside the order of
default
WHEN: at any time after notice thereof but before
judgment
- because if judgement has already been
rendered, the remedy of a motion to set aside the
order of default is no longer available.
 REMEDIAL LAW
CIVIL PROCEDURE
Q: What if after judgement, ano na ang remedy? against several defending parties, some of whom
answer and the others fail to do so,xxx‖
A: Motion for new trial on the ground of FAME
under rule 37. Q: When can there be partial default?
Q: What if the judgment is already final and A: When there are two or more defendants, some of
executory? whom answered and the others failed to do so
A: The remedy is to file a petition for relief from - Ung mga hindi sumagot, madedefault.
judgment under Rule 38. PLUS: However, it is not enough that there must be two or
Motion to set Motion for new Petition for more defendants, these defendants should have been
aside order of trial (Rule 37) relief from sued under a common cause of action.
default (Rule judgment ―(c) Effect of partial default –xxx the court
9) (Rule 38) shall try the case against all upon the
before after judgment is answers thus filed and render judgment upon
judgment judgement already final the evidence presented. (4a, R18).‖‖
and executory GENERAL RULE: As earlier said, when a party
has been declared in default, the court has two
options, namely, 1) to proceed to render
FORM: the motion to set aside the order of default must judgment on the basis of the pleading or 2) to
be under oath. require the claimant to submit evidence ex parte
Q: What are the grounds for a motion under oath to set EXCEPTION: In cases of partial default, the court
aside the order of default? cannot proceed to render judgement on the basis
of the pleading, the court shall try the case
GROUNDS: upon a showing that his failure to answer was
against ALL the defendants (including those who
due to: (FAME)
did not answer) upon the answers thus filed and
1. Fraud, render judgment upon the evidence presented.
2. Accident,
 Yung answer ng naganswer, maging answer
3. Mistake, or na din ng defaulting, ang problema lang, ung
defendant na in default hindi pweding sumali
4. Excusable Negligence
sa trial.
PLUS: However, the same is not enough, there must be  Kung maraming defendants, some
an allegation in the motion to set aside the order of answered, some did not, the court cannot
default that he has a meritorious defense. immediately render judgment. It must first try
the case.
DISCUSSION:  The court cannot immediately rednder
1. Fraud- Extrinsic fraud by the adverse party. judgement against the defaulting defendants.
Q: What kind of fraud is allowed to set aside the
order of default? (d) Extent of relief to be awarded. — A judgment
rendered against a party in default shall not exceed
A: ONLY extrinsic fraud
the amount or be different in kind from that prayed for
Q: What is extrinsic fraud? nor award unliquidated damages. (5a, R18).
A: The fraud employed by the adverse party that Q: What is the extent of the relief that may be awarded to
would prevent the other party from filing an the plaintiff when a defendant has been declared in
answer or presenting his case in court default?
 e.g. Sinabihan ka ng kalaban na wag ka na A: The judgment/award:
magfile ng answer dahil ipapadismiss naman i. Shall not exceed the amount from that prayed for.
daw niya.
ii. Shall not be different in kind from that prayed for.
 An extrinsic fraud has no connection to the
merits of the case. iii. Nor award unliquidated damages.
NOTE: The fraud must be employed by the NOTE: Thus, if the defendant has been
adverse party. declared in default, even if your evidence
proves a claim that is more than that prayed
Q: What is intrinsic fraud?
for, the court cannot award an amount
A: Fraud which goes to the very issue of the case greater or different. The rules does not
which should have been raised in the defense. anymore allow the technical effect of an
amendment to conform to evidence.
―(c) Effect of partial default. — When a pleading
asserting a claim states a common cause of action Q: Can it be implied from this that if the
defendant has not been declared in default,

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 REMEDIAL LAW
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the court can award which exceeds the
amount or is different in kind from that
prayed for?
A: YES. This is inconnection with an
amendment to conform to evidence
―(e) Where no defaults allowed. — If the defending
party in an action for annulment or declaration of
nullity of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney
to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene
for the State in order to see to it that the evidence
submitted is not fabricated.‖
WHAT ARE THE INSTANCES WHERE DEFAULT IS
NOT ALLOWED?
A1: No, the only instance when the defendant may be
declared in default is when he fails to answer within the
time allowed therefor. In this case, the defendant
answered
Q2: May the trial proceed if the defendant failed to appear
at the trial?
A2: Yes. The failure to appear merely constitutes as a
waiver of the right to cross examine
Q3: May the court award damages more than or different
from the amount prayed for if the evidence presented by
the plaintiff warrants the same?
A3: Yes because the only time when a judgment rendered
against a defendant shall not exceed the amount or be
different in kind from that prayed for nor award
unliquidated damages is when the defendant is declared
in default

1. In case of annulment of marriage

2. Declaration of nullity of marriage RULE 10
3. Legal separation
AMENDED AND SUPPLEMENTAL PLEADINGS
PROCEDURE: In these instances, if the defendant failed
to answer, he would not be declared in default. The
procedure is that the court shall:
i. Order the prosecuting attorney to investigate AMENDED SUPPLEMENTAL
29
whether or not a collusion between the parties PLEADING PLEADING
exists,
BASIS Section 1. Section 6.
ii. and if there is no collusion, to intervene for the Amendments Supplemental
State in order to see to it that the evidence in general. — pleadings. — Upon
submitted is not fabricated.‖ Pleadings may be motion of a party
REASON BEHIND THE RULE: Because marriage is the amended by the court may, upon
foundation of the family and an inviolable social institution. adding or striking reasonable notice
out an allegation and upon such
ADDITIONAL NOTES: or the name of terms as are just,
any party, or by permit him to serve
- cannot rule default if time to answer has not yet
correcting a a supplemental
expired (BRITISH vs DELOS ANGELES)
mistake in the pleading setting
- There’s difference on a judgment presented on name of a party forth transactions,
ex parte based on default order VS judgment or a mistaken or occurrences or
based on defendant’s answer who did not attend inadequate events which have
trial. On the latter, the amount may exceed than allegation or happened since
what is prayed for. (EVANGELINE vs CA) description in any the date of the
- Effect of order of default – A party declared in other respect, so pleading sought to
default shall not be entitled to notice of that the actual be supplemented.
subsequent proceedings nor to take part in trial, merits of the xxx
until the order of default is lifted. controversy may
- Relief from order of default – A party declared speedily be
in default may at any time afer discovery thereof determined,
without regard to
and before judgment file a motion under oath to
technicalities, and
set aside the order of default upon proper
in the most
showing that his failure to andwer was due to:
expeditious and
fraud, accident, mistake or excusable negligence inexpensive
and that he has a meritorious defense. manner. (1)
(MANLAYAON vs SUNGA)
SUBJECT Sets forth facts, refers to
PRACTICAL QUESTIONS: MATTER events, transactions,
Q1: May a defendant who files an answer, but fails to
appear during trial, be declared in default? 29
A supplemental pleading is the opposite of an amended pleading

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 REMEDIAL LAW
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transactions that occurences or amendment judgment. (9, R6)
were already events which before - That is why
existing before happened AFTER judgment. (3, when we were
or at the time of the filing of the R9) discussing
the filing of the original pleading. compulsory
original Q: What is an counterclaim
pleading.
30
omitted and crossclaim,
for the claim to
counterclaim or
be considered
For purpose cross-claim?
compulsory
correction of error A: It refers to counterclaim or
whether by way transactions crosscalim, the
of addition or events that were claim should
substitution to the already existing have already
end that matters at the time the matured, due
in dispute may be original pleading and
presented in was served. demandable. If
court. during the filing
AS TO May be made as Always upon motion Q: What is then of the answer
PROCEDURE a matter of right your remedy? the claim was
not yet due and
when no
demandable,
responsive A: When a
but after filing
pleading has still pleader fails to of the answer
been served set up a the claim has
AS TO Supersedes the original pleading counterclaim or a become due
EFFECT original still exists. It merely cross-claim, that and
pleading, the supplements the is, an already demandable,
prior pleading is original pleading existing can you still file
regarded as counterclaim but a
abandoned, it omitted in the counterclaim?
ceases to be part answer through Yes but not
of the record. oversight byfiling an
inadvertence, or amended, but
Technically, it
by filing a
disappears from excusable
supplemental
the record as neglect, or when
pleading.
judicial justice requires, Q: bakit
admission, he may, by leave supplemental
hence, the case of court, set up pleading?
based its the counterclaim A: Because the
judgment on the or cross-claim by counterclaim or
amended amendment crossclaim has not
complaint only. before yet matured at the
EXAMPLE. Section 10. Section 9. judgment. time of the filing of
Q: Where do Omitted Counterclaim the answer. Then
you plea a counterclaim or or cross-claim the event,
counter claim cross-claim. — arising after transaction, or
or cross When a pleader answer. — A occurrence that
claim? fails to set up a counterclaim or a made the
A: Generally, counterclaim or a cross-claim which counterclaim
in the answer cross-claim either matured or demandable or
dapat nafile through was acquired by a matured happened
na din. oversight, party after serving after the filing of the
inadvertence, or his pleading may, original pleading,
excusable with the permission that is, the answer.
neglect, or when of the court, be In otherwords, the
justice requires, presented as a counterclaim or
he may, by leave counterclaim or a crossclaim was not
of court, set up cross-claim by yet exisiting at the
the counterclaim supplemental time the original
or cross-claim by pleading before answer was filed.
Since the claim
matured only at the

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 REMEDIAL LAW
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time the answer has A: Only once
been served, you - Kapag inamend mo ulit, hindi na yan once,
can still raise it by twice na yan. In which case, with leave of
way of supplemental court na.
pleading. WHEN:
1) ―at any time before a responsive pleading is
SERVED‖
- Distinguish filing from serving. You file by
―Section 1. Amendments in general. — Pleadings giving a copy to the clerk of court. On the
may be amended by adding or striking out an other hand, serving is giving a copy to the
allegation or the name of any party, or by correcting a adverse party to comply to due process, yan
mistake in the name of a party or a mistaken or ang motion and notice.
inadequate allegation or description in any other - Service and not filing. The reason behind the
rule is that usually filing comes ahead in the
respect, so that the actual merits of the controversy may
chronological order. Filing will not be
speedily be determined, without regard to technicalities,
accpepted by the clerk unless there is proof
and in the most expeditious and inexpensive manner.‖ of service to the adverse party.
2) ―in the case of a reply, at any time within ten
(10) days after it is served.‖
HOW PLEADINGS ARE AMENDED: addition, - After reply, it ends there, no responsive
pleading after it.
suppression, substitution and incorporation of document
NOTE: In relation to criminal procedure, the prosecution
1. By adding an allegation; may amend the information as a matter of right before the
2. Striking out an allegation; plea is entered not necessarily before arraignment.
- So you amend what? an allegation, kaya Nagpaarraign ka pero di ka naman nag plea.
sinasabi natin na kung wala kang forum shopping
II. BY LEAVE OF COURT-meaning, may permission ng
certification, you cannot cure it by amendment,
court, kaya may motion, notice and hearing.
because you can only amend an allegation Discretionary upon the court.
constituting a party‘s cause of action or Section 3. Amendments by leave of court. —
defense Except as provided in the next preceding section,
3. By adding or striking out the name of any substantial amendments may be made only upon
party leave of court. But such leave may be refused if it
-dinadagdagan mo name ng defendant, appears to the court that the motion was made with intent
nagjojoinder ka. to delay. Orders of the court upon the matters provided in
-Striking out, you are dropping a party. this section shall be made upon motion filed in court, and
-Hence, the joinder or misjoinder is not a ground after notice to the adverse party, and an opportunity to be
for a motion to dismiss since the proper heard. (3a)
procedure is amendment of the pleading. NOTE: An amendment by leave of court relates only to
Q: What are the matters you can add or strike substantial amendments.
out?
A: Two things, namely, 1) an allegation, and 2) FORMAL AMENDMENT v. SUBSTANTIAL
AMENDMENT
parties
4. Correcting a mistake in the name of a party or
FORMAL SUBSTANTIAL
a mistaken or inadequate allegation or
description in any other respect Section 4. Formal Section 3.
amendments. — A defect Amendments by
TWO WAYS OF AMENDMENT in the designation of the leave of court. — Except
1. WHEN AMENDMENT IS A MATTER OF RIGHT parties and other clearly as provided in the next
2. AMENDMENT BY LEAVE OF COURT clerical or typographical preceding section,
errors may be summarily substantial amendments
I. AS A MATTER OF RIGHT- cannot be refused. No corrected by the court at may be made only upon
permission needed any stage of the action, at leave of court. xxx‖
Section 2. Amendments as a matter of right. — its initiative or on motion,
A party may amend his pleading once as a matter of right provided no prejudice is
at any time before a responsive pleading is served or, in caused thereby to the
the case of a reply, at any time within ten (10) days after it adverse party. (4a)
is served. (2a) - So the most important
AVAILABILITY: ―A party may amend his pleading thing here, in the
once as a matter of right‖ submission of an
Q: How many times can you amend a pleading amendment, whether
as a matter of right? formal or substantial, is

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 REMEDIAL LAW
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that it will not cause MULTIPLICITY OF SUITS AND UNNECESSARY
prejudice to the DELAY.
adverse party. Illustrative case:
i. Defect in the 1. Changes the theory TIU vs PHILBANK COMMUNICATIONS, G.R. No.
designation of parties of the case- When 151932 August 19, 2009
ii. clerical or the claim or the FACTS: PhilBank filed a complaint against a corporation
typographical errors amended complaint
for having failed to comply with its loan obligations with
typographical claims a liability
entirely different form the bank. The loan taken by the defendant corporation
that which is alleged was secured by real mortgage and a surety undertaking
in the original by its directores. Hence, when the bank sued for the
complain; When recovery of the debt, it sued not only the debtor corp. but
defendant is being also the directors on the basis of the surety undertaking.
made to answer for a In the answer, the directors alleged that they were not
liability entirely personally liable on the promissory notes, because they
different or more than signed the Surety Agreement in their capacities as
that alleged under the officers of AWRI, hence not in personal capacity. In
original complaint; support of their allegations, they attached to their Answer
- For e.g action for a certified photocopy of the Surety Agreement. The bank
reconveyance,
then filed a motion for leave to substitute the surety
the basis of
undertaking attached in the complaint with another copy
plaintiff’s theory
is inheritance  containg the phrase ―in their personal capacities‖. The
files amended attachment of the new copy was objected to by the
complaint defendatns alleging that the same was substantial
abandon such amendment since in the originally attached document,
theory and now there was not indication that they were contracting in
32
claims he bought their personal capacities. The lower courts allowed the
the property. substitution of the attachment.
- Applying defense ISSUE: WON the lower courts erred in allowing the
theory: defences substitution of the document.
of defendant HELD: No. The pertinent rule on actionable documents is
can’t anymore found in Section 7, Rule 8 of the Rules of Court, which
meet the
provides that when the cause of action is anchored on a
allegations under
document, its substance must be set forth, and the
the amended
complaint original or a copy thereof "shall" be attached to the
2. Evidentiary test – pleading as an exhibit and deemed a part thereof.
defenses available Substatial amendments may only be made with leave of
under the original court, and such amendment may be refused if made with
complaint would no intent to delay. In Valenzuela v. Court of Appeals, the
longer be available to court noted that Section 3, Rule 10 of the 1997 Rules of
the adverse party, or Civil Procedure amended the former rule in such manner
when the defences that the phrase "or that the cause of action or defense
available to defendant is substantially altered" was stricken-off and not
under original retained in the new rules. The clear import of such
pleading would no amendment in Section 3, Rule 10 is that under the new
longer be sufficient to
rules, "the amendment may (now) substantially alter the
answer/meet the
allegations of the cause of action or defense." This should only be true,
amended complaint.
31 however, when despite a substantial change or alteration
in the cause of action or defense, the amendments
POLICY REGARDING SUBSTANTIAL AMENDMENT: sought to be made shall serve the higher interests of
THE COURTS SHOULD BE LIBERAL IN ALLOWING substantial justice, and prevent delay (will not
AMENDMENTS TO PLEADINGS TO AVOID prejudice the right of the adverse party). The granting of
leave to file amended pleading is a matter particularly
addressed to the sound discretion of the trial court; and
31
that discretion is broad, as enunciated in Valenzuela,
In criminal cases, there is substantial amendment when the even if the amendment substantially alters the cause of
amendment changes the nature of the offense charged or when the
evidence that is available to the defendant when the original
32
information was filed would no longer be available or sufficient to met In alleging an actionable doc., a party may just state the substantial
the amendment information (evidentiary test). In other words, when parts thereof in the complaint then attached the copy of the document.
you are called upon to answer more than what was alleged in the So kapag actionable document, and you changed, that is a substantial
original information. Iniiba mo ung crime. For example, a person was amendment. If you change the attachment you are changing.
charged with theft. Before plea (when still a matter of right), you can
change that to robbery, qualified theft.

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 REMEDIAL LAW
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action or defense, such amendment could still be allowed
when it is sought to serve the higher interest of
substantial justice; prevent delay; and secure a just,
speedy and inexpensive disposition of actions and
proceedings. The courts should be liberal in allowing
amendments to pleadings to avoid a multiplicity of
suits and in order that the real controversies between
the parties are presented, their rights determined,
and the case decided on the merits without
unnecessary delay. This liberality is greatest in the early
stages of a lawsuit, especially in this case where the
amendment was made before the trial of the case,
thereby giving the petitioners all the time allowed by law
to answer and to prepare for trial. (as the trial progresses,
humihigpit na liberality)
TEST TO DETERMINE: Whether the allegations of
complaint, the plaintiff is entitled to relief as long as it
alleges the right, obligation and delict or wrong.
ALLOWANCE OF SUBSTANTIAL AMENDMENT,
DISCRETIONARY UPON THE COURTS
Illustrative case:
Ng v. Sps. Soco, G.R. No. 149132. May 9, 2002
FACTS: Ng alleged that they are the owners of Jos
Chicken Barbecue (Chicken Inato) secret recipe. Ng
further alleged that they entered into a partnership
agreement with respondents Soco to operate a restaurant,
the Socos Manokan Nook Restaurant. The agreement
provided that in the event of the dissolution of the
partnership, respondents shall lose the right to use the
secret recipe and ownership thereof shall revert back to
petitioners. The partnership was dissolved. Believing that
respondents continued to operate the same business,
petitioners filed the complaint for accounting with the court
a quo. During the hearing on the petition for the issuance
of a writ of preliminary injunction, petitioners learned that a
certain Magno Garcia, respondents nephew, is operating
the restaurant under the name Manokan sa Sugbu. Upon
the belief that Garcia was merely used as dummy by
respondents in order to evade their contractual obligation,
i.e., to cease using the secret recipe, Ng filed a motion to
admit amended complaint to implead Garcia as one of the
defendants alleging that they were in conspiracy with each
other. The trial court denied said motion, according to the
trial court, the amendment not only requires or compels
the defendants (respondents herein) to change their
defense but also subjects them to all the acts, knowledge,
admission and even the omissions of Magno Garcia. In
other words, since the amendment are substantial, an
allegation of conspiracy, the original defendants are now
made to answer for a liability more than what was alleged
in the original. CA affirmed
ISSUE: WON the lowers courts erred in disallowing the
amendment
HELD: NO. Under the rules, formal and substantial
amendments to a pleading may be made at anytime
before a responsive pleading has been filed (served
dapat). Such amendment is a matter of right. Thereafter,
and during trial, amendments may only be done with
the permission of the court. The Court has invariably
held that amendments are not proper and should be
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 82 of 270
denied when delay would arise, or when amendments
would result in a change of cause of action or theory of the
case, or would be inconsistent with the allegations in the
original complaint. The Court agrees with the appellate
court that the trial court did not commit any grave abuse of
discretion in denying petitioners amended complaint. The
admission thereof was clearly not a matter of right on
the part of petitioners as they sought the same only
after a responsive pleading (in this case, an answer)
had already been filed (served) by respondents. The
matter was thus within the discretion of the trial court.
NOTE: substantial amendment are subject to the
discretion of the court although the liberal policy is to admit
it, if it found that the amend would serve substantial
justice. here the court did not find that it will serve the
substantial justice.
RULES IN REMINGTON v CA, infra.
i. A MOTION TO DISMISS OR ANY PROCEEDING
CONTESTING THE SUFFICIENCY OF THE
COMPLAINT DOES NOT PREVENT THE FILING OF
AN AMENDED PLEADING FOR A SUSBSTANTIAL
AMENDMENT OF A COMPLAINT
Q: Where after a motion to dismiss is filed, may you still
amend as a matter of right? Or when a motion to dismiss
has already been resolved?
A: YES, as long as the order of dismissal has not yet
become final and executory.
ii. THE CUT-OFF FOR AN AMENDMENT AS A
MATTER OF RIGHT IS THE SERVICE OF A
RESPONSIVE PLEADING (ANSWER), NOT BY A
MOTION TO DISMISS
Q: can a complaint still be amended as a matter of right
before an answer has been filed, even if there was a
pending proceeding for its dismissal before the higher
court?
A: Yes.
iii. IN CASES OF MULTIPLE DEFENDANTS, THE
FACT THAT THE OTHER DEFENDANTS HAS
FILED THEIR ANSWERS TO THE COMPLAINT
DOES NOT BAR PETITIONERS FROM
SUBSTANTILLY AMENDING THE COMPLAINT AS
A MATTER OF RIGHT AGAINST THE DEFAULTING
DEFENDANTS (THOSE WHO DID NOT ANSWER).
Illustrative case:
REMINGTON INDUSTRIAL vs CA, G.R. No. 133657.
May 29, 2002]
FACTS: Remington filed a complaint for sum of money
and damages arising from breach of contract against three
defendants, namely, Industrial Steels, Ltd. (ISL), with
Ferro Trading GMBH (Ferro) and respondent British Steel
as alternative defendants. ISL and respondent British
Steel moved for the dismissal of the complaint on the
ground that it failed to state a cause of action against
them. The RTC denied the motions to dismiss. Because of
the denial, British filed a petition for certiorari before the
Court of Appeals claiming therein that the complaint did
not contain a single averment that British committed any
act or is guilty of any omission in violation of petitioners
legal rights. Meanwhile, Remington, realizing that British is
correct, sought to amend its complaint by incorporating
therein additional factual allegations constitutive of its
 REMEDIAL LAW
CIVIL PROCEDURE
cause of action against British. After filing the motion to
admit the amendment, Remington manifested this fact
with the CA and asked to suspend the certiorari
proceedings until final resolution by the RTC since once
the amendment is admitted, the certiorari proceeding
becomes moot and academic. The RTC, on the
otherhand, just noted the filing of the motion to admit the
amendment and held in abeyance its resolution until the
resolution of the certiorari case before the CA. Eventually,
the CA order the RTC to dismiss the case before British.
Additionally, the CA brushed aside or disregarded the
manifestation stating that ―What this Court is called upon
to resolve is whether the lower court committed grave
abuse of discretion when it denied petitioners motion to
dismiss the complaint against it.” (the only matter raised
before the CA is the issue of the original complaint).
Hence, this petition.
ISSUE: WON ca erred in ordering the dismissal of the
complaint against the private respondent for lack of cause
of action under the original complaint in disregard of the
manifestation that an amendment of the original complaint
has been sought.
HELD: Yes because the amendment at that time was still
a matter of right. Since it is a matter of right, the CA should
have considered that. Section 2, Rule 10 of the Revised
Rules of Court explicitly states that a pleading may be
amended as a matter of right before a responsive
pleading is served. This only means that prior to the
filing of an answer, the plaintiff has the absolute right
to amend the complaint whether a new cause of action
or change in theory is introduced. (because before the
service of an answer, you can amend the complaint as a
matter of right both in form and substance. After the
service of an answer AND if the amendment is substantial,
ibang usapan na, discretionary na yan, like in Ng v. Soco).
Under this provision, substantial amendment of the
complaint is not allowed without leave of court after an
answer has been served, because any material change
in the allegations contained in the complaint could
prejudice the rights of the defendant who has already
set up his defense in the answer. Conversely, it
cannot be said that the defendants rights have been
violated by changes made in the complaint if he has
yet to file an answer thereto. In such an event, the
defendant has not presented any defense that can be
altered or affected by the amendment of the complaint
in accordance with Section 2 of Rule 10. The defendant
still retains the unqualified opportunity to address the
allegations against him by properly setting up his defense
in the answer. Considerable leeway is thus given to the
plaintiff to amend his complaint once(only), as a matter of
right, prior to the filing of an answer by the defendant. The
right granted to the plaintiff under procedural law to amend
the complaint before an answer has been served is not
precluded by the filing of a motion to dismiss or any other
proceeding contesting its sufficiency (namely, the petition
for certiorari before CA). Were we to conclude otherwise,
the right to amend a pleading under Section 2, Rule 10 will
be rendered nugatory and ineffectual, since all that a
defendant has to do to foreclose this remedial right is to
challenge the adequacy of the complaint before he files an
answer.
ISSUE2: WON Remington can no longer substantially
amend the complaint as a matter of right as against British
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 83 of 270
since the other defendants (ISL and Ferro) have already
answered
HELD2: NO. The fact that the other defendants below
have filed their answers to the complaint does not bar
petitioners right to amend the complaint as against
respondent British (the defaulting defendant). Indeed,
where some but not all the defendants have answered,
the plaintiff may still amend its complaint once, as a
matter of right, in respect to claims asserted solely
against the non-answering defendant, but not as to
claims asserted against the other defendants.
NOTE: The cut-off is the service of an answer (responsive
pleading). A motion to dimiss is not even considered a
responsive a pleading.
MARCOS-ARANETA v. CA, supra.
FACTS: Irene instituted before the RTC Batac, Ilocos
Norte two similar complaints for conveyance of shares of
stock, accounting and receivership against the Benedicto
Group.Respondents filed a Motion to Dismiss on the
ground that venue was improperly laid. The lower court
dismissed the case since Irene nor the respondents were
residents of Ilocos Norte. Before the dismissal became
final, Irene filed an amended complaint impleading co-
plaintiffs who are actually residing in Ilocos Norte and who
are her trustees. The trial court admitted the amendment.
ISSUE: WON the trial court is correct in admitting the
amendment
HELD: Yes because no answer has yet been served.
Hence, the amendment is still a matter of right. It is even
not required to file a motion to admit the amendment since
mere notice/manifestation is sufficient to amend the
complaint. You only file a motion if the amendment is by
leave of court, and not when it is still a matter of right
UNTALAN vs CARANGDANG – Before an answer or
motion to dismiss has been filed, the original complaint is
amendable, and the amendment can supersede the
original pleading, as a matter of right, without leave of
court being required and without the court taking
cognizance at all of the original complaint.
LIMITATIONS IN ALLOWING AMENDMENTS DESPITE
THE LIBERAL POLICY
1. If amendment is for the purpose of delay (as shown
in the rules)
2. If the purpose of the amendment is to rectify an
error of jurisdiction or confer jurisdiction upon the
court (as provided in jurisprudence)
Q: If the court under the original complaint has no
jurisdiction over the subject matter, can you
amend it in order to confer jurisdiction upon the
court?
A: NO. (Tirona v. Alejo, infra.)
- If under the original pleading, the court
has no jurisdiciton.
 REMEDIAL LAW
CIVIL
33
PROCEDURE
Q: You are claiming 300k filed with RTC - can
the original claim be amended to 500k so that it
can be within RTC?
A: NO, Not allowed. When you amend, it
presupposes that the court at first instance has
JURISDICTION in the first place
AMENDMENT OF ORIGINAL COMPLAINT
CANNOT BE ALLOWED TO CONFER
JURISDICTION UPON THE COURT
Illustrative case:
Tirona v. Alejo, G.R. No. 129313, October 10,
2001
FACTS: Petitioners sued private respondent Luis
Nuñez before the MTC for ejectment on the
34
ground of forcible entry . Nuñez admitted in his
answers that petitioners owned the fishponds, but
denied the other allegations. He raised the
following affirmative defense that MTC had no
jurisdiction over the case, for petitioners' failure to
allege prior physical possession in their
complaint. The petitioners sought to amend the
complaint by adding an allegation that they had
prior physical possession
ISSUE: WON the amendment may be allowed
HELD: NO because purpose of the amendment
in this case is to confer jurisdiction upon the court
which the said court never had under the original
complaint. The policy in this jurisdiction is that
amendments to pleadings are favored and
liberally allowed in the interests of substantial
justice. Thus, amendments of the complaint may
be allowed even if an order for its amendments of
the complaint may be allowed even if an order for
its dismissal has been issued so long as the
motion to amend is filed before the order of
dismissal acquired finality. However, that it is not
a hard and fast rule. An amendment is not
allowed where the court has no jurisdiction
over the original complaint and the purpose
of the amendment is to confer jurisdiction
upon the court, or where the action originally
pleaded in the complaint was outside the
jurisdiction of the court. Where the court of
origin had no jurisdiction over the original
complaint in the first place, amendments may not
be had. It is axiomatic that before an amendment
can be permitted, the trial court must have
acquired jurisdiction over the case in the first
instance.
RATIO: For a court to have an authority to
amend the complaint, it must have jurisdiction
33
Claim must be more than 300k(others)/400k(manila) for RTC to have
jurisdiction
34
Kapag forcible entry, jurisdictional or material matter ang allegation
that the plaintiff had prior physical possession. In unlawful detainer,
hindi, because in unlawful detainter, the possession of the defendant is
initially lawful. It only became unlawful upon the termitaion of the right
to possess the proper (e.g. by termination of the contract of lease).
Whereas in forcible entry, the possession of the defendant is illegal
from the beginning, hence, an allegation of prior physical possession is
jurisdictional.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 84 of 270
over the case in the first instance. Because if it
has no jurisdiction, how can it allow the
amendment.
3. To cure a premature or non-existent cause of
action.
Q: Is there a distinction between a
premature/non-existent cause action, from an
imperfect cause of action?
A: Yes, in a non-existent cause of action, there is
yet no delict or wrong or act or omission
committed by the defendant. Whereas in an
imperfect cause of action, there is already a delict
or wrong, or act or omission has already been
committed as alleged in the complaint but the
cause of action is stated in an incomplete
manner. A non-existent cause of action is not
curable by amendment. Whereas an imperfect
cause of action is curable by amendment.
Illustrative case:
UNLESS THE PLAINTIFF HAS A VALID AND
SUBSISTING CAUSE OF ACTION AT THE
TIME HIS ACTION IS COMMENCED, THE
DEFECT CANNOT BE CURED OR REMEDIED
BY THE ACQUISITION OR ACCRUAL OF ONE
WHILE THE ACTION IS PENDING, AND A
SUPPLEMENTAL COMPLAINT OR AN
AMENDMENT SETTING UP SUCH AFTER-
ACCRUED CAUSE OF ACTION IS NOT
PERMISSIBLE
SWAGMAN HOTELS v. CA, G.R. No. 161135.
April 8, 2005
F: Swagman through its Pres and VP made
utang 150k$ kay to a certain person. It was
evidenced by 3PN (each woth 50k$)
1PN- dated august 7 1996
2PN- 14 march 1997
3PN – 14 july 1997
In1998 Dec, Christian informed Corporation that
he was terminating the loans and demanded the
amount + unpaid interests. Because nothing
happend, on Feb 2 1999, creditor filed complaint
that the utangs were made on those date.
At the tme complaint was filed, the notes were
not yet due and demandable
TC: When the instance case was filed on Feb
1999, none of the notes was due and
demandable. As of this date however, )date of
nd
decision of court, May 5, 2000) the fist and 2
PN have already matured hence payment is
already due. Under Sec 5 of Rule 10, may be
cured by evidence presented w/o objection, thus
without not cause of action, he may nevertheless
recovered to PN in view of the evidences
showing that said PN are now due and
demandable. In the course of trial it became due.
No objection and hence conformed by the
evidence
 REMEDIAL LAW
CIVIL PROCEDURE
CA: sustained the ruling,
SC: NOT CORRECT. A matter there cannot be
amendment in order to cure cause of action.
When any complaint for sum of damages, no
cause of action has existed because petitioner
has not violated an act in violation of his
obligation. WIhout cause of action, respondent
has no right to maintain an action before the
court and it hould have dismissed the case.
Interpeting Sec 5 of Rule 10, such interpretation
made by two courts is erroenoeus.
However, the curing effect under Sec 5 is
APPLICABLE ONLY if a cause of action in fact
exist at the time complaint is filed.
RULING: It thus follows that a complaint
whose cause of action has not yet accrued
cannot be cured or remedied by an amended
or supplemental pleading alleging the
existence or accrual of a cause of action
while the case is pending. The underlying
reason for this rule is that a person should not be
summoned before the public tribunals to answer
for complaints which are immature. As this Court
eloquently said in Surigao Mine Exploration Co.,
Inc. v. Harris: ―It is a rule of law to which there
is, perhaps, no exception, either at law or in
equity, that to recover at all there must be
some cause of action at the commencement
of the suit. Xxx‖
Q: Is the failure to state a cause of action curable
by amendment?
A: Yes. It is curable by amendment. It is merely
an imperfect statement of a cause of action. It is
not where there is a non-existent cause of action.
RULES IN RELATION TO STATUTE OF LIMITATIONS
OR PRESCRIPTION
Q: If a complaint is amended, when is the statute of
limitations interrupted?
A: It depends upon the nature of the amendment. If the
amendment produces/introduces a new cause of action,
then the statute of limitations is interrupted as to the new
cause of action on the date of the filing of the amended
complaint. But where the amendment merely completes
an imperfect statement of a cause of action, the plea of
statute of limitations relates to the date of the filing of the
original complaint.
HYPOTHETICAL QUESTIONS
FACTS: Plaintiff files an action against the defendant
for the reconveyance of a real property. The basis of
his cause of action is that he bought the property.
After an answer was filed, the defendant disclaiming
that the plaintiff bought the property, the latter filed an
amendment complaint adding a new cause of action
claiming that he inherited it.
Q1: May the two causes of actions be joined in one
complaint?
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 85 of 270
A1: Yes, a plaintiff can state as many cause of action
in the alternative or otherwise, and the consistency in
one statement of a cause of action will not render the
entire pleading dismissable so long as the other
causes of action alleged is sufficient in itself. The
rules is that alternative causes of action may be
inconsistent with each other.
Q2: Is the amendment substantial?
A2: Yes, the evidence available to meet the original
complaint would no longer be sufficient to meet the
amended complaint. Under the original complaint, the
evidence only pertains to the sale, now, there must be
evidence against the complaint?
WHAT IS MEANT BY AMENDMENT TO CONFORM TO
EVIDENCE
Sec. 5. Amendment to conform to or authorize
presentation of evidence. When issues not raised by
the pleadings are tried with the express or implied consent
of the parties, they shall be treated in all respects as if
they had been raised in the pleadings. Such amendment
of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result of
the trial of these issues. If evidence is objected to at the
trial on the ground that it is not within the issues made by
the pleadings, the court may allow the pleadings to be
amended and shall do so with liberality if the presentation
of the merits of the action and the ends of substantial
justice will be subserved thereby. The court may grant a
continuance to enable the amendment to be made.
―When issues not raised by the pleadings are tried
with the express or implied consent of the parties,‖
Q: What kind of consent?
A: i. Express, tinanong ka at ang sagot mo ay oo; ii.
Implied, nagprepresent ng evidence pero di ka nag object.
―Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion
of any party at any time, even after judgment‖
- So pwede kang magamend kasi nakapagpresent
ka na ng ebidensya either by express or implied
consent of the parties
―but failure to amend does not affect the result of the
trial of these issues‖
- Even if no actual amendment to the pleading is
made, the court can still render judgment based
on the presented evidence even if there’s no
actual/formal amendment of the pleading.
Because it is already as if an amend was made.
- (take note- kung hindi default pwd mong dagdag
cause of action provided di siya nag-object—
express or implied---ung implied tulog).
 REMEDIAL LAW
CIVIL PROCEDURE
Q: Is amendment to conform to evidence
compulsory?
A: No, because failure to amend does not affect
the result of the trial of the issues. Besides,
unless the defendant is in default, the plaintiff is
entitled to judgment on the issues proved by him
in the trial, although not alleged.
- For e.g complaint alleges ownership on the
allegation that he acquired such title thru a sale,
when P presents evidence he was showing to
court that it is based on inheritance ( pag tutulog
tulog ka, bahala ka, failed to object), not alleged
in the pleading and pre-trial. Napasok niya ung
inheritance- there is an amendment to the
pleading even no if there was no actual/formal
amendment.
- Evidence is admissible if material, relevant and if
not excluded by the rules unless you failed to
object. ( as the above example, relevant- claim of
ownership – based on inheritance- irrelevant)
- For e.g. complaint seeing damages for 1m,
presented evidence showing 2m. Pwede ba yun?
If defendant did not object.
- Where the theory of plaintiff is based on
inheritance. During trial, presented evidence that
he acquired by sale. May the court used that in
resolving the case? YES. Implied consent of the
parties. Even without amendement of plaintiff will
not affect the result of the trial of the issues.
- WHEN RULE NOT APPLICABLE: A: defendant
is declared in default. Hence, judgment should be
based on the prayer of the complaint
IN RELATION TO DEFAULT
35
 If the party has been declared in default, the
court cannot render a judgment granting an
amount more than or different from that
prayed for.
Q: If the other party has not been declared in
default, can you present evidence other than
what is alleged in the pleading, can the court
grant you more relief? e.g. sabi dun sa
complaint, ang ginastos niang actual
damages is 100k pero pagdating sa trial,
nagtestify ngayon ung plaintiff, 200k na daw.
What if the party failed to object, or
nagobject but the plaintiff invoked substantial
justice (may resibo)
A: Yes. Kung not in default, pwede igrant
ang 200k. pero kapag nadeclare in default,
hindi na pwede.
35
“(d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated damages. (5a, R18).”
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 86 of 270
―If evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and
shall do so with liberality if the presentation of the
merits of the action and the ends of substantial justice
will be subserved thereby.‖
Q: So again, what is the test?
A: the ends of substantial justice would be
served.
Section 7. Filing of amended pleadings. — When
any pleading is amended, a new copy of the entire
pleading, incorporating the amendments, which shall be
indicated by appropriate marks, shall be filed. (7a)
Q: When a pleading is amended, what technical
requirements must the pleader comply?
A: When any pleading is amended, a new copy of the
entire pleading, incorporating the amendments, which
shall be indicated by appropriate marks, shall be filed
- Iunderline mo ung mga amendments na dagdag,
pero ung mga bawas, paano mo mamark un?
Escolin: I have no idea
EFFECT OF AMENDMENT
Section 8. Effect of amended pleadings. — An
amended pleading supersedes the pleading that it
amends. However, admissions in superseded pleadings
may be received in evidence against the pleader, and
claims or defenses alleged therein not incorporated in the
amended pleading shall be deemed waived. (n)
―An amended pleading supersedes the pleading that
it amends.‖
Q: What are the effects of an amended pleading?
A: The effects are:
i. The original ceases to be part of the records;
it even ceases to be a judicial admission.
 ―When a pleading is amended, the original
pleading is deemed abandoned. The original
ceases to perform any further function as a
pleading. The case stand for trial on the
amended pleading only.‖ (MAGASPI vs
RAMOLETE)
ii. If the amended pleading did not reiterate the
admissions made in the original, it ceases to be
a judicial admission.
Q: Can you still prove such admissions?
A: Yes. Such admissions in the superseded
pleading may be received in evidence
against pleader. You may present them
as evidence.
iii. The claims or defenses alleged in the original
pleading not incorpoarated in the amended
pleading shall be deemed waived
Superclean v. CA, G.R. No. 107824, July 5, 1996
 REMEDIAL LAW
CIVIL PROCEDURE
FACTS: Petitioner Superclean is engaged in janitorial
services. Before the end of its janitorial contract, a public
bidding was made. For that recent public bidding,
petitioner superclean also won. However, private
respondent Home Development and Mutual Fund
refused without just cause to award the contract to it and
instead caused a rebidding. Hence, superclean filed an
action for Mandamus/Certiorari With Preliminary
Injunction And/Or Restraining Order to compel
respondent. The bidding was only for one year, however,
the cases was pending has already been pending for
more than a year. Nagmoot na, paano pa maaward ang
contract e lumagpas na ang one year. Thus, petitioner
moved for the admission of a Supplemental Complaint
(NOTE: Amendment ang ginamit ni sir dito kahit
supplemental complaint nasa kaso. Technically, hindi
supplemental kasi available na claims at time of filing of
pleading), this time claiming relief consisting in unrealized
profits, exemplary damages and attorneys fees, because
it can no longer ask for the enforcement of the contract,
the one year period having lapsed. The RTC and CA
denied the said motion. Its ruling was based on the fact
that the relief sought in the Supplemental Complaint was
different from that contained in the original complaint
which sought to compel private respondent to recognize
petitioner as the lowest qualifying bidder, hence, a
substantial amendement.
ISSUE: WON the Supplement (Amendment) is
substantial
HELD: NO. the plaintiff did not change his theory. The
new relief sought was based on the same delict or wrong,
that is, the failure to execute to contract. Indeed the new
relief sought (payment of damages in lieu of an
award of the contract for janitorial services) is
actually an alternative remedy to which petitioner
was entitled even before at the time of the filing of its
original complaint. If petitioner was entitled to the award
of the contract, as it claimed it was, it could have asked
either for an award of the contract for janitorial services
or for damages. The fact that it opted for the first does
not preclude it from subsequently claiming damages
because through no fault of its own, the year passed
without an award in its favor, with the result that it could
no longer demand the execution of a contract in its favor
after that year. The so-called Supplemental Complaint
filed by petitioner should simply be treated as
embodying amendments to the original complaint or
petitioner may be required to file an amended
complaint. An amendment to change the relief sought
does not change the theory of a case. What is prohibited
is a change in the cause of action. Because the cause
of action on which the complaint for mandamus and
injunction and the so-called Supplemental Complaint
are based is one and the same, the issue raised is
the same, namely, whether private respondent was
justified in refusing to award the contract for
janitorial services to petitioner. Furthermore, There
will be no unfairness or surprise to private
respondent, because after all private respondent will
have a right to file an amended answer and present
evidence in support thereof.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 87 of 270
NOTE: Q: what do you amend? A: Allegations
constituting the party’s cause of action or defense. Here,
what the plaintiff was asking is the damages, the relief,
un lang pinapaamend nia kasi di na sia makahingi ng
specific performance. This was actually amendment in
the real sense, and not supplemental. And the
amendment in this case was not substantial. It never
changed the theory. In otherwords, the evidentiary
defenses remains the same.
ONCE THE AMENDED ANSWER HAS BEEN
ADMITTED, THE ORIGINAL ANSWER CEASES TO
EXISTS WITH ITS FORMER PLACE BEING TAKEN BY
THE AMENDED ANSWER
Illustrative case:
Aznar v. Bernad, G.R. No. 81190, May 9, 1988
FACTS: Spouses Kintanar (private respondents), as
plaintiffs, filed in the Regional Trail Court of Cebu, a civil
action against the defendants-spouses Aznar, the herein
petitioners, praying for the annulment of a Sheriffs
Certificate of Sale, damages, and atty. fees. The
defendants Aznar, on October 13, 1986, timely filed their
answer. Seven days later, or on October 20, 1986, the
defendants Aznar submitted 'Motion For Leave to Amend
Answer Or To File Supplemental Pleading, attaching
thereto a copy of the amended answer which alleged the
affirmative defense of prescription. The motion was denied
on the basis of section 2, Rule 9, of the Revised Rules of
Court which provides that defenses or objections, except
the failure to state a cause of action, if not pleaded in a
motion to dismiss or in an answer, are deemed waived.
ISSUE: WON is it correct on the part of the lower court to
deny the admission of the amended answer.
HELD: NO. In this case, the amendment of the answer
was still a matter of right since no reply (the responsive
pleading in the answer) was yet served. The general rule,
it is true, is that the affirmative defense of prescription
when not seasonably raised in either a motion to dismiss
or in the answer, is deemed waived. This case, however,
does not fall under the cited rule (since the amendment
was still a matter of right). It cannot be said that the
petitioners failed to allege the defense of prescription
in their answer. Precisely, the amended answer is
being submitted to take the place of the original one.
Once the amended answer is admitted, the original
answer and ceases to exist with its former place
entirely taken over by the amended answer. It is clear,
therefore, that the reliance of the trial court on the case of
Torreda vs. Boncaros is misplaced. That case involved a
supplemental motion to dismiss alleging the defense of
prescription and not an amended answer as in this case.
There is a whale of a difference between an amendment
and a supplement. First, a supplemental motion to
dismiss, strictly speaking, is not a pleading. 9 Further, as
differentiated from an amended pleading which, as
aforestated, takes the place of the original pleading, a
supplemental pleading does not extinguish the existence
of the original. As its very name denotes, it only serves to
 REMEDIAL LAW
CIVIL PROCEDURE
bolster or adds something to the primary pleading. A
supplement exists side by side with the original. It does
not replace that which it supplements. Moreover, at the
time the petitioners moved to have their original
answer amended, they still had the right to do so. The
records do not show that a responsive pleading, like a
reply, to the original answer, has already been served
to the petitioners by the private respondents. Lastly,
even assuming that the petitioners had indeed failed to
raise the affirmative defense of prescription in a motion to
dismiss or in an appropriate pleading (answer, or
amended or supplemental answer) and an amendment
would no longer be feasible, still prescription, if apparent
on the faceof the complaint, may be favorably considered.
EXAMPLE OF SUPPLEMENTAL PLEADINGS: e.g. If
promissory note is paid in installment. Each installment
can be the subject of an action separate from each other,
the only qualification is that if at the time of the filing of the
original, many installments were already due, you have to
include all in the complaint. Otherwise, such would
constitute splitting of causes of action. The other way of
doing it, assuming no escalation clause, is that once each
installment becomes due, you just file a supplement
pleading with the same court.
SUPPLEMENTAL PLEADINGS, ALWAYS UPON
MOTION
Section 6. Supplemental pleadings. — Upon
motion of a party the court may, upon reasonable notice
and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions,
occurrences or events which have happened since the
date of the pleading sought to be supplemented. The
adverse party may plead thereto within ten (10) days from
notice of the order admitting the supplemental pleading.
(6a)
Q: If you amend a complaint, shall it always be by leave of
court?
A: Not necessarily, may be by matter of right.
Q: HOW ABOUT IN SUPPLEMENTAL PLEADING?
A: NO. Different rule, it is not a matter of right. It is always
UPON MOTION OF A PARTY.
- Where a supervening event does not reinforce
or aid the original demand but because of it a
plaintiff’s demand could no longer be enforced,
thus justifying the change in relief sought, such
party’s remedy is not to supplement but rather to
amend its complaint. (Superclean vs CA)
NECESSITY OF SUMMONS
Q: Is there a need for new summons?
SUMMONS MUST AGAIN BE SERVED IF AMENDMENT
OF THE COMPLAINT WAS MADE BEFORE THE
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 88 of 270
DEFENDANT HAS APPEARED; BUT THE
AMENDMENT IN SUCH CASE MUST BE
SUBSTANTIAL (De dios v. CA, infra)
Q: Is summons required on an amended complaint? A: It
DEPENDS on whether the amendment was made before
or after the dependant’s appearance in the action. A
complaint amended before a defendant answered must be
served with another summons with the same formalities as
the original complaint. Once defendant has already
appeared in the action, meaning, the court has already
acquired jurisdiction over him, an amendment of the
complaint made after such appearance may be served
upon the defendant in any same manner as any other
pleading, paper or motion. But note De dios v. CA, infra.
where it was held that The rule is that it is only when
new causes of action are alleged in an amended
complaint filed before the defendant has appeared in
court that another summons must be served on the
defendant with the amended complaint
RULE 11
WHEN TO FILE RESPONSIVE PLEADING
Section 1. Answer to the complaint. — The
defendant shall file his answer to the complaint within
fifteen (15) days after service of summons, unless a
different period is fixed by the court. (la)
―The defendant shall file his answer to the complaint
within fifteen (15) days after service of summons,‖
- Start counting from the service of summons
―unless a different period is fixed by the court. (la)‖
Q: When may the court fix a different period for filing
an answer?
A: Other instances where court may allow other period:
1) where the defendant is unknown, or whenever
his whereabouts are unknown and cannot be
ascertained by diligent inquiry (Sec. 14 Rule 14)
 you cannot serve personal service of
summons. In which case, summons may be
done by publication and the court has now
the discretion to fix a different period.
2) When the defendant does not reside and is
not found in the Philippines (Sec 15 of Rule
14)
 ―Any order granting such leave shall specify
a reasonable time, which shall not be less
than sixty (60) days after notice, within which
the defendant must answer. (17a)‖
 Under sec. 15, where the defendant is not a
resident AND is not found in the Philippines,
and summons is made in any of the modes
here stated. The court may, in the order
 REMEDIAL LAW
CIVIL PROCEDURE
granting, order a period but in no case not ANSWER TO AMENDED COMPLAINT
less than 60 days. Section 3. Answer to amended complaint. —
3) When the defendant is a resident but When the plaintiff files an amended complaint as a matter
temporarily out of the Philippines (Sec 15 of of right, the defendant shall answer the same within fifteen
Rule 14) (15) days after being served with a copy thereof.
 ―Section 16. Residents temporarily out of
the Philippines. — When any action is
commenced against a defendant who Where its filing is not a matter of right, the defendant shall
ordinarily resides within the Philippines, but answer the amended complaint within ten (l0) days from
who is temporarily out of it, service may, by notice of the order admitting the same. An answer earlier
leave of court, be also effected out of the filed may serve as the answer to the amended complaint if
Philippines, as under the preceding section. no new answer is filed.
(18a)‖
 Preceding section states ―which shall not be
less than sixty (60) days after notice, within This Rule shall apply to the answer to an amended
which the defendant must answer.‖ counterclaim, amended cross-claim, amended third
(fourth, etc.)—party complaint, and amended complaint-in-
IF THE DEFENDANT FAILS TO FILE AN ANSWER; intervention. (3a)
NOT DEEMED TO HAVE ADMITTED; MAY BE
DECLARED IN DEFAULT UPON MOTION AMENDED COMPLAINT AMENDMENT NOT A
AS MATTER OF RIGHT MATTER OF RIGHT ( BY
Q: If the defendant fails to file an answer, should he LEAVE OF COURT)
be deemed to have admitted the material allegations
in the complaint? answer the same within within ten (l0) days from
fifteen (15) days after notice of the order
A: NO. However, in such case, the defendant may be being served with a copy admitting the same.
declared in default. If declared in default, ex parte thereof.
proceedings na. - Count ten days not
- Within fifteen from receipt of the
ANSWER OF A DEFENDANT FOREIGN PRIVATE days from amendment complaint
JURIDICAL ENTITY service of the but from the order
copy of the admitting the
W/ AGENT W/O AGENT, AND amended amendment
SERVICE UPON GOV‘T complaint - The reason is there
OFFICIAL - The reason is must be leave. You
there is no need must wait for the
Rule 14 Sec. 12. Service Rule 11 Sec. 2. Answer of for court approval. admission of the
upon foreign private a defendant foreign amendment.
juridical entities. — private juridical entity. —
When the defendant is a Where the defendant is a
foreign private juridical foreign private juridical entity NOTE: An answer earlier filed may serve as the
entity which has and service of summons is answer to the amended complaint if no new answer is
made on the government filed.
transacted business in the
Philippines, service may official designated by law NOTE: This Rule shall apply to the answer to an amended
be made on its resident to receive the same, the counterclaim, amended cross-claim, amended third
agent designated in answer shall be filed within (fourth, etc.)—party complaint, and amended complaint-in-
accordance with law for thirty (30) days after receipt intervention.
that purpose, xxxx, or on of summons by such entity.
any of its officers or (2a) ANSWER TO COUNTERCLAIM OR CROSS-CLAIM
agents within the Section 4. Answer to counterclaim or cross-
Philippines. claim. — A counterclaim or cross-claim must be answered
within ten (10) days from service. (4)
15 days from service of NOTE: Count the 30 days
summons upon its not from the receipt by the NOTE: This rule has more relevance to a permissive
resident agent designated government counterclaim which has to be answered.
designated in accordance official but from the receipt
with law or on any of its of summons by the COMPULSORY COUNTERCLAIM NEED NOT BE
officers or agents within defendant foreign private ANSWERED; MAY NOT BE DECLARED IN DEFAULT
the Philippines. juridical entity. –kahit na
service na sa government Q: If the defendant plead a counterclaim in the answer, is
official. it necessary for the original plaintiff to file an answer to the
counterclaim?

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 REMEDIAL LAW
CIVIL PROCEDURE
Q Pag di niya sinagot, pwede bamadefault ba plaintiff?
A: It depends. If the counterclaim is permissive, an aswer
is ALWAYS required. If it does not rise out of or connected
with the transaction or occurrence which constitutes the
subject matter of the opposing parties claim, it is
necessary for the original plaintiff to answer since the
issues therein are new. Accordingly, failure to answer a
counterclaim is a ground to be declared in default.
However, if the Counterclaim is compulsory, the complaint
itself would be deemed the answer of the plaintiff in the
counterclaim because the issues are so inseparable. The
issues raised in the counterclaim are deemed
automatically joined by the allegations of the complaint.
NOTE: CROSS-CLAIM IS ALSO ALWAYS
COMPULSORY
Q: What is the period to answer a counterclaim when
it is amended as a matter of right?
A: 10days from service.
Q: If it is by leave of court?
A: 10days from the order admitting the amended
complaint.
SECTION 5. Answer to third (fourth, etc.)-party
complaint.
The time to answer a third (fourth, etc.)-party complaint
shall be governed by the same rule as the answer to the
complaint. (5a)
Q: What is the period to answer for the third, fourth,
etc. party complaint?
A: 15 days from the service of summons because
summons is needed for the court to acquire jurisdiction
over the third party (See section 1). It can also be 30 or 60
days. (See the discussion above, when defendant is does
not reside in the Philippines and the if it is a foreign
juridical entity)
SEC. 6. Reply. — A reply may be filed within ten (10)
days from service of the pleading responded to. (6)
Q: When should a reply be responded to?
A: None. Last na „yun. You don’t respond to a reply.
SEC.7. Answer to supplemental complaint.
A supplemental complaint may be answered within ten
(10) days from notice of the order admitting the same,
unless a different period is fixed by the court. The answer
to the complaint shall serve as the answer to the
supplemental complaint if no new or supplemental answer
is filed. (n)
o Please remember those pleadings by leave of court.
Supplemental complaint by leave of court yan always.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 90 of 270
An amended complaint after a responsive pleading or
a motion of summary judgement has been served –
by leave of court yan. In which case the reckoning
period is from notice of the order admitting the
amended complaint.
o The answer to the complaint shall serve as an answer
to the supplemental complaint if no new or
supplemental answer is filed. The same thing with
here, in the second paragraph of Section 3 on
Amendments. ―An answer earlier filed may serve as
the answer to the amended complaint, if no new
answer is filed‖
Q: What is the implication?
A: If no answer is made to an amended complaint pero
meron ng previous answer, there was a previous answer
already existing and a supplemental pleading is filed, and
no answer is made, the previous answer will be the
answer for the amended complaint/supplemental ergo, the
party cannot be declared in default.
SEC. 8. Existing counterclaim or cross-claim.
A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall be
contained therein. (8a, R6)
o Section 8 tells us that a defending party insofar
as his compulsory counterclaim or cross claim is
concerned he should alleged that in his answer.
Kambal yan. Answer with counterclaim and/or
cross claim.
SEC. 9. Counterclaim or cross-claim arising after
answer.
A counterclaim or cross-claim which either matured or was
acquired by a party after serving his pleading may, with
the permission of the court, be presented as a
counterclaim or a cross-claim by supplemental pleading
before judgment.
Q: How do you allege? In what pleading?
A: With leave of court, be presented as counterclaim or a
cross-claim by supplemental pleading before judgment.
Q: When should a party respond to such supplemental
complaint?
A: Ten (10) DAYS from the notice of order admitting the
same.
Q: When should be the counterclaim be filed?
A: Before the prescriptive period, within the time to
answer because counterclaim must be filed in the answer.
SEC. 10. Omitted counterclaim or cross-claim.
When a pleader fails to set up a counterclaim or a cross-
claim through oversight, inadvertence, or excusable
neglect, or when justice requires, he may, by leave of
 REMEDIAL LAW
CIVIL PROCEDURE
court, set up the counterclaim or cross-claim by answer thereto woud only be a repetition of the
amendment before judgment. aleegations in the complaint

o Section 10 - omitted counterclaim/cross claim. - it

refers to an existing counterclaim or cross claim RULE 12
at the time of the filing of the answer (andun na) BILL OF PARTICULARS

Q: How may you allege it? SEC. 1. When applied for; purpose.
A: It is by amended complaint. (insert section 10)
Q: What is the period to answer? Before responding to a pleading, a party may move for a
A: (10 days?) from NOTICE of admission of the amended definite statement or for a bill of particulars of any matter
complaint. (15, 10 sometimes 30 or 60). which is not averred with sufficient definiteness or
particularity to enable him properly to prepare his
SEC. 11. Extension of time to plead. responsive pleading. If the pleading is a reply; the motion
must be filed within ten (10) days from service thereof.
Upon motion and on such terms as may be just, the court Such motion shall point out the defects complained of, the
may extend the time to plead provided in these Rules. paragraphs wherein they are contained, and the details
desired.
The court may also, upon like terms, allow an answer or
other pleading to be filed after the time fixed by these
- A party of an action may ask for it.
Rules. (7)
- It is a MORE DEFINITE STATEMENT of any
- Even for answers or other pleadings. matter which is not averred with sufficient
definiteness or particularity.
 Ambiguous.
w/in 15 days w/in 10 days w/in 30
days PURPOSE: to enable the party to prepare for his
responsive pleading.
1. Answer to the 1. Answer to 1. Answer
complaint amended of a Q: When to file?
2. Answer of a complaint not foreign A: a motion of BOP may be filed before responding to a
defendant as a matter of corporat pleading (15,10 etc)
foreign private right ion with
If no responsive is allowed or required? 10days after
juridical entitiy if 2. Answer to no
summons is counter or designat service of the pleading upon the movant like a reply
served on its (a) cross calim ed
resident agent 3. Answer to Philippin Q: What shall the motion of Bill of Particulars contain?
designated in supplemental e A: The defects complaint and the details required or the
accordance with complaint represe details to desired
law for that 4. Reply ntative
purpose or any SEC. 5. Stay of period to file responsive pleading.
of its (b) officers
or agents within After service of the bill of particulars or of a more definite
the Philippines. pleading, or after notice of denial of his motion, the moving
3. Answer to party may file his responsive pleading within the period to
amended which he was entitled at the time of filing his motion, which
complaint as a shall not be less than five (5) days in any event.
matter of right
4. Answer to third Q: What is the effect of filing a motion bop on the
th
(4 etc. ) party period for respond/answer?
complaint
A: It is interrupted/stop the filing of bop stays the filing of
5. Answer to
complaint-in- responsive pleading
interevention
Q: WHEN SHOULD THE RESPONSIVE PLEADING BE
FILED:
OPTIONAL RESPONSIVE PLEADINGS: a. When MBOP is granted: the balance will
resume after the service of the bill of particulars.
(will not result in default even if not filed) b. When MBOP is denied: after notice of such
denial.
1. Reply
2. Answer to amended complaint made with leave
AGCANAS V. MERCADO: action was filed on Nov. 25 to
of court
3. Answer to supplemental complaint recover real property and damages. On Dec. 4 (on the
4. Answer to a compulsory counterclaim so ninth day), defendant filed a MBOP, effect: stays the
intimately related to the main action that an running of the period. The motion was received by the

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 REMEDIAL LAW
CIVIL PROCEDURE
court on Dec. 12, and set for hearing on Dec. 22.
However, before Dec. 22, on Dec. 12, defendant filed a
MTD. TC denied the MTD and ordered the defendants to
answer the complaint. Defendant failed to file an Answer,
and he was declared in default.
ISSUE: Did the TC act correctly in declaring him in
default?
HELD: NO. There was still a suspension of the period to
file the Answer as the renewal will commence to run again
when there is an order granting (served) or denying it
(notice of such order).
Here, the running of the balance of the reglementary
period never commenced to run again as there was still an
unresolved pending incident, which is a MBOP.
Being unacted upon by the court, the effect is that the
MBOP stays the running from the period from filing a
responsive pleading.
SEC. 2. Action by the court.
Upon the filing of the motion, the clerk of court must
immediately bring it to the attention of the court which may
either deny or grant it outright, or allow the parties the
opportunity to be heard.
Q: May the court grant/deny the motion for bill of
particulars immediately without a hearing?
A: YES. The court may either deny or grant it outright,
or allow the parties the opportunity to be heard.
COMPLIANCE WITH THE ORDER AND EFFECT OF
NON-COMPLIANCE
SEC. 3. Compliance with order.
If the motion is granted, either in whole or in part, the
compliance therewith must be effected within ten (10)
days from notice of the order, unless a different period is
fixed by the court. The bill of particulars or a more definite
statement ordered by the court may be filed either in a
separate or in an amended pleading, serving a copy
thereof on the adverse party. (n)
Q: Within what time must the order to file a BOP must be
obeyed?
A: 10 days from the notice of such order
Q: May the Court grant a different period?
A: YES
Q: How must a party comply?
A: either in a separate or in an amended pleading, serving
a copy thereof on the adverse party.
Q: How to prepare?
A: Governed by the rules on pleading
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 92 of 270
SEC. 4. Effect of non-compliance.
If the order is not obeyed, or in case of insufficient
compliance therewith, the court may order the striking out
of the pleading or the portions thereof to which the order
was directed or make such other order as it deems just.
(1[c]a)
Q: May a complaint dismiss for ambiguity of
allegation?
A: No. The ambiguity is a ground of bill of particulars and
not a ground for dismissal.
Q: What is the effect of the filing of the bill of
particulars?
A: The court may:
i. order the striking out of the pleading or the
portions thereof to which the order was directed,
or
ii. make such other order as it deems just.
Q: May the court dismiss the case for failure to comply
with the order granting the bill of particulars?
A: Yes, although the ambiguity per se is not a ground for
dismissal of the action, the trial court may dismiss the
case if the party failed to comply with the order issued by it
grating the bill of particulars
Illustrative cases:
SANTOS V. LIWAG, G.R. No. L-24238, November 28,
1980
FACTS: defendant filed a MBOP as there was no
statement of particularity of fraud, etc. Motion was granted
and when the plaintiff failed to comply with the order, the
court, acting upon previous motion of the defendant,
dismissed the complaint
ISSUE: Was there a proper dismissal of the complaint?
HELD: YES as there was failure to comply with the order
of the court.
EXCERPT: The present action is one for the annulment of
documents which have been allegedly executed by reason
of deceit, machination, false pretenses, misrepresentation,
threats, and other fraudulent means. Deceit, machination,
false pretenses, misrepresentation, and threats, however,
are largely conclusions of law and mere allegations
thereof without a statement of the facts to which such
terms have reference are not sufficient The allegations
must state the facts and circumstances from which the
fraud, deceit, machination, false pretenses,
misrepresentation, and threats may be inferred as a
conclusions In his complaint, the appellant merely averred
that all the documents sought to be annulled were all
executed through the use of deceits, machination, false
pretenses, misrepresentations, threats, and other
fraudulent means without the particular-facts on which
alleged fraud, deceit, machination, or misrepresentations
 REMEDIAL LAW
CIVIL PROCEDURE
are predicated. Hence, it was proper for the trial court
to grant the defendant's motion for a bill of
particulars, and when the plaintiff failed to comply Service is the act of providing a party with a copy of the
with the order, the trial court correctly dismissed the pleading or paper concerned. If any party has appeared by
complaint counsel, service upon him shall be made upon his counsel
or one of them, unless service upon the party himself is
ordered by the court. Where one counsel appears for
Bautista v. Teodoro, G.R. No. L-8894. May 31, 1957
several parties, he shall only be entitled to one copy of any
SYLLABUS paper served upon him by the opposite side. (2a)

PLEADING AND PRACTICE; COMPLAINT; DISMISSAL;

PLAINTIFF‘S FAILURE TO COMPLY WITH ORDER OF 36
COURT. — Where the plaintiff is ordered either to amend FILING SERVICE
the complaint or to file a bill of particulars within ten days DEFINITIO Filing is the act of Act of proving the
from receipt of notice and an extension of two weeks N presenting the copy of pleading to
granted by the Court and plaintiff still fails to comply with pleading or other a party concerned,
said order, the action may be dismissed upon motion of paper to the clerk of
the defendant or upon the Court’s own motion pursuant to court.
Section 3, Rule 30 (now sec. 3 Rule 17) and Section 3,
Rule 16 of the Rules of Court. TO WHOM: to the
adversed party or
TO WHOM: to the party concerned
clerk of court
SEC. 6. Bill a part of pleading.
XPN: If any party
A bill of particulars becomes a part of the pleading for
has appeared by
which it is intended.
counsel, service
Q: What us the effect of the filing of the bill of upon him shall be
particulars on the pleading sought to be made upon his
particularized? counsel or one of
them, unless service
A: The bill of particulars filed under section 6 becomes upon the party
part of the pleading for which it is intended. himself is ordered by
the court.

- Notice or
B. FILING AND SERVICE OF PLEADINGS, service made
JUDGMENTS FINAL ORDERS AND upon a party
RESOLUTIONS who is
represented by
counsel is
RULE 13 nullity. As a rule,
notice to the
FILING AND SERVICE client and not to
his counsel of
record is not
notice in law
Section 1. Coverage. — This Rule shall govern the
unless in
filing of all pleadings and other papers, as well as the instances when
service thereof, except those for which a different mode of the court orders
service is prescribed. (n) service upon
the party or
GR: Rule 13 govern the filing of ALL pleadings and other when technical
papers, as well as the service thereof defect in the
manner of
XPN: Except those for which a different mode of service is notice is
prescribed. waived.
REASON FOR THE

Section 2. Filing and service, defined. — Filing is 36

the act of presenting the pleading or other paper to the In connection with amendment as a matter of right, amendment is a
matter of right generally before a responsive pleading is SERVED. In
clerk of court.
the case of a reply, at any time within ten (10) days after the reply is
SERVED.

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 REMEDIAL LAW
CIVIL PROCEDURE
RULE: (1) To do (2) By REGISTERED or his counsel,
away with the MAIL. Q: Nagkita kayo
subsequent objection NOTE: The date of the sa kalsada or sa
where a party who mailing as shown by the mall, pwede ba
was served a copy post office stamp on the dun?
may raised the envelope or the registry
defense that he receipt, shall be A: YES
knows nothing about considered as the date
b. By leaving it in
court procedure. AND of their filing. The
his office with
(2) to maintain a envelope shall be his clerk or with
uniform procedure attached to the record of a person having
calculated to place in the case. charge thereof.
competent hands the c. If no person is
- The post office is found in his
orderly prosecution of
an agency of the office, or his
cases.
court. Once office is not
NOTE: Where one mailed, the known, or he
pleading or other has no office,
counsel appears for
paper is then by leaving
several parties, he
considered filed. the copy,
shall only be entitled -
to one copy of any between the
(3) ORDINARY MAIL. hours of eight
paper served upon Private courier in the morning
him by the opposite services and six in the
side. NOTE: As opposed to evening, at the
registerd mail, the date party's or
Where party is of filing in this case is counsel's
represented by the actual receipt by residence, if
counsel, service by a the clerk of court. known, with a
party is not service in person of
law, what constitutes sufficient age
proper service is that and discretion
service to counsel then residing
therein.
MODES (1) PERSONAL THREE MODES: -8am-6pm lang.
37
FILING- by
presenting the (1) PERSONAL -if wala ung
38
pleading or other SERVICE party/counsel dun sa
papers - iba to sa service residence.must be
PERSONALLY to of summons. served to a person
clerk of court Three ways of
with a person of (a)
NOTE: If done personal service:
sufficient age, (b)
personally, the clerk
a. by delivering discretion, and (c)
shall endorse on the
personally a residing therein.
date and hour of
copy to the party
filing. (tatakan niya) - wag mo iwan sa
bata or sa bisita.
37
Section 3. Manner of filing. — The filing of pleadings,
appearances, motions, notices, orders, judgments and all other papers
shall be made by presenting the original copies thereof, plainly
(2) SERVICE BY
indicated as such, personally to the clerk of court or by sending them by 39
registered mail. In the first case, the clerk of court shall endorse on the
MAIL
pleading the date and hour of filing. In the second case, the date of the Two ways of service
mailing of motions, pleadings, or any other papers or payments or by mail:
deposits, as shown by the post office stamp on the envelope or the
registry receipt, shall be considered as the date of their filing, payment, a. By registered
or deposit in court. The envelope shall be attached to the record of the
case. (1a)
38 39
Section 6. Personal service. — Service of the papers may be Section 7. Service by mail. — Service by registered mail shall
made by delivering personally a copy to the party or his counsel, or by be made by depositing the copy in the post office in a sealed envelope,
leaving it in his office with his clerk or with a person having charge plainly addressed to the party or his counsel at his office, if known,
thereof. If no person is found in his office, or his office is not known, or otherwise at his residence, if known, with postage fully prepaid, and
he has no office, then by leaving the copy, between the hours of eight with instructions to the postmaster to return the mail to the sender
in the morning and six in the evening, at the party's or counsel's after ten (10) days if undelivered. If no registry service is available in the
residence, if known, with a person of sufficient age and discretion then locality of either the senders or the addressee, service may be done by
residing therein. (4a ordinary mail. (5a; Bar Matter No. 803, 17 February 1998)

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 REMEDIAL LAW
CIVIL PROCEDURE
mail WITH proof of
HOW: requisites failure of both
personal service and
i. By depositing service by mail.
42
the copy in the
post office in a NOTE: The service is
sealed envelope, complete at the time
ii. plainly of such delivery. (6a)
addressed to the
party or his
counsel at his
office, if known, CAVEAT:
otherwise at his JUDGMENT FINAL
residence, if ORDER, OR
known, RESOLUTION;
iii. with postage WHEN ONLY BY
fully prepaid,
PERSONAL
and
iv. with instructions SERVICE,
to the postmaster REGISTERED MAIL,
to return the mail OR PUBLICATION:
to the sender Section 9. Service of
after ten (10) judgments, final
days if orders, or
undelivered. resolutions. -
b. By ordinary mail
-generally, dapat i. Judgments,
registered mail. ii. final orders,
The only instance or
when ordinary iii. resolutions
mail is allowed is -shall be served
when no either (3 ways)
registry service
i. personally
is available in
or
the locality of ii. by
either the registered
senders or the mail.
addressee NOTE: When a party
summoned by
publication has
(3) SUBSTITUT failed to appear in
40 the action, judgments,
ED SERVICE
Situatition: when the final orders or
office and place of resolutions against
residence of the party him shall be served
or his counsel being upon him also by
41 publication at the
unknown.
expense of the
To whom: service prevailing party. (7a)
may be made by
delivering the copy iii. by
to the clerk of court, publication

40
Section 8. Substituted service. — If service of pleadings,
motions, notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of residence of
the party or his counsel being unknown, service may be made by
delivering the copy to the clerk of court, with proof of failure of both Papers Section 4. Papers required to be filed
personal service and service by mail. The service is complete at the time required to and served. — Every
of such delivery. (6a)
41 be filed
Escolin’s view: Di’ba counsel must give the court his address, kaya 1. judgment,
lang kung naglipat then di ininform ang court. is the sending of notice in
the former address will be considered his address official? YES. At that
42
time, his address is legally known, may record pa. but some decisions Escolin: Di ko nga maintindihan ito, paano mo ipprove e wala ngang
said na dapat daw mag substituted service na. address.

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 REMEDIAL LAW
CIVIL PROCEDURE
and 2. resolution, of the after mailing,
served. 3. order, responsive unless the court
4. pleading subsequent to the complaint, pleading. otherwise
- ―subsequent to the complaint‖- Since -must be provides.
in case of the complaint, the procedure complete
is after it is filed, summons is served. service
5. written motion, (3) IF BY
6. notice, appearance, SUBSTITUTED
7. demand, SERVICE- The
8. offer of judgment or service is complete at
9. similar papers shall be filed with the the time of delivery
court, and served upon the parties to the clerk of court.
affected. (2a) PROOF i. If in the record: i. IF BY
WHEN (1) IF BY The filing of a PERSONAL
COMPLET PERSONAL pleading or paper SERVICE
ED -
43
so SERVICE- Personal shall be proved by a) By written
that you will service is complete its existence in admission of
upon actual delivery the record of the the party
know when 45 46
case. served, or
to count the
period, if it (2) IF BY MAIL
is ii. If it is not in the b) official return of
necessary record, but is the server, or
to respond a. If by registered claimed to have -if it emanates
44
mail - complete been filed from the court.
-ibig upon actual personally: the
sabihin receipt by the filing shall be
tatakbo na addressee, or proved by the
ung period after five (5) written or c) the affidavit of
kung may days from the stamped the party
date he acknowledgment serving,
period
received the of its filing by the
- WHEN IS FIRST notice of clerk of court on a
the postmaster, copy of the same; ii. IF THE SERVICE
THE IS BY
ADDRESS whichever date
is earlier. ORDINARY
EE DEMED MAIL
TO HAVE -―whichever date is iii. If filed by
earlier‖- e.g. registered mail: by a. proof thereof
RECEIVED the registry shall consist of
IT , for the magstart ka 5 days
receipt AND by an affidavit of
purpose of from the date the the person
the affidavit of the
counting addressee received mailing of facts
person who did
the first notice of the the mailing. showing
-what is postmaster kahit after compliance with
decisive in 20 days may actual section 7 of this
some case, receipt. Rule (when no
e.g.
whether 45
Section 12. Proof of filing. — The filing of a pleading or paper
amendment shall be proved by its existence in the record of the case. If it is not in
is still a b. If by ordinary
the record, but is claimed to have been filed personally, the filing shall
matter of mail- complete
be proved by the written or stamped acknowledgment of its filing by
right, is not upon the the clerk of court on a copy of the same; if filed by registered mail, by
filing but expiration of the registry receipt and by the affidavit of the person who did the
the service ten (10) days mailing, containing a full statement of the date and place of depositing
the mail in the post office in a sealed envelope addressed to the court,
with postage fully prepaid, and with instructions to the postmaster to
43
Section 10. Completeness of service. — Personal service is return the mail to the sender after ten (10) days if not delivered. (n)
46
complete upon actual delivery. Service by ordinary mail is complete Section 13. Proof of Service. — Proof of personal service
upon the expiration of ten (10) days after mailing, unless the court shall consist of a written admission of the party served, or the official
otherwise provides. Service by registered mail is complete upon actual return of the server, or the affidavit of the party serving, containing a
receipt by the addressee, or after five (5) days from the date he full statement of the date, place and manner of service. If the service is
received the first notice of the postmaster, whichever date is earlier. by ordinary mail, proof thereof shall consist of an affidavit of the person
(8a) mailing of facts showing compliance with section 7 of this Rule. If
44
Escolin: As I was saying, if by registered mail, there is attached to the service is made by registered mail, proof shall be made by such affidavit
mail a registry receipt. The post master of the address will now sent the and the registry receipt issued by the mailing office. The registry return
addressee a notice. Usually tatlong notices yan. Kung wala pa sa third card shall be filed immediately upon its receipt by the sender, or in lieu
notice, back to sender na un. thereof the unclaimed letter together with the certified or sworn copy
of the notice given by the postmaster to the addressee. (10a)

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 96 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
NOTE: containing a registry service is
full statement of the available in the
date and place of locality of either
depositing the mail in the senders or
the post office in a the addressee)
sealed envelope
addressed to the court, iii. IF BY
with postage fully REGISTERED NOTICE OR SERVICE MADE UPON A PARTY WHO IS
prepaid, and with MAIL REPRESENTED BY COUNSEL IS NULLITY. THE FACT
instructions to the a. proof shall be THAT THE CLIENT VOLUNTEERED TO RECEIVE A
postmaster to return made by such COPY OF THE DECISION IS OF NO CONSEQUENCE;
the mail to the sender affidavit and WILL NOT COMMENCE THE RUNNING OF PERIODS
after ten (10) days if b. the registry
not delivered receipt issued by FACTS: In one case, where a party who was represented
the mailing office. by counsel wen to the court to personally ask the status of
c. The registry the case. A court personnel then relayed that there was
return card shall already a decision. The party then and there volunteered
be filed to receive a copy of the decision.
immediately upon
its receipt by the ISSUE: WON there was a proper service of the decision
sender, or or judgment where the party who was represented by
counsel volunteered to receive the copy.
PLUS: if the HELD: When a party is represented by counsel, serive
letter/mail is must be made upon the counsel and not his client. The
unclaimed by fact that the client volunteered to receive a copy of the
addressee, decision is of no consequence. The purpose of the rule is
to maintain a uniform procedure calculated to place in
d. Must be with the
certified or competent hand the orderly prosecution of cases. Since
sworn copy of the decision has not been served to counsel, the remedies
the notice given available has not yet expired. Accordingly, the period
by the within which to appeal or when a decision will become
postmaster to final and executroy has not yet commenced.
the addressee
- Diba, deemed
complete ang
service if by SERVICE AND FILING MUST BE DONE PERSONALLY;
registered by RESORT TO OTHER MODES MUST BE WITH
upon actual EXPLANATION; OTHERWISE, PAPER CONSIDERED
receipt or five NOT FILED.
days after first
Section 11. Priorities in modes of service and
notice, which
ever is earlier filing. — Whenever practicable, the service and filing of
Contents of pleadings and other papers shall be done personally.
certification. Except with respect to papers emanating from the court, a
resort to other modes must be accompanied by a written
- The word explanation why the service or filing was not done
"issued" alone is personally. A violation of this Rule may be cause to
not sufficient to
consider the paper as not filed. (n)
conclude that the
notice was in fact NOTE: resort to other modes must be accompanied by a
received by the written explanation why the service or filing was not done
addressee personally
- The postmaster EFFECT OF NON-COMPLIANCE: A violation of this Rule
should have
may be cause to consider the paper as not filed.
included in his
certification the
a) manner, PERSONAL SERVICE AND FILING IS THE GENERAL
b) date and RULE, AND RESORT TO OTHER MODES OF SERVICE
c) recipient of AND FILING IS THE EXCEPTION; WHENEVER
the delivery. PRACTICABLE, PERSONAL SERVICE OR FILING IS
(Santos v. MANDATORY.
CA, infra.,)
Illustrative case:

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 97 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
Solar vs Ricafort, G.R. No. 132007. August 5, 1998
PURPOSES: Personal service and filing are preferred for
obvious reasons. Plainly, such should expedite action or
resolution on a pleading, motion or other paper; and
conversely, minimize, if not eliminate, delays likely to be
incurred if service or filing is done by mail, considering the
inefficiency of the postal service. Likewise, personal
service will do away with the practice of some lawyers
who, wanting to appear clever, resort to the following less
than ethical practices.
FACTS: Petitioner Solar filed complaint. Summonses and
copies of the complaint were served on private
respondents. Private respondents, as defendants, filed
their Answer (with Counterclaims). A copy thereof was
furnished counsel for petitioner by registered mail;
however, the pleading did not contain any written
explanation as to why service was not made personally
upon petitioner-plaintiff, as required by Section 11 of Rule
13 of the 1997 Rules of Civil Procedure. PetitionerSolar
filed a motion to expunge the Answer (with Counterclaims)
and to declare herein private respondents in default,
alleging therein that the latter did not observe the mandate
of the aforementioned Section 11, and that there was
absolutely no valid reason why defendants should not
have personally served plaintiffs counsel with a copy of
their answer as the office of defendants’ counsel, Atty.
Froilan Cabaltera, is just a stone throw away from the
office of petitioners counsel, with an estimated distance of
about 200 meters more or less. Petitioner further alleged
that the post office was about ten (10) times farther from
the office of Atty. Cabaltera.
HELD: We thus take this opportunity to clarify that under
Section 11, Rule 13 of the 1997 Rules of Civil Procedure,
personal service and filing is the general rule, and
resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or
filing is practicable, in light of the circumstances of
time, place and person, personal service or filing is
mandatory. Only when personal service or filing is not
practicable may resort to other modes be had, which
must then be accompanied by a written explanation as
to why personal service or filing was not practicable
to begin with. In adjudging the plausibility of an
explanation, a court shall likewise consider the importance
of the subject matter of the case or the issues involved
therein, and the prima facie merit of the pleading sought to
be expunged for violation of Section 11. This Court cannot
rule otherwise, lest we allow circumvention of the
innovation introduced by the 1997 Rules in order to
obviate delay in the administration of justice.
SEPARATE OPINION: I find it difficult to agree with
respondent Judge that under the above provision it is
solely within the discretion of the trial court whether to
consider the pleading as filed or not. Section 11 requires
that service and filing of pleadings and other papers shall
be done personally, whenever practicable. In other words,
when personal service is not done, the party who fails to
comply with the requirement must explain why. This
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 98 of 270
makes personal service and filing of pleadings mandatory,
especially as the rule specifically uses the word shall,
unless personal service and filing are shown to be
impractical. At this stage, the exercise of discretion by the
judge does not yet come into play.
In case personal service and filing are neither practical nor
feasible then and only then- can the parties avail of other
modes of service and filing, e.g., by registered mail. But
resort to other modes must be accompanied by a written
explanation why service and filing are not done personally.
From that explanation, the judge will then determine
whether personal service and filing are indeed impractical
so that resort to other modes may be made. It is only at
this stage when the judge may properly exercise his
discretion and only upon the explanation given.
In the case before us, private respondents gave no
explanation why they resorted to service by registered
mail and not by personal service. Absent any explanation,
respondent was without any hypothesis on which to
anchor her finding and conclusion that personal service
was not practicable. In such a situation, respondent judge
could not exercise any discretion any discretion and,
consequently, could not deny petitioners motion to
expunge the answer for lack of merit. Respondent judge
did not even cite a single reason why personal service
was not availed of by private respondents. Consequently,
the conclusion that the motion to strike out private
respondents answer filed by petitioner should be denied
for lack of merit, was without any basis, thus amounting to
grave abuse of discretion on the part of respondent judge.
RULES in Santos v. CA, infra., in case the registered
mail is not received by the addressee:
1. The word "issued" alone is not sufficient to
concluded that the notice was in fact received by
the addressee
2. The postmaster should have included in his
certification the
a. manner,
b. date and
c. the recipient of the delivery.
Illustrative case:
47
SANTOS vs CA, G.R. No. 128061. September 3, 1998
47
Certification in this case: “This is to certify that according to the
record(s) of this Office Registered Letter No. 71154 (with Delivery No.
30175) sent by (the) Court of Appeals, Manila on June 15, 1995
addressed to Atty. Anacieto S. Magno of 208 Associated Bank Bldg.,
Ermita, Manila was returned to sender as unclaimed mail on July 4,
1995 after the lapse of reglementary period provided for under postal
regulations following the issuance of notices on the dates hereunder
indicated (underscoring supplied):
First Notice - June 15, 1995
 REMEDIAL LAW
CIVIL PROCEDURE
FACTS: On 6 June 1995, respondent Court of Appeals
reversed the trial court and declared petitioner liable. On
15 June 1995 the decision of the appellate court was sent
by registered mail to petitioner's counsel, Atty. Anacleto S,
Magno. On the same day, the corresponding notice of
registered mail was sent to him. Two (2) other notices
were sent to the same addressee on 19 and 21 June
1995. But these circumstances notwithstanding, the mail
remained unclaimed and consequently returned to the
sender.
On 27 July 1995 respondent court again sent its decision
to the same addressee by the same mode but after three
(3) notices the decision was returned to the sender for the
same reason.
On 27 September 1995 a notice of change of name and
address of law firm was sent by petitioner's counsel to
respondent court.
On 28 March 1996 the same decision of respondent court
was sent anew by registered mail to petitioner's counsel at
his present address which he finally received on 3 April
1996. On 17 April 1996 he withdrew his appearance as
counsel for petitioners.
On 18 April 1996 petitioner's new counsel, Atty.
Lemuel M. Santos, entered his appearance and moved
for reconsideration of respondent court's decision of 6
June 1995.
Respondent Yapchiongco opposed the motion on the
ground that the period for its filing had already expired. He
insisted that on the basis of the dates of the notices and
the notation "Unclaimed: Return to Sender" stamped on
the envelope containing the decision of respondent court,
service by registered mail was complete five (5) days from
15 June 1995, and thus commenced the running of the
period for reconsideration, the last day being 5 July 1995.
Respondent court sustained the opposition and denied the
motion
ISSUE: WON the motion for reconsideration has been
filed out of time
HELD: NO. It may, be observed that the rule on service by
registered mail contemplates two (2) situations: first,
Second Notice - June 19, 1995
Third Notice - June 21, 1995*16+”
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 99 of 270
actual service the completeness of which is determined
upon receipt by the addressee of the registered mail and,
second, constructive service the completeness of which is
determined, upon the expiration of five (5) days from the
date of first notice of the postmaster without the addressee
having claimed the registered mail. The second
circumstance was appreciated by respondent court to
obtain in the present case. Yet for completeness of
constructive service there must be conclusive proof
that petitioner's former counsel or somebody acting
on his behalf was duly notified or had actually
received the notice, referring to the postmaster's
certification to that effect. Here, private respondent
failed to present such proof before respondent court
but only did so in the present proceeding
As between the claim of non-receipt of notices of
registered mail by a party and the assertion of an official
whose duty is to send notices, which assertion is fortified
by the presumption that official duty has been regularly
performed, the choice is not difficult to make. But then the
contents of the official's certification may spell the
difference. For, it was not enough for Postmaster
Endaya to have certified that the notices were issued
because this is just a prelude to service by registered
mail. And definitely, it would not be in consonance
with the demands of due process and equity for us to
automatically conclude that from the word "issued"
alone, the notice was in fact received by the
addressee or somebody acting on his behalf and on
the same date of the notice. The postmaster should
have included in his certification the manner, date and
the recipient of the delivery.
THE OMISSION OR NEGLECT OF THE COUNSEL TO
INFORM THE COURT OF HIS CHANGE OF ADDRESS
WILL NOT STAY THE FINALITY OF THE DECISION IF
NOTICE AND COPY OF THE DECISION WERE
PROPERLY SENT TO HIS GIVEN MAILING ADDRESS
MAGNO vs CA, G.R. No. L-58781 July 31, 1987
FACTS: The CA rendered decision affirming the decision
of the lower court. Notice of the decision was sent to
petitioners' counsel Atty. Atinidoro B. Sison at his given
mailing address. The same, however, was returned to the
court with the certification of the postmaster — "Return to
48
sender, Reason — moved." A copy of this Resolution
was sent to petitioners themselves. But again the
enveloped addressed to them was returned to the court
with the notation — deceased.
Whereupon, the CA issued its now assailed Resolution
ordering the issuance of the entry of judgment. Petitioners'
motion for reconsideration was denied hence, they filed
the present petition
48
Ibigsabihin lumipat daw address.
 REMEDIAL LAW
CIVIL PROCEDURE
ISSUE: WON there was proper service in this case
HELD: YES. It is well-settled that when a party is
represented by counsel, notice should be made upon the
counsel of record at his given address to which notices of
all kinds emanating from the court should be sent in the
absence of a proper and adequate notice to the court of a
change of address. The records show that the notice and
copy of the decision of respondent Court of Appeals were
sent to petitioners's counsel of record Atty. Sison. If Atty.
Sison moved to another address without informing the
respondent of his change of address, the omission or
neglect will not stay the finality of the decision. The
notice sent to petitioners themselves, under the
49
circumstances is not even necessary.
FOUR REQUIREMENTS IN CASE OF SERVICE BY
50
REGISTERED MAIL
i. AFFIDAVIT,
ii. REGISTRY RECEIPT,
iii. REGISTRY RETURN CARD,
iv. and if unclaimed, CERTIFICATION BY THE
POSTMASTER, proof of proper service of
pleading and other papers
Illustrative case:
ALAMBURO vs CA, G.R. No. 105818, September 17,
1993
FACTS: After plaintiff’s complaint was dismissed, the
plaintiff appealed before CA. Appellant filed his brief, and
by registered mail sent the required number of copies
thereof with the appellee. The proof of service which he
presented was only the registry receipt of the mailing
office.
ISSUE: WON the service of the appeal has been
sufficiently proved.
HELD: NO. Registry return receipt is insufficient to prove
service of the appeal. . If service is made by registered
mail, proof shall be made by such affidavit and the
registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed
49
In the case now before Us, the records show that the notice and copy
of the decision of respondent Court of Appeals were sent to
petitioners's counsel of record Atty. Atinidoro E. Sison at his given
mailing address which is 33 B.M.A. Avenue, Tatalon, Quezon City. The
first notice to him by the Postmaster to claim his mail was on July 9,
1981. The rule is that service of notice becomes effective at the
expiration of the five-day period upon failure of the addresse to claim
his mail within five (5) days from the date of first notice Sec. 8, Rule 13
Rules of Court (Feraren vs. Santos, 113 SCRA 707). Therefore in this
case the service became effective five days after July 9, 1981 which is
July 14, 1981. The decision became final on August 13, 1981
50
No filing will be accepted unless accompanied with the proof service.
Nonetheless, sometimes, the actual filing comes ahead in time. If done
in registered mail, a party may not immediate claim. He has 5 days from
first notce. Because the mere fact na napinadala na sa registered mail is
already filing.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 100 of 270
letter together with the certified or sworn copy of the
notice given by the postmaster to the addressee.
BENGUET ELECTRIVE COOPERATIVE vs NLRC
DOCTRINE: Where the pleading is filed through a
PRIVATE LETTER-FORWARDING AGENCY, the date of
filing is not the date of delivery to private courier but the
date of actual receipt by the court.
ADAMSON vs AUFAEA
Q: Is service to security guard proper service?
A: NO. He’s neither the office clerk nor a person in charge
thereof as contemplated by the rules.
-Service of papers should be delivered personally to the
party or his counsel or by leaving it at his office with his
clerk or with a person having charge thereof. The service
of the court’s order upon any person other than the party’s
counsel is not legally effective.
VILLACRUZ vs ESTENCO
A party can only be declared in default upon motion of
the plaintiff. Effect of default order issued before
expiration of time to answer: null and void.
SAPIDA vs ARANDONILLA
DOCTRINE: The court cannot justly attribute upon
respondents actual knowledge of the order of denial of
their motion through registered mail received by their
counsel where there is no showing that the registry notice
itself or the envelope or the return card for that matter
contained any indication that the registered matter is
indeed and in fact a copy of said order.
PATRICIO vs LEVISTE
DOCTRINE: notice of a motion is required where a party
has a right to resist the relief sought by the motion and
principles of natural justice demand that his rights be not
affected without an opportunity to be heard. Absence of
notice of motion is a denial of opportunity to be heard.
Section 14. Notice of lis pendens. — In an action
affecting the title or the right of possession of real
property, the plaintiff and the defendant, when affirmative
relief is claimed in his answer, may record in the office of
the registry of deeds of the province in which the property
is situated notice of the pendency of the action. Said
notice shall contain the names of the parties and the
object of the action or defense, and a description of the
property in that province affected thereby. Only from the
time of filing such notice for record shall a purchaser, or
encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the
action, and only of its pendency against the parties
designated by their real names.
 REMEDIAL LAW
CIVIL PROCEDURE
The notice of lis pendens hereinabove mentioned may be 1. the name of the court and the names of the
cancelled only upon order of the court, after proper parties to the action;
showing that the notice is for the purpose of molesting the 2. a direction that the defendant answer within
adverse party, or that it is not necessary to protect the the time fixed by these Rules;
rights of the rights of the party who caused it to be 3. a notice that unless the defendant so
recorded. (24a, R-14) answers, plaintiff will take judgment by
default and may be granted the relief applied
53
for.
RULE 14 NOTE: A copy of the complaint and order for
appointment of guardian ad litem, if any, shall be
SUMMONS attached to the original and each copy of the
summons.
DEFINITION: Writ or Process issued and served upon
54
defendants in a civil action for the purpose of securing BY WHOM SERVED: The summons may be served by
their appearance.
PURPOSE: Service of summons enables the court to 1. the sheriff,
2. his deputy, or
acquire jurisdiction over the person of the defendant. The 3. other proper court officer, or
other way of acquiring jurisdiction over the person of the 4. any suitable person authorized by the court
51
defendant is by voluntary appearance. Primarily to afford issuing the summons
the defendant the due process of the law. Therefore, in  for justifiable reasons
order to implement such due process, the purpose is to  must be duly authorized by the court, there
confer jurisdiction over defendant w/o w/c the court cannot must be an order
render a valid judgment. Q: May a police sergeant validly serve
EFFECT OF ABSENCE: In the absence of service of summons?
summons, unless the defendant voluntarily appears, the A: NO, he is neither a sheriff, deputy, other
judgment rendered in regard such defendant is null proper court officer, or any suitable person duly
and void because the court has never acquired authorized by the court issuing the summons
jurisdiction over him.
IF WITH SERVICE OF SUMMONS BUT IMPROPERLY
DONE: The court also does not acquire jurisdiction over ENUMERATION OF PERSONS ESPECIALLY
the person if summons not properly served. Hence, also a AUTHORIZED BY THE RULES TO SERVE
null and void judgment in regard such defendant. SUMMONS, EXCLUSIVE.

Section 1. Clerk to issue summons. — Upon the Illustrative case:

filing of the complaint and the payment of the requisite
legal fees, the clerk of court shall forthwith issue the
corresponding summons to the defendants. (1a)
BY WHOM ISSUED: the clerk of court
WHEN ISSUES: Upon the filing of the complaint and the
payment of the requisite legal fees.
TO WHOM ISSUED: to the defendants
52
CONTENTS: The summons shall be directed to the
defendant, signed by the clerk of court under seal (of the
court), and contain:
51
Section 20. Voluntary appearance. — The defendant's
voluntary appearance in the action shall be equivalent to service of
summons. The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance. (23a)
52
Section 2. Contents. — The summons shall be directed to
the defendant, signed by the clerk of court under seal and contain (a)
the name of the court and the names of the parties to the action; (b) a
direction that the defendant answer within the time fixed by these
Rules; (c) a notice that unless the defendant so answers plaintiff will
take judgment by default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad
litem if any, shall be attached to the original and each copy of the
summons. (3a)
BELLO vs UBO, G.R. No. L-30353, September
30, 1982
FACTS: A sheriff asked a policeman to serve
summons for him. The summons in this case was
served by a policeman
ISSUE: Was there proper service of summons?
HELD: NONE. A policeman is NOT especially
authorized by the court to serve the summons,
cannot validly serve the court’s summons. The
enumeration of persons who may serve
summons under Section 5, Rule 14 of the Rules
of Court is exclusive. Hence, in the case at bar
where summons was served by a police
officer who is not included in the
specification of the said rule, this Court has
to rule that the court which issued the
53
If case is covered by summary rules, the summons would also contain
a statement that it is covered by the summary rules.
54
Section 3. By whom served. — The summons may be served
by the sheriff, his deputy, or other proper court officer, or for justifiable
reasons by any suitable person authorized by the court issuing the
summons. (5a)

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 101 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
summons did not acquire jurisdiction over
the person of the defendants.
5. XPN: When the defendant is a prisoner,
service shall be affect by the officer having
the management of such jail or
institution. (warden)
Section 9. Service upon prisoners. —
When the defendant is a prisoner confined in a
jail or institution, service shall be effected upon
him by the officer having the management of
such jail or institution who is deemed deputized
as a special sheriff for said purpose. (12a)
- the warden is deemed deputized as a special
sheriff.
- This refers only to a prisoner confined in jail, not
to an insane person in a mental hospital.
- The rule does not distinguish between a
convict(by final judgment) and a detainee.
Q: Supposed the penalty has civil interdiction (as
if minor), is service by the warden proper
service?
A: Escolin: No case pa. pero generally tama
naman pag sa warden.
SUMMONS MUST BE SERVED UPON NEWLY
IMPLEADED DEFENDANTS
Q: When a complaint is amended by impleading
additional defendants, is it necessary that summons
be served upon the additional defendants?
A: YES. When an additional defendant are included in the
action, summons must be served upon him for the
purpose of enabling the court to acquire jurisdiction over
his person.
CASE
FACTS: Court merely issued an order making a person a
party-defendant and ordering the process server to serve
a copy of the complaint over him
HELD: Such is not the process required for bringing him to
the court. There should be summons.
SUMMONS IS NOT REQUIRED IN CASES OF
SUBSTITUTION DUE TO DEATH PENDENTE LITE
Q: Must summons be served upon the persons who
substituted a deceased?
A: NO. Under sec. 16 or rule provides that when a party
dies, the process is substitution and it is the duty of
counsel to infrom fact of client’s death & addresses/ name
of the representative or representatives of the deceased.
thereafter the court shall issue an order requiring such
representative or heirs to appear before the court and be
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 102 of 270
substituted. if they failed to appear, the court shall order
the other party to secure the appointment of a
respresentative.
NOTE: The susbtittuion is proper only if the court acquired
jurisdiction to the party substituted.
SUMMONS MUST AGAIN BE SERVED IF AMENDMENT
OF THE COMPLAINT WAS MADE BEFORE THE
DEFENDANT HAS APPEARED; BUT THE
AMENDMENT IN SUCH CASE MUST BE
SUBSTANTIAL (De dios v. CA, infra)
Q: Is summons required on an amended complaint? A: It
DEPENDS on whether the amendment was made before
or after the dependant’s appearance in the action. A
complaint amended before a defendant answered must be
served with another summons with the same formalities as
the original complaint. Once defendant has already
appeared in the action, meaning, the court has already
acquired jurisdiction over him, an amendment of the
complaint made after such appearance may be served
upon the defendant in any same manner as any other
pleading, paper or motion. But note De dios v. CA, infra.
Where it was held that The rule is that it is only when
new causes of action are alleged in an amended
complaint filed before the defendant has appeared in
court that another summons must be served on the
defendant with the amended complaint
Illustrative case:
DE DIOS vs CA, G.R. No. 80491 August 12, 1992
FACTS: Lopingco filed with the RTC of Manila a complaint
against the petitioner and the Philippine Veterans Bank for
revocation of the said board resolution and the rescission
of his contract with the petitioner. Copies of the complaint,
together with the corresponding summons, were served
on the defendants.
Thereafter, the Philippine Veterans Bank filed a motion to
dismiss the complaint on the grounds of lack of a cause
action and improper party.
Subsequently, Lopingco filed an amended complaint and
at the same time served a copy thereof on the petitioner
by registered mail.
On the same day, but after the filing of the amended
complaint, Atty. Alarico T. Mundin filed its entry of
appearance and motion for extension of time to file
responsive pleading on behalf of the petitioner. The
motion was subsequently granted but only for ten days.
 REMEDIAL LAW
CIVIL PROCEDURE
Subsequently, the petitioner filed through Atty mundin filed
an omnibus motion asking that he be furnished a copy of
the amended complaint. This was opposed by the private
respondent, who said that the copy sought had already
been sent directly to the petitioner by registered mail
"because at the time said copy was mailed, there was as
55
yet no appearance of counsel for said defendant."
Section 5. Issuance of alias summons. — If a
summons is returned without being served on any or all of
the defendants, the server shall also serve a copy of the
return on the plaintiff's counsel, stating the reasons for the
failure of service, within five (5) days therefrom. In such a
case, or if the summons has been lost, the clerk, on
demand of the plaintiff, may issue an alias summons. (4a)

-―alias summons‖, in latin, meaning another

summons.
Due to the absence of an answer, counsel for the private WHEN MAY ALIAS SUMMONS BE ISSUED:
respondent moved for a declaration of default against the
petitioner for failure to file his answer within the 1. If a summons is returned without being
reglementary period. Ultimately, the petitioner was served on any or all of the defendants
declared in default. - On any or all. Kahit isa lang sa defendants.
NOTE: the server shall also serve a copy of the return
on the plaintiff's counsel, stating the reasons for the
ISSUE: WON the defendants should have been served failure of service, within five (5) days therefrom.
again summons because an amended complaint was filed 2. If the summons has been lost
NOTE: the clerk, on demand of the plaintiff, may issue an
alias summons. (4a)
HELD: NO.The rule is that it is only when new causes
COMPARISON
of action are alleged in an amended complaint filed
before the defendant has appeared in court that SERVICE OF SERVICE OF
another summons must be served on the defendant SUMMONS
56
PLEADINGS AND
with the amended complaint. Thus, summon must be (personal, PAPERS
served again only when there is substantial amendment. It substituted, by
is clear from a comparison of the allegations appearing in publication)
the original complaint and in the amended complaint that
the cause of action of the private respondent had not PERSO 1. PERSONAL THREE MODES:
been changed. The allegations were merely made more NAL SERVICE-
descriptive but based on the same act or omission. The SERVIC Section 6. (1) PERSONAL
57
theory of the case did not chage. Plainly, what was sought E Service in SERVICE
to be enforced against the petitioner both in the original person on defendant. - iba to sa service
— Whenever of summons.
complaint and in the amended complaint was his
THREE WAYS of
obligation to refund the said sum to the private practicable, the
personal service:
respondent. The amended complaint did not change the summons shall be
cause of action but simply advanced the above-quoted served by handling a a. by delivering
additional information. copy thereof to the personally a
defendant in person, copy to the
or, if he refuses to party or his
RETURN; Must specify details of failed service. receive and sign for counsel,
it, by tendering it to Q: Nagkita
Section 4. Return. — When the service has been him. (7a) kayo sa
completed, the server shall, within five (5) days therefrom, kalsada or sa
serve a copy of the return, personally or by registered mall, pwede ba
mail, to the plaintiff's counsel, and shall return the dun?
ONE WAY ONLY
summons to the clerk, who issued it, accompanied by A: YES
proof of service. (6a) shall be served by
handling a copy b. By leaving it in
NOTE: It is the duty of the process server, within 5 days thereof to the his office with
from service of summons, to make the return and furnish defendant (ONLY) in his clerk or
plaintiff’s cousel of a copy of the return. - Reason why
plaintiff must be copy furnished; to assure plaintiff that 56
summons were properly served. 57
Section 6. Personal service. — Service of the papers may be
made by delivering personally a copy to the party or his counsel, or by
leaving it in his office with his clerk or with a person having charge
thereof. If no person is found in his office, or his office is not known, or
he has no office, then by leaving the copy, between the hours of eight
55
Naprovide na daw sya ng copy dahil wala pa siya counsel at that time, in the morning and six in the evening, at the party's or counsel's
direkta sakanya sinend. Hence, the rule that notice to counsel is the residence, if known, with a person of sufficient age and discretion then
valid notice is still not applicable. residing therein. (4a

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 103 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
person. NO OTHER. with a person provided in the To whom: service
having charge preceding section, may be made by
thereof. service may be delivering the copy
c. If no person is effected to the clerk of
Q: Can personal found in his court, WITH proof
service be made office, or his of failure of both
anywhere? If the office is not
personal service and
sheriff accidentally met known, or he (a) by leaving copies 61
of the summons at service by mail.
the defendant has no office,
then by leaving the defendant's
NOTE: The service
the copy, residence with
is complete at the
between the some person of
A: YES (Sansio v. hours of eight suitable age and time of such
Mogul, infra.) in the morning discretion then delivery. (6a)
and six in the residing therein,
evening, at the or
party's or
counsel's
residence, if (b) by leaving the
known, with a copies at
person of defendant's
sufficient age office or regular
and discretion place of business
then residing with some
therein. competent
-8am-6pm lang. person in charge
thereof. (8a)
-if wala ung BY 1. Foreign private When a party
party/counsel dun sa PUBLIC juridical entity not summoned by
residence.must be ATION registered in the publication has
served to a person phil. or has no failed to appear in
with a person of (a) resident agent the action,
sufficient age, (b) 2. Defendant whose judgments, final
identy or
discretion, and (c) orders or resolutions
whereabouts are
residing therein. against him shall be
unknown
3. Defendant does served upon him
- wag mo iwan sa also by publication at
not reside and is
bata or sa bisita. the expense of the
not found in the
phil. prevailing party. (7a)
SUBSTI 2. SUBSTITUTED (2) SUBSTITUTED
SERVICE
58
SERVICE
59 4. Residents
TUTED by publication
Situation: If, for Situatition: when temporarily
outside in the phil.
justifiable causes, the the office and place
defendant cannot be of residence of the
served within a party or his counsel PERSONAL SERVICE OF SUMMONS MAY BE MADE
60
reasonable time as being unknown. ANYWHERE TO THE PERSON OF DEFENDANT
HIMSELF PROVIDED HE IS IN THE PHILIPPINES;
NEED NOT BE AT HIS RESIDENCE SO LONG AS
MADE IN HIS PERSON
58
SUMMONS- Section 7. Substituted service. — If, for
justifiable causes, the defendant cannot be served within a reasonable
SANSIO vs MOGUL, G.R. No. 177007, July 14, 2009
time as provided in the preceding section, service may be effected (a) FACTS: At the request of herein petitioner, the Sheriff of
by leaving copies of the summons at the defendant's residence with MrTC of Manila served the summons and the copy of the
some person of suitable age and discretion then residing therein, or (b) complaint on respondent spouses Mogol at the courtroom.
by leaving the copies at defendant's office or regular place of business Respondent spouses were in the said premises. Upon
with some competent person in charge thereof. (8a) being so informed of the summons and the complaint,
59
PAPERS-Section 8. Substituted service. — If service of pleadings,
respondent spouses Mogol referred the same to their
motions, notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of residence of
counsel, who was also present in the courtroom. The
the party or his counsel being unknown, service may be made by counsel of respondent spouses Mogol took hold of the
delivering the copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is complete at the time
of such delivery. (6a) time, his address is legally known, may record pa. but some decisions
60
Escolin’s view: Di’ba counsel must give the court his address, kaya said na dapat daw mag substituted service na.
61
lang kung naglipat then di ininform ang court. is the sending of notice in Escolin: Di ko nga maintindihan ito, paano mo ipprove e wala ngang
the former address will be considered his address official? YES. At that address.

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 104 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
summons and the copy of the complaint and read the
same. Thereafter, he instructed his clients not to receive
the summons and the copy of the complaint as they
should be served only at the address/residence, and not
anywhere else. The counsel of respondent spouses Mogol
apparently gave back the summons and the copy of the
complaint to the process server and advised his clients not
to obtain a copy and sign for the same. Petitioner filed a
Motion to Declare Respondents in Default. Petitioner
averred that the summons and the copy of the complaint
were already validly served upon the respondent spouses
Mogo, and no answer was filed by them.
ISSUE: Was there valid service of summons?
HELD: YES. It is well-established that summons upon a
respondent or a defendant must be served by handing a
copy thereof to him in person or, if he refuses to receive it,
by tendering it to him. Personal service of summons most
effectively ensures that the notice desired under the
constitutional requirement of due process is accomplished.
The essence of personal service is the handing or
tendering of a copy of the summons to the defendant
himself, wherever he may be found; that is, wherever
he may be, provided he is in the Philippines. It may be
served anywhere. Relevantly, in Lazaro v. Rural Bank of
Francisco Balagtas (Bulacan), Inc.,[35] very categorical
was our statement that the service of summons to be done
personally does not mean that service is possible only at
the defendants actual residence. It is enough that the
defendant is handed a copy of the summons in person by
anyone authorized by law.
COMMENT: What is required is that it be served upon him
in person.
PERSONAL SERVICE AND SUBSTITUTED SERVICE
ARE NOT ALTERNATIVE MODES
Second issue in Sansio, supra.
HELD: Sections 6 and 7 of Rule 14 of the Rules of
Court cannot be construed to apply simultaneously.
Said provisions do not provide for alternative modes
of service of summons, which can either be resorted
to on the mere basis of convenience to the parties.
Under our procedural rules, service of summons in the
persons of the defendants is generally preferred over
substituted service.Substituted service derogates the
regular method of personal service. It is an extraordinary
method, since it seeks to bind the respondent or the
defendant to the consequences of a suit, even though
notice of such action is served not upon him but upon
another whom the law could only presume would notify
him of the pending proceedings. For substituted service
to be justified, the following circumstances must be
clearly established: (a) personal service of summons
within a reasonable time was impossible; (b) efforts
were exerted to locate the party; and (c) the summons
was served upon a person of sufficient age and
discretion residing at the partys residence or upon a
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 105 of 270
competent person in charge of the partys office or
place of business.
COMMENT: Personal service of summons need not be
made in the residence of the defendant since it is made
personally. In contrast, substituted service must be done
in the specified places since it is an extraordinary method
of service so as to assure that defendant would be
notified.
RULES: SUBSTITUTED SERVICE
Section 7. Substituted service. — If, for justifiable
causes, the defendant cannot be served within a
reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the
summons at the defendant's residence with some person
of suitable age and discretion then residing therein, or (b)
by leaving the copies at defendant's office or regular place
of business with some competent person in charge
thereof. (8a)
WHEN SUBSTITUTED SERVICE MAY BE RESORTED
TO: If, for justifiable causes, the defendant cannot be
served within a reasonable time (ONLY).
- In otherwords, the rules require personal service
must be made first. It is only when personal
service cannot be effected within a reasonal time
that substituted service can be done
- Thus, the rules now require that the plaintiff be
given a copy of the return so that the plaintiff may
know whether the service was done properly.
REQUISITES OF A VALID SUBSTITUTED SERVICE OF
SUMMONS: It is only when the defendant cannot be
served personally within a reasonable time that
substituted service maybe resorted to.For substituted
service to be justified, the following circumstances must be
clearly established:
(a) personal service of summons within a
reasonable time was impossible;
(b) efforts were exerted to locate the party; and
- a and b must be stated in the return of service of
summons.
(c) the summons was served upon a person of
sufficient age and discretion residing at the
partys residence or upon a competent person in
charge of the partys office or place of business.
SUMMARY OF GUIDELINES: (Impossibility, Return,
Age and discretion, Competent if in office.)
Manotoc v. CA, G.R. No. 130974 August 16, 2006
We can break down this section into the following
requirements to effect a valid substituted service:
(IRAC)
(1) Impossibility of Prompt Personal Service:
The party relying on substituted service or the sheriff must
 REMEDIAL LAW
CIVIL PROCEDURE
show that defendant cannot be served promptly or there is
impossibility of prompt service.
Reasonable time means one month from
issuance of summons: Reasonable time is
defined as so much time as is necessary under
the circumstances for a reasonably prudent and
diligent man to do, conveniently, what the
contract or duty requires that should be done,
having a regard for the rights and possibility of
loss, if any to the other party
- To the sheriff, reasonable time means
15 to 30 days because at the end of the month, it
is a practice for the branch clerk of court to
require the sheriff to submit a return of the
summons assigned to the sheriff for service.
Thus, one month from the issuance of summons
can be considered reasonable time with regard to
personal service on the defendant.
Several attempts means at least three (3)
tries, preferably on at least two (2) different
dates :For substituted service of summons to be
available, there must be several attempts by the
sheriff to personally serve the summons within a
reasonable period [of one month] which
eventually resulted in failure to prove impossibility
of prompt service. Several attempts means at
least three (3) tries, preferably on at least two
different dates.
NOTE: In addition, the sheriff must cite why such
efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or
accepted.
(2) Specific Details in the Return
The facts surrounding the attempted personal
service, and efforts exerted must be narrated:
The sheriff must describe in the Return of
Summons the facts and circumstances
surrounding the attempted personal service. The
efforts made to find the defendant and the
reasons behind the failure must be clearly
narrated in detail in the Return.
(3) A Person of Suitable Age and Discretion
The person must also be a resident: If the
substituted service will be effected at defendants
house or residence, it should be left with a
person of suitable age and discretion then
residing therein.
Suitable age means atleast 18 years old: A
person of suitable age and discretion is one who
has attained the age of full legal capacity (18
years old) and is considered to have enough
discernment to understand the importance of a
summons.
To be of sufficient discretion, such person
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 106 of 270
must know how to read and understand
English to comprehend the import of the
summons, and fully realize the need to deliver
the summons and complaint to the defendant
at the earliest possible time for the person to
take appropriate action: Discretion is defined as
the ability to make decisions which represent a
responsible choice and for which an
understanding of what is lawful, right or wise may
be presupposed.
There must also be relation of confidence:
Thus, the person must have the relation of
confidence to the defendant, ensuring that the
latter would receive or at least be notified of the
receipt of the summons.
These matters must also be clearly and
specifically described in the Return of
Summons: The sheriff must therefore determine
if the person found in the alleged dwelling or
residence of defendant is of legal age, what the
recipients relationship with the defendant is, and
whether said person comprehends the
significance of the receipt of the summons and
his duty to immediately deliver it to the defendant
or at least notify the defendant of said receipt of
summons.
(4) A Competent Person in Charge
- If the substituted service will be done at
defendants office or regular place of business,
then it should be served on a competent person
in charge of the place.
Competent persons meanse one managing
the office or the business:Thus, the person on
whom the substituted service will be made must
be the one managing the office or business of
defendant, such as the president or manager;
and
Comprehends the importance of the
summons: such individual must have sufficient
knowledge to understand the obligation of the
defendant in the summons, its importance, and
the prejudicial effects arising from inaction on the
summons.
NOTE: Again, these details must be contained
in the Return.
Keister v. Navarro, G.R. No. L-29067, May 31, 1977
FACTS: This is an action against Keister, an American, to
recover a car. He signed a document selling the car to
himself, from the company. He was thereafter fired, and
he went home to the US. A complaint was filed against
Keister. Thereafter, the summons, with the complaint
attached thereto, was served purportedly upon petitioner
at "c/o Chuidian Law Office, Suite 801, Jimenez Bldg.,
 REMEDIAL LAW
CIVIL PROCEDURE
Ayala Avenue, Makati, Rizal." The receipt of service was
signed by one Vicente Bataquil, Clerk of said Chuidian
Law Office. Kiester, thru his counsel, filed a special
appearance questioning the jurisdiction of the court over
his person and moved to dismiss the complaint.
ISSUE: WON summons was properly served
HELD: NO. Generally, the summons must be served to
the defendant in person. It is only when the defendant
cannot be served personally within a reasonable time that
a substituted service may be made. Intelligence of
prompt service should be shown by stating the efforts
made to find the defendant personally and the fact
that such efforts failed. This statement should be
made in the proof of service.
AREVALO vs QUILATAN, G.R. No. L-57892 September
21, 1982
FACTS: A complaint was filed against the defendant.
Summons were issued. Sheriff served the summons upon
the daughter-in-law of the defendant who was residing in a
house owned by the defendant. The daughter-in-law
relayed to the sheriff that the house is owned by the
defendant but he is no longer residing therein. ―A fter
serving the summons on August 2, 1968, the Deputy
Sheriff of Rizal made the following Sheriff's Return:
I CERTIFY that on this 2nd day of August 1968, I
personally served copies of enclosed SUMMONS together
with copies of the Complaints, issued by the court in
connection with the above-entitled case, upon
ANASTACIO AREVALO and PILAR SILVERIO, thru their
daughter-in-law, LUZ ESGUERES, a person with sufficient
age and discretion residing therein, who refused to
acknowledge the receipt thereof, at Pulang-lupa, Las
Pinas Rizal.‖
ISSUE: WON there was valid service of summons
HELD: NONE. the return here does not in any remote
sense indicate the impossibility of prompt service and the
efforts made to find the defendants personally, which
efforts, according to Moran, "should be (stated) in the
proof of service." Nor does such return show on its face
that the service was made in the "defendant's dwelling
house or residence" as required by Section 8 above. While
it does state that Luz Esgueres, to whom the summons
were left was "a person of sufficient age and discretion
residing therein and that she is the daughter-in-law of the
defendants (herein petitioners), "the fact remains that it is
only by evidence aliuende that attempts have been made
to prove that the petitioners did reside therein also. The
general reference to the place of service as "at Pulang-
lupa, Las Piñas, Rizal" fails to specify the very house
where such service was made. Again, it may be
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 107 of 270
conceded that the house at 211 Pulang-lupa was still
owned by petitioners when the service in question
was made, but Section 8 of Rule 14 does not refer to
ownership but to living or dwelling therein. It is not
valid to serve summons that a house which though
owned by the defendant is not defendant's dwelling
house or residence.
PALUWAGAN NG BAYAN v. King, G.R. No. 78252,
April 12, 1989
FACTS: Paluwagan contracted with mercantile. Mercantile
failed to comply with its obligation. Thus, Paluwagan sued
not only mercantile but also its directors. Summons and
copies of the complaints were served upon MFC and
private respondents at the 4th Floor, LTA Building, No.
118 Perea Street, Makati, Metro Manila, which is the
stated office address of MFC in the complaint, through its
Assistant Manager Mr. Nasario S. Najomot Jr. who
acknowledged receipt thereof for and in behalf of MFC
AND the private respondents individual directors
being sued in their personal capacity.(dahil dun din
naman pala nagoopisina). This is so recited in the
certification of deputy sheriff Bernardo San Juan.
Thereafter, atty. aragones, as counsel for the defendants,
entered appearance filed a motion for extension of time to
file the answer. Subsequently, a compromise agreement
between the parties was entered into, mercantile
undertaking to pay the obligation in installments.
Mercantile failed to pay in accordance with the
compromise agreement. Because of that, Paluwagan filed
a motion for execution of judgment. Whereupon, atty.
Aroganes also filed a motion for the correction of the
compromise agreement attaching a copy that he was only
authorized to act in behalf of mercantile but not in behalf of
the individual directors.
The directors also moved for the setting aside of the
compromise agreement on the ground of lack of proper
service of summons upon them.
ISSUE: WON there was proper substituted service of
summons upon the directors
HELD: NO. The service upon the assistant manager
was null and void. There was no compliance with the
requirements of the rule that there must be a previous
personal service and a failure to effect the same
before substituted service could be resorted to. As the
private respondents have not been duly served with
summons, the trial court never acquired jurisdiction
over their persons.
Gomez v. CA, G.R. No. 127692. March 10, 2004
FACTS: Some time in 1975, the spouses Trocino
mortgaged two parcels of land to Dr. Clarence Yujuico.
The mortgage was subsequently foreclosed and the
properties sold at public auction. Before the expiry of the
redemption period, the spouses Trocino sold the property
to Gomez, who in turn, redeemed the same from Dr.
Yujuico. The spouses Trocino, however, refused to convey
 REMEDIAL LAW
CIVIL PROCEDURE
ownership of the properties to Gomez. Hence, the
complaint. Thereafter, namatay si Mr. Trocino, pero buhay
si misis. Therefore, ung estate ni husband, pinaghatian na
ng mga heirs kasama si misis. All of the children were
served summons through their mother.
ISSUE: WON the service upon the mother and father
constitutes valid substituted service upon the heirs.
HELD: NO. If efforts to find defendant personally makes
prompt service impossible, substituted service may be
effected by leaving copies of the summons at the
defendant's dwelling house or residence with some person
of suitable age and discretion then residing therein, or by
leaving the copies at the defendant's office or regular
place of business with some competent person in charge
thereof. In substituted service, it is mandated that the fact
of impossibility of personal service should be explained in
the proof of service. In the present case, the process
server served the summons and copies of the complaint
on respondents Jacob, Jesus, Jr., Adolfo, Mariano,
Consolacion, Alice and Racheal, through their mother,
Caridad Trocino. The return did not contain any particulars
as to the impossibility of personal service on Mariano
Trocino within a reasonable time. Such improper service
renders the same ineffective.
Moreover, inasmuch as the sheriffs return failed to
state the facts and circumstances showing the
impossibility of personal service of summons upon
respondents within a reasonable time, petitioners
should have sought the issuance of an alias
summons. The fact that Atty. Expedito Bugarin
represented all the respondents without any exception
does not transform the ineffective service of
summons into a valid one. It does not constitute a
valid waiver or even a voluntary submission to the
trial courts jurisdiction. There was not even the slightest
proof showing that respondents authorized Atty. Bugarins
appearance for and in their behalf. While Caridad Trocino
may have engaged the services of Atty. Bugarin, it did not
necessarily mean that Atty. Bugarin also had the authority
to represent the defendant heirs.
RULES IN ANG PING V. CA, infra.:
1. Failure to comply with proper service of
summons renders the judgment annulable for
lack of jurisdiction over the person of the
defendant;
2. Presumption of regularity cannot stand on its
own, the requirements or facts from which the
presumption could be inferred should have
been first established:
Ang Ping v. CA, G.R. No. 126947. July 15, 1999
FACTS: Ang Ping was sued. The summonses for both
Tingson and Ang Ping were allegedly served on February
15, 1988 at 189 I. Lopez St., Mandaluyong Metro Manila
and 34 Coolidge St., Greenhills West, San Juan, Metro
Manila, respectively. In both cases, the person who
received the summons was a certain Jonas Umali.
Ultimately, the trial court rendered judgment holding
Tingson and Ang Ping jointly and severally liable.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 108 of 270
Ang Ping filed with the Court of Appeals a petition to
annul the judgment of the trial court which was the basis of
the various writs of execution issued against him. He
alleged that the judgment in question was rendered
without due process of law as he was not given his day in
court. Petitioner argued that since there was no valid
service of summons upon him and he never appeared
before the court by himself or by counsel, the trial court
never acquired jurisdiction over his person, thus, the
judgment cannot be enforced against him.
The Court of Appeals dismissed the petition after finding
that petitioner Ang Ping was properly placed under the
jurisdiction of the trial court which rendered the assailed
judgment. First, the appellate court said, the petitioner was
duly represented by counsel who, aside from filing a
responsive pleading, had religiously appeared for him and
his co-defendant before the lower court and petitioners
claim that said counsel was not duly authorized by him
was never satisfactorily substantiated. Second,
respondent Court noted that there was a valid service of
summons on petitioner Ang Ping because the copy of the
summons addressed to him was signed by a certain Jonas
Umali.
ISSUE: WON the decision of the trial court should be
annulled for lack of jurisdiction over the person of the
defendants
HELD: YES, the decisions shall be annulled. It should be
emphasized that the service of summons is not only
required to give the court jurisdiction over the person of
the defendant, but also to afford the latter an opportunity
to be heard on the claim made against him. Moreover, as
likewise pointed out by the petitioner, the
presumption of regularity in the performance of public
functions finds no application in the case at bar.
Surely, there must be, at the very least, compliance with
the procedure outlined Sections 4 and 18, Rule 14 of the
Rules.
RULES IN BPI V. ENGALISTA, infra.
1. Absence in the sheriffs return of a statement
about the impossibility of personal service
does not conclusively prove that the service
is invalid.
2. Evidence may be presented to ascertain
whether prior attempts at personal service
have in fact been done. Resort to substituted
service may still be valid, if properly justified
in a hearing to verify the matter. If not, new
summonses should be issued and served
properly.
BPI v. Engalista, G.R. No. 146553. November 27, 2002
FACTS: The service of summons on the spouses was
patently defective as shown by the Certificate of Return
 REMEDIAL LAW
62
CIVIL PROCEDURE
dated May 16, 2000. The defect is likewise apparent in
63
the service of summons on LTS Philippines Corporation.
In the present case, no justification for resorting to a
substituted service of summons upon the spouses was
indicated on the return. On the other hand, the return of
the summons served upon respondent corporation failed
to indicate the designation or title of the recipient, who
should be the corporations president, managing partner,
general manager, corporate secretary, treasurer, or in-
house counsel. The service of summons on a corporation
is exclusive to the persons specified in Section 11, Rule
14 of the 1997 Rules of Civil Procedure. The rule now
states general manager instead of only manager;
corporate secretary instead of secretary; and treasurer
instead of cashier. The phrase agent, or any of its
directors is conspicuously deleted in the new rule.
Clearly, on both returns, there is no showing that there
were prior but failed attempts at proper personal service,
attempts that would have justified the servers resort to
substituted service.
Actual Defect in the Service of Summons
Notwithstanding the RTCs lack of jurisdiction, it
has been held that the absence in the sheriffs return
of a statement about the impossibility of personal
service does not conclusively prove that the service is
invalid. Proof of prior attempts at personal service
may be submitted by the plaintiff during the hearing of
any incident assailing the validity of the substituted
service.
Even if the defect is apparent on the face of the
returns, evidence that would prove proper compliance with
the Rules on substituted service may be presented. In the
present case, no hearing was conducted to determine
whether the summonses had actually and correctly been
served. The trial court merely relied on the return that
declared that they had indeed been duly served.
Duty of Petitioner
in the Service of Summonses
Respondents cite BAC Manufacturing & Sales
[24]
Corporation v. Court of Appeals, which held that the
plaintiff carried the burden of seeing to it that the
process server had immediately caused its service to
the defendant. In that case, however, we made no
pronouncement on whether the plaintiff had the
62
“THIS IS TO CERTIFY that on the 15th day of May 2000, a copy of
Summons together with the complaint and its annexes attached
thereto in the above-entitled case were served to Sps. Willie & Julie L.
Evangelista at #6 Yellowstone Street, White Plains, Quezon City thru
Ms. Carmen Paanto, a person of suitable age and [discretion], living
therein and who acknowledged receipt thereof.”
63
The return merely stated “ THIS IS TO CERTIFY that on the same date
the undersigned cause[d] the service of Summons together with the
complaint and its annexes attached thereto in the above-entitled case
to LTS Philippines Corporation at Orcell II Bldg., 1611 Quezon City thru
Ms. Julie Cabrera, but she refused to sign.”
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 109 of 270
corresponding duty to see to it that the manner in
which the process server had effected the summons
was proper.
THE REQUIREMENTS MUST BE COMPLIED WITH.
NONETHELESS OVERLY STRICT APPLICATION IS
FROWNED UPON; SPIRIT, RATHER THAN THE
LETTER OF THE PROCEDURAL RULES, THAT
GOVERNS;
A DEFENDANT WHO FRUSTRATED THE SERVICE OF
SUMMONS BY HIS OWN ACTS SHOULD BEAR THE
CONSEQUENCE OF THE FAILURE TO SERVE THE
SUMMONS UPON HIM
Robinson v. Mirrales, G.R. No. 163584, December 12,
2006
FACTS: Summons was served on petitioner at her given
address. However, per return of service of Sheriff Maximo
Potente dated March 5, 2001, petitioner no longer resides
at such address.
On July 20, 2001, the trial court issued an alias summons
to be served at No. 19 Baguio St., Alabang Hills,
Muntinlupa City, petitioners new address. Again, the
summons could not be served on petitioner. Sheriff
Potente explained that: ―The Security Guard assigned at
the gate of Alabang Hills refused to let me go inside the
subdivision so that I could effect the service of the
summons to the defendant in this case. The security guard
alleged that the defendant had given them instructions not
to let anybody proceed to her house if she is not around. I
explained to the Security Guard that I am a sheriff serving
the summons to the defendant, and if the defendant is not
around, summons can be received by any person of
suitable age and discretion living in the same house.
Despite of all the explanation, the security guard by the
name of A.H. Geroche still refused to let me go inside the
subdivision and serve the summons to the defendant. The
same thing happened when I attempted to serve the
summons previously. Therefore, the summons was served
by leaving a copy thereof together with the copy of the
complaint to the security guard by the name of A.H.
Geroche, who refused to affix his signature on the original
copy thereof, so he will be the one to give the same to the
defendant.‖
Petitioner contends that the service of summons upon the
subdivision security guard is not in compliance with
Section 7, Rule 14 since he is not related to her or staying
at her residence. Moreover, he is not duly authorized to
receive summons for the residents of the village. Hence,
the substituted service of summons is not valid and that
the trial court never acquired jurisdiction over her person.
ISSUE: whether substituted service of summons upon
petitioner has been validly effected.
 REMEDIAL LAW
CIVIL PROCEDURE
HELD: YES. We have ruled that the statutory
requirements of substituted service must be followed
strictly, faithfully, and fully complied with. Any
substituted service other than that authorized by the
Rules is considered ineffective. However, we frown
upon an overly strict application of the Rules. It is the
spirit, rather than the letter of the procedural rules,
that governs. In his Return, Sheriff Potente declared that
he was refused entry by the security guard in Alabang
Hills twice. The latter informed him that petitioner prohibits
him from allowing anybody to proceed to her residence
whenever she is out. Obviously, it was impossible for
the sheriff to effect personal or substituted service of
summons upon petitioner. We note that she failed to
controvert the sheriffs declaration. Nor did she deny
having received the summons through the security guard.
Considering her strict instruction to the security
guard, she must bear its consequences. Thus, we
agree with the trial court that summons has been properly
served upon petitioner and that it has acquired jurisdiction
over her.
SPECIAL SITUATIONS: WHEN DEFENDANT IS:
1. Entity without juridical entity
2. Prisoner
3. Minor and incompetent
4. Domestic private juridical entity
Section 8. Service upon entity without juridical
personality. — When persons associated in an entity
without juridical personality are sued under the name by
which they are generally or commonly known, service may
be effected upon all the defendants by serving upon any
one of them, or upon the person in charge of the office or
place of business maintained in such name. But such
service shall not bind individually any person whose
connection with the entity has, upon due notice, been
severed before the action was brought. (9a)
CORRELATE TO: Sec. 15, Rule 3
Section 15. Entity without juridical
personality as defendant. — When two or more
persons not organized as an entity with juridical
personality enter into a transaction, they may be
sued under the name by which they are generally
or commonly known.
In the answer of such defendant, the name and
addresses of the persons composing said entity
must all be revealed. (15a)
PURPOSE: This is for the convenience of the plaintiff, the
public.
- You may sue such entity under a common name.
e.g. ―warner bros‖; ―luisa and sons‖
- they may be sued under the name by which they
are generally or commonly known.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 110 of 270
SITUATION: When persons associated in an entity
without juridical personality are sued under the name by
which they are generally or commonly known
HOW SERVICE OF SUMMONS EFFECTED, TO WHOM:
service may be effected upon all the defendants by:
i. serving upon any one of them, or
ii. upon the person in charge of the office or place
of business maintained in such name.
- so kahit sa isang tao lang, service na sakanila
lahat un
XPN: But such service shall not bind individually any
person whose connection with the entity has, upon due
64
notice, been severed before the action was brought. (9a)
Section 9. Service upon prisoners. — When the
defendant is a prisoner confined in a jail or institution,
service shall be effected upon him by the officer having
the management of such jail or institution who is deemed
deputized as a special sheriff for said purpose. (12a)
-warden---siya and sheriff, no need for appointment bec.
deemed special sheriff for that purpose, di makakapasok
sheriff dun baka patayin siya dun.
Section 10. Service upon minors and
incompetents. — When the defendant is a minor, insane
or otherwise an incompetent, service shall be made upon
65
him personally AND on his legal guardian if he has one,
or if none his guardian ad litem whose appointment shall
be applied for by the plaintiff. In the case of a minor,
service may also be made on his father or mother. (l0a,
11a)
-Pag minor, insane, or incompetent- personally.
Kahit buang, kahit baby, personally parin. Yan
ang rule.
-―AND‖- pati sa legal guardian. In case of minor,
sa father or mother.
- if walang legal guardian, must seek
appoitnment of guardian ad litem. Pag sa father
or mother, di na kailangan ng appointment as
guardian ad litem, automatic na.
-if minor already an orphan, and walang legal
guardian. Seek for an appointment of guardian
ad litem.
- Service of alias summons upon guardian ad
litem is service upon defendants.
IMMACULATA vs NAVARRO
SUMMONS TO DOMESTIC PRIVATE JURIDICAL
ENTITY; LIST IS EXCLUSIVE
64
Escolin: Di ko maintindihan ung practical application neto, what is the
proper due notice.
65
Escolin: ito pa ung isang di ko maintindihan “personally:”
 REMEDIAL LAW
CIVIL PROCEDURE
Section 11. Service upon domestic private
juridical entity. — When the defendant is a corporation,
partnership or association organized under the laws of the
Philippines with a juridical personality, service may be
made on the president, managing partner, general
manager, corporate secretary, treasurer, or in-house
counsel. (13a)
TO WHOM: Exclusive list (6 persons
1. President (Corporation)
2. Managing Partner (sa partnership)
3. General Manager (whether partnership or
corporation)
- NOTE: NOT BRANCH manager
4. Corporate Secretary
- NOTE: Hindi ung assistant, corporate
secretary dapat.
5. Treasurer
6. In-house counsel
- Hindi external counsel.
Basic is a rule that a strict compliance with the mode of
service is necessary to confer jurisdiction of the court over
a corporation.
- Service must be made to the one named in
the statute, otherwise, service is
INSUFFICIENT.
PURPOSE: to render it reasonably certain that the
corporation will receipt prompt and proper notice in an
action against it, and to insure that the summons are
served to those integrated to the corporation, and would
know what to do on the legal papers served on him.
LIST IS EXCLUSIVE- DOMESTIC PRIVATE JURIDICAL
ENTITY; BRING HOME DOCTRINE IS NOW
ABANDONED; THE RULE MUST BE STRICTLY
OBSERVED. SERVICE MUST BE MADE TO ONE
NAMED IN THE STATUTE
Illustrative case:
Villarosa v. Benito, G.R. No. 136426. August 6, 1999
FACTS: private respondent Benito, as plaintiff, filed a
Complaint for Breach of Contract and Damages against
petitioner Villorasa, as defendant, before the RTC of
Makati allegedly for failure of the latter to comply with its
contractual obligation in that, other than a few unfinished
low cost houses, there were no substantial developments
therein. Petitioner E.B. Villarosa & Partner Co., Ltd. is a
limited partnership with principal office address at Davao
City and with branch offices at Paranaque, Metro Manila
and Cagayan de Oro City.
Summons, together with the complaint, were served upon
the defendant, through its Branch Manager Engr.
Wendell Sabulbero at the stated address at Kolambog,
Lapasan, Cagayan de Oro City but the Sheriffs Return of
Service stated that the summons was duly served upon
defendant E. B. Villarosa & Partner Co., Ltd. thru its
Branch Manager Engr. WENDELL SALBULBERO on May
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 111 of 270
5, 1998 at their new office Villa Gonzalo, Nazareth,
Cagayan de Oro City, and evidenced by the signature on
the face of the original copy of the summons.
ISSUE: Was the service upon the branch manager in
Cagayan was a proper service upon a partnership with
principal office in Davao.
HELD: NO. The designation of persons or officers who
are authorized to accept summons for a domestic
corporation or partnership is now limited and more
clearly specified in Section 11, Rule 14 of the 1997
Rules of Civil Procedure. The rule now states general
manager instead of only manager; corporate secretary
instead of secretary; and treasurer instead of cashier. The
phrase agent, or any of its directors is conspicuously
deleted in the new rule. A strict compliance with the
mode of service is necessary to confer jurisdiction of
the court over a corporation. The officer upon whom
service is made must be one who is named in the
statute; otherwise the service is insufficient.
Accordingly, we rule that the service of summons upon the
branch manager of petitioner at its branch office at
Cagayan de Oro, instead of upon the general manager at
its principal office at Davao City is improper.
Consequently, the trial court did not acquire jurisdiction
over the person of the petitioner.
PURPOSE: The purpose is to render it reasonably certain
that the corporation will receive prompt and proper notice
in an action against it or to insure that the summons be
served on a representative so integrated with the
corporation that such person will know what to do with the
legal papers served on him. In other words, to bring home
to the corporation notice of the filing of the action. The
liberal construction rule cannot be invoked and utilized as
a substitute for the plain legal requirements as to the
manner in which summons should be served on a
domestic corporation.
BRINGIN HOME DOCTRINE; THIS HAS BEEN
ABANDONED ALREADY, no longer applicable.
GOLDEN COUNTRY vs SANVAR
- RULE WHEN EFFECTED THROUGH A CLERK-
TYPIST.---substantial compliance
- Actual receipt of summons by clerk-typist on behalf of
officer of corporation holding office at that address is
substantial compliance with rules. The court a quo
thereupon concluded:
". . . inasmuch as the spirit and purpose of the rule is 'to
bring home to the corporation notice of the filing of
the action' . . . and it appearing that said defendant
had actually received the summons and a copy of the
complaint albeit thru its clerk-typist Miss Iluminada E.
Lagrimas, and in fact has filed this instant motion, the
Court hereby considers the same as substantial
compliance with the rules and therefore denies the
aforesaid motion."
- It was not denied that the summons was given by
clerk to the president.
 REMEDIAL LAW
CIVIL PROCEDURE
- Although initially there was a defective service,
the same was cured when the summons was
delivered to the president.
- Moreover, notwithstanding its receipt of the order of
default on March 6, 1981, petitioner did not even
bother to take any steps to lift said order of default,
but it simply folded its arms for five months until the
decision was handed down on July 15, 1981. Further
weakening the position of the petitioner is the
absence of a viable defense against the documented
claims of respondent for unpaid construction materials
purchased by petitioner.
- RELIEF FROM ORDER OF DEFAULT; RULE. — As
we have ruled in the case of Philippine Bank of
Commerce vs. Jose M. Aruego (102 SCRA 530, 537):
"It has been held that to entitle a party to relief from a
judgment taken against him through his mistake,
inadvertence, surprise or excusable neglect, he must
show to the court that he has a meritorious defense.
In other words, in order to set aside the order of
default, the defendant must not only show that his
failure to answer was due to fraud, accident,
mistake or excusable negligence but also that he
has a meritorious defense." In the case of
Development Insurance Corp. vs. Intermediate
Appellate Court (143 SCRA 62), this Court also ruled
that a default judgment will not be lifted if defendant
has no valid defense
SERVICE TO BRANCH MANAGER, IMPROPER
BPI v. Sps. Santago, G.R. No. 169116, March 28, 2007
FACTS: BPI dumaguete branch initated extrajudicial
foreclosure. In order to stop it, mortgagor filed an action
before RTC Dumagute for injunction to stop such
foreclosure proccedings + issuance of TRO. Summons
were served in Branch manager of BPI in Dimaguete City.
ISSUE: WON there was proper service
HELD: NO, Basic is the rule that a strict compliance
with the mode of service is necessary to confer
jurisdiction of the court over a corporation. The officer
upon whom service is made must be one who is
named in the statute; otherwise, the service is
insufficient. Applying the aforestated principle in the
case at bar, we rule that the service of summons on
BPIs Branch Manager did not bind the corporation for
the branch manager is not included in the
enumeration of the statute of the persons upon whom
service of summons can be validly made in behalf of
the corporation. Such service is therefore void and
ineffectual. However, upon the issuance and the proper
service of new summons on 11 March 2003, before the
Writ of Preliminary Injunction was issued on 20 March
2003, whatever defect attended the service of the original
summons, was promptly and accordingly cured.
Inarguably, before the Order granting the application for
Writ of Preliminary Injunction was issued, the RTC already
acquired jurisdiction over the person of BPI by virtue of the
new summons validly served on the Corporate Secretary.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 112 of 270
The fact that the original summons was invalidly served is
of no moment since jurisdiction over BPI was
subsequently acquired by the service of a new summons.
SEC. 12, PAR. 1: Service upon FOREIGN PRIVATE
JURIDICAL ENTITY conducts business in the
Philippines: the private foreign juridical entity is the
defending parting.
 How may summons be served?
1) On the RESIDENT AGENT designated for
that purpose: fifteen days from service of
summons.
2) If no agent, on the government official
designated by law to that effect, or on any of
his officers or agents in the Philippines:
thirty days from receipt of the foreign
juridical entity.
On March 18, 2011, the SC made an amendment adding
66
(PAR. 2): ―If the foreign private juridical entity is not
67
registered in the Philippines, or has no resident agent ,
then service may, with leave of court, be effected out of
68
the Philippines through any of the following means:
(a) By personal service course to the appropriate court
in the foreign country, with the assistance of the
69
DFA ; or
(b) By publication ONCE in a newspaper of general
circulation in the country where the defendant may
be found and by service of summons and the court
order by registered mail to the last known address
of the defendant; or
(c) Any other recognized electronic means that could
generate proof of service, or
(d) By such other means that the court wishes to
70
direct .‖
SEC. 13: SERVICE UPON PUBLIC CORPORATIONS:
 The defendant is the Republic of the Philippines: on
the Solicitor General.
 Province, city or municipality, and public
corporation: on its executive head or on such other
officer/s as the law or the court may direct.
66
Relates to a situation where it is not doing business in the Philippines,
BUT it has transacted business (even once) here.
67
If branch: then you already have an officer there.
68
Extra-territorial service.
69
NOT to take the deposition of the witness before that court. If a
similar request is made by a foreign country, the court will take a
deposition here in the Philippines for the purpose of the case in a
foreign country: RECIPROCITY.
PURPOSE: for the service of summons.
70
EXAMPLE: Registered mail, UPS.
 REMEDIAL LAW
CIVIL PROCEDURE
SEC. 14: SERVICE UPON DEFENDANT WHOSE
IDENTITY OR WHEREABOUTS ARE UNKNOWN:
defendant is designated as unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry:
 Service may, by leave of court, be effected upon
him by PUBLICATION in a newspaper in a general
circulation, and in such place or in such time the
court may order.
 SITUATION: the defendant is either unknown or
you know him, but his whereabouts are unknown.
CITIZENS‘ SURETY V. MELENCIO-HERRERA:
reiterated in the case of NIETO.
o This is an action to recover sums of money where
the bonding company paid on behalf of another
party.
o A bonding company usually requires a mortgage,
and it foreclosed the mortgage.
o However, the property subject of the mortgage was
insufficient to cover the entire obligation that was
paid by the surety.
o There was only partial satisfaction of the entire
obligation.
o That is why the surety is seeking to recover the
deficient and for a deficiency judgment.
o Upon motion of the surety, the presiding judge
issued an order allowing summons by publication.
o Defendant cannot anymore be served with
summons as he has already transferred his
residence, and he cannot be found in his residence
appearing in the contract.
o So the surety thought that summons by publication
is in order.
o The defendants still failed to appear and answer.
o Surety then filed a Motion to Declare the Defendant
in Default.
o TC: dismissed the case on the ground that it has
not acquired jurisdiction over the person of the
defendant notwithstanding service by publication.
o SC: was it correct for the TC to have denied the
motion to declare the defendant in default? YES.
 What kind of action is this? It is an action in
personam, and it requires personal service
of summons or if it cannot be done, by
substituted service.
 An action in personam, no service by
publication is allowed.
 What should have the plaintiff done to
properly apply Sec. 14, which says that
when the defendant or his whereabouts is
unknown, it cannot be ascertained even by
diligent inquiry, then summons can be
served by publication?
 In order for service by publication may
be effected under Sec. 14, if no
property of the defendant is found,
can there be proper service of
publication?
 Sec. 14 allows service by publication
by converting an action in personam
to one in rem or quasi in rem.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 113 of 270
 Did the court really acquire jurisdiction of the
defendant’s person? If property is found,
then it is attached, then service by
publication is made, does that mean that the
court has acquired jurisdiction over the
person of the defendant?
 The court acquires jurisdiction over
the res, over the thing that is
attached.
 Sec. 14 is process of converting the action
from one in personam to one in rem.
 But technically, the court has not acquired
jurisdiction over the person.
 It has only acquired jurisdiction over
the property.
 Since you cannot find the defendant,
look for properties by the defendant
and attach it, then service by
publication.
ORDINARY SUMMONS SUMMONS BY
PUBLICATION
The court acquires The court really does not
jurisdiction over the acquire jurisdiction over the
person. person. The requirement of
publication is just to satisfy
the requirement of due
process.
o Was the TC correct in dismissing the case?
NIETO: reiterated the ruling in the previous case.
SANTOS V. PNOC EXPLORATION CO.: fairly recent
case.
o Mr .Santos used to be a director of PNOC. One of
the perks of being a director is that he is entitled to
a car plan. He bought an SUV. Santos defaulted in
paying it. PNOC filed an action to recover the
balance of the purchase price of the car
(P698,502.10).
o When summons was served on Santos, he was not
anymore residing at the place of his old residence.
o PNOC now caused the publication of the summons
which the court allowed.
 Summons was published in Remate, a
newspaper of general circulation.
o When Santos failed to answer within the period
stated in the summons, the PNOC just filed a
motion to set the case for reception of evidence ex
parte.
 It was not a Motion to Declare Santos in
Default.
o TC: granted the motion.
o When the case was submitted for decision,
(presentation of evidence had finished) Santos filed
an Omnibus Motion for Reconsideration and to
 REMEDIAL LAW
CIVIL PROCEDURE
Admit Answer.
 Of the order of the court allowing reception of
evidence.
 Ground: because publication alone is not
enough, as there must be an affidavit that a
copy of the summons, complaint and order of
the court was mailed to the last known
address.
 In this case, the Affidavit of Service
was executed by PNOC, not by the
process server (in the case it said
Clerk of Court).
 There was also a violation of due
process as he was not notified of the
order.
o TC: denied.
o CA: pending the proceeding, the TC rendered a
decision on the basis of the evidence ex parte
presented to the plaintiff.
o CA later on: rendered a decision sustaining the
validity of the two Orders (Sept. 11, 2013 and Feb.
2014).
 Effectively, there was a finding that the
defendant was in default, for failing to file a
responsive pleading as fixed, as he could not
be found and summons by publication was
ordered.
 It was reasonable to expect the defendant
will not receive of notice or order in his last
known address, and it was impractical to
send any notice or order to him.
 The order was mailed at his last known
address, but it was claimed.
o Under the ruling in CITIZENS‘ SURETY, for an
effective summons by publication under Sec. 14,
there can never be summons by publication in
actions in personam, unless the same is converted
to a one in rem by locating properties belonging to
the defendant, attaching it, thereby converting the
process to in rem.
o In this case, this is also an action in personam,
which is an action to secure personal liability of a
particular person.
o Was there ever a conversion by securing
properties? The only problem here is that the lawyer
did not really understand Sec. 14.
 Neither did the SC.
o ISSUE: Sec. 14 applies only to an action in rem,
without explaining that it is a process actually of
conversion, not in an action in personam.
o SC: that rule might be correct under the old rule, but
no so under the 1997 Rules of Civil Procedure.
 Under the new law, it states ―in any action
where the defendant is designated as an
unknown owner, etc.‖
 Under the old law, ―where the defendant is
designated as an unknown owner, etc.‖
 So the Court said: petitioner is WRONG.
 The in rem-in personam distinction
was significant under the old rule
because it was silent as to the kind of
action (no ―in any action‖).
 So Court limited the same to
the action in rem.
 The present rules explicitly states ―IN
ANY ACTION‖ → can be in personam,
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 114 of 270
in rem.
 Thus, it now applies to ANY action.
IN THE BAR: Answer it the way the SC erroneously ruled
on it.
ESCOLIN’S COMMENT: It lacks the idea of the nature of
publication as a mode of service of summons.
o Old rule: when summons is made by publication,
the curt does not acquire jurisdiction over the
person, but over the res.
 It is only to satisfy the basic requirements of
due process → so you cannot go beyond
what was attached, and ask for deficiency
judgment.
o CHING V. COURT OF APPEALS: distinction
between in personam, in rem, quasi in rem.
 Ching was the owner of a real property in
Pasay City covered by a TCT, then he later
on migrated to the US and died there. The
plaintiff now files an action for reconveyance
of the property in question, but it appears that
when the action was filed, Ching has long
been dead (for ten years already).
Considering that summons cannot be served
on him and his residence in Pasay City,
plaintiff amended his complaint, not sure that
Ching was still alive or dead. In the
meantime, there was already a pending
settlement of the estate of Ching, which is an
71
action in rem (against the whole world).
Since Mr. Ching failed to answer, there was a
judgment by default, and it became final and
executory. When it was already at the
execution stage, the administrator of the
estate of Ching found out that there was such
judgment, and he file a motion with the court
to declare the judgment null and void for lack
of jurisdiction.
 Is the action in personam? YES.
 While it involves a real property, that
does not change the fact that it is an
action in personam.
 It involves ownership of a particular
individual.
 SC: the summons for publication was made
as there is a property involved.
71
The purpose of the proceeding is to establish a fact, status, right. All
those must raise their objections, otherwise, you shall forever keep his
peace.
EXAMPLE: land registration case. Once registered in favor of the
applicant, can the true owner still ask for reconveyance? YES.
After one year from the decree of registration, the title becomes
unassailable, imprescriptible. And because of the principle of
constructive notice. But the law does not confer ownership over the
property, so the real owner has the right to recover it within the
prescriptive period of TEN YEARS from the time that his ownership has
been adversely questioned by the usurper (a possessor in the concept
of an owner).
If it is covered by a Title, it will start from the date of registration, as
anything that is annotated in the TCT, the whole world is constructively
notified. After ten years, the owner’s claim ceases to exist.
 REMEDIAL LAW
CIVIL PROCEDURE
 The court acquired jurisdiction over the
res, as the defendant cannot have
acquired jurisdiction over him.
 Is that correct? NO. Sec. 14
presupposes that the defendant is
ALIVE.
 The action in the first place was in
personam could not have prospered at
all, as according to the Court, under the
rules, only natural or juridical person
may be a party to an action.
 Ching at the time of the filing of the
action was already dead, and he had
no more personality.
 The process therefore of conversion from in
personam to in rem is predicated by the fact
that the defendant is alive → so that you can
convert it.
 But you cannot convert something that
would not prosper in the first place.
o This rule in SANTOS never really understood the
real extent and concept of service of summons by
publication.
SEC. 15: EXTRATERRITORIAL SERVICE
 Service may, by leave of court, effect out of the
Philippines, by:
(1) Personal service (Sec. 6), or
(2) Publication in a newspaper of general
circulation.
 NOTE: dual aspect of publication → in
addition, the summons must be made
by registered mail to the last known
address to COMPLETE service by
publication, OR
(3) In any manner the court may deem
sufficient.
 PERIOD TO ANSWER: 60 days after notice.
 When is this applicable? Only when the defendant
does not reside and is not found in the Philippines.
 May a defendant be sued where he is a non-
resident and not found in the Philippines? As
a general rule: NO, as the court cannot
acquire jurisdiction over his person.
 APPLICABLE ONLY IF THE ACTION IS IN
PERSONAM.
 If found, VENUE: where the plaintiff resides OR
where the defendant may be found, at the election
of the plaintiff.
 APPLICATION: NON-RESIDENT AND NOT
FOUND, as long as the action is in rem.
 As the action:
a) Affects the personal status of the
plaintiff or relates to, or
b) The subject of which is, property
within the Philippines:
i. in which the defendant has or
claims a lien or interest, actual
or contingent, or
ii. in which the relief demanded
consists, wholly or in part, in
excluding the defendant from
any interest therein, or
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 115 of 270
iii.the property of the defendant
has been attached within the
Philippines.
 The action is actually converted to in rem.
DIAL CORP. V. SORIANO: Imperial Vegetable
Corporation entered into a contract with Dial and other
foreign corporations not domiciled nor licensed to do
business in the Philippines. The contract is for the supply
of raw materials to make a soap. The contract was
entered into abroad. Now because Imperial defaulted
under the contract, Dial and 15 other foreign corporations
not domiciled nor doing business herein initiated
arbitrations proceedings abroad, and were able to obtain
awards against Imperial. To prevent implementation of the
arbitral award, Imperial filed an action for injunction and
damages against these foreign corporations. On Motion,
the court authorized Imperial to effect service of summons
through DHL courier service. Without submitting to the
jurisdiction of the court, the defendants now filed a Motion
to Dismiss on the ground of improper service of summons.
o TC: denied the motion.
o Hence, the petition of the defendants-corporations
before the SC on the issue of WON the TC acquired
jurisdiction over the person of the defendants.
o SC: NO, TC was in error.
o REASON: under Sec. 15, only in certain instance
may extraterritorial service be a proper mode,
namely where the action affects the status of the
plaintiff.
 It is not the case herein.
o Also, not No. 2 (subject matter).
o The complaint in this case does not fall any of the 4
instances, because these 4 instances are actions in
rem.
o The action of injunction with damages is an action in
person, hence, extraterritorial service may not be
effected.
 ACTION IN PERSONAM: an action based on
a person’s liability.
 Brought to recover damages, personal
property, etc.
 ACTION IN REM: an action against the thing
itself.
BANCO DE BRASIL V. COURT OF APPEALS: same
ruling as above.
o Action herein is in personam.
o The ship was salvaged, and there was no payment
of the salvage fee.
o SC: While the action is in rem, by claiming
damages, the relief demanded went beyond the res
and sought a relief totally alien to the action. Any
relief granted in rem or quasi in rem actions must be
confined to the res and the court cannot lawfully
render a personal judgment against the defendant.
Clearly, the publication of summons effected by
private respondent was invalid and ineffective for
the trial court to acquire jurisdiction over the person
 REMEDIAL LAW
CIVIL PROCEDURE
of petitioner, since by seeking to recover damages
from petitioner for their alleged commission of an
injury to his person or property cause by petitioner's
being a nuisance defendant, private respondent's
action became in personam. Bearing in mind that in
personam nature of the action, personal, or if not
possible, substituted service of summons on
petitioner and not extraterritorial service, is
necessary to confer jurisdiction over the person of
petitioner and validly hold it liable to private
respondent for damages.
o In action in personam, the court cannot acquire
jurisdiction over the person.
o Extrajudicial service cannot also be allowed, as the
same is only when it affects status of the plaintiff or
the property of the defendant.
HONGKONG SHANGHAI BANKING CORP.: there were
two defendants there, HSBC and HSBC Trustee. These
actions arose from the fact that that the plaintiff is a payee
of a check was refused encashment. Then the issuer of
the check wrote a letter to the bank asking them to encash
it. The issuer then died. So plaintiff sued and the basis of
his cause of action is Art. 19, CC. however, it sued not
only HSBC, which has its branch office in Makati, but also
HSBC Trustee, as the latter rejected the check. Summons
was served in HSBC and the summons to the HSBC
Trustee was served to HSBC.
o ISSUE: did the court acquire jurisdiction over HSBC
Trustee? NO.
 It is separate and distinct from HSBC, and it
is not doing business in the Philippines.
o OTHER ISSUE: voluntary surrender.
CARIAGA V. MALAYA: plaintiff filed an action for
annulment of extrajudicial partition, and for recovery of
real property, plus damages. All the defendants filed an
Answer with counterclaim, except Jose Cariaga, Jr. and
Marieta Cariaga, who were already residing in the US.
Upon plaintiff’s motion, the court granted leave to serve
summons by registered mail. The defendants questioned,
and filed a Motion to Set Aside and declare summons null
and void. The defendants abroad likewise questioned the
service by special appearance of the counsel, as they are
non-resident, not found in the super Philippines.
o ISSUE: was service by registered proper
extrajudicial service under Sec. 15? YES, because
there are three modes here allowed by Sec. 15:
(1) By personal service: ticket and MANOTOC
doctrine (at least three times).
(2) By publication of a newspaper of general
circulation: copy of the summons and order
shall be sent to the defendants last known
address.
(3) In any other manner which the court may
deem sufficient.
o SC: by registered mail is in NO. 3: any other
manner.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 116 of 270
ROMUALDEZ-LICAROS V. LICAROS: Divorced, and
there was separation of property. The husband filed a
case here. Summons were served through the Philippine
Consulate to reach the wife.
o SC: in any other mode which the court may deem
sufficient.
VALMONTE V. COURT OF APPEALS: the defendants
here, husband and wife, migrated in the US. However, the
husband has a law office here. The sister of the wife filed
an action for partition, and summons were served to the
husband in his office. He accepted the summons insofar
as to him, but he refused to accept that of his wife. The
plaintiff now filed a motion that summons of the wife be
served on the husband who is in the Philippines, which the
TC granted.
o ISSUE: was there proper service of summons? NO,
not considered as the third mode; it must be
OUTSIDE OF THE PHILIPPINES.
o REASON: it is NOT extraterritorial.
 The two other modes are extra-
territorial/outside the Philippines.
 Therefore, the third mode should likewise be
outside of the Philippines.
 Principle of ejustem generis.
o In this case, it was served in the Philippines → it is
TERRITORIAL service now.
SEC. 16: RESIDENTS TEMPORARILY OUT OF THE
PHILIPPINES: service may, by leave of court be also
effected out of the Philippines.
 EXAMPLE: If you are on vacation in England, how
may summons be served on you?
EXTRATERRITORIAL.
 ―also‖ → NOT exclusive.
 ―Under the preceding section‖:
(1) Personal;
(2) Publication;
(3) Any other means.
MONTALBAN V. MAXIMO: Plaintiff filed an action on
behalf of their son for recovery of damages arising from a
vehicular accident. The defendant was a priest. Summons
was made to him in Concepcion, Malabon. When the
sheriff knocked on the door, he was informed that the
defendant was in Rome. When he asked when he will
return, the assistant parish, Fr. Bautista, priest that he will
be returning soon, ―in a week’s time.‖ Later on, Fr.
Bautista informed the court that the defendant priest will
be coming home after a while. TC declared defendant in
default and rendered judgment in default.
 REMEDIAL LAW
CIVIL PROCEDURE
Philippines → ―in such twice, thrice.
o ISSUE: Did the court acquire jurisdiction over the places and for such (3) Any other mode.
priest? Must summons be served under any of the time as the court may  Is facsimile
extra-territorial service? order‖. any other
o SC: WRONG, as summons in an action in  ONCE only. mode that
personam against a resident in the Philippines who (3) Facsimile and other the court
is temporarily absent in the Philippines may validly electronic means that may deem
be affected by SUBSTITUTED SERVICE (Sec. 7). can generate proof of sufficient?
o The fact that the defendant did not receive actual service. BAKA
notice of summons will not affect the validity of (4) By such other means PWEDE.
service. may in its discretion
o The phraseology under Sec. 16 is a recognition of direct (catch-all
the fact that substituted service out of the clause).
Philippines under Sec. 15, is but one of the
modes only for acquisition of jurisdiction by the
court. CARIAGA: by registered mail is an accepted mode (third
 But the normal method of service of mode).
summons upon one temporary absent in the
Philippines is by SUBSTITUTED SERVICE,
because personal service outside of the
country are NOT ordinary means of  ROMUALDEZ V. LICAROS: through consulate
summons. (other modes).
 NOTE: ―may also be effected‖ → pwede din.
o That is a recognition of the fact that the
SEC. 17: LEAVE OF COURT: shall be made by motion in
extraterritorial service under Sec. 15 is NOT
exclusive. writing, supported by affidavit of the plaintiff or some
 In fact, the ordinary mode of service is by person on his behalf, setting forth the grounds for the
personal service, and if he cannot be served application.
promptly or within a reasonable time, by
substituted service, as was done in this case.
 When is it necessary? Sec. 12, Par. 2, Secs. 14,
15, 16.
IMPORTANT: PAR. 2, SEC. 12: SERVICE UPON  Requirements:
(1) Sec. 12: the foreign private juridical entity
FOREIGN PRIVATE JURIDICAL ENTITY, allowing
has transacted in the Philippines
EXTRATERRITORIAL SERVICE. (2) Sec. 14: affidavit that defendants are
unknown, etc.
 May, by leave of court, be effected outside the
Philippines: (3) Sec. 15: affidavit that non-resident of the
(1) Personal service, Philippines, and affects the plaintiff.
(2) By publication, (4) Sec. 16: affidavit that he is a resident but
temporarily out of the Philippines.
(3) By facsimile,
(4) Such other means.
SEC. 18: PROOF OF SERVICE: why is it necessary for
proof of service? When you want to declare a party in
SEC. 12 SEC. 15 default with notice to the other party and proof thereof.

Only foreign juridical entity. Allows any kind of

Need NOT be in rem or
quasi in rem: PAR. 1: which
has transacted business in
the Philippines → even in
personam.
MODES:
(1) Personal service
coursed through the
DFA;
(2) Publication: must be
effected out of the
defendants, whether  How do you prove that the period within which to
natural or juridical entity. respond has expired? By proof of service.
The extraterritorial service  RETURN: proof of service made in writing by the
may be allowed when the server.
action is in rem or quasi in  Must be prepared by the sheriff or who
rem. served AND furnish copy to counsel of the
plaintiff in FIVE DAYS, if there is any defect
- If NOT transacted in in the service of summons.
the Philippines, apply  If there is defect, there arises no
this Section. presumption of regularity of official functions.
MODES:  By virtue of their office, they need not be
sworn / under oath.
(1) Personal service;  WHAT: shall set for the manner, place, ad date of
(2) Publication: may be service → the efforts made by the sheriff.
in the Philippines.  IF OTHER THAN THE SHERIFF/DEPUTY/OFFICE
 The court OF THE COURT: proof of service must be UNDER
can say OATH.

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 117 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
SEC. 19: If by PUBLICATION:
(1) printer, his foreman or principal clerk, or of the
editor, business or advertising manager, to which
affidavit a copy of the publication shall be attached
and
(2) by an affidavit showing the deposit of a copy of the
summons and order for publication in the post
office, postage prepaid, directed to the defendant
by registered mail to his last known address.
NOTE: to complete, the summons and all the attachments
and order of the court allowing summons by publication be
sent by registered mail to the last known address.
SEC. 20: VOLUNTARY APPEARANCE: another way of
the court to acquire jurisdiction over the defendant.
 Same rule as in criminal cases.
 It is EQUIVALENT to summons.
 Inclusion in the MTD of other grounds aside from
jurisdiction over the person of defendant shall NOT
be deemed as voluntary appearance:
LA NAVAL DRUG V. COURT OF APPEALS:
o The rule now, if there is improper service of
summons, in the OLD RULES, you can only
question that in a MTD.
 Also in the MTD, that must be the sole
ground.
 To appear by ―special appearance‖ for the
sole purpose of questioning the jurisdiction of
the court over the person the defendant.
 If other grounds are alleged: deemed waived
lack of jurisdiction over the person as he is
seeking affirmative relief.
o HOWEVER, in this case, such rule was change.
o NOW, the plaintiff may assert as many causes of
action either in affirmative or otherwise, and he may
do so even if they are inconsistent with each other.
 Same rule applicable as when a defendant
raises his defenses.
 Also applied in EB VILLAROSA, HSBC.
BUSUEGO V. COURT OF APPEALS: plaintiff here filed
action to recover a parcel of land, and the apart house
thereon against (1) Lopez, (2) Lazaros. Summons on the
four defendants were served upon them all through
defendant Lazaro at the address in the complaint. When
the sheriff arrived there, only Lazaro was there, and since
the other three are his neighbors,
o NOTE: substituted service.
o Later, defendants, from their counsel, filed a Motion
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 118 of 270
for a Fifteen Day Extension.
o TC: granted.
o Atty. Asked another Ten Days to Answer.
o TC: granted.
o However, no answer was filed, and the defendants
were declared in default.
o TC: eventually, a judgment of default was rendered.
o When the order of execution is executed two years
later, one of the defendants filed a motion to hold
execution of abeyance of execution, for
humanitarian reasons to look for another place
where their families can reside.
o TC: granted the motion.
o Again through the same attorney, they (Lazaro and
in behalf of his co-defendants) filed an MR against
the default counsel on the ground that they were
never furnished of the judgment.
 Verified by Romeo Lazaro, one of the
defendants and representing the other
defendants, stating that they have caused
the filing of the motion, etc.
o Through new counsel, defendants filed an Omnibus
Motion which included a Motion to Lift the Order of
Default, a second MR, and to Quash the Writ of
Execution, alleging for the first time, that their failure
to answer was due to lack of notice.
o TC: denied the motion.
o CA: in resolving the petition, the appellate court
upheld defendant’s contention, and that the
decision was null and void to all of the defendants
except Lazaro.
 For the others, the proper procedure was not
complied.
 The efforts were not made.
o ISSUE: WON there was proper service of summons
upon the other defendants.
 The substituted service to Lazaro was
INEFFECTIVE for failure for the sheriff to
specify what prior efforts, if any, were exerted
to serve summons.
 Such specification in the return is essential
before substituted service may be resulted
to.
o OTHER ISSUE: was there voluntary appearance
through their counsel and their co-defendant.
 YES, there was, however, voluntary
appearance by the defendant.
 They appeared in a number of times without
objections of the supposed improper service.
 First with their counsel who filed successive
motions for extension to filed answer.
 They also appeared through their co-
defendant for a motion to extension to vacate
the premises.
 And through their counsel again by filing an
MR.
o By anyone of these facts, the defendants waived
their initial lack of jurisdiction over their persons.
HONGKONG SHANGHAI BANK and HSBC TRUSTEE
V. CATALAN: when the action was filed, both entities,
HSBC, and the Trustee, questioned the jurisdiction over
the court. TC denied. Both also filed answer, but the
 REMEDIAL LAW
CIVIL PROCEDURE
answer involved was an Answer Ad Cautelam, just so that Service upon a Service shall be effected upon the
they cannot be declared in default, but they are still prisoner prisoner by the officer having the
questioning the ruling of the court on whether summons management of such jail or institution
were properly issued. However, HSBC already filed a
Motion for Extension, and also for HSBC Trustee.
Service upon a Service shall be made upon (a) him
o ISSUE: was there voluntary appearance. minor and an personally and on (b)his legal
o SC: Insofar as the Bank is concerned, where incompetent guardian, if he has one, or if none,
summons of served, by the filing of the motion for guardian ad litem;
extension, and later on an Answer, they have As to minor: may be made to father or
deemed to have submitted themselves to the mother
jurisdiction of the court.
o HOWEVER, for HSBC Trustee, service of summons Service upon a Service may be made upon the ff.
trough HSBC was not proper substituted service.
private persons: (1) president (2) managing
 They are two distinct juridical entities.
 HSBC Trustee is not doing business in the domestic partner (3) general manager (4)
Philippines → not residing and not found in juridical entity corporate secretary (5) treasurer (6) in-
the Philippines. (corporation, house counsel
 The action herein is personal action (violation partnership or NOTE: enumeration is exclusive and
of Art. 19, CC). association with cannot be served upon any other
o It must be noted that HSBC filed initially a MTD and juridical person (EB Villarosa vs Benito)
Motion for Extension of Time, and has invoked the
personality) RATIO: Service upon an agent no
RTC’s jurisdiction over it.
 The filing of motions seeking affirmative relief longer provided under the present
such as to admit answer, for additional time, rules unlike before;
to lift the order of default, motion for
reconsideration are considered voluntary Service upon a Service may be made upon its
submission to the jurisdiction of the court. foreign private (a)resident agent or if there‟s no agent
 Consequently, express reservation in the juridical entity (b) on the government official
Answer that it filed the same as a mere
(which has designated by law to that effect (c) any
precaution is of no moment, having earlier
invoked the jurisdiction of the RTC in its transacted of the officers or agents of said foreign
motion for extension of time, is hereby business in the entity within the Philippines;
estopped of asserting otherwise. Philippines) If foreign corporation is not
o In contrast, the filing by the HSBC Trustee cannot registered in the PH or has no
be considered as voluntary appearance. resident agent: service may be
 It is conditional appearance, entered effected out of the PH, with leave of
precisely to question the regularity of service
court by any of the ff. means:
of summons.
 Cannot be said to have submitted himself to a. by personal service coursed
the jurisdiction of the court. through appropriate court in the
 HSBC Trustee has been consistent in all its foreign country w/ the assistance
pleadings in assailing the service of of DFA;
summons, thus, HSBC Trustee cannot be b. by publication of newspaper of
declared in estoppel when it filed an Answer general circulation in the country
Ad Cautelam.
 Such answer did not render the petition in the where the defendant may be
CA moot and academic. found and by serving a copy of the
summons and the court order by
registered mail at the last known
SUMMARY: address of the defendant;
HOW c. by facsimile or any recognized
electronic means that could
Service upon Service may be effected upon all the generate proof of service;
an entity defendants by serving summons upon d. by such other means as the court
72
without (a) any of them or (b) upon the may in its discretion direct;
juridical person in charge of the office or of the
personality place of business maintained in such Service upon Service may be effected on the
name; (Sec 8 of Rule 14) the Republic of Solicitor General
the Philippines
Service upon Where defendant is a province, city or
public municipality, service may be fefcted on
72
This service, shall not however bind any person whose connection corporations its (a) executive head or (b) on such
with the entity, upon due notice, had been severed before the action
other officer or officers as the law or
was brought;

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 119 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
the court may direct Section 4. Hearing of motion. — Except for
motions which the court may act upon without prejudicing
Service upon Must be served to the Solicitor General the rights of the adverse party, every written motion shall
an (RATIO: when an uincorproated be set for hearing by the applicant.
unincorporated government agency possesses no
government juridical personality of its own, the suit
agency is against the agency’s principal, i.e the Every written motion required to be heard and the notice
State) of the hearing thereof shall be served in such a manner as
to ensure its receipt by the other party at least three (3)
days before the date of hearing, unless the court for good
cause sets the hearing on shorter notice. (4a)
RULE 15

MOTIONS
Section 5. Notice of hearing. — The notice of
PLEADING V. MOTION: hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing which must
PLEADING MOTION not be later than ten (10) days after the filing of the motion.
(5a)
Written statement of An application for relief other
ultimate facts than by a pleading.
constituting a party’s Section 6. Proof of service necessary. — No
cause of action. written motion set for hearing shall be acted upon by the
ASSERTIVE Can you also ask for the
court without proof of service thereof. (6a)
PLEADING: complaint, dismissal of the complaint? Or
third-party complaint, to defeat a claim? YES, MTD, REQUIREMENTS FOR A VALID MOTION:
complaint-in- but it is not a pleading.
intervention. (1) Must be IN WRITING (SEC.2): EXCEPT those
RESPONSIVE - Only include made in open court or in the course of a hearing or
PLEADING: answer AFFIRMATIVE defenses, trial.
(negative and as only new matters can  In writing in order to give your opponent to
affirmative defense) be raised therein. read your motion.
73
and reply .  But if it is in open court, the opponent’s
Can also be NOT necessarily counsel is there already.
resisting the claim of the (2) The relief sought to be obtained and the grounds
plaintiff, as when you file a upon which it is based (SEC. 3):
Motion for  Example: when you file a MTDFID →
Postponement/Extension of ground: failure to Answer; relief: to declare
Time. defendant in default.
(3) If required by these Rules or necessary to prove
facts alleged therein, shall be accompanied by
Section 1. Motion defined. — A motion is an supporting affidavits and other papers.
application for relief other than by a pleading. (1a)  Example: return, etc.

SEC. 4: HEARING OF MOTION: only required if the

Section 2. Motions must be in writings. — All motion is LITIGIOUS IN NATURE.
motions shall be in writing except those made in open
court or in the course of a hearing or trial. (2a)

 The court may act upon without prejudicing the

rights of the adverse party.
Section 3. Contents. — A motion shall state the  Motion for Early Resolution.
relief sought to be obtained and the grounds upon which it  NEED NOT TO HAVE NOTICE AND HEARING:
is based, and if required by these Rules or necessary to when it will not prejudice a right.
prove facts alleged therein, shall be accompanied by  Motion to File an Extension.
supporting affidavits and other papers. (3a)  GENERAL RULE: All motions must be set for
hearing.
 By the applicant.
 Shall be served in such manner as to ensure
its receipt by the other party at least three (3)
days before the date of hearing.
73
NOT mandatory, except when the answer raises an actionable
document, in which case it is necessary to file a reply to raise issue as to
the due execution and authenticity of the actionable document.

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 120 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
SEC. 5: NOTICE OF HEARING: must be received by the
other party at least three (3) days before the date of the
hearing.
 THREE-DAY NOTICE RULE: to afford the adverse
party to get your motion.
 To file a Comment or Opposition.
 CONTENTS: will be addressed to all parties
concerned, and shall specify the time and date of
the hearing, which shall not be later than 10 days
from the filing of the motion.
SEC. 6: No written motion set for hearing shall be acted
upon by the court without proof of service thereof.
 REMEMBER: Service of pleadings and other
papers (MOTIONS, among others).
 PROOF OF SERVICE REQUIRED:
(1) PERSONAL SERVICE:
(2) BY REGISTERED MAIL:
 If you have no proof of service, then it will not be
set for hearing.
 MERE SCRAP OF PAPER IF:
(1) NO NOTICE OF HEARING (time and place):
(2) NO PROOF OF SERVICE:
 What if the court issued an order requiring the other
party to comment on the motion with those defects?
In this case, the other party is DULY INFORMED.
 The court gives the adverse party the
opportunity to contest.
 What for? FOR DUE PROCESS.
 It must be addressed to the counsel of the adverse
party: ―Greetings! Please be informed that the
foregoing motion shall be submitted for the
consideration of the Honorable Court at 8:30 in the
morning, on __________.‖
 Where the motion is non-litigious → No need for
that; it will not be a scrap of paper when through a
defective motion.
 Requisites for a valid motion:
a) Must be in writing, EXCEPT in open court
with the adverse party
b) Must state the ground for relief
c) Must be accompanied with supporting
papers if necessary, ONLY
d) Notice of the motion must be given to the
parties concerned for the hearing (three-day
notice)
e) The notice must be directed to all parties
concerned, not the Clerk of Court
f) Must state the time and place of the hearing
g) Proof of service of notice thereof, except
when the court is satisfied that the rights of
the adverse party are not affected
(1) Personal service: signature
(2) Registered mail: registry receipt,
affidavit of service, return card.
 Effect of non-compliance with the three-day notice
rule: the court may refuse to take action for failure
to comply with such requirement.
 But if on hearing day, you are all there, the
court will just issue an order.
NOTE:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 121 of 270
- when notice of hearing not necessary (in a non-
litgous motion)
- YAP vs CA
- Failure to comply with reuirements re formal
notice of hearing subject to limitation: that it
should be ruled in the merits rather than
technicalities AZAJAR vs CA
MOYA V. BARTON: the three-day notice for a motion is
not necessary when the extension of time applied for may
be shorter than the time required for it to be set for hearing
and acted upon by the court.
o In such case, the motion may be heard ex parte.
o Here, he filed for a motion for extension to file brief.
He was asking for a one-day extension.
o SC: if he will file for a motion, it will be three days. If
you set the motion for hearing, the time applied for
is shorter than the time required to have the motion
set for hearing.
TAN V. DIMAYUGA: Without proof of service, a motion is
nothing but a scrap of paper which the clerk of court
should not receive for filing.
YAP V. COURT OF APPEALS: The Court of First
Instance rendered judgment against petitioner in a civil
suit for damages. Within the period prescribed by law, he
filed a Notice of Appeal, a Cash Appeal Bond, and a
Motion for Extension of twenty days from March 13, 1978
(until April 2,1978) within which to file his Record on
Appeal. The Motion was not acted upon by the Trial Court.
On March 30, 1978, within the extended period prayed for,
petitioner submitted his Record on Appeal, but the Trial
Court disapproved the same for having been filed out of
time, petitioner's motion for extension of time to file it not
having been acted upon for lack of notice of hearing. The
Court of Appeals, on a Petition for "Certiorari and
Mandamus," ruled that the Trial Court committed no grave
abuse of discretion in disapproving petitioner's Record on
Appeal because it was filed out of time. Hence, this
Petition for Review.
NOTE: The Supreme Court held that the Trial Court has
the power to act on the ex-parte Motion for extension of
time to file the Record on Appeal since the said Motion did
not appear to be a contentious Motion and may be acted
upon even without proof of service on adverse party;
consequently, the Petition should be granted because
dismissal of appeals on a purely technical ground is
frowned upon as the policy of the Court is to encourage
the hearing of appeals on the merit.
AZAJAR V. COURT OF APPEALS: Azajar instituted a
 REMEDIAL LAW
CIVIL PROCEDURE
complaint against the defendant for damages arising from
failure of the defendant to deliver nails. Defendant filed a
MTD for lack of cause of action and improper venue. The
court denied the MTD because the notice of hearing that
was addressed to the adverse party merely stated ―that
the same be submitted to the court upon receipt hereof.‖ It
did not state the time and date, and the court held that it
did not toll the running of the period to answer. Defendant
was declared in default and a judgment was rendered
ordering the defendant to make the deliveries.
o SC: it was wrong for the private respondent to have
failed to set its motion to dismiss for hearing on a
specified date and time.
o The uniform holding of this Court has been that a
failure to comply with the requirement is a fatal flaw.
o But there are certain circumstances, including the
fact that the defendant has a meritorious defense, if
proved will defeat plaintiff’s, considering also the
desirability that cases should be determined on the
merits after giving all the parties full opportunity to
ventilate their causes and defenses, rather than on
technicality or procedural imperfections, the ends of
justice are better served by brushing aside
technicality and affording the defendant its day in
court.
o HELD: set aside the judgment.
CORPUS V. CORPUS: no notice of the Motion for
Postponement has been sent to the opposing party.
o HELD: Sections 4 and 5, rule 15 of the rules of
Court expressly provide that a motion shall state the
time and place of the hearing and shall be served
upon all the parties concerned at least three (3)
days in advance.
o And, according to Section 6 of the same Rules no
motion shall be acted upon by the court without
proof of such notice, and it has been held that, in
such a case, the motion is nothing but a useless
piece of paper.
o The reason is obvious: unless the movant sets the
time and place of hearing, the court would have no
way of determining whether the adverse party
agrees or objects to the motion, and if he objects, to
hear him on his objection, since the Rules do not fix
any period within which he may file his reply or
opposition thereto.
o Counsel for the defendants-appellants merely
stated therein: "Copy furnished Atty. Federico R.
Vinluan, San Nicolas, Pangasinan" is NOT sufficient
compliance of the requirements required under Sec.
5.
BANK OF PHILIPPINE ISLANDS V. FAR EAST
MOLASSES CORP.: there was no notice of hearing in the
MR. To cure it, it used ordinary mail and attached the
notice of hearing.
o SC:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 122 of 270
(1) A motion that does not contain a notice of
hearing is but a mere scrap of paper, and
does not toll the period for appeal.
(2) Notice here is not the notice required by law:
notice here is to the Clerk of Court, and not
to the parties concerned.
(3) RE: appeal.
FILIPINAS FABRICATORS V. MAGSINO: Jan. 21: a
collection suit was filed against petitioner (defendant) and
the surety. Petitioner and surety were duly served with
summons, but not the other surety. March 2: defendant
requested 10-day extension, however, before the judge
could not act on the motion, defendant filed a MBOP,
alleging insufficiency of the arguments of the complaint.
March 15: granted 10-day extension to answer. Later on,
in the Order of April 6, court required defendant to set
hearing for MBOP, then with notice to adverse parties,
otherwise, it shall be considered as a scrap of paper.
Summons was then served to other defendant, and
plaintiff filed a MTDDID. April 26: defendants filed
Manifestation setting hearing of their Motion. June 25,
plaintiff filed another MTDDID. Aug. 10: court declared
defendants in default.
o Correct or incorrect? CORRECT.
o The defendants premised that there was a pending
MBOP, therefore suspending the period to answer
is CORRECT, BUT this is true only if the motion
complies with requirement of notice of hearing to be
served in the adverse party.
o The requirements in this case are not followed,
therefore, effectively, there is no suspension of the
period to file an Answer.
o Effect of filing of MBOP: stays or tolls the running of
the period within which to file a responsive pleading.
o BUT here, the MBOP did NOT suspend the running
as it did not comply with the requirements under
Secs. 4 and 5, and it was proper for the court to
have declared them in default.
OMNIBUS MOTION RULE
Section 8. Omnibus motion. — Subject to the
provisions of section 1 of Rule 9, a motion attacking a
pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so
included shall be deemed waived. (8a)
GENERAL RULE: A motion attacking a pleading, order,
judgment, or proceeding shall include all objections then
available, and all objections not so included shall be
deeme waived.
EXCEPTION: when it appears from the pleadings or the
evidence on record that the court has:
1. no jurisdiction over the subject matter,
2. that there is another action pending between
the same parties for the same cause, (litis
pendentia) or
 REMEDIAL LAW
CIVIL PROCEDURE
3. that the action is barred by a prior judgment (8)
or (Res judicata)
4. by statute of limitations, (Prescription)
NOTE: the court shall dismiss the claim. (even Section 2. Form and
motu proprio) contents. — The motion to
- can be raised for the first time on appeal. quash shall be in writing,
- the court may motu proprio dismiss the case. signed by the accused or
his counsel and shall
COURT MAY MOTU PROPRIO DISMISS THE CASE ON distinctly specify its factual
THE GROUNDS OF LACK OF JURISDICTION OVER and legal grounds. The
SUBJECT MATTER, LITIS PENDENTIA, RES court shall consider no
JUDICATA, PRESCRIPTION ground other than those
GARCIA vs MATHIS, G.R. No. L-48577, September stated in the motion, except
30, 1980 lack of jurisdiction over the
FACTS: Complaint against Co. Mathis (Base offense charged
Commander) Complainant alleged that he was allegedly
illegaly dismissed from the job on 1956 and therefore EXCEPTION: EXCEPTION:
prayed for his reinstatement and backwages. His a) Lack of jurisdiction (a) That the facts charged
complaint was failed on 1977, or 21 years after cause of over subject matter, do not constitute an
action accrued. However, defendant filed special b) litis pendentia, offense;
appearance for motion to dismiss on the gorund of lack of c) res judicata, (b) That the court trying
jurisdicition over his person invoking that this is a suit d) prescription the case has no jurisdiction
against the state(non-suability). This is the only issue over the offense charged;
raised in the motion. However, the judge dismiss on the (g) That the criminal action
ground of prescription. Complainant attacked the order or liability has been
because the dismissal was not based on the allegations extinguished;
raised in the motion to dismiss. (i) That the accused has
HELD: It is true that an action will not be held to have been previously convicted
or acquitted of the offense
prescribed if prescription is not expressly invoked.
charged, or the case
However there are exceptions to this rule and one of
against him was dismissed
them is when the plaintiff's own allegations in his
or otherwise terminated
complaint show clearly (APPARENTLY) that the action without his express
has prescribed. In this case the complaint shows clearly consent.
that the plaintiff's action had prescribed for he alleged that
he was removed on August 23, 1956 (par. 5) but the case
was filed only on November 18, 1977, after a lapse of Sec 9 Motion fo leave A motion for leave to file a
more than 21 years. Prescinding, therefore, the defense of pleading or motion shall be accompanied by the
jurisdiction which is apparently meritorious, the complaint pleading or motion sought to be admitted
was properly dismissed.
- for e.g you file a motion for admission of
amendment of complaint when it is not a matter
OMNIBUS MOTION RULE MOTION TO QUASH (Rule
of right, you already attach your amended
(Rule 15) 117)
pleading/c yu are seeking to be admiiteeed, and
Section 8. Omnibus Section 9. Failure to if it’s granted the responsive pleading must bbe
motion. — Subject to the move to quash or to allege done w/in 10 days from notice of admitting the
provisions of section 1 of any ground therefor. — The amended complaint.
Rule 9, a motion attacking a failure of the accused to
pleading, order, judgment, assert any ground of a RULE 16
or proceeding shall include motion to quash before he
all objections then pleads to the complaint or MOTION TO DISMISS
available, and all objections information, either because
not so included shall be he did not file a motion to
deemed waived. (8a) quash or failed to allege the MOTION TO DISMISS DEMURRER
same in said motion, shall
be deemed a waiver of any NATURE: A motion to
objections based on the dismiss generally partakes
grounds provided for in the nature of demurrer. In
paragraphs (a), (b), (g), and the sense that when you file
(i) of section 3 of this Rule. a motion to dismiss under
rule 16, you are deemed to

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 123 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
hypothetically admit the - It may be filed within the period for an answer.
material allegations of the Namely, within 15 days from service of
complaint summons.
- Once a responsive pleading is filed, the grounds
May be based on facts not Must be based only upon of a motion to dismiss are generally deemed
alleged in the complaint. the facts alleged in the waived unless raised as an affirmative defense in
Precisely because it complaint the answer
actually relates to new
matters/affirmative Q: Supposed you forgot a ground when you filed an
defenses answer, can that be the subject of the amendment of
an answer?
PLEADING MOTION TO DISMISS A: YES, when the amendment is still a matter of right,
it is a matter of right when made once before the
Pleadings are the written A MOTION IS NOT A responsive pleading (reply in this case) is served, or
statements of the PLEADING, IT IS A prior the lapse of the period to answer (i.e. within ten
respective claims and MOTION. It is not a (10) days from service of the answer)-since in such
defenses of the parties responsive pleading, it is case, the issues have not yet been joined.
submitted to the court for not even a pleading.
appropriate judgment Q: Supposed you forgot a ground when you filed a
e.g. Section 2. Pleadings motion to dismiss, can that ground still be
allowed. — considered in the answer or in a subsequent motion
Pleading that asserts a to dismiss??
claim A: NO, violation of omnibus motion rule, deemed
The claims of a party are waived. See case, infra in venue
asserted in a:
i. complaint, AS TO WHO MAY FILE: A motion to dismiss may be filed
ii. counterclaim, by:
iii. cross-claim, 1. The original defendant
iv. third (fourth, etc.)- 2. Third-party defendant
party complaint, or 3. Plaintiff in a counterclaim
v. complaint-in- 4. Co-party in a cross-claim
intervention.
GROUNDS: a motion to dismiss may be made on any of
Responsive pleading the following grounds:
The defenses of a party are 1. Lack of jurisdiction over the person of the defending
alleged in the: party
i. answer to the 2. Lack of jurisdiction over the subject matter of the
pleading asserting a claim;
claim against him. 3. Improper venue;
ii. An answer may be 4. Plaintiff’s lack of legal capacity to sue;
responded to by a reply. 5. Litis pendentia;
(n) 6. Resjudicata
7. Prescription;
74
WHEN TO FILE: Within the time before filing the answer 8. Failure to state cause of action;
to the complaint or pleading asserting a claim. 9. Claim has already been paid, waived, abandoned, or
otherwise extinguished;
10. Unenforceability due to statute of frauds; and
74
Section 1. Grounds. — Within the time for but before filing 11. That a condition precedent for filing the claim has not
the answer to the complaint or pleading asserting a claim, a motion to been complied with.
dismiss may be made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the
defending party;
(b) That the court has no jurisdiction over the subject matter of (g) That the pleading asserting the claim states no cause of
the claim; action;
(c) That venue is improperly laid; (h) That the claim or demand set forth in the plaintiff's pleading
(d) That the plaintiff has no legal capacity to sue; has been paid, waived, abandoned, or otherwise extinguished;
(e) That there is another action pending between the same (i) That the claim on which the action is founded is enforceable
parties for the same cause; under the provisions of the statute of frauds; and
(f) That the cause of action is barred by a prior judgment or by (j) That a condition precedent for filing the claim has not been
the statute of limitations; complied with. (1a)

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 REMEDIAL LAW
CIVIL PROCEDURE
NECESSITY OF MOTION: Generally, the court cannot
dismiss the case motu proprio, except only when based on
sec. 1 Rule 9 (lack of jurisdiction over subj.matter; litis
pendentia; res judicata; prescription), and sec. 3, rule 17
(dismissal due to fault of plaintiff).
EFFECT OF FILING MOTION TO DISMISS ON THE
PERIOD TO RESPOND: It tolls or suspends the running
of the period to respond, and the period starts again upon
the receipt of the order denying the motion to dismiss.
PERIOD TO PLEAD IF DENIED: The movant may answer
within the balance of the period prescribed to answer but
not less than five (5) days in any event.
Section 4. Time to plead. — If the motion
is denied, the movant shall file his answer within
the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his
motion, but not less than five (5) days in any
event, computed from his receipt of the notice of
the denial. If the pleading is ordered to be
amended, he shall file his answer within the
period prescribed by Rule 11 counted from
service of the amended pleading, unless the
court provides a longer period. (4a)
75
EFFECT WHEN MOTION TO DISMISS GRANTED:
GR: Subject to the right of appeal, granting the motion
to dismiss is without prejudice to the re-filing of the
case
XPNS: PURE (with prejudice)
a. Prescription
b. Unenforceable due to statute of Frauds;
c. Res Judicata
d. Extinction (paid, waived)
DISCUSSION OF GROUNDS:
2. ―That the court has no jurisdiction over the
person of the defending party;‖
Contemplated scenarios:
a. Improper service without voluntary appearance.
NOTE: if there is a ground of motion to dismiss
because of improper service of summons, that
will not preclude the court from issuing alias
summons to rectify defects
b. Immunity from suit/ Non-suability
- E.g. of a state
3. ―That the court has no jurisdiction over the
subject matter of the claim;‖
75
Section 5. Effect of dismissal. — Subject to the right of
appeal, an order granting a motion to dismiss based on paragraphs (f),
(h) and (i) of section 1 hereof shall bar the refiling of the same action or
claim. (n)
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 125 of 270
-In connection with jurisdiction of the courts
Q: When may this ground be raised?
A: this ground may be raised at any time even
for the first time in appeal. Even if the judgment
has already become final and executory under
exceptional circumstances under Rule 47
4. ―That venue is improperly laid;‖
- the rule on venue
Q: At what stage of the action may a motion to
dismiss on the ground of improper venue be
filed?
A: It must be filed either in the motion to dismiss
or in the answer.
FACTS: If you filed a motion to dismiss, later on
you realized that thru inadvertence you failed to
alleged improper venue, may an amendment to
your answer may still be done if no responsive
pleading (reply) has yet been served or before
the lapse of 10 days from service of answer?
Q1: Can the answer still be amended as a matter
of right?
A1: Yes, no reply has been served, nor did 10
days lapse from service of answer.
Q2: Can the defense of improper venue be still
considered?
A2: NO. Violation of omnibus motion rule,
deemed waived.
CASE
FACTS: A complaint was filed. A motion to
dismiss was filed. Later on, after 5 days or 7
days, he filed an amended motion to dismiss.
Adding another ground which is improper venue
or lack of jurisdiction over person. The RTC
granted the motion to dismiss. It was now being
challenged on the ground that there was already
a waiver of objection for violating omnibus motion
rule.
ISSUE: WON there was already a waiver
HELD: YES, it has already violated the omnibus
motion rule. When the first motion was filed an
improper venue/lack of jurisdiction over the
person has already been raised. Although you
can raised it in the alternative, if you do not
raised it immediately in the original motion to
dismiss and you file an amended motion to
dismiss, while you can consider it still as a matter
76
of right, the defenses are deemed waived.
GROUNDS NOT RAISED ON THE FIRST MOTION TO
DISMISS, DEEMED WAIVED
ANUNSIASCION V. BOCANEGRA: waiver of improper
service of summons.
76
no responsive pleading in a motion to dismiss. Hindi yan proper sa
motion to dismiss, walang responsive pleading. Ang finfile sa motion to
dismiss ay opposition. An opposition is not a responsive pleading.
 REMEDIAL LAW
CIVIL PROCEDURE
o There was already a voluntary surrender by filing of e.g. when a person sues in a representative
a MTD. capacity under sec. 4 of rule 3. Example of which
o Can the court be divested of jurisdiction, by adding is a trustee in an express trust, guardian of ward,
a new ground in amended MTD? NO, because of executor or administrator of an estate of a
the Omnibus Motion Rule. deceased person.
o TD: committed GAD. * if he is not a trustee/guardian, you may file a
motion to dismiss on the ground of lack of legal
FACTS: Respondents, through their counsel, Atty. Norby
capacity to sue since he does not have the
C. Caparas, Jr., filed a Motion to Dismiss on the ground representation which he claims
that the complaint stated no cause of action. Thereafter,
they filed a supplemental motion on the ground of lack of LACK OF LEGAL CAPACITY TO SUE v. LACK
jurisdiction over the person OF LEGAL PERSONALITY TO SUE
Lack of legal Lack of personality to
EXCERPTS: The filing of the above-mentioned Motion capacity to sue sue
to Dismiss, without invoking the lack of jurisdiction
Disability of the Fact that the plaintiff is
over the person of the respondents, is deemed a
plaintiff to sue. not the real party in
voluntary appearance on the part of the respondents interest
under the aforequoted provision of the Rules. The
same conclusion can be drawn from the filing of the Ground for dismissal is Ground for dismissal is
lack of legal capacity for failure to state a
Supplemental Motion to Dismiss and Reply to the
to sue cause of action
Comment on the Motion to Dismiss dated November 13,
2000 which alleged, as an additional ground for the eg DCM Mktg cs
dismissal of petitioners complaint, the failure of plaintiffs to LE in market stall, pinapaalis na ang may-ari and
pay the required filing fee again but failed to raise the filed an action in court saying that the land is a
alleged lack of jurisdiction of the court over the person of prop of the govt and that he acquired title thru
fraud
the respondents.
-- not real party in interest, di siya dapat
It was only in respondents Second Supplemental makialam, govt di nagreklamo, siya pa
Motion to Dismiss dated November 27, 2000 that 6. ―That there is another action pending between the
respondents for the first time raised the courts lack of same parties for the same cause;‖ (litis pendentia)
jurisdiction over their person as defendants on the ground - One of the grounds for invoking forum shopping.
that summons were allegedly not properly served upon The other form of forum shopping is res judicata
them. The filing of the said Second Supplemental
- The underlying principle of litis pendentia is the
Motion to Dismiss did not divest the court of its theory that a party is not allowed to vex another
jurisdiction over the person of the respondents who more than once regarding the same subject
had earlier voluntarily appeared before the trial court matter and for the same cause of action.This
by filing their motion to dismiss and the supplemental theory is founded on the public policy that the
motion to dismiss. The dismissal of the complaint on the same subject matter should not be the subject of
ground of lack of jurisdiction over the person of the controversy in courts more than once, in order
that possible conflicting judgments may be
respondents after they had voluntarily appeared before the avoided for the sake of the stability of the rights
trial court clearly constitutes grave abuse of discretion and status of persons.
amounting to lack of jurisdiction or in excess of jurisdiction - Litis pendentia means atleast two cases have
on the part of the RTC. been filed
REQUISITES. (answer by citing the requisites)
5. ―That the plaintiff has no legal capacity to sue;‖ i. Identity of parties or the parties atleast
represents the same interest in all the
meaning of no legal capacity to sue: cases
a. When he does not possess the necessary - ―represents the same interest‖-
qualification to appear in court, halimbawa, the parties are the
 e.g. when plaintiff is not in full exercise of civil predecessors-in-interest, it equally
rights: applies to their successors-in-
interest.
i. Minor
Q: When can there be succession?
- If he is a minor, he cannot appear in court.
Accordingly, he must be represented by his A: Succession can either be:
parents or legal guardian. 1. By gratuitous title; or
ii. Incompetent -kung donation, either inter vivos or
b. When the plaintiff does not have the character mortis cause
or representation which he claims.

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 REMEDIAL LAW
CIVIL PROCEDURE
-kung mga anak na nagaway, same
parties parin yan. Kung
napagawayan na ng parents. Di na
pwede magasunto mga anak. The
parents and the successors
represents the same interest
2. Onerous title
-e.g. transfer by sale.
-ung bumili, successor in interest
yan by onerous title
ii. Identity of rights asserted (SAME
CAUSE OF ACTION) and reliefs prayed
for are based on the same facts in all
the actions.
- Kung two cases, based on the
same contract. Litis pendentia, both
are still pending.
- In connection with splitting of cause
of action, litis pendentia is a
derivative of the prinicpil against
splitting of cause of action. You are
asserting same rights, obligation,
omissions or acts.
iii. Judgment in either case, regardless
which party is successful, would
amount to res judicata in the other.
In this connection: note: Section 2, Rule
9.Compulsory counterclaim, or cross-claim,
not set up barred. — A compulsory
counterclaim, or a cross-claim, not set up shall be
barred. (4a)
- no need to attach certification against forum
shopping
- not an initiatory pleading, the defendant is
obliged to raise the claim in the same action
where the principal case is pending. It is
initiated upon the filing of the complaint.
The defendant has no choice but to set up
the compulsory counterclaim or crossclaim.
Q: A debtor filed an action to annul a real estate
mortgage on the ground of fraud. While the
action was pending, the note became due and
the creditor thus filed an action to foreclose the
mortgage. Will the action to foreclose the
mortage would be considered litis pendentia to
the annulment of the mortgage?
A: NO. Applying the elements of litis pendentia,
rd
the 3 element does not exist. Notwithstanding
the fact that the annulment, if granted, would bar
the continuation of the foreclosure sale, there is
no litis pendentia in this case since in the first
place, if the annulment has been denied, the
action to foreclose may still continue. Thus,
judgment in either case would not always amount
to resjudicata. (HSBC bank vs ALDECOA, G.R.
No. L-8437, March 23, 1915)
Illustrative case:
RAMOS v. EBARLE
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 127 of 270
FACTS: The husband sold a 46 hectare land
which is party of the conjugal partnership. The
wife did not consent to the sale. After the death
of the husband, the surviving spouse and the
children sought for the annulment of the 23
hectares which allegedly forms part of the half of
the wife (first cause of action). Thereafter, the
wife and the children filed an amended
complaint with leave of court. They claimed
therein the whole 46 hectares now claiming that
there was fraud in the execution of the sale (in
other words, a joinder of causes of action, in the
77
alternative or otherwise) . That the sale was
allegedly an equitable mortgage. The defendant
filed a motion to deny the admission of the
amended complaint. The trial court denied the
admission of the amended compliant. Since the
amendment was denied, the children and the
wife instituted another separate case alleging
the same cause of action alleged in the
amended complaint.(the denied amended
complaint is now the subject of the separate
action). Subsequently, the defendant filed a
motion to dismiss the separate action on the
ground of litis pendentia
ISSUE: WON there is litis pendentia
HELD: NO, all the requisites of litis pendentia
has not been complied with. There was not
identity rights and causes of action in this
case. In the first case, the act or omission
involved is the fact that the sale did not have
the consent of the wife. In the second case,
the delict was the alleged fraud. Hence, there
78
is no identity of rights asserted.
RELATE TO SPLITTING OF CAUSE OF
ACTION, TEST: Splitting a single cause of action
is the act of instituting two or more suits on the
basis of the same cause of action (right,
obligation, delict or wrong)
-e.g. filing a case for interest, and another for the
principal debt. In this case, there is only one act
or omission, viz., the non-payment.
-e.g. Filing of a collection suit bars the
foreclosure of real estate mortgage, otherwise,
would constitute splitting of cause of action.
Same delict or wrong, viz., non-payment.
-e.g. all violations of the stipulations of a contract
must be included in one action (e.g. not
inaccordance with the specifications provided for
window, doors, etc.)
SUNTAY vs AGUILUZ- the dispute arose from the
contract regarding conditional deed of sale w/ REM;
Aguiluz sued for specific performance relating to delivery
of title. Suntay then filed foreclosure of mortgage.
77
The insufficiency of one cause of action does not render the entire
case dismissable as long as one cause of action is sufficient in itself. The
other rule is that, not withstanding the fact that the causes of action
are inconsistent with each other.
78
 REMEDIAL LAW
CIVIL PROCEDURE
HELD: While concededly the first case although cleverly
denominated as one for specific performance with
mandatory and prohibitory injunction, is in reality
principally one for injunction to prevent the
foreclosure of the mortgage and to fix a new period to
pay the remaining unpaid balance of P40,000.00 which
was to be paid on or before 6 August 1966 without any
nd
need for a demand. Upon the other hand, 2 case is a
suit for specific performance which asks for the
payment of the balance and the liquidated damages
and foreclosure of the mortgage. The causes of action
and the reliefs sought are entirely different. A decision
in the first will not amount to res judicata against the
second case for whether or not defendants. prevail in
the former, petitioner's right to the unpaid balance and
the foreclosure of the mortgage would still be
litigable. What should have been done is to
consolidate.
-whether the action is to pre-empt the second action, that
case should be abated.
RULES IN RAMOS V. PERALTA, INFRA. AND
VILLARICA V. SPS. GERNA, INFRA.
1. The requisites of litis pendentia are:
(PRC)
i. the identity of parties, or at least such
as representing the same interests in
both actions;
- identity of causes of action does not
mean absolute identity
ii. the identity of rights asserted and
relief prayed for, the relief being
founded on the same facts; and
- identity of parties does not mean
total identity of parties in both cases
- What is primordial is that the
primary litigants in the first case are
also the primary parties to the
second action
- Addition of nominal parties is of no
matter
iii. the identity of the two cases such that
judgment in one, regardless of which
party is successful, would amount to
res judicata in the other.
2. The rule on litis pendentia does not
require that the later case should yield to
the earlier case; what is reuired merely is
another pending action, not necessarily a
―prior‖ pending action.
3. There is no hard and fast rule in
determining which actions should be
abated on the ground of litis pendentia.
The SC has set the relevant factors that
lower courts must consider when they
have to determine which case should be
dismissed, given the pendency of two
actions. These are:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 128 of 270
i. the date of filing, with preference
generally given to the first action filed
to be retained;
ii. whether the action sought to be
dismissed was filed merely to
preempt the latter action or to
anticipate its filing and lay the basis for
its dismissal; and
iii. whether the action is the appropriate
vehicle for litigating the issues
between the parties.
- Consistent with the third factor,
the Court has ruled that the earlier
case can be dismissed in favor of
the later case if the later case is the
more appropriate forum for the
ventilation of the issues between
the parties.
4. The other case need not necessarily be
dismissed. If equitable, both case may be
consolidated in order that all the issues
raised by the parties in both cases will be
properly resolved, and so that the
evidence already presented in the former
case will no longer have to be presented
in the latter.
Illustrative case:
Ramos v. Peralta, G.R. No. L-45107
November 11, 1991
FACTS: Ramos was the lessee of the Salgado
fishpond owned by spouses Ortanez. Through
the years, the lease was renewed. The last
renewal was for 3 years. During the lease period,
the property was transferred in the name of
Roman. On or about May 1, 1976, petitioner
received a letter from Don Pablo R. Roman
informing him of the latter's acquisition of the
fishpond and intention to take possession
thereof. In his letter-reply, petitioner reminded Mr.
Roman of his lease contract over the fishpond
and refused to consent to the intended take over.
Notwithstanding petitioner's objection, P. R.
Roman, Inc. took over possession of the
fishpond.
Thus, petitioner filed before the RTC Manila for
consignation of the sum representing advance
rentals on the fishpond to compel roman to
accept rentals.
Thereafter, roman filed in RTC Bataan an action
for quieting of title.
The RTC of Manila dismissed the case on the
ground of litis pendentia.
ISSUE1: WON there is litis pendentia
HELD1: Yes. First, there is identity of parties.
Anent the second element. While ostensibly, the
immediate relief sought for in peitioner’s
consignation case is to compel therein
defendants to accept his advance rentals, the
ultimate purpose of such action is to compel the
new owner of the fishpond to recognize his
 REMEDIAL LAW
CIVIL PROCEDURE
leasehold rights and right of occupation. In the
last analysis, therefore, the issue involved in Civil
Case No. 1is the right of possession over the
fishpond intertwined with the validity and
effectivity of the lease contract. This is the same
issue involved in Civil Case No. 2. That whatever
decision may be handed down in Civil Case No.
2 would constitute res judicata in Civil Case No. 1
is beyond cavil. Should the Bataan court rule that
the lease contract is valid and effective against P.
R. Roman, Inc., the petitioner can compel it to
accept his proffered payment of rentals;
otherwise, he may not do so.
ISSUE2: WON the second civil case (the one
filed later), it the one which should be dismissed
and not the first complaint which has been filed.
HELD2: No. Finally, the rule on litis pendentia
does not require that the later case should
yield to the earlier case. What is required
merely is that there be another pending
action, not a prior pending action. Considering
the broader scope of inquiry involved in Civil
Case No. 4102 and the location of the property
involved, no error was committed by the lower
court in deferring to the Bataan court's
jurisdiction.
Villarica Pawnshop vs Sps, Gernale, G.R. No.
163344, March 20, 2009: Sps. Geranle filed
action for quieting of title against Vilalrica,
alleging that they bought property covered by
TCT which were among those totally burned
during a conflagration that took place on March 7,
1987. Later, they found that such property was
now registered by in the name of Villarica
Accordingly, the Gernales prayed that the TCTs
in the name of Villarica as well as all documents
and conveyances relevant thereto be declared
null and void since the title of villarica came from
an illegal source.
It appears that such property was mortgaged to
BPI in 1999. On the other hand, Villarica
answered alleging that the title of Sps. Gernale
was the one which is fake.
While the case is pending, Villarica filed a
separate case for annulment and cancellation of
title against Sps Gernarle over the same property
alleging substantially the same allegations as
special affirmative defense in the first case. But
this time, impleaded Bpi, it being mortgagee.
Sps Gernales filed Motion to Dismiss on the
gorund of litis pendentia.
ISSUE1: Is BPI an indispensable party in the
second case?
HELD1: Yes, since it is a party without whom
there can be no final determination of the issues.
If not impleaded, the judgement would be
considered null and void.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 129 of 270
ISSUE2: Is there litis pendentia
HELD2: YES, there’s litis pendentia. With respect
to the first requisite, it is true that in second civil
case Valmadrid and Tan were added as plaintiffs,
while BPI and the Register of Deeds of
Meycauayan, Bulacan were added as
defendants. However, identity of parties does
not mean total identity of parties in both
cases. It is enough that there is substantial
identity of parties. The inclusion of new parties
in the second action does not remove the
case from the operation of the rule of litis
pendentia. What is primordial is that the
primary litigants in the first case are also
parties to the second action. Besides, it is clear
that Valmadrid and Tan, being the previous
owners from whom Villarica bought the subject
properties, represent the same interests as the
latter. On the other hand, the Register of Deeds
of Meycauayan, Bulacan was impleaded merely
as a nominal party.
With respect to the second and third requisites,
hornbook is the rule that identity of causes of
action does not mean absolute identity;
otherwise, a party could easily escape the
operation of res judicata by changing the form of
79
the action or the relief sought. Hence, a party
cannot, by varying the form of action or adopting
a different method of presenting his case, escape
the operation of the principle that one and the
same cause of action shall not be twice litigated
between the same parties or their privies. Civil
Case No 1 is for quieting of title and damages,
while Civil Case No. 2 is for annulment and
cancellation of titles and damages. The two
cases are different only in the form of action,
but an examination of the allegations in both
cases reveals that the main issue raised,
which is ownership of the land, and the
principal relief sought, which is cancellation
of the opposing parties' transfer certificates
of title, are substantially the same. The
evidence required to substantiate the parties'
claims is likewise the same.
ISSUE3: Which of the two cases, Civil Case No.
1or Civil Case No. 2, should be dismissed?
HELD3: None, but Civil Case No. 2 shall be
consolidated with Civil Case No. 1. This Court
has held that two cases involving the same
parties and affecting closely related subject
matters must be ordered consolidated and jointly
79
The test to determine whether the causes of action are identical is to
ascertain whether the same evidence will sustain both actions, or
whether there is an identity in the facts essential to the maintenance of
the two actions. If the same facts or evidence would sustain both, the
two actions are considered the same, and a judgment in the first case is
a bar to the subsequent action.
 REMEDIAL LAW
CIVIL PROCEDURE
tried in the court where the earlier case was filed.
80
This is consistent with Section 1, Rule 31 of the
Rules of Court
In the instant case, it would therefore be more
in keeping with the demands of law and
equity if Civil Case No. 2 will be consolidated
with Civil Case No. 1 in order that all the
issues raised by the parties in both cases will
be properly resolved, and so that the
evidence already presented in the former
case will no longer have to be presented in
the latter. Consolidation of cases, when proper,
results in the simplification of proceedings, which
saves time, the resources of the parties and the
courts, and a possible major abbreviation of trial.
Another compelling argument that weighs heavily
in favor of consolidation is the avoidance of the
possibility of conflicting decisions being rendered
by the courts in two or more cases which would
otherwise require a single judgment.
In the present case, the mere fact that the action
for quieting of title (Civil Case No. 438-M-2002)
was filed earlier than the case for annulment and
cancellation of titles (Civil Case No. 502-M-2002)
does not necessarily mean that the first case will
be given preference. Indeed, the rule on litis
pendentia does not require that the latter case
should yield to the earlier case. What is required
merely is that there be another pending action,
not a prior pending action
There is reason to dismiss Civil Case No.1,
considering that the issue of whether or not the
contract of mortgage entered into between BPI
and the Gernale spouses should be annulled is
not raised in this case and was brought up only in
Civil Case No. 2. Thus, to dismiss Civil Case No.
2, instead, would leave this issue unresolved.
Another reason why Civil Case No. 2 should not
be dismissed is that it is a direct action attacking
the registered titles of the Gernale spouses over
the properties in question, as opposed to
petitioners' answer in Civil Case No. 1 which
would merely be considered a collateral and not
a direct attack on the said titles. Settled is the
rule that a certificate of title shall not be subject to
a collateral attack; and it cannot be altered,
modified, or canceled except in a direct
proceeding in accordance with law.
80
Section 1. Consolidation. - When actions involving a common
question of law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs
or delay.
On the other hand, there are countervailing
considerations which make dismissal of Civil
Case No. 1 inequitable. Aside from the fact that it
was the first action which was filed, pre-trial
conference has already been conducted in this
case as evidenced by the Pre-Trial Order issued
by the RTC of Malolos, In fact, the trial court in
said Order has noted that the deposition of
Valmadrid, who is one of the witnesses for
petitioners, was already taken.
7. ―That the cause of action is barred by a prior
judgment or by the statute of limitations;‖
- res judicata and prescription of action
under 1139 to 1155 of NCC
RE FORUM SHOPPING
Forum Shopping
KINDS
(1) Litis Pendentia
(2) Res judicata
Is the second case filed by respondents
Forum Shopping? The rule has not been
extended to a defendant, who…..
- The concept of FS applies on
PlAINTIFF only, filing two actions but
not refers to defendants who filed
separate a new action against a
plaintiff instead of filing responsive
pleading – setting forth therein as
cause sof action, specific
VICTRONICS vs CA
LEE BUN TING vs ALIGAEN
FACTS: Because of a new ruling of the court, the Heirs of
Dinglasan sued again Lee Bun ting. Lee Bun Ting filed
motion to dismiss on the ground of res judciata.
HELD: The doctrine of res judicata is still applicable; . the
doctrine of res judicata applies where, between a
pending action and one which has been finally and
definitely settled, there is identity of parties, subject
matter and cause of action
-posterior changes in the doctrine of this Court cannot
retroactively be applied to nullify a prior final ruling in
the same proceeding where the prior adjudication was
had, whether the case should he civil or criminal in
nature ( which has become the law of the land)
LEE BUN TING V. ALIGAEN: posterior changes in the
doctrine laid by the court cannot be applied retroactively,
and can only apply prospectively, and not retroact to nullify
prior final rulings which have already been the law of the
case, based on the PRINCIPLE OF THE LAW OF THE
CASE.
o MTD: ground → res judicata.
o Judge Aligaen denied: there was a change in the
doctrine.

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 130 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
 Therefore the first case cannot be used for
res judicata (Phil. Banking).
o SC: TC wrong.
o There has already been a decision.
o Change of doctrine laid down by the court → can
only be applied prospectively.
Prescription
PASCUA V. FLORENDO: the plaintiff’s filed
reconveyance and damages. Defendant filed a MTD on
the ground of prescription. TC denied such Motion, as
prescription is not apparent upon the face of the
complaint. Defendant failed to Answer, which led to his
declaration of default. Court allowed plaintiff to present
evidence ex parte. However, the lawyer presented
evidence and showed that in fact that the defendant’s had
been in possession of the property for more than 20 years,
and enjoying the fruits; thus, it became evident that
prescription set it. TC then dismissed the complaint.
Plaintiff now argues that the court cannot anymore do that:
(1) the issue of prescription as a ground has already been
resolved (res judicata), and (2) once a party has declared
in default, the court has no other choice but to rule in favor
of the complainant and grant relief prayed for.
o FIRST ISSUE: prior denial does NOT ESTOP the
court in passing upon the issue of prescription.
 MTD: it did not appear in the face of the
complaint.
 NOW, it was dismissed based on the
EVIDENCE presented → factual evidence
was not the issue in the MTD.
 Ground is NOT res judicata.
o SECOND ISSUE: only after the court has
ascertained warrant the granting of the relief.
PNB V. HIPOLITO: DOCTRINE: when prescription is the
ground for a MTD, then the implication is that the movant
is deemed to have hypothetically admit the truth of the
allegations of the complaint.
o In 1959, plaintiff filed a complaint against the
defendant, evidenced by a PN (over 10 years).
Despite offer of plan for payment, it did not
materialize.
o TC: granted the motion.
o SC: NO → there was allegation of demands, and
defendant offered a plan of payment.
 The movant is deemed to have hypothetically
admit that there were demands and he
submitted plans.
 Under the law on prescription, from demand
is the reckoning period of the ten-year
prescription.
o SC: dismissal of the complaint was erroneous.
o In an MTD, defendant hypothetically admits the
truth of the facts contained in the complaint.
o The complaint does not appear the prescription had
set it.
o Such offer of the defendant hypothetically admitted
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 131 of 270
in their motion works as a renewal of their
obligation.
o Affidavit of Merit is proper in an Answer, not in a
MTD.
o The mere denial that they ever made a plan would
be proper matter to be placed in an Answer, but not
in a MTD for contrary allegation would require
presentation of evidence.
8. ―That the pleading asserting the claim states no
cause of action;‖
Failure to state a cause of action, defined:
a. That the plaintiff is not the real party in interest.
(no right); or
b. That the allegations of the complaint does not
state the factual basis of the right, obligation,
and delict or wrong.
As to whether can be amended: It depends.
- Yes if it is only an imperfect statement of a
cause of action. No if there is no cause of
action at all since the claim is either non-
existent or premature, or when the plaintiff
does not have the personality to sue,
meaning, he is not a real party in interest
Imperfect statement of a cause of action can
be amended.
REMINGTON INDUSTRIAL vs CA, supra.
FACTS: ISL and respondent British Steel moved
for the dismissal of the complaint on the ground
that it failed to state a cause of action against
them. The RTC denied the motions to dismiss.
Because of the denial, British filed a petition for
certiorari before the Court of Appeals claiming
therein that the complaint did not contain a single
averment that British committed any act or is
guilty of any omission in violation of petitioners
legal rights
ISSUE: WON an imperfect statement of a cause
of action in the complaint can still be amended
despite the filing of a motion to dismiss
HELD: Yes. In this case, there was still no
service of answer, hence, amendment can still be
made as a matter of right
ISSUE2: WON an imperfect statement of a cause
of action in the complaint can still be amended
despite the resolution of the motion to dismiss
HELD2: Yes. Again, there was still no service
answer, hence, amendment can still be made as
a matter of right provided it is done before finality
of the order dismissing the complaint.
ISSUE3: WON the complaint can still be
amended despited the pendency of other
proceeding in relation thereto (e.g. Certiorari)
HELD3: Yes. Again, there was still no service
answer, hence, amendment can still be made as
a matter of right provided it is done before finality
of the order dismissing the complaint.
In this case, the amendment was only done
during the pendency of a certiorari before the
 REMEDIAL LAW
CIVIL PROCEDURE
appellate court. such is still proper since there determination of sufficiency of the COA is whether
81
was still no service of responsive pleading on the basis on those allegation, a judgment
(answer) may be rendered in favor of the plaintiff.

Premature cause of action or non-existent

cause of action cannot be amended LIM V. DE LOS SANTOS: the defendants here sold to
SWAGMAN HOTELS, supra. each several plaintiffs certain subdivision lots. The
FACTS: Plaintiff filed a complaint on the basis of contract provides that the purchase price be paid in
installments, and the same should be considered as
a debt which has not yet matured/due.
Subsequently, the loan became due. liquidated damages in case of non-payment, or part of the
purchase price upon full payment. It was paid. Plaintiffs
ISSUE: WON the plaintiff file a motion to admit filed against defendant subdivision owner to construct
an amended complaint or a supplemental subdivision road. Allegation: despite full payment,
pleading defendant failed to construct road; defendant made
RULING: NO. It thus follows that a complaint plaintiff understand that she bound herself to construct
whose cause of action has not yet accrued roads. Defendant filed a MTD on the ground that it has no
cannot be cured or remedied by an amended cause of action.
or supplemental pleading alleging the
existence or accrual of a cause of action o TC: sustained.
while the case is pending. The underlying o Plaintiff insists that defendant made a promise, but
reason for this rule is that a person should not be there was no provision regarding such in the
summoned before the public tribunals to answer Contract to Sell.
for complaints which are immature. As this Court o RE: PAROLE EVIDENCE RULE.
eloquently said in Surigao Mine Exploration Co., o MR: held a hearing, and it was limited to reception
Inc. v. Harris: ―It is a rule of law to which there is, of evidence to determine WON there has been an
perhaps, no exception, either at law or in equity, undertaking to build a road.
that to recover at all there must be some cause of  After hearing, the court denied the MR.
action at the commencement of the suit. Xxx‖ o SC: TC correct in disposing off of that issue.
 It is elementary that a MTD based on failure
to state a cause of action should have
deemed to have admitted the facts averred
FAILURE TO STATE A CAUSE OF ACTION v. LACK OF
therein, and in such determine, IT MUST
CAUSE OF ACTION
SOLELY BE JUDGED on the complaint, and
Failure to state a Lack of cause none other.
cause of action of action o Was it correct to have the TC to have presentment
of evidence allunde? IRREGULAR procedure NOT
As to whether Yes if it is only an No if there is no authorized by the rules.
it can be imperfect statement cause of action o The judgment may not inquire into the truth or falsity
amended or of a cause of action. at all since the of the allegations → it is not authorized to inquire
supplemented claim is either into the truth of the allegations and declare them to
non-existent or be false before a hearing is held on the merits of the
premature, or case.
when the o In a MTD, the sufficiency of the complaint is
plaintiff does determined solely by the allegations of the
not have the complaint.
personality to
sue, meaning,
he is not a real
party in interest 9. ―That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;‖
FAILURE TO STATE THE CAUSE OF ACTION: basis → Extinguishment v. Statute of limitations
the resolution of such issue should be confined only to the (prescription)
examination of the complaint, and NO OTHER.
Extinguishment Statute of limitations
 How do we determine of allegation of ultimate facts (prescription)
would be sufficient for a cause of action: Extinctive prescription Prescription of action
Art. 1117 to 1138 of Art. 1139-1155 of Civil
81
Nauuna ung service before filing. Pero dapat may proof. Hindi Civil Code Code
tinatanggap ng clerk of court hanggang walang proof of service.
However, kapag service of pleading by registered mail, usually, in the
ordinary course of things, nauuna ang filing. But note, there is actually
service one you actually mailed your paper in the post office.
Nonetheless, the service is not considered complete or received
(deemd complete upon actual receipt, or 5 days from first notice, which
ever is earlier).

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 132 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
10. ―That the claim on which the action is founded is
unenforceable under the provisions of the statute
82
of frauds; ‖ and
- Non-compliance with statute of frauds,
VALID but not enforceable: the following
must be in writing, subscribed by the party
charged, or by his agent; evidence,
therefore, of the agreement cannot be
received without the writing, or a secondary
evidence of its contents: (RAMC11-500)
(Sale of Real property, Answer for debt of Another, in
consideration of Marriage, representation as to Credit of
another, obligation not to be performed within one year,
lease for more than one year, sale of personal property for
not less than 500 pesos)
(one year, lease, personal property, marriage, real
property, debt of another, representation as to credit of
third person)
i. An agreement that by its terms is not to
be performed within one year from the
making thereof;
ii. A special promise to answer for the
debt, default, or miscarriage of
another;
iii. An agreement made in consideration of
marriage, other than a mutual promise
to marry;
iv. An agreement for the sale of goods,
chattels or things in action, at a price
83
not less than five hundred pesos
v. An agreement for the leasing for a
longer period than one year, or
vi. for the sale of real property or of an
interest therein;
vii. A representation as to the credit of a
third person.
- NOTE: contract is still valid, though
unenforceable.
- NOTE: Statute of frauds applies only to
executor contracts. It does not apply to
partially executed contracts.
PASCUA vs FLORENDO : RE STATUTE OF
LIMITATIONS
10. ―That a condition precedent for filing the claim has
not been complied with.‖
- e.g
i. in Katarungang Pambaranggay law;
ii. exhaustion to administrative remedies;
-applies only when the administrative
agency is in the exercise of its quasi-
judicial functions, but not when it is in
82
Article 1403
83
unless the buyer accept and receive part of such goods and chattels,
or the evidences, or some of them, of such things in action or pay at the
time some part of the purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his sales book, at the
time of the sale, of the amount and kind of property sold, terms of sale,
price, names of the purchasers and person on whose account the sale is
made, it is a sufficient memorandum;
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 133 of 270
the exercise of its purely administrative
functions.
iii. undergo conciliation regarding conflicts
in family.
GENERAL RULE: THE COURT CANNOT MOTU
PROPRIO DISMISS THE COMPLAINT WITHOUT A
MOTION
XPN: WHEN THE DISMISSAL IS BASED ON:
1. sec. 1, rule 9
-the court cannot motu proprio dismiss the case
unless based on sec. 1, rule 9, namely:
a. Lack of jurisdiction over the subject
matter
b. Litis pendentia
c. Res judicata
d. Prescription
2. sec. 3, rule 17-Dismissal due to fault of
plaintiff.
BORJE V. CFI MISAMIS: the court cannot dismiss the
case unless there is a motion (GENERAL RULE).
o Plaintiff filed a case for damages for having cut his
water connection in bad faith and with malice.
Defendant Water District filed a MTD on the
grounds of lack of jurisdiction and litis pendentia.
The TC granted the ground, BUT on the ground that
there was no malice in cutting.
o SC: TC committed GAD → it deprived the plaintiff to
argue his point.
o Sec. 1, Rule 16 enumerates the grounds for MTD,
and it specifically ordains that to motion to this
effect should be filed.
o The court does not have the power to dismiss
without the requisite motion duly presented.
o Only: Sec. 1, Rule 9, Sec. 3, Rule 17.
o DACUYCOY: the TC dismissed the case on the
ground of improper venue motu proprio.
(1) No case may be filed unless there is a proper
motion.
(2) Rule on venue was made on the
convenience of the parties, and not of the
court.
Section 2. Hearing of motion. — At the hearing of
the motion, the parties shall submit their arguments on the
questions of law and their evidence on the questions of
fact involved except those not available at that time.
Should the case go to trial, the evidence presented during
the hearing shall automatically be part of the evidence of
the party presenting the same. (n)
SEC. 2: HEARING OF MOTION:
 There has to be a hearing.
 REMEDIAL LAW
CIVIL PROCEDURE
 Grounds when evidence may be presented: Plaintiff
has no legal capacity (minor, not administrator) to
sue: factual.
Section 3. Resolution of Motion. — After the
hearing, the court may dismiss the action or claim, deny
the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for
the reason that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and
distinctly the reasons therefor. (3a)
SEC. 3: HOW MAY THE COURT RULE ON A MTD:
(1) GRANT:
(2) DENY:
(3) ORDER AMENDMENT OF THE PLEADING:
INDUBITABLE: beyond any question.
 RESOLUTION: must state clearly and distinctly the
reasons therefore.
Section 4. Time to plead. — If the motion is
denied, the movant shall file his answer within the balance
of the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less than
five (5) days in any event, computed from his receipt of the
notice of the denial. If the pleading is ordered to be
amended, he shall file his answer within the period
prescribed by Rule 11 counted from service of the
amended pleading, unless the court provides a longer
period. (4a)
Section 5. Effect of dismissal. — Subject to the
right of appeal, an order granting a motion to dismiss
based on paragraphs (f), (h) and (i) of section 1 hereof
shall bar the refiling of the same action or claim. (n)
SEC. 5: EFFECT OF DIMISSAL: dismissal without
prejudice to the same being refiled.
 EXCEPTIONS (f), (h), (i): BAR THE REFILING OF
ANOTHER ACTION.
(1) Unenforceability under the Statute of Frauds;
(2) Res judicata;
(3) Extinguishment of the claim or demand.
CRUZ V. CARAOS: the parties here were occupants of a
certain property, owned by X. they tried to deal with the
owner to purchase the property, and as a means to do
that, they formed an organization (cooperative). Cruz was
appointed as the administrator. The cooperative made
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 134 of 270
regular deposits to raise funds to buy the property. And
when the funds were quite considerable, Cruz asked the
fund to be withdrawn and to borrow money. They were
made to sign a blank document on the representation that
it was to put the authorities given to him, but it was a
Contract of Lease. Then, he asked them to pay and
vacate the property, with demand to pay back rentals. For
failure to do such, Cruz initiated an ejectment suit against
them. The defendants raised as a defense that the
Contract of Lease was not the document they signed.
While the unlawful detainer case was pending, defendants
filed a separate case declare null and void the sale to Cruz
and specific performance demanding from Cruz to
partition the property. Cruz filed MTD on the ground of
forum shopping.
o TC granted the Motion on the ground of litis
pendentia.
o The order of dismissal became final without the
lawyer questioning.
o They refiled another case, the very same case that
was dismissed.
 There was now again a MTD on the second
case on the ground of res judicata.
o This time, the dismissal of the second RTC case
was elevated to the CA, on the issue of whether the
first case’s decision is a bar to the refiling of the
second case.
o CA: the first dismissal of the RTC did not bar the
refilling of the same case.
 Ground on dismissal of the first case: forum
shopping.
o SC: NO, as it is not (f), (h), (i).
Section 6. Pleading grounds as affirmative
defenses. — If no motion to dismiss has been filed, any of
the grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer and, in
the discretion of the court, a preliminary hearing may be
had thereon as if a motion to dismiss had been filed. (5a)
The dismissal of the complaint under this section shall be
without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer.
(n)
SEC. 6, PAR. 1: PLEADING GROUNDS AS
AFFIRMATIVE DEFENSE: if NO MTD → grounds for
dismissal may be pleaded as affirmative defense.
 Your choice: MTD or Answer.
 If you have raised a defense in the MTD, and it is
denied → can you reiterate that in your Answer.
 Yes, but the court will not hear that.
 Can it be raised later on appeal? YES.
 Example: lack of jurisdiction; improper
venue.
 NOT an example: non-referral to the
Lupon (waived).
 REMEDIAL LAW
CIVIL PROCEDURE
 Can raise that again on appeal
as it has been raised before in
the TC.
 What if you filed a MTD, then denied, can
you raise them against in Answer again?
NO, it cannot be cured by raising it in the
answer.
 But, raise it still.
 EXCEPT: lack of jurisdiction over the
person (BUCANEGRA).
 If he decides to raise them in the answer, he may
later on ask the court that a PRELIMINARY
HEARING be made.
PAR. 2: without prejudice.
 If the complaint is dismissed because a preliminary
hearing on the affirmative defense was made, and
the courts grants the MTD, then what will happen to
a counterclaim?
 Will the counterclaim be dismissed, or be
heard? Applies to BOTH, as the law does
not distinguish.
 How will the compulsory counterclaim
survive? (Read PINGA V. SANTIAGO)
 EFFECT: it survives and the defendant has a
choice either:
(1) To have the counterclaim be resolved
in the same, or
(2) In a separate action.
NOTE: Under rule 16, sec. 6, when an affirmative defense
is granted by the court in a preliminary hearing as if a
motion to dismiss has been filed, and the court dismisses
the action, the defendant who has a counterclaim may
litigate the counterclaim in the same action or in a
separate action. If he desires to litigate the counterclaim in
the same action, there is no need to make a manifestation
expressing his preference.
- As opposed to rule 17, Sec. 2 which requires
that in order for a counterclaim, whether
permissive or compulsory, be litigated in the
same proceedings, he must make such a
manifestation.
- In the absence of such manifestation made
within 15 days from notice of motion to
dismiss, then, he shall be deemed to have
his counterclaim litigated in he separate
action.
RULE 17:
3 KINDS OF DISMISSAL UNDER THIS RULE (Secs 1-3):
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 135 of 270
84
1. Dismissal upon notice by plaintiff
WHEN: Before service of answer or of motion for
summary judgment,
HOW: File a mere notice of dismissal. ( a motion is
not necessary)
XPN: A class suit shall not be dismissed or
compromised without the approval of the court.
EFFECT:
a. GENERALLY, WITHOUT PREJUDICE: A
dismissal made by the filing of notice of
dismissal is a dismissal without prejudice.
Hence, the complaint can be refilled.
b. XPNS: WITH PREJUDICE IF:
i. the notice of dismissal by the plaintiff
provides that the dismissal is with
prejudice
ii. when filed by a plaintiff who has once
dismissed in a competent court an
action based on or including the same
claim
Two-dismissal rule – Two dismissal
rule applies when the plaintiff has (1)
twice dismissed actions (2) based on
or including the same claim (3) in a
court of competent jurisdiction; In
other words, the claim may only be filed
twice. If the refiled claim is dismissed
again through a second notice of
dismissal, that second notice triggers
the application of the two-dismissal rule
and the dismissal is to be deemed one
with prejudice because considered as
an adjudication upon the merits.
What marks the loss by a plaintiff of the right to cause
dismissal of the action by mere notice is not the
FILING of the defendant's answer with the Court
(either personally or by mail) but the SERVICE on the
plaintiff of said answer or of a motion for summary
judgment.
Go v. Cruz, G.R. No. L-58986, April 17, 1989
FACTS: On October 26, California brought an action
in the CFI of Manila against Dante Go, accusing him
of unfair competition.
On November 9, Go filed an answer with counterclaim
but copy thereof was only received by California on
Nov. 16 by registered mail.
84
Section 1. Dismissal upon notice by plaintiff. — A complaint
may be dismissed by the plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion for summary
judgment. Upon such notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the
same claim. (1a)
 REMEDIAL LAW
CIVIL PROCEDURE
Meanwhile, or on November 12, 1981, California filed
a notice of dismissal with the Court.
On December 1, California filed another complaint
asserting the same cause of action against Dante Go,
this time with the CFI at Caloocan City.
Dante Go filed the present petition for certiorari, etc.
with this Court praying for its nullification and
perpetual inhibition. According to him, since he had
already filed his answer to the complaint before
California sought dismissal of the action three (3)
days afterwards, such dismissal was no longer a
matter of right and could no longer be effected by
mere notice in accordance with Section 1, Rule 17 of
the Rules of Court, but only on plaintiff s motion, and
by order of the Court; hence, the Caloocan Court
acted without jurisdiction over the second action
based on the same cause.
ISSUE: WON California can no longer dismiss its
complaint by mere notice due to that fact that an
answer has already be FILED by Go.
HELD: NO, The petitioner is in error. What marks the
loss by a plaintiff of the right to cause dismissal
of the action by mere notice is not the FILING of
the defendant's answer with the Court (either
personally or by mail) but the SERVICE on the
plaintiff of said answer or of a motion for
summary judgment. And when we say ―service‖, it
refers to complete service.
85
2. Dismissal upon motion by plaintiff
WHEN: After service of answer or of motion for
summary judgment.
HOW: By motion at the plaintiff's instance save
upon approval of the court and upon such terms and
conditions as the court deems proper.
- After service of answer of of motion for
summary judgment, complaint may nolonger
be dismissed by filing of mere notice of
dismissal
EFFECT:
85
Section 2. Dismissal upon motion of plaintiff. — Except as
provided in the preceding section, a complaint shall not be dismissed at
the plaintiff's instance save upon approval of the court and upon such
terms and conditions as the court deems proper. If a counterclaim has
been pleaded by a defendant prior to the service upon him of the
plaintiffs motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the right of the
defendant to prosecute his counterclaim in a separate action unless
within fifteen (15) days from notice of the motion he manifests his
preference to have his counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under this paragraph shall
be without prejudice. A class suit shall not be dismissed or
86
compromised without the approval of the court. (2a)
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 136 of 270
a. GENERALLY, WITHOUT PREJUDICE: a
dismissal upon the motion of plaintiff shall
be without prejudice.
b. XPN: Unless otherwise specified in the
order
EFFECT TO THE COUNTERCLAIMS (WHETHER
PERMISSIVE OR COMPULSORY); DISMISSAL
86
LIMITED TO THE COMPLAINT: If a counterclaim
has been pleaded by a defendant prior to the service
upon him of the plaintiffs motion for dismissal, the
dismissal shall be limited to the complaint. (two
options of defendant)
a. PROSECUTE THE COUNTER CLAIM IN
THE SAME ACTIONS: provided within
fifteen (15) days from notice of the motion to
dismiss by plaintiff, the defendant
manifests his preference to have his
counterclaim resolved in the same action.
b. PROSECUTE HIS COUNTERCLAIM IN A
SEPARATE ACTION: if no such
manifestation was made.
Q: May plaintiff move for the dismissal of the
complaint after the defendant has raised a
counter claim
A: Yes. It may remain provided the defendant
manifests his preference to have his counterclaim
resovled in the same action within 15 days from
notice of motion to dismiss by plaintiff.
NOTE: Manifestation under this rule is not
required under sec. 6 of Rule 16 which provides
that any of the grounds for dismissal provided for
under rule 16 may be pleaded as an affirmative
defense in the answer and, in the discretion of
the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed.
the dismissal of the complaint shall be without
prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the
answer. In this case, no need for manifestion.
REITERATION: Under rule 16, sec. 6, when an
affirmative defense is granted by the court in a
preliminary hearing as if a motion to dismiss has
been filed, and the court dismisses the action, the
defendant who has a counterclaim may litigate
the counterclaim in the same action or in a
separate action. If he desires to litigate the
counterclaim in the same action, there is no need
to make a manifestation expressing his
preference.
- As opposed to rule 17, Sec. 2 which
requires that in order for a counterclaim,
whether permissive or compulsory, be
 REMEDIAL LAW
CIVIL PROCEDURE
litigated in the same proceedings, he
must make such a manifestation.
- In the absence of such manifestation
made within 15 days from notice of
motion to dismiss, then, he shall be
deemed to have his counterclaim
litigated in he separate action.
ESCOLIN: It is more practical to pursue
a compulsory counterclaim in the same
action, since in such case, there is no
need to pay for docket/filing fees. This is
only in so far as compulsory counter
claim is concerned
Q: Should the permissive counterclaim be
distinguished from compulsory counterclaim?
A: NO
Q: May the counterclaim remain?
A: Yes, the counterclaim may remain The
dismissal shall be limited to the complaint only.
NEW RULE: WHEN PLAINTIFF SEEKS THE
DISMISSAL OF HIS CASE, WHAT IS DISMISSED IS
ONLY THE COMPLAINT, THE COUNTERCLAIM
(WHETHER COMPULSORY OR PERMISSIVE)
WILL STILL STAND AND THE HEARING FOR THE
COUNTERCLAIM MAY BE HAD IN THE SAME
PROCEEDINGS PROVIDED THAT THE
DEFENDANT MANIFESTS WITHIN 15 FROM
SERVICE/NOTICE OF THE MOTION TO DISMISS
OF HIS PREFERENCE TO HAVE HIS
COUNTERCLAIM BE RESOLVED IN THE SAME
CASE
METALS ENG‘R IS ALREADY ABANDONED;
DISMISSAL NOW IS ONLY LIMITED TO THE
COMPLAINT; RULE APPLIES TO BOTH RULE 16
AND RULE 17
Metals Eng‘r v. CA, G.R. No. 95631 October 28,
1991
FACTS: Plaintiff failed to pay docket fees. Defendant
moved for the dismissal of the case
HELD: What private respondent is in effect saying is
that his counterclaim should be allowed to proceed
independently of the main action.For all intents and
purposes, such proposition runs counter to the nature
of a compulsory counterclaim in that it cannot remain
pending for independent adjudication by the court. 14
This is because a compulsory counterclaim is
auxiliary to the proceeding in the original suit 15 and
derives its jurisdictional support therefrom, 16
inasmuch as it arises out of or is necessarily
connected with the transaction or occurrence that is
the subject matter of the complaint. It follows that if
the court does not have jurisdiction to entertain
the main action of the case and dismisses the
same, then the compulsory counterclaim, being
ancillary to the principal controversy, must
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 137 of 270
likewise be dismissed since no jurisdiction
remained for any grant of relief under the
counterclaim.
BA Finance v. Co, G.R. No. 105751, June 30, 1993
FACTS: Petitioner BA Finance Corporation sued
defendant Co. After that, answer with counterclaim
(compulsory). During the pre-trial, the plaintiff failed to
appear. Accordingly, defendant Co, filed a motion to
dismiss for failure to appear during pretrial. The RTC
granted the motion. After the lapse of thirty-three (33)
days, defendant filed a motion with the court asking
the court to allow him to present evidence for his
counterclaim. The RTC granted the said motion.
ISSUE: WON the counterclaim may still be
prosecuted in the same action despite the dismissal
of the complaint
MAJORITY: NO, The rule is that a compulsory
counterclaim cannot "remain pending for independent
adjudication by the court." This is because a
compulsory counterclaim is auxiliary to the
proceeding in the original suit and merely derives
its jurisdictional support therefrom. In the instant
petition, private respondents themselves moved for
the dismissal of the complaint, They could have
simply asked the trial court to declare petitioners to be
"non-suited" on their complaint, and "as in default" on
their compulsory counterclaim, for their failure to
appear at the pre-trial despite due notice. But private
respondents did not. Neither did they reserve their
right to maintain their counterclaim. Consequently, the
dismissal of the complaint carried with it the dismissal
of the compulsory counterclaim.
FURTHERMORE: It may also be stressed that
private respondents moved to set for hearing the
reception of evidence to support their
counterclaim more than a month after the case
was dismissed, i.e., they filed their motion after
the lapse of thirty-three (33) days. By then, the
order of dismissal had already become final.
Thereafter, it was error for the appellate court to set it
aside, there being no ground to warrant it. Only error
of judgment, not error of jurisdiction, was involved.
REGALADO‘s SEPARATE OPINION: YES, citing a
case penned by J.B.L. Retes, the doctrine that the
complaint may not be dismissed if the
counterclaim cannot be independently
adjudicated is not available to, and was not
intended for the benefit of, a plaintiff who
prevents or delays the prosecution or hearing of
his own complaint. Otherwise, the trial of
counterclaims would be made to depend upon the
maneuvers of the plaintiff, and the rule would
offer a premium to vexing or delaying tactics to
the prejudice of the counterclaimants. It is in the
same spirit that we have ruled that a complaint may
not be withdrawn over the opposition of the defendant
 REMEDIAL LAW
CIVIL PROCEDURE
where the counterclaim is one that arises from, or is
necessarily connected with, the plaintiff's action and
cannot remain pending for independent adjudication
RULES IN OLYMPIA v. CA, infra.
1. Dismissal upon motion, though without
prejudice, finally disposes of the case. Once it
attains finality, the case can no longer be
revived. The remedy in such case is to
institute a new separate action.
2. While an order reviving the case cannot be
done since it has the effect of reversing and
setting aside a final dismissal order, an order
cancelling the replevin is proper since it
enforced and implemented the dismissal.
Olympia v. CA, G.R. No. L-43236, December 20,
1989
FACTS: Petitioner Olympia International, Inc.
(hereinafter Olympia) sold several typewriters to
private respondent Alpha Insurance & Surety, Co., Inc.
(Alpha, for brevity). For alleged non-payment of the
purchase price, Olympia instituted two (2) actions
against Alpha both for replevin (preparatory to
foreclosure) with damages but referring to different
typewriters.
The lower court ordered on the issuance of a writ of
replevin. Consequently, the typewriters were seized
from Alpha and delivered to Olympia. Upon failure of
the parties to reach an amicable settlement, the lower
court set the case for trial on the merits.
Thereafter, on December 15, 1972, that the lower court
issued the following order: ―On joint motion of both
parties in the above-entitled case, that they will settle
the case amicably out of court, this case is hereby
dismissed without prejudice.‖ As negotiations for an
amicable settlement failed, Olympia filed a motion to
revive the case for trial on the merits, acting upon
which, the lower court granted the revival on December
7, 1973.
For more than one and a half years thereafter, Alpha
filed a motion in the lower court praying, on equitable
grounds, for the cancellation of the "preliminary
provisional writs of replevin" previously issued by the
court. The lower court granted the cancellation
ISSUE: WON is it correct for the court to have revived
the case
HELD: NO, it can nolonger revive the case. Aside from
the fact that the aforesaid dismissal was expressly
reserved by the trial court to be without prejudice, it
has been held that the dismissal of a case on motion of
both parties as in the case at bar is a dismissal
contemplated under Section 2, Rule 17 of the Rules of
Court, which is a dismissal without prejudice and not a
dismissal governed by Section 3 thereof, which
operates as an adjudication on the merits. The
dismissal without prejudice of a complaint does
not however mean that said dismissal order was
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 138 of 270
any less final. It was not merely an interlocutory
order but a final disposition of the complaint. Thus,
upon said dismissal order attaining finality for
failure of either party to appeal therefrom, the
jurisdiction which the court had acquired thereon
was finally discharged and terminated, and any
subsequent action filed in accordance with the
reservation cannot be considered a continuation of
the first action which was dismissed.
It is apparent that the lower court acted in excess of its
jurisdiction when it granted the motion to revive the
case filed by petitioner as plaintiff therein. By then
(December 7, 1973), the dismissal order of
December 15, 1972 had long become final and
executory, thereby beyond the power of the court
to amend, modify, reverse or set aside. And
certainly, for the court to entertain and grant said
motion to revive the case would result in the
setting aside of the subject dismissal order.
REMEDY: Under the circumstances, the step
available to petitioner as plaintiff therein if it
wanted to pursue its claim against Alpha was to
institute a new action in accordance with the
reservation contained in the order of dismissal. It
could not revive the dismissed case by motion or
otherwise, as said dismissal, although without
prejudice, had attained finality.
ISSUE2: But may the court act on cancellation of the
replevin and ordered the return of the type writers.
HELD2: YES. The crucial difference lies on the fact
that while the order reviving the case had the effect
of reversing and setting aside the long final
dismissal order, the Order cancelling the replevin
enforced and implemented it. In other words, the
motion of Alpha to cancel the writ of replevin was
in the nature and character of a motion for
execution of the dismissal order.
That the lower court retained jurisdiction to carry into
effect its final and executory dismissal order is beyond
cavil for while Alpha's motion was filed three (3) years
after the issuance of said dismissal order, the same
may still be taken cognizance of by the lower court in
accordance with Section 6, Rule 39 of the Rules of
Court which states that a judgment may be executed
on motion within five (5) years from the date of its entry
or from the date it becomes final and executory.
Indeed, logic and equity demand that the writ of
replevin be cancelled. Being provisional and
ancillary in character, its existence and efficacy
depended on the outcome of the case. The case
having been dismissed, so must the writ's
existence and efficacy be dissolved. To let the writ
stand even after the dismissal of the case would be
adjudging Olympia as the prevailing party, when
precisely, no decision on the merits had been
rendered. The case having been dismissed, it is as if
no case was filed at all and the parties must revert to
their status before the litigation.
 REMEDIAL LAW
CIVIL PROCEDURE
87
3. Dismissal due to fault of plaintiff
WHEN: If, for no justifiable cause, the (APRO)
i. plaintiff fails to Appear on the date of the
presentation of his evidence in chief on
the complaint, or ( under old rules not
added, it’s only added because of the case
of FERMIN JALOVER vs. PORFERIO
88
YTORIAGA ) failure to present evidence in
chief; or
-evidence in chief, NOT rebuttal evidence.
-This pertains to evidence which proves the
plaintiff’s case
-not presentation of plaintiff’s rebuttal
evidence.
ii. Plaintiff fails to Prosecute his action for an
unreasonable length of time; or
iii. Plaintiff fails to comply with these Rules;
or
iv. Plaintiff fails to comply with any Order of
the court
HOW: (1) upon motion of defendant or (2) upon court’s
own motion
EFFECT:
a. GENERAL RULE: This dismissal is with
89
prejudice ,
b. XPN: unless otherwise declared by the court.
Re Order – take note lesson Sec 16 of Rule 3 : if a
party dies, the duty of counsel to inform the court of
fact of death and order substitution of representative
to appear for substitution. Without such procedure ,
court cannot proceed in the case unless tapos n
presentation of evidence. The proper procedure to
effect substitution is nt by amendment but rather
87
Section 3. Dismissal due to fault of plaintiff. — If, for no
justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute
his action for an unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion, without
prejudice to the right of the defendant to prosecute his counterclaim in
the same or in a separate action. This dismissal shall have the effect of
an adjudication upon the merits, unless otherwise declared by the
court. (3a)
88
F: Plaintiff was not around on the scheduled date for the Defendant to
present evidence – hence the D filed a motion to dismiss: ground for
failure to prosecute. Trial judge dismissed the complaint based on the
ground – failure to prosecute; Upon MR – opposed in two grounds
1)order of dismissal is final 2)that there’s really ground for failure to
prosecute. HELD: No failure to prosecute here because there was
already plaintiff’s presentation of evidence, the effects are merely a
waiver of his right to cross-examine and to object to the admissibility
of evidence. Private respondents' absence at the hearing scheduled on
January 6, 1970 "can only be construed as a waiver on their part to
cross-examine the witnesses that defendants might present at the
continuation of trial and to object to the admissibility of the latter's
evidence. The judgment in the absence of qualification , the dismissal is
w/ prejudice.
89
Sec 3 of Rule 17: The dismissal shall have the effect of an adjudication
upon the merits.
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 139 of 270
notice to the heirs to appear w/in 30 days. If they
fail to appear, require the executor to open for
settlement. Escolin: there‟s fundamental defect also: If
dismissal is not questioned then that‟s the law of the
case. Res judicata, whether a decision is right or
wrong, if there‟s final judgment, res judicata.
EFFECT OF THE DISMISSAL TO THE COUNTERCLAIM
(WHETHER COMPULSORY OR PERMISSIVE): The
dismissal of the complaint (because of the fault of the
plaintiff) is without prejudice to the right of defendant
to prosecute his counterclaim in the same action or
separate action.
- NO NEED FOR A MANIFESTATION
NOTE:The only time when a manifestation is
required is under Rule 17, Sec. 2. No need for
manifestation in case of dismissal under Rule 16,
and Rule 17 Sec. 3. Neither is this rule applicable
Rule 17, Sec. 1 precisely because in that case,
no answer has yet been served, hence, a
counterclaim could not have been raised.
RULES IN JALOVER V. YTORIA, INFRA,
1. Non-appearance of plaintiff during
presentation of evidence by the defendant
does not constitute failure to prosecute.
2. There can be no failure to prosecute once the
plaintiff has already presented all his
evidence in chief.
3. His absence merely constitutes:
a. Waiver to cross-examine
b. Waiver to object to the admissibility of
defendant‘s evidence
Jalover v. Ytoriaga, G.R. No. L-35989, October 28, 1977
FACTS: Plaintiff Ytoriaga filed against defendant Jalover a
complaint. Petitioner Jalover answered. Issues having
been joined, the case was set for trial. After resting plaintiff
Ytoriaga’s case, the trial court set the case for defendant
Jalover’s presentation of evidence. Trial was postponed
many times stretching to a period of more than 6 years,
until January 26, 1970, when the case was called for trial,
and then Presiding Judge Blanco dismissed the case,
upon motion of defendant, for failure of plaintiff Ytoriaga to
appear in court.
Two years later, or on January 17, 1972, plaintiff then filed
a Petition for Relief from Judgment. The petition for relief
was given due course, respondent Judge issued an order
setting aside the order of dismissal and setting the
continuation of the trial. The reasons stated by respondent
Judge in support are: (1) the record shows that while
respondent Porferio Ytoriaga was furnished with a copy of
the dismissal order, his counsel, Atty. Atol, was never
served with a copy thereof, hence, pursuant to the settled
rule that where a party appears by attorney, a notice to the
client and not to his attorney is not a notice of law, the said
order of dismissal never became final; and (2) the
 REMEDIAL LAW
CIVIL PROCEDURE
dismissal was without legal basis, considering that private
respondents had already presented their evidence and
rested their case; consequently, the non-appearance of
private respondents and their counsel at the said hearing
could not mean failure to prosecute on their part, but may
at worst only be construed as a waiver on private
respondents' part of the right to cross-examine the
witnesses whom defendant might present and to object to
the admissibility of defendant's evidence.
ISSUE: WON respondent Judge acted without or in
excess of jurisdiction or with grave abuse of discretion in
setting aside the dismissal order because the said order
have long become final and executory, hence, may no
longer be disturbed.
HELD: NO, plaintiff could not possibly have failed to
prosecute as they were already past the stage where
they could still be charged with such failure. As
correctly held by respondent Judge, private
respondents' absence at the hearing scheduled can
only be construed as a waiver on their part to cross-
examine the witnesses that defendants might present
at the continuation of trial and to object to the
admissibility of the latter's evidence. The right to cross-
examine petitioner's witnesses and/or object to his
evidence is a right that belongs to private respondents
which they can certainly waive.
ISSUE2: WON relief from judgment is the proper remedy
HELD2: NO, relief from judgment under Rule 38 of the
Revised Rules of Court is not the appropriate remedy. A
petition for relief is available only if the judgment or order
complained of has already become final and executory;
but here, as earlier noted, the order never attained finality
for the reason that notice thereof was not served upon
private respondents' counsel of record. The petition for
relief may nevertheless be considered as a second motion
for reconsideration or a motion for new trial based on fraud
and lack of procedural due process.
Mina v. Pacson, G.R. No. L-17828, August 31, 1963
FACTS: Plaintiffs are illegitimate children of the deceased
Joaquin Mina begotten by him with Pilar Lazo while
Joaquin Mina was lawfully married to Antonia Pacson.
They filed an action to recover certain properties alleged
to have been fraudulently transferred by Joaquin to the
defendants Medina and Mina and for the declaration of the
filiation of the plaintiffs in relation or with respect to the
deceased Joaquin Mina. Thereafter, the court ordered the
plaintiffs to amend the complaint to include the widow
Antonia pacson and the other intestate heirs as party to
the case. When they failed to do so, the case was
dismissed.
A second complaint was filed. Thus, the defendants
presented a motion to dismiss the complaint on the ground
of res judicata, alleging that a similar action had previously
been presented. It appears, however, that in the complaint
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 140 of 270
filed in said Civil Case No. 3015, no prayer is made for the
declaration of the filiation of the plaintiffs in relation or with
respect to the deceased Joaquin Mina. The motion to
dismiss was granted.
ISSUE: WON the dismissal with prejudice of the first
action is correct for failure to comply with the order of the
court.
HELD: YES. To order an amendment to a complaint within
a certain period in order to implead as party plaintiff or
defendant one who is not a party to the case lies within the
discretion of the Court. And where it appears that the
person to be impleaded is an indispensable party, the
party to whom such order is directed has no other
choice but to comply with it. His refusal or failure to
comply with the order is a ground for the dismissal of
his complaint for failure to comply with an order of the
court. In this case, the widow and the other heirs are
indispensable parties since once the shares of illegitimate
heirs are granted, the shares of the legitimate heirs would
necessarily diminish.
ISSUE2: WON the second action is entirely barred on the
grounds of res judicata
HELD2: NO. There is no complete identity between the
parties in the first case and those in the case at bar.
The statement is true because in the previous case
Antonia Pacson was not included as party-defendant. As
a matter of fact the order decided that Pacson was to
be included as party-defendant. As to the latter,
therefore, the previous order of dismissal does not
bar the present complaint, not only because she was
not made a party but also because the issue of
filiation of the parties-plaintiffs was not raised in the
previous case, although such issue was necessary for
the plaintiffs to be able to maintain their right of
action. In view of this fact, the present action should
be considered barred in respect to the action for the
annulment of the deeds of sale and as regards the
defendants spouses Crispino Medina and Cresencia
Mina; but as to the case for the declaration of the
plaintiffs as illegitimate children and heirs of the
deceased Joaquin Mina this latter case is not barred
by the previous action as above explained and may
still be prosecuted.
IN RE: DEATH OF PARTY PRIOR THE FILING OF THE
CASE: ORDER OF THE COURT TO AMEND THE
COMPLAINT IS PROPER; DISMISSAL ON THE
GROUND OF FAILURE TO AMEND IS VALID AND MAY
BAR A SECOND ACTION IF THE ORDER OF
DISMISSAL IS UNQUALIFIED
Note: where the death of the defendant occurred prior the
filing of the complaint and the court ordered amendment,
failure to comply with such order and the subsequent
dismissal of the action without any qualification, the order
has the effect of dismissal with prejudice.
 REMEDIAL LAW
CIVIL PROCEDURE
IN RE: DEATH OF PARTY PENDETE LITE: ORDER
LEGAL REPRESENTATIVES TO APPEAR AND BE
SUBSTITUTED IS THE PROPER RECOURSE, NOT TO
ORDER AMENDMENT; DISMISSAL ON THE GROUND
OF FAILURE TO AMEND TO ADD REPRESENTATIVES
WOULD NOT BE VALID AND WOULD NOT BAR A
SECOND ACTION. (rule 3, sec. 16)
Note: Take note of the process of substitution, the
procedure in case of death pendente lite is not to order
amendment but to order the heirs or representatives to
appear and be substituted.; There is no obligation on the
part of the plaintiff to amend, even if ordered by the court
since the procedure is for the court to order the heirs or
representatives to appear and be substituted. The
dismissal therefore is not valid, it being based on an
improper/erroneous order.
IN RE: NON-JOINDER OF PARTIES
RULE 1: Neither misjoinder nor non-joinder of
parties (whether indispensable or necessary)
is ground for dismissal of an action.
REMEDY: Parties may be dropped or
added by order of the court on
motion of any party or on its own
initiative at any stage the action and on
such terms as are just. Any claim
against a misjoined party may be
severed and proceeded with separately.
Q: Thus, if an indispensable party is
not joined would that be a ground for
a motion to dismiss?
A: No, it is not a ground for a motion to
dismiss, because the procedure is in
sec. 11. The court will merely order the
joinder in case of non-joinder. In case of
mis-joinder, the court will order the
dropping of parties.
RULE 2: Once the court orders the addition of
an ―INDISPENSABLE‖ party, non-compliance
therewith is a ground for dismissal with
prejudice
CAVEAT: Q: But if the court orders the
dropping or the adding of an
indispensable party (not merely
necessary party), and plaintiff/pleader
fails to comply with the order of the
court, may the court dismiss?
A: YES, under rule 17, sec. 3, failure to
comply with the order of the court is a
ground for the dismissal of the case.
And such dismissal is with prejudice.
RULE 3: On the other hand, the non
compliance with an order of adding a
―NECESSARY‖ party is not a ground for
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 141 of 270
dismissal but merely constitutes a waiver
agains the necessary party.
Q: What is the effect should the pleader
fail to comply with the order of the court
to implead a necessary party?
A: i. The failure to comply with the order
for his inclusion, without justifiable
cause, shall be deemed a waiver of
the claim against such party.
BUT: ii. The non-inclusion of a
necessary party does not prevent the
court from proceeding in the action, and
the judgment rendered therein shall be
without prejudice to the rights of such
necessary party.
IN RE:EFFECT OF NON-COMPLIANCE WITH ORDER
GRANTING MOTION FOR BILL OF PARTICULARS
1. If the order is not obeyed or in case of insufficient
compliance therewith, the court:
a. May order the striking out of the peading
or the portion thereof to which the order is
directed; or
b. Make such order as it may deem just.
2. Plaintiff’s failure to comply with the order of the
court may be a ground for dismissing the
complaint. Such a dismissal, unless made
without prejudice, would be a bar to a
subsequent action on the same cause. (Bautista
v. Teodoro, infra.)- cited in Beda
Bautista v. Teodoro, G.R. No. L-8894. May 31, 1957
SYLLABUS
PLEADING AND PRACTICE; COMPLAINT; DISMISSAL;
PLAINTIFF‘S FAILURE TO COMPLY WITH ORDER OF
COURT. — Where the plaintiff is ordered either to amend
the complaint or to file a bill of particulars within ten days
from receipt of notice and an extension of two weeks
granted by the Court and plaintiff still fails to comply with
said order, the action may be dismissed upon motion of
the defendant or upon the Court’s own motion pursuant to
Section 3, Rule 30 (now sec. 3 Rule 17) and Section 3,
Rule 16 of the Rules of Court.
THERE CAN BE NO RES JUDICATA IF NO SUMMONS
HAS BEEN SERVED TO THE DEFENDANT IN THE
FIRST CASE ALTHOUGH THE FIRST ACTION HAS
BEEN DISMISSED WITHOUT QUALIFICATION FOR
FAILURE TO PROSECUTE
GENERAL RULE: A court can only render a judgment on
the merits. It is a judgment on the merit when it disposes
of the case on the issues raised in the pleadings. If not
based on the pleadings, not a judgment on the merits
XPN: Rule 17, Sec. 3, Dismissal, if without qualification is
considered judgment on the merits though not based on
the issues raised in the pleadings. The rules consider it on
 REMEDIAL LAW
CIVIL PROCEDURE
the merits. But before the court can render judgment
on the merits, the court must have jurisdiction over
the subject matter AND jurisdiction over the person of
the defendants either by proper service or voluntary
appearance.
Planters Bank v. Molina, G.R. No. L-54287, September
28, 1988
FACTS: Plaintiff Republic Planters Bank filed complaints
in Civil case No. 1 and Civil case No. 2 against defendant
Molina, for the collection of a sum of money. Civil Case
No. 1 was dismissed for failure of the petitioner "to
prosecute its case within a reasonable length of time‖ on
the ground that the plaintiff failed to see to it that summons
were served to the defendants and more than a year has
lapsed. The order of dismissal was without qualification.
When Civil Case No. 2 was filed by petitioner, a motion to
dismiss was submitted by private respondents on the
ground that the cause of action is barred by a prior
judgment (res judicata) in Civil Case No. 1. Private
respondents opined that said order was an adjudication
upon the merits. The trial court in Civil Case 2 dismissed
the case on the ground of res judicata
ISSUE: WON the court is correct in dismissing the civil
case 2 on the ground of res judicata
HELD: NO, the order of dismissal in Civil Case No. 1
does not have the effect of an adjudication on the
merits of the case because the court that rendered the
same did not have the requisite jurisdiction over the
persons of the defendants therein. This being so, it
cannot be the basis of res judicata and it cannot be a
bar to a lawful claim. If at all, such a dismissal may be
considered as one without prejudice.
Trial courts have the duty to dispose of controversies after
trial on the merits whenever possible. In this case, there
are no indications that petitioner intentionally failed to
prosecute the case. The delay could not be attributed to its
fault. Petitioner pursued the case with diligence, but
jurisdiction could not be acquired over defendants-private
respondents. The sheriff had not yet submitted his return
of the alias summons when the action was precipitately
dismissed by the trial court. These are proven
circumstances that negate the action of respondent judge
that the dismissal of Civil Case No. 116028 has the effect
of an adjudication upon the merits and constitutes a bar to
the prosecution of Civil Case No. 129829. The court finds
that the two questioned orders of the trial court are
irregular, improper, and, were issued with grave abuse of
discretion amounting to excess of jurisdiction.
COURT CANNOT MOTU PROPRIO DISMISS THE CASE
FOR LACK OF VERIFICATION, OR FOR DEFECTIVE
CERTIFICATION AGAINST NON-FORUM SHOPPING;
DEEMED WAIVED IF NOT RAISED IN THE FIRST
MOTION TO DISMISS; BOTH ARE NOT
JURISDICTIONAL
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 142 of 270
Sps. De Guzman v. Ochoa, G.R. No. 169292, April 13 :
2011
FACTS: the petitioners raised the ground of defective
verification and certification of forum shopping only when
they filed their second motion to dismiss, despite the fact
that this ground was existent and available to them at the
time of the filing of their first motion to dismiss.
ISSUE: WON the defects have been deemed waived
HELD: Yes, absent any justifiable reason to explain this
fatal omission, the ground of defective verification and
certification of forum shopping was deemed waived
and could no longer be questioned by the petitioners
in their second motion to dismiss.
ISSUE2: WON the requirement of verification is
jurisdictional
HELD2: NO, contrary to petitioners' assertion, the
requirement regarding verification of a pleading is formal,
not jurisdictional. Such requirement is simply a
condition affecting the form of the pleading, and non-
compliance with which does not necessarily render
the pleading fatally defective. Verification is simply
intended to secure an assurance that the allegations in the
pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the
pleading is filed in good faith. In fact, the court may
order the correction of the pleading if verification is
lacking or act on the pleading although it is not
verified, if the attending circumstances are such that
strict compliance with the rules may be dispensed
with in order that the ends of justice may thereby be
served.
ISSUE3:WON the requirement of submission of
certification of non-forum shopping is jurisdiction
HELD3: NO. Similarly, the rule requiring the
submission of such certification of non-forum
shopping, although obligatory, is not jurisdictional.
The certification requirement is rooted in the principle that
a party-litigant shall not be allowed to pursue simultaneous
remedies in different fora, as this practice is detrimental to
an orderly judicial procedure.
ISSUE4: WON the trial court should have dismissed the
complaint motu proprio.
HELD4: No, the Court rules in the negative. Section 5,
Rule 7 of the Rules of Court is clear that failure to comply
with the requirements on the rule against forum shopping
shall be cause for the dismissal of the case "upon motion
and after hearing."
Sec. 4. Dismissal of counterclaim, cross-claim, or
third-party complaint. The provisions of this Rule shall
apply to the dismissal of any counterclaim, cross-claim, or
third-party complaint. A voluntary dismissal by the
claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for
 REMEDIAL LAW
CIVIL PROCEDURE
summary judgment is served or, if there is none, before
the introduction of evidence at the trial or hearing.

- For instance, you file a counter-claim, you can

also dismiss that by mere notice kung wala pang
service of responsive pleading or a motion for
summary judgment is served.
―if there is none, before the introduction of
evidence at the trial or hearing.‖
- If there is none, it’s either walang sagot or
sometimes in in rem actions there’s no
opposition, if there’s no opposition, it can be
dismissed before introduction of the evidence.
- Usually ung mga special proceeding. (e.g.
petition for declaration of insolvency)

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SUMMARY RULE 16 RULE 17 SEC. 1 RULE 17 SEC. 2 RULE 17 SEC. 3

MOTION TO DISMISS DISMISSAL UPON DISMISSAL UPON DISMISSAL DUE TO

NOTICE BY MOTION BY PLAINTIFF FAULT OF
PLAINTIFF PLAINTIFF

WHEN WHEN TO FILE: Within Before service of After service of answer If, for no justifiable
the time before filing answer or of motion for or of motion for summary cause, the (APRO)
the answer to the summary judgment, judgment.
1. plaintiff fails to
complaint or pleading
Appear on the
asserting a claim. It may date of the
be filed within the period presentation of
for filing an answer. his evidence in
Namely, within 15 days chief on the
from service of summons complaint,
2. Plaintiff fails to
Prosecute his
action for an
unreasonable
length of time; or
3. Plaintiff fails to
comply with
these Rules; or
4. Plaintiff fails to
comply with any
Order of the
court

HOW GROUNDS; GENERAL RULE: File By motion at the (1) upon motion of
NECESSITY OF a mere notice of plaintiff's instance save defendant; or
MOTION: a motion to dismissal. ( a motion is upon approval of the
dismiss may be made not necessary) court and upon such (2) upon court’s own
on any of the following terms and conditions as motion, motu
XPN: A class
grounds: suit shall not the court deems proper. proprio
1. Lack of jurisdiction be dismissed
over the person of or
the defending party compromised NOTE: After service of
2. Lack of jurisdiction without the answer of of motion for
over the subject approval of summary judgment,
matter of the claim; the court. complaint may nolonger
3. Improper venue; be dismissed by filing of
4. Plaintiff’s lack of mere notice of dismissal
legal capacity to
sue;
5. Litis pendentia;
6. Resjudicata
7. Prescription;
8. Failure to state
cause of action;
9. Claim has already
been paid, waived,
abandoned, or
otherwise
extinguished;
10. Unenforceability
due to statute of
frauds; and
11. That a condition
precedent for filing

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 REMEDIAL LAW
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the claim has not
been complied with.

XPN; MOTION NOT

NECESSARY: only
when based on sec. 1
Rule 9
1. lack of jurisdiction
over subj.matter;
2. litis pendentia;
3. res judicata;
4. prescription
EFFECT TO THE GENERALLY, GENERALLY, GENERALLY, WITHOUT GENERAL RULE,
ACTION WITHOUT PREJUDICE: WITHOUT PREJUDICE: a dismissal WITH PREJUDICE:
Subject to the right of PREJUDICE: A upon the motion of This dismissal is with
appeal, granting the dismissal made by the plaintiff shall be without prejudice,
motion to dismiss is filing of notice of prejudice.
WITHOUT PREJUDICE dismissal is a
to the re-filing of the dismissal without
XPN: unless
case prejudice. Hence, the
XPN: Unless otherwise otherwise declared
complaint can be by the court.
refilled. specified in the order
XPNS: PURE (with
prejudice)
a. Prescription XPNS: WITH
b. Unenforceable due PREJUDICE IF:
to statute of
i. the notice of
Frauds;
dismissal by the
c. Res Judicata plaintiff provides that
d. Extinction (paid, the dismissal is with
waived) prejudice

ii. when filed by

a plaintiff who has
once dismissed in a
competent court an
action based on or
including the same
claim (Two-dismissal
rule)

EFFECT TO THE without prejudice to Since there is no DISMISSAL LIMITED TO The dismissal of the
COUNTERCLAIM the prosecution in the answer yet filed by THE COMPLAINT: If a complaint (because
(Whether same or separate the adverse party, no counterclaim has been of the fault of the
permissive or action of a counterclaim counterclaim is pleaded by a defendant plaintiff) is without
compulsory) pleaded in the answer. recoverable. prior to the service upon prejudice to the
him of the plaintiffs right of defendant to
-no need for the prosecute his
defendant to file a motion for dismissal, the
counterclaim in the
manifestation of his dismissal shall be
same action or
preference to proceed limited to the complaint.
separate action.
(two options of
defendant)

a. PROSECUTE THE -NO NEED FOR A

COUNTER CLAIM IN MANIFESTATION
THE SAME
ACTIONS: provided
within fifteen (15) days
from notice of the

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 145 of 270

 REMEDIAL LAW
CIVIL PROCEDURE
motion to dismiss by
plaintiff, the
defendant manifests
his preference to
have his
counterclaim
resolved in the same
action.
b. PROSECUTE HIS
COUNTERCLAIM IN
A SEPARATE
ACTION: if no such
manifestation was
made.
-necessary for the
defendant to file a
manifestation of his
preference to proceed

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RULE 18: PRE-TRIAL
RULE 18: PRE-TRIAL: flow of the case:
(1) Complaint is filed.
(2) Defendant can either:
a. File an Answer, or
b. File a Motion to Dismiss: if denied, then he
should Answer.
(3) When an Answer is filed, then issued have now
been joined: we can determine the facts admitted
and those that are denied.
(4) Pre-Trial.
SEC. 1: When should Pre-Trial be conducted? After the
last pleading has been served and filed.
 Last pleading: Reply.
 Or if no reply is filed, after the lapse of ten (10) days
from the filing of the Answer.
 If there are counterclaims, Answer to the
Counterclaim.
 DUTY OF THE PLAINTIFF: to promptly move ex
90
parte to set the case for pre-trial.
 Under the old Rules, the Clerk of Court will
now set the case for Pre-Trial.
 If the claimant or he plaintiff does not
promptly move to set the case for pre-trial,
he shall be guilty of failure to prosecute
within a reasonable period of time.
 Subject to dismissal under SEC. 3, RULE
17.
 It is non-litigious as it will not prejudice the
rights of the adverse party.
SEC. 2: pre-trial is MANDATORY, and it cannot be
dispensed with, as in criminal cases
 MATTERS taken up during the PT:
(a) Mediation, Judicial Mediation, arbitration:
submission of alternative modes of
resolution.
 Even if it had already undergone
conciliation under the Barangay.
(b) Simplification of issues: in a civil case,
usually, there two kinds of issues:
a. FACTUAL ISSUE: controverted
issues.
 Later on after the pre-trial, the
court will enumerate the
issues, which shall be the
subject of the trial.
b. LEGAL ISSUE:
90
Non-litigious motion: you need not comply with the three-day notice
rule, notice of hearing.
LITIGIOUS MOTION: when it will prejudice the right of the adverse
party, then it shall comply with the Rules (three-day notice, notice of
hearing, proof of service).
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
(c) Amendments to the pleading: if it is the
complaint being amendment, when should
be the amended pleading be answered?
(d) Stipulations or admissions of facts and of
documents to avoid unnecessary proof;
a. PRIVATE DOCUMENTS: need to be
authenticated.
b. PUBLIC DOCUMENTS: usually, does
not anymore require proof of
authenticity.
(e) Witnesses;
(f) Referral to a commissioner: when may a
case be referred to a commissioner? When it
is complicated.
(g) Judgment of the pleadings, summary
judgment, dismissing of the action should a
valid ground be found to exist;
(h) Suspension of proceedings; and
(i) Such other matters as may aid in the prompt
disposition of the action.
PRELIMINARY CONFERENCE: the parties appear in
court and the court will refer it for preliminary conference.
 They go to the Clerk of Court, who will endeavor
that parties will enter into an amicable settlement.
 Also, for the marking of exhibits.
 Ask for comparison of the original with the
photocopy, for marking purposes.
 The Clerk will make a report, and refer the parties
to the judge.
 It will undergo all of these again.
 Then, Pre-Trial proper.
SEC. 3: WHO SHOULD BE NOTIFIED? The notice of PT
shall be served on:
(1) On counsel (if represented); or
(2) On the party who has no counsel.
 Who should be notified of the PT? Under the old
Rules, both.
 NOW, the counsel first if the party is represented by
his counsel.
 The counsel is charged to inform his client.
 He is duty bound to inform his client.
 Second sentence: result of jurisprudence.
SEC. 4: WHO SHOULD APPEAR? Parties AND their
counsel to appear at the pre-trial.
 The party himself.
 REASON: if they will discuss amicable
settlement, desirability of amendments.
 It is obligatory.
 Appearance of a party may be dispensed
with if:
(1) Valid cause is shown therefor, or
(2) If a representative shall appear in his
behalf, fully authorized in writing (a) to
enter into an amicable settlement, (b)
to submit to alternative modes of
dispute resolution, and (c) to enter
into stipulations or admissions of facts
and of documents.
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 That is the minimum →
pwedeng dagdagan, bawal
bawasan.
 If a party is represented by an
agent, he must be empowered
by an SPA.
 REASON: these are all acts of
dominion.
 If a CORPORATION:
Secretary’s Certificate, that the
Board has passed a resolution
authorizing a certain person to
appear.
SEC. 5: EFFECT OF FAILURE TO APPEAR:
(a) PLAINTIFF: a cause for the dismissal of the action,
with prejudice, unless ordered otherwise.
(b) DEFENDANT: cause to allow the plaintiff to present
his evidence ex parte, and to render judgment on
the basis thereof.
 If the defendant does not appear during the
pre-trial, the plaintiff will file a Motion To
Declare Defendant As In Default.
 Strictly speaking, a defendant can only be
declared in default for failure to file a
responsive pleading.
 But same effect: presentation of evidence ex
parte.
IN DEFAULT AS IN DEFAULT
 Failure to file PTB has the same effect as failure to
appear during the PT.
SEC. 7: PRE-TRIAL ORDER: recite in detail the matters
taken up in the conference.
 Amendment to conform with the evidence: must be
OBJECTED.
 Ground for objection: irrelevant → not one of
the issues agreed upon.
 Example: where in the PTO the issue is
WON the plaintiff is the owner of the land in
question by virtue of a DOS, but presented
evidence that the property was acquired by
him through succession.
 The counsel of the adverse party
must object, such evidence being
irrelevant.
 Contents of the order shall control, unless modified
before trial to prevent manifest injustice.
 IMPORTANCE OF PRE-TRIAL:
(1) It is the duty of the claimant/plaintiff to
promptly move to set the case for PT.
(2) Who should be notified?
(3) Who should appear that the pre-trial?
Exceptions?
(4) SPA: basic powers that should be given to
the attorney-in-fact.
(5) Effect of failure to appear by the plaintiff or
by the defendant.
(6) Pre-Trial Brief and Pre-Trial Order.

Court cannot render a Court can render a RULE 19: INTERVENTION

judgment in an amount judgment more than what is
different from what prayed prayed for.
for in the complaint.
REMEDY: file Motion to Lift File a Motion for RULE 19: INTERVENTION:
Order of Default, under Reconsideration (MR) of
oath, grounds: FAME, and the Order of the court
meritorious defense. allowing the party to
present evidence ex parte. THIRD-PARTY INTERVENTION
COMPLAINT
- Grounds: maybe Forces a third party, not yet The initiative comes from
FAME, but there can be a party in the case, to the third party.
other grounds (i.e. intervene with the initiative
sickness, marriage). of those party of the case.
ANSWER: 15 days from 15 days from notice of the
SEC. 6: PRE-TRIAL BRIEF: in such manner as shall service of summons. order admitting the same.
ensure their receipt thereof at least THREE DAYS before
the date of PT. SEC. 1: WHO MAY INTERVENE: A person who has legal
interest (must be a real party in interest):
 Statement of willingness to enter into amicable
settlement, stating the following: (1) In the matter in litigation, or
(1) Indicating the terms; (2) In the success of either parties, or
(2) Summary of admitted and not admitted facts (3) In the interest against both, or
(controverted matters); (4) Is so situated as to be adversely affected by a
 Proposed stipulations. distribution or other distribution of property in the
(3) Issues; custody of the court or of an officer thereof.
(4) Documents and exhibits to be presented,
stating their purpose thereof;  WITH LEAVE OF COURT: to admit and to
(5) Discovery; intervene.
(6) Number and names of witnesses, and the  Do you have to comply with the requirement that
substance of their testimony. the intervenor is a real party in interest?
DEFINITELY.

CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016 Page 148 | Agapito-Bantay-Caligagan-Fogata
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 The court shall determine WON the intervention
shall unduly delay the adjudication of the rights of
the original parties, and WON the intervenors right
may be fully protected in a separate proceeding.
SEC. 2: TIME TO INTERVENE: any time before the
rendition of judgment.
 From notice of the order admitting the complaint in
intervention.
 If there is a decision, then it is already too late.
 Must be served on the original parties and the
court.
SEC. 3: PLEADINGS-IN-INTERVENTION:
(1) COMPLAINT-IN-INTERVENTION: if he asserts a
claim against either or all of the parties, or
(2) ANSWER-IN-INTERVENTION: if he unites with the
defending party in resisting a claim against the
latter.
SEC. 4: TIME TO ANSWER: 15 days from the notice of
the order admitting the same.
ORDONEZ V. GUSTILO (1990): Plaintiff filed action to
enforce the reclamation contract entered into by Salinas
Development Co. and the Municipality of Rosario, Cavite.
Plaintiff is seeking the reconveyance of a parcel of
reclaimed land. Alleging that Rosario, Cavite failed to give
the contract share to plaintiff, this case was filed. The
defendants were the Municipality of Rosario and its Mayor.
An Answer was filed, resisting the plaintiff’s claim.
Thereafter, Brgy. Capt. Of Tejeros of Rosario, together
with 7 other municipal officers intervened, alleging that the
reclaimed area came about by natural accretion, and no
reclamation was ever done by the plaintiff. During the Pre-
Trial, defendant municipality manifested that they have
arrived at a settlement and will be submitting a
compromise agreement at a later date. The intervenors
were fully aware of this intended compromise agreement.
On the other hand, intervenors asked that they be allowed
to present evidence to support their answer-in-
intervention. Later on, the compromise agreement was
filed on May 20, and only a part of the reclaimed land was
allotted to the plaintiff. Meanwhile, additional hearings
were conducted on the intervention. But later on, on June
20, the intervenors filed a motion to set aside the
compromise agreement on the ground that there was an
intervention. TC denied the motion. Plaintiff moved to
terminate the proceedings, and the TC granted.
o ISSUE: WON It was correct for the TC to have
dismissed the case notwithstanding of the pendency
of the intervention.
o SC: YES, the TC was correct in terminating the
proceedings.
o REASON: an intervention is a mere collateral,
accessory or ancillary to the principal action, and is
not an independent civil action.
o The judgment approving the compromise
agreement is final and executory; accordingly all
pending issues become moot and academic once
the agreement is approved by the court.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
o In this case, the interest of the intervenor is merely
subsidiary to that of the principal defendant.
METROBANK V. RTC (1990): Good Earth Emporium, in
order to finance the construction of a building along
Avenida, Rizal, borrowed money from BPI. To secure
payment of the loan, the property where the building will
be constructed, and the building were subject to a REM.
Due to the lack of funds, Good Earth went to Metrobank to
borrow money to finance the central air conditioning unit
which Metrobank agreed. Later on, Metrobank, for non-
payment of the loan for air conditioning units, sued Good
Earth and its owner for collection, including BPI, as in the
meantime, the loan to BPI for the building was likewise not
paid, and as a result BPI foreclosed on the mortgage for
the replevin of the air conditioning units installed in the
building, which were mortgaged by Good Earth to
Metrobank before BPI acquired the building at an auction
sale by virtue of the extrajudicial foreclosure. Now the
supplier of the air conditioning units filed a motion to
intervene alleging that a certain sum remain unpaid from it
from the sum being sought to recovered (material man’s
lien). TC allowed the intervention. Thereafter, BPI and
Metrobank, without the knowledge and consent of the
supplier, entered into a compromise agreement. When it
was submitted to the court, the same was approved.
When the supplier learned about the compromise
agreement, it moved for its reconsideration. TC granted.
Metrobank contends that the intervention should be
dismissed by reason of the dismissal of the main case, as
an intervention is merely ancillary / subsidiary to the
interest of the parties.
o ISSUE: was the reconsideration property?
o SC: YES.
o REASON: after the intervenor was allowed to
appear in court, Metrobank has no absolute right to
put the intervenor out of court by the dismissal of
the action.
o Once the intervenor is allowed, the intervenor
becomes a party to the case, and is therefore
entitled to all notices, especially when it shall
prejudice its rights.
o LESSON: once intervention has been allowed, the
intervenor for all intents and purposes becomes a
party to the case, and hence entitled to all notices.
o Since the supplier was never notified or given the
opportunity to comment on the compromise
agreement, then in this case, immediately upon
learning of such agreement, it filed an MR.
ORDONEZ case METROBANK case
The interest there of the The action of the intervenor
intervenors is subsidiary to is not just subsidiary to the
that of the principal main case; it can even
defendant. stand independently of the
material man’s lien of the
units.
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LIMITATIONS OF INTERVENTION: discretionary upon
the court (SEC. 19):
(1) WON the intervention will unduly delay or
(2) Prejudice the adjudication of the rights of the
parties.
(3) WON the intervenor’s right may be fully protected in
a separate proceeding.
BIG COUNTRY RANCH CORP. V. COURT OF
APPEALS (1993): this involves two barges, originally
owned by Big Country Ranch Corp. Golden Plains Sawmill
acquired the barges by virtue of an auction sale. Later on,
Palarca, claiming to be the owner of these barges, filed an
action for replevin against the Coast Guards. The main
case is an action by Palarca for replevin of two barges. He
filed a replevin bond and the TC issued the writ. Golden
Plains intervened (first intervention), claiming that it is now
the owner of the two barges. There was also an issue as
to the identity of the barges, when the sheriff implemented
the writ, parang iba ang measurement, and the court
ordered the Phil. Coast Guard to measure the barges in
the presence of the representatives of the parties. Then,
the original owner, Big Country, also intervened (second
intervention), saying that when the barges were auction,
there was regularity in the conduct of the auction. TC
denied the intervention. It appearing that the movant has
not alleged any legal interest in the two barges involved,
or against all of them, or so situated that he shall be
adversely affected by the claims, the movant has been
divested of the two barges, and said motion shall unduly
delay and prejudice the adjudication of the rights of the
parties, and it can protect its right in a separate
proceeding, it was denied. CA affirmed the decision of the
RTC.
o ISSUE: Where the two lower courts in error in
denying intervention?
o SC: they were NOT.
o As a general guide in determining whether a party
may intervene, the court must consider:
(1) Will it unduly delay the case?
(2) Will it prejudice the adjudication of the rights
of the parties?
(3) Will its right be fully protected in a separate
proceeding?
o SC: petitioner’s claim that the public sale/auction
was attended by irregularities would be better
threshed out in a separate proceeding.
o To allow the petitioner to intervene in the replevin
suit which is primarily on the issue of possession,
would not just unnecessarily complicate it, new and
unrelated issues of conflicting claims of ownership
to the case of replevin, and shall inevitably cause
delay in the rights claimed by the parties.
o Delay due to the complication of issues.
o If the issue of the validity of the sheriff’s sale will be
added, it will complicate the main issue of who is
entitled to the possession.
o Intervention is not intended to change the nature of
the main action itself, or to stop or delay the trial.
o The remedy of intervention must not be allowed if it
will have the effect of retarding the principal suit.
o ALSO, in general, an independent controversy
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
cannot be injected in a suit where it would
enlarge or complicate the issue of the main
action, or expand the scope of the remedies.
o Petitioner would do well to reflect on the doctrinal
rule that an intervention is merely collateral or
accessory or ancillary to the principal action, and
not an independent proceeding; it, is an
interlocutory proceeding dependent on or subsidiary
to the case between the original parties.
 Where the main action ceases to exist, there
is no pending proceeding wherein the
intervention may be based.
NOTE: DISCRETION OF THE COURT TO PERMIT OR
DISALLOW THEREOF, NOT REVIEWABLE BY
CERTIORARI NOR CONTROLLED BY MANDAMUS;
APPLICATION IN CASE AT BAR. — The permissive tenor
of the provision on intervention shows the intention of the
rules to give to the court the full measure of discretion in
permitting or disallowing the same. The discretion of the
court, once exercised, cannot be reviewed by certiorari nor
controlled by mandamus save in instances where such
discretion has been so exercised in an arbitrary or
capricious manner. As a general guide in determining
whether a party may intervene, the court shall consider
whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties, and whether or not the intervenor's rights may be
fully protected in a separate proceeding. In the present
case, there is no showing of grave abuse of discretion on
the part of the trial court. It denied petitioner's motion for
intervention by reason of its findings, which were affirmed
by respondent Court of Appeals, that the intervention
would only unduly delay the case and prejudice the
adjudication of the rights of the original parties; that herein
petitioner has no legal interest in the matter in litigation;
and that at any rate, his rights, if any, can be ventilated
and protected in a separate action. The said findings of
the trial court are not without rational bases. It is admitted
by petitioner that the two barges which are the subject of
the litigation have already been sold to defendant-
intervenor, herein respondent Golden Flame Sawmill
Corporation, in a public auction held on April 17, 1989. In
fact, the corresponding certificates of sale therefor have
been issued in the name of said respondent corporation.
These certificates of sale constituted the very reason why
it was allowed to intervene in the main case.
RULE 20: CALENDAR OF CASES
SEC. 1: CALENDAR OF CASES: Clerk of Court shall
keep a calendar of cases, under the direct supervision of
the Judge.
SEC. 2: ASSIGNMENT OF CASES: done exclusively by
raffle.
 Shall be done in open session of which adequate
notice shall be given so as to afford interested
parties the opportunity to be present.
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 Kasi dinodoktor „yung raffle, para matama sa
judge na kilala mo, or ng abogado mo.
RULE 21: SUBPOENA
SEC. 1: SUB (under) POENA (penalty) AD
TESTIFICANDUM: it is a process directed to a person
requiring him to attend and to testify at the hearing of the
trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition.
 Under the pain of penalty.
 A process where a person is required to appear in
court:
(a) To testify in the hearing, or
(b) An investigation conducted by competent
authority, or
 Example: Congress conducting an
investigation in aid of legislation.
(c) For the taking of his deposition.
SUBPOENA DUCES TECUM: to bring with him any
books, documents, or other things under his control.
 NOT to testify.
 It is to bring documents, books, other things under
his control.
 But it can be a combination: subpoena and
subpoena duces tecum.
SEC. 2: BY WHOM ISSUED:
(a) Court before whom the witness is required to
attend;
(b) The court of the place where the deposition is to be
taken;
(c) The officer or body authorized by law to do so in
connection with investigations conducted by said
officer or body, or
(d) Any Justice of the SC or of the CA in any case or
investigation pending within the Philippines.
AD TESTIFICANDUM: There are certain requirements
must be met:
 SUBPOENA TO A PRISONER (detention and by
final judgment): judge or officer to determine
whether the same is made for a valid purpose.
 Prisoners by final judgment AND even
detention prisoner.
 PRISONER SENTENCED TO AFFLICTIVE
PENALTIES: unless authorized by the SC.
SEC. 3: FORM AND CONTENTS:
 Subpoena shall:
(1) State the name of the court and the title of
the action or investigation;
(2) Directed to the person whose attendance is
required; and
(3) In case of DUCES TECUM: reasonable
description of the books, documents or
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
things demanded which must appear to the
91
court to be prima facie RELEVANT.
H.C. LIEBENOW V. PHIL. VEGETABLE OIL COMPANY
(1918): A manager of a factory was hired, and he was
entitled, among others, to bonuses only if the company
earned money. He sued for the bonus. To determine the
amount of the bonus, as it would depend upon the
earnings of the company, he subpoena-ed all of the
financial records of the corporation.
o SC: SPECIFY the documents.
o Otherwise, fishing expedition.
 You cannot do that via subpoena, but by any
of the modes of discovery.
 And it must be RELEVANT to the case.
NOTE: Inasmuch as the subpoena duces tecum is a
process which easily lends itself to abuse, it should be
controlled by the courts with a view to making it
conformable to law and justice. The court should never
require the production of books and documents which are
irrelevant to the issue or which, if produced, could not be
properly utilized at the trial. A party desiring access to
voluminous books and documents which cannot be
properly utilized at the hearing, without expert assistance,
should by timely motion before the trial ask the court to
require the adversary party to submit such books and
documents for examination under such reasonable
conditions as the court may specify.
SEC. 4: GROUNDS TO QUASH A SUBPOENA DUCES
TECUM: by Motion if:
(1) Unreasonable and oppressive;
(2) Relevancy of the books, documents or things does
not appear;
(3) The person whose behalf the subpoena is issued
fails to advance the reasonable cost of the
production thereof.
GROUNDS TO QUASH A SUBPOENA AD
TESTIFICANDUM:
92
(1) The witness is not bound thereby (SEC. 10 );
(2) The witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was
served.
In either case, may be QUASHED: when the witness fees
and kilometrage allowed by these rules were not tendered
when the subpoena is served.
SEC. 5: FOR DEPOSITIONS: When will the Clerk of Court
of the place where it shall be taken issue it for purposes of
91
When it has the tendency with a reasonable degree to prove the
existence or non-existence of the fact in issue.
92
(1) Who resides more than 100 kilometers from his residence to the
place where he is to testify and (2) a detention prisoner, if no
permission of the court; secure the authority of the other court where
the case of the detention prisoner is pending.
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the taking of the deposition? Present proof of service of

notice to take deposition.
 FOR DEPOSITION: just go to the Clerk of Court for
the issuance of subpoena.
 All that you need to show the clerk is proof of
service of notice to take deposition.
 DUCES TECUM: must be authorized by the court;
not to be issued by the clerk alone.
 With an order of the court.
 There should be prior order of the court if it is
duces tecum.
SEC. 6: SERVICE: same manner as PERSONAL /
SUBSTITUTED service of summons:
 Tendering fees for one day appearance and
kilometrage.
 If issued by or on behalf of the Republic of the
Philippines, or an agency thereof, the tender need
not be made.
 To allow the witness reasonable time for travel and
preparation.
 DUCES TECUM: reasonable cost of producing the
books, documents or things demanded shall also
be tendered.
 If there is no payment: ground for quashal.
PEOPLE V. MONTEJO (1967): here is a policeman of
Montalban, Rizal, and went to Zamboanga City. There
was a vehicular accident and he was the witness to the
accident. There was a criminal case filed, and he was
subpoena. He did not appear and upon show cause order,
he contended that it was too far away (more than 50KM,
during that time).
o SC: only applies to civil cases, NOT to criminal
cases.
o It was the People of the Philippines who subpoena-
ed him.
o Part of the police power of the state: involves taking.
NOTE: Section 9, Rule 23, of the Rules of Court excusing
a witness from appearance before a court, judge, or other
officer of the province in which he resides, if the distance
exceeds 50 kilometers from his place of residence to the
place of trial by the usual course of travel, applies solely to
civil cases and not to criminal cases. Consequently, the
refusal by respondent Judge, to the case at bar, to grant
the prosecution's motion to arrest a material witness in a
criminal case, or in the alternative, to cite him for
contempt, amounted to grave abuse of discretion.

SEC. 7: PERSONAL APPEARANCE IN COURT:

RULE 22: COMPUTATION OF TIME
 A person present in court or officer may be required
to testify as if he were in attendance upon a
subpoena issued by such court or officer. RULE 22: COMPUTATION OF TIME:
 Kapag ayaw mo mag-testify, under pain of
contempt. SEC. 1: HOW TO COMPUTE: the day the period of time
begins to run (i.e. from notice) is to be EXCLUDED and
SEC. 8 and 9: SANCTIONS FOR FAILURE TO ATTEND:
the date of performance INCLUDED (first day excluded,
may issue a warrant to arrest the witness and bring him
last day included).
before the court or officer where his attendance is
required, upon proof of service of the subpoena.
 As in civil law: first day is excluded, the last day
included.
 The cost shall be paid by the witness if his failure to
 If the last day falls on Saturday, Sunday, or a legal
appear was willful and without just excuse.
holiday in the place where the court sits → the last
 To determine if his failure to answer was willful and
day is the NEXT WORKING DAY.
without just cause.
 If the last day to comply is a weekend or a
 CONTEMPT: failure of the person without adequate
holiday, dagdag „yan sa iyo → the last day is
cause.
the next working day.
 If not issued by the court: shall be punished
in accordance with the applicable law or SEC. 2: EFFECT OF INTERRUPTION: the allowable
Rule.
period after such interruption shall start to run on the day
 GENERALLY: it is only the court which can
after notice of the cessation of the cause thereof.
declare one in contempt.
 Congress also, perhaps, in their Rules?
 If you receive the summons today, do not count
today but count the last day.
SEC. 10: EXCEPTIONS: when may one not be arrested or
 The same as when the period was
declared in contempt?
interrupted.
 Example: if you file a MTD or MBOP, it will
(1) If he resides more than 100 kilometers from his
stop the running of the period within which to
residence to the place where he is to testify by
answer. When will you now respond?
ordinary course of travel.
 Upon receipt of the notice denying
 Assumption: from 50KM to 100KM, and road
your MTD, aandar na ulit siya, but
are better than before.
again, the first day when you receive
(2) Detention prisoner, if no permission of the court is
the order denying the MTD, you do
obtained.
not count that also.

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 As you have the balance, but no less
than 5 days.
 If you count the day you receive it,
tamang tama sa 15 days, but if you go
by the Rules and not count the first
day, sosobra ka sa araw.
 For BOP: when do you respond?
(1) If denied: Answer from the date
of the notice of the denial of the
BOP.
(2) If granted: from service of the
notice of the BOP.
th
 Example: if on the 10 day, it was interrupted, then
th
you are notified, but the 11 day is not counted eh.
 Since you do not count the day that you
receive the denied of the motion, because
the first day is excluded, magiging 16 „yan
kapag kinompute mo, that is why under the
Rules, it shall start to run NOT ON, but
AFTER notice.
 The day of the act that caused the
interrupted shall be EXCLUDED In the
computation.
NOTE: Does not apply if the purpose of the Motion is to
seek Extension of Time.
LUZ V. NATIONAL AMNESTY COMMISSION (2004):
accused was charged of illegal possession of firearms,
and he thereafter filed for amnesty. Such was denied. He
appealed to the National Amnesty Commission, and they
denied the same. He appealed to the CA. The last days
was [Sunday, Saturday, Holiday]. He sought another
extension to file a petition for review. The initial motion
was granted by the court. The second was denied, on the
ground that the motion was filed out of time, on the next
business day, lampas na. CA denied.
o Luz argued that his last day was a holiday, so he
must file after the next business day.
o SC: does not apply if your motion is to extend your
period.
 It must be done PRIOR to the expiration of
the period, even if the last day of the original
period falls on a Saturday, Sunday or a
holiday.
 If it is the filing of a petition/answer, then you
can file even after the end of the period, if the
last day falls on a weekend or holiday.
o This involved the second sentence of SEC. 1.
NOTE: The extension granted by the Court of Appeals
should be tacked to the original period and commences
immediately after the expiration of such period. Under the
Resolution of this Court in A.M. No. 00-2-14-SC, the CA
has no discretion to reckon the commencement of the
extension it granted from a date later than the expiration of
such period, regardless of the fact that said due date is a
Saturday, Sunday, or a legal holiday.
RULE 23
Depositions Pending Action
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
This Rule until Rule 29 refer to the Modes of Discovery.
Subpoena is for the purpose of evidence.
If you seek subpoena, for instance, duces tecum, you
must specify the documents and there must be showing of
relevant facts.
93
As we have learned in Subpoena under Rule 21, one of
the grounds to quash a subpoena duces tecum is where
93
Subpoena
Section 1. Subpoena and subpoena duces tecum. — Subpoena is a
process directed to a person requiring him to attend and to testify at
the hearing or the trial of an action, or at any investigation conducted
by competent authority, or for the taking of his deposition. It may also
require him to bring with him any books, documents, or other things
under his control, in which case it is called a subpoena duces tecum.
(1a, R23)
Section 2. By whom issued. — The subpoena may be issued by —
(a) the court before whom the witness is required to attend;
(b) the court of the place where the deposition is to be taken;
(c) the officer or body authorized by law to do so in connection with
investigations conducted by said officer or body; or
(d) any Justice of the Supreme Court or of the Court of Appeals in any
case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or
officer shall examine and study carefully such application to determine
whether the same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution shall be
brought outside the said penal institution for appearance or attendance
in any court unless authorized by the Supreme Court (2a, R23)
Section 3. Form and contents. — A subpoena shall state the name of
the court and the title of the action or investigation, shall be directed to
the person whose attendance is required, and in the case of a
subpoena duces tecum, it shall also contain a reasonable description of
the books, documents or things demanded which must appear to the
court prima facie relevant. (3a, R23)
Section 4. Quashing a subpoena. — The court may quash a
subpoena duces tecum upon motion promptly made and, in any event,
at or before the time specified therein if it is unreasonable and
oppressive, or the relevancy of the books, documents or things does
not appear, or if the person in whose behalf the subpoena is issued fails
to advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the ground that
the witness is not bound thereby. In either case, the subpoena may be
quashed on the ground that the witness fees and kilometrage allowed
by these Rules were not tendered when the subpoena was served. (4a,
R23)
Section 5. Subpoena for depositions. — Proof of service of a notice to
take a deposition, as provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of subpoenas for the
persons named in said notice by the clerk of the court of the place in
which the deposition is to be taken. The clerk shall not, however, issue
a subpoena duces tecum to any such person without an order of the
court. (5a, R23)
Section 6. Service. — Service of a subpoena shall be made in the same
manner as personal or substituted service of summons. The original
shall be exhibited and a copy thereof delivered to the person on whom
it is served, tendering to him the fees for one day's attendance and the
kilometrage allowed by these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made. The service must be
made so as to allow the witness a reasonable time for preparation and
travel to the place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or things
demanded shall also be tendered. (6a, R23)
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there is no prima facie showing that the document or 1844.) No court, it is needless to say, would punish a
papers to be subpoenaed are relevant. So, you must show witness for contempt in refusing to obey a
relevance. You cannot use subpoena for the purpose of subpoena duces tecum the issuance of which has been
fishing evidence. However, you can do that via MODES procured with such end in view.
OF DISCOVERY. Pwede ka mag-fish ng evidence. That
was the ruling in Liebenow vs. Philippine Vegetable Oil ***
(G.R. No. L-13463, November 9, 1918). You cannot do that because you are fishing for evidence.
You can do that, however, through modes of discovery.
LIEBENOW v. PHILIPPINE VEGETABLE OIL
G.R. No. L-13463, November 9, 1918 Let’s discuss the modes of discovery. Marami „yan.
Street, J.
The modes of discovery provided for under the Rules of
FACTS: Court are:
This is a case for the recovery of bonus in addition to 1) Deposition pending action (Rule 23);
plaintiff’s salary as defendant’s superintendent in the 2) Deposition before action or pending appeal (Rule
latter’s factory. He sought for a subpoena duces tecum for 24);
the production of the entire accounting documents. Under 3) Interrogatories to Parties (Rule 25);
their contract, plaintiff alleged that he was entitled to 4) Admission by adverse party (Rule 26);
bonus (if there is income). He was not given the bonus. In 5) Production or inspection of documents of things
order to determine that there was income, therefore (Rule 27); and
entitling him to the bonus, what he did was to cause the 6) Physical and mental examination of persons
issuance of a subpoena duces tecum for the production of (Rule 28).
all books of accounts, records, etc. in the custody of the
company’s accountant without specifying the documents. Let’s go to the first: Depositions pending action.
The said subpoena was vacated by the court on motion of
the defendant on the ground that the evidence sought Q: What is deposition?
thereby was irrelevant to the issue involved in the case. A: Deposition is a written testimony of a witness given in
the course of a judicial proceeding, in advance of the trial
ISSUE: WON the trial court is correct in quashing or or hearing, upon oral examination, or in response to
denying the subpoena. written interrogarities, and where an opportunity is given
for cross-examination.
HELD: Correct.
So, you can now better understand this in relation to
In determining whether the production of the evidence.
documents described in a subpoena duces tecum should
be enforced by the court, it is proper to consider, first, Deposition and affidavit, distinguished
whether the subpoena calls for the production of specific
documents, or rather for specific proof, and secondly, AFFIDAVIT DEPOSITION
whether that proof is prima facie sufficiently relevant to An ex-parte statement Dito, meron, kaya you can
justify enforcing its production. A general inquisitorial drawn up in writing without have this admitted in
examination of all the books, papers, and documents formal interrogation and evidence.
of an adversary, conducted with a view to ascertain without opportunity to be However, hindi lang basta
whether something of value may not show up, will not cross-examined you can have this admitted
be enforced. (Street, Federal Equity Practice, vol. 2, sec. in evidence. May mga
conditions.
Section 7. Personal appearance in court. — A person present in court
before a judicial officer may be required to testify as if he were in Q: When may a deposition be taken?
attendance upon a subpoena is sued by such court or officer. (10, R23) A:
Section 8. Compelling attendance. — In case of failure of a witness to SEC. 1. Depositions pending action, when may be
attend, the court or judge issuing the subpoena, upon proof of the taken.
service thereof and of the failure of the witness, may issue a warrant to By leave of court after jurisdiction has been obtained over
the sheriff of the province, or his deputy, to arrest the witness and any defendant or over property which is the subject of the
bring him before the court or officer where his attendance is required,
action, or without such leave after an answer has been
and the cost of such warrant and seizure of such witness shall be paid
served, the testimony of any person, whether a party or
by the witness if the court issuing it shall determine that his failure to
not, may be taken, at the instance of any party, by
answer the subpoena was willful and without just excuse. (11, R23)
Section 9. Contempt. — Failure by any person without adequate cause deposition upon oral examination or written
to obey a subpoena served upon him shall be deemed a contempt of interrogatories. The attendance of witnesses may be
the court from which the subpoena is issued. If the subpoena was not compelled by the use of a subpoena as provided in Rule
issued by a court, the disobedience thereto shall be punished in 21. Depositions shall be taken only in accordance with
accordance with the applicable law or Rule. (12a R23) these Rules. The deposition of a person confined in prison
Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule may be taken only by leave of court on such terms as the
shall not apply to a witness who resides more than one hundred (100) court prescribes.
kilometers from his residence to the place where he is to testify by the
ordinary course of travel, or to a detention prisoner if no permission of By leave of court after jurisdiction has been obtained
the court in which his case is pending was obtained. (9a, R23) over any defendant or over property which is the subject of

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the action, or without such leave after an answer has
been served.
Q: ‗Eh papano ‗yan anong gagawin mo kapag walang
leave of court?
A: You just inform the other party. Sulatan mo, ―Dear
kalaban, I wish to inform you that pursuant to Sec. 1, Rule
23, the depositions of the following persons will be taken.‖
Bahala siya magpa-quash. Without leave na „yan ah.
―The deposition of a person confined in prison may be
taken only by leave of court on such terms as the
court prescribes.‖
Basta kapag nakakulong, always by leave of court,
whether there is an answer or not.
―By deposition upon oral examination or written
interrogatories‖
So, there are two modes:
1) Oral examination
2) Written interrogatories
―The attendance of witnesses may be compelled by
the use of a subpoena as provided in Rule 21.‖
We go back to Rule 21.
Kung ikaw nagpapa-subpoena ng isang witness for the
taking of deposition, you apply.
Q: How do you do that?
A: Sec. 5, Rule 21
SEC. 5. Subpoena for depositions.
Proof of service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall constitute
sufficient authorization for the issuance of subpoenas
for the persons named in said notice by the clerk of the
court of the place in which the deposition is to be taken.
The clerk shall not, however, issue a subpoena duces
tecum to any such person without an order of the court.
(5a, R23)
Q: What is this notice under Sec. 5, Rule 21?
A: Notice to take deposition under Sec. 15.
Let’s go to Sec. 15 of Rule 23.
SEC. 15. Deposition upon oral examination; notice; time
and place.
A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing,
to every other party to the action. The notice shall state
the time and place for taking the deposition and the
name and address of each person to be examined, if
known, and if the name is not known, a general
description sufficient to identify him or the particular class
or group to which he belongs. On motion of any party
upon whom the notice is served, the court may for
cause shown enlarge or shorten the time. (15, R24)
In other words, when you desire to take the deposition of a
particular person upon oral examination, you give notice in
writing to every other person to the action – kalaban mo,
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
kasi dapat may cross-examination. „Yun ang ipakita mo sa
clerk of court, na may notice ka na. Therefore, the court
will now issue a subpoena to the deponent. Subpoena to
the deponent if you have already given notice to your
kalaban.
Q: Where do you secure the subpoena?
A: The rule is, you get it with the clerk of court of the
place in which the deposition is to be taken.
For example, the case is pending in a court in Angeles
City. However, the deponent who will be examined, upon
oral examination, is in Tarlac or in San Fernando. You
secure the subpoena in Tarlac or in San Fernando for the
purpose of taking the deposition.
However, take note, the clerk shall not, however, issue a
subpoena deuces tecum to such person without an order
of the court. Ibang isapan „yan.
Q: In other words, if it is just subpoena ad
testificandum (just an oral examination of the
deponent), may the clerk of court issue the subpoena
unilaterally?
A: Yes. Pero kapag duces tecum, dapat may court order.
NOTE: That is just the technical aspect. But please read
the Rules carefully. You might use this when you become
lawyers.
Q: Who may take a deposition and whose deposition
may be taken?
A: Any party to an action may take the deposition of any
person (Sec. 15, Rule 23).
94
A party desiring to take the deposition of any person upon
95
written interrogatories (Sec. 25, Rule 23).
Q: Whose deposition may be taken?
A: Any person.
Q: How? What are the modes of deposition taking?
94
Section 15. Deposition upon oral examination; notice; time and place.
— A party desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing, to every other party
to the action. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if
known, and if the name is not known, a general description sufficient to
identify him or the particular class or group to which he belongs. On
motion of any party upon whom the notice is served, the court may for
cause shown enlarge or shorten the time. (15, R24)
95
Section 25. Deposition upon written interrogatories; service of notice
and of interrogatories. — A party desiring to take the deposition of
any person upon written interrogatories shall serve them upon every
other party with a notice stating the name and address of the person
who is to answer them and the name or descriptive title and address of
the officer before whom the deposition is to be taken. Within ten (10)
days thereafter, a party so served may serve cross-interrogatories upon
the party proposing to take the deposition. Within five (5) days
thereafter, the latter may serve re-direct interrogatories upon a party
who has served cross-interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may serve recross-
interrogatories upon the party proposing to take the deposition. (25,
R24)
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A: Oral examination (Sec. 15, Rule 23) or written
interrogatories (Sec. 25, Rule 23)
Q: What is the scope of the deposition taking?
A:
SEC. 2. Scope of examination.
Unless otherwise ordered by the court as provided by
section 16 or 18 of this Rule, the deponent may be
examined regarding any matter, not privileged, which is
relevant to the subject of the pending action, whether
relating to the claim or defense of any other party,
including the existence, description, nature, custody,
condition, and location of any books, documents, or other
tangible things and the identity and location of persons
having knowledge of relevant facts. (2, R24)
In short, a deponent may be examined relating to any
matter relating to the claim or defense of any party to the
action, subject to certain limitations.
Q: What are these limitations?
A:
96 97
1) Sections 16 and 18 of Rule 23;
2) Any matter not privileged;
3) relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party.
Q: Therefore, what is the scope of deposition taking?
96
Section 16. Orders for the protection of parties and deponents. —
After notice is served for taking a deposition by oral examination, upon
motion seasonably made by any party or by the person to be examined
and for good cause shown, the court in which the action is pending may
make an order that the deposition shall not be taken, or that it may be
taken only at some designated place other than that stated in the
notice, or that it may be taken only on written interrogatories, or that
certain matters shall not be inquired into, or that the scope of the
examination shall be held with no one present except the parties to the
action and their officers or counsel, or that after being sealed the
deposition shall be opened only by order of the court, or that secret
processes, developments, or research need not be disclosed, or that
the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court or
the court may make any other order which justice requires to protect
the party or witness from annoyance, embarrassment, or oppression.
(16a, R24)
97
Section 18. Motion to terminate or limit examination. — At any time
during the taking of the deposition, on motion or petition of any party
or of the deponent, and upon a showing that the examination is being
conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the
action is pending or the Regional Trial Court of the place where the
deposition is being taken may order the officer conducting the
examination to cease forthwith from taking the deposition, or may limit
the scope and manner of the taking of the deposition, as provided in
section 16 of this Rule. If the order made terminates the examination, it
shall be resumed thereafter only upon the order of the court in which
the action is pending. Upon demand of the objecting party or
deponent, the taking of the deposition shall be suspended for the time
necessary to make a notice for an order. In granting or refusing such
order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem
reasonable. (18a, R24)
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
A: The deponent may be examined, as a general rule,
regarding any matter any matter relating to the claim or
defense of any other party, subject to the following
conditions:
1) The deponent may not be examined on any
matter which is privileged.
 Husband-wife privilege, physician-
patient privilege, priest-penitent privilege
 Suppose you are the kalaban, kukunin
mo ang deposition ng asawa? Hay, „edi
it will violate the marital privilege.
2) The deponent may only be examined regarding
any matter which is relevant to the subject matter
of the pending action.
3) The court may issue such orders to protect the
parties or the deponents or limit the examination
pursuant to Section 16 and 18.
SEC. 3. Examination and cross-examination.
Examination and cross-examination of deponents may
proceed as permitted at the trial under sections 3 to 18 of
Rule 132. (3a, R24)
Q: In what instances may a deposition be used?
A:
SEC. 4. Use of depositions.
At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a deposition,
so far as admissible under the rules of evidence, may be
used against any party who was present or represented at
the taking of the deposition or who had due notice thereof, in
accordance with any one of the following provisions;
xxx
In other words, a deposition of any party may be used:
1) At the trial;
2) Upon the hearing of a motion; or
3) Upon the hearing of an interlocutory proceeding.
―so far as admissible under the rules of evidence‖
So the use of depositions is subject to the use of
evidence.
Q: What are the two basic foundation of admissibility
of evidence?
A: relevancy and competency
―may be used against any party who was present or
represented at the taking of the deposition or who had
due notice thereof, in accordance with any one of the
following provisions‖
Take note, it may be used against any party who was
present, ito na sa due process. Or if he is not present,
represented at the taking of deposition, or hindi siya
present – who had no notice thereof.
Due process does not require that you are actually heard;
all it requires is that you were given the opportunity to be
heard.
In one case, Veran vs. CA. 137 Scra
This is a decision of the SC reversing the judgment of the
CFI. The CA declared Primitiva Villareal the owner of the
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lot where the house stood. The basis of the appellate
court’s decision is the deposition of the witness Apolonia
Glodoveza, which deposition was rejected by the trial
court for lack of cross examination by counsel for the
plaintiffs. But the CA admitted it. When it reached the SC,
the latter sustained the ruling of the CA stating:
As pointed out by the Court of Appeals,
counsel for the plaintiff had been notified
sufficiently in advance of the deposition
taking. His opposition to the taking was not
favorably acted upon by the court before the
date of the taking of the deposition. If he
failed to appear on that date, he did so at his
own risk.
Q: Why?
A: Again, because due process does not necessarily
mean that you are heard. All that is required is the
opportunity to be heard.
So, against whom may a deposition be taken?
Q: How may a deposition be used?
A:
(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
Recall that there are three ways to impeach a witness.
One of them is by making a prior, inconsistent statement.
Q: What is the procedure there?
A: Confront him – time and place, persons present, after
he made the statement, let him explain it. That is laying
the predicate.
So any deposition may be used to contradict or impeach a
deponent or a witness.
(b) The deposition of a party or of any one who at
the time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is
a party may be used by an adverse party for
any purpose;
So, it is used not only to show prior inconsistent
statement, but also to prove contrary evidence – any
purpose.
Q: What is the condition here?
A: Provided that the deponent is an adverse party or an
officer, director, or managing agent of an adverse party.
(c) The deposition of a witness, whether or not a
party, may be used by any party for any purpose
if the court finds: (1) that the witness is dead,
or (2) that the witness resides at a distance
more than one hundred (100) kilometers from
the place of trial or hearing, or is out of the
Philippines, unless it appears that his absence
was procured by the party offering the
deposition, or (3) that the witness is unable to
attend or testify because of age, sickness,
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
infirmity, or imprisonment, or (4) that the
party offering the deposition has been unable
to procure the attendance of the witness by
subpoena; or (5) upon application and notice,
that such exceptional circumstances exist as
to make it desirable, in the interest of justice
and with due regard to the importance of
presenting the testimony of witnesses orally
in open court, to allow the deposition to be
used; and
Q: When may you present a deposition in evidence?
A: When the court finds:
1) that the witness is dead;
2) that the witness resides at a distance more than
one hundred (100) kilometers from the place of
trial or hearing, or is out of the Philippines, unless
it appears that his absence was procured by the
party offering the deposition, or
3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or
imprisonment, or
4) that the party offering the deposition has been
unable to procure the attendance of the witness
by subpoena; or
5) upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with due
regard to the importance of presenting the
testimony of witnesses orally in open court, to
allow the deposition to be used.
In other words, you cannot simply present deposition in
evidence.
GENERAL RULE: You cannot present only the deposition
of a witness in court. You have to present him.
EXCEPTION: You can present his deposition in lieu of
presenting the testimony of the witness in court if any of
the aforementioned instances is present.
 This is similar to a subpoena. One of the grounds
to refuse compliance with a subpoena ad
testificandum is when you are 100 km away by
ordinary course of travel, in which case, instead
of you testifying in court, mag-deposition nalang.
Then, your deposition is already the evidence.
Q: But, if for instance, kinuha ang deposition mo,
hindi ka pa. Comes the trial, dapat ba i-present ka ulit?
A: Yes. The rule is, you must be presented in court as a
witness, notwithstanding that you already made a
deposition. Pero kung patay ka na, you ask the court now,
offer the deposition in evidence.
Q: When you take a deposition of a person, does that
mean that he is already your witness?
A: No.
(d) If only part of a deposition is offered in
evidence by a party, the adverse party may
require him to introduce all of it which is relevant
to the part introduced, and any party may
introduce any other parts. (4a, R24)
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As we have discussed under Rule 132, when you present
one party, the other party also has the right to offer the
other party. Baka tinatago mo „yun.
Q: What is the effect of substitution upon the right to
use deposition previously taken?
A:
SEC. 5. Effect of substitution of parties. — Substitution
of parties does not affect the right to use depositions
previously taken; and, when an action has been dismissed
and another action involving the same subject is afterward
brought between the same parties or their representatives
or successors in interest, all depositions lawfully taken and
duly filed in the former action may be used in the latter as
if originally taken therefor. (5, R24)
Q: When may substitution come in?
A: Substitution can come:
1) When one of the parties to the case dies.
98
o Under Sec. 16, Rule 3, a deceased
party, upon notice of his counsel of the
fact of death and the names and
residences of the representatives of the
deceased, the court shall issue an order
to the representative or representatives
to appear within 30 days to be
substituted.
2) When there is transfer of interest pendente lite.
o Binenta mo „yung lupa which is the
subject of litigation.
3) When an action has been dismissed, and another
action involving the same subject matter is
afterwards brought between the same parties or
their representatives or their successors in
interest, all depositions taken and duly filed in the
former action may be used in the subsequent
action as the originally taken in the second
action.
Q: When may objection to the admissibility be made?
A:
98
Section 16. Death of party; duty of counsel. — Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it shall
be the duty of his counsel to inform the court within thirty (30) days
after such death of the fact thereof, and to give the name and address
of his legal representative or representatives. Failure of counsel to
comply with his duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of thirty
(30) days from notice.
If no legal representative is named by the counsel for the deceased
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time
to procure the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear for and
on behalf of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be recovered as
costs. (16a, 17a)
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
SEC. 6. Objections to admissibility.
Subject to the provisions of Section 29 of this Rule,
objection may be made at the trial or hearing, to
receiving in evidence any deposition or part thereof for any
reason which would require the exclusion of the
evidence if the witness were then present and
testifying (6, R24)
Q: What is Sec. 29 of Rule 132?
A:
Sec. 29. Effect of errors and irregularities in depositions.
—
(a) As to notice. — All errors and irregularities in the
notice for taking a deposition are waived unless
written objection is promptly served upon the
party giving the notice.
(b) As to disqualification of officer. — Objection to
taking a deposition because of disqualification of
the officer before whom it is to be taken is waived
unless made before the taking of the deposition
begins or as soon thereafter as the
disqualification becomes known or could be
discovered with reasonable diligence.
(c) As to competency or relevancy of evidence. —
Objections to the competency of witness or the
competency, relevancy, or materiality of
testimony are not waived by failure to make them
before or during the taking of the deposition,
unless the ground, of the objection is one which
might have been obviated or removed if
presented at that time.
(d) As to oral examination and other particulars. —
Errors and irregularities occurring at the oral
examination in the manner of taking the
deposition in the form of the questions or
answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind
which might be obviated, removed, or cured if
promptly prosecuted, are waived unless
reasonable objection thereto is made at the
taking of the deposition.
(e) As to form of written interrogatories. —
Objections to the form of written interrogatories
submitted under sections 25 and 26 of this Rule
are waived unless served in writing upon the
party propounding them within the time allowed
for serving succeeding cross or other
interrogatories and within three (3) days after
service of the last interrogatories authorized.
(f) As to manner of preparation. — Errors and
irregularities in the manner in which the testimony
is transcribed or the deposition is prepared,
signed, certified, sealed, indorsed, transmitted,
filed, or otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are
waived unless a motion to suppress the
deposition or some part thereof is made with
reasonable promptness after such defect is, or
with due diligence might have been, ascertained.
(29a, R24)
Objections to the admissibility of a deposition may be
made at the trial or hearing, to receiving in evidence any
deposition or part thereof for any reason which would
require the exclusion of the evidence if the witness
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were then present and testifying, except errors or
irregularities of any kind which might have been obviated,
cured or presented, if promptly presented are waived.
You go by the Rules on Evidence.
Q: Ano ba ang objection sa Rules on Evidence?
A: Once the objectionable nature of the evidence
becomes apparent, you object immediately. If you don’t,
waived. Ganun „din dito, except errors or irregularities of
any kind which might have been obviated, cured or
removed, if promptly presented, unless reasonable
objections thereto are made at the taking of deposition.
For instance, irrelevant, you object. Incompetent, you
object. If you do not object, waived.
Q: What is the effect upon a deponent of the taking of
his deposition?
A:
Q: When you take the deposition of a person, do you
make him already your witness?
A: No. Hindi mo pa nga nape-present „eh.
SEC. 7. Effect of taking deposition.
A party shall not be deemed to make a person his own
witness for any purpose by taking his deposition.
The mere taking of a deposition of a person does not
mean that you are already making him your witness.
Q: Why?
A: Baka hindi favorable sa‟yo.
Remember, modes of discovery provide for ways by which
you can fish evidence. „Eh kung wala kang makuha? Wala
naman pala. Bakit mo ipe-present?
Q: What is the effect upon the deponent of the USE of
his deposition?
A:
SEC. 8: Effect of using depositions.
The introduction in evidence of the deposition or any part
thereof for any purpose other than that of contradicting or
impeaching the deponent makes the deponent the witness
of any party introducing the deposition, but this shall not
apply to the use by an adverse party of a deposition as
described in paragraph (b) of Section 4 of this Rule.
Q: What is paragraph (b)?
A: Basta kalaban ka pwede mo gamitin for any purpose.
1:05
Q: Why?
A: Baka hindi favorable sayo.
Q: What is the effect of the use?
A: Sec. 8. The introduction in evidence of the deposition or
any part thereof for any purpose other than that of
contradicting or impeaching the deponent makes the
deponent the witness of the party introducing the
deposition, but this shall not aply to the use by an adverse
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
party of a deposition as described in par. (b) of Section 4
of this Rule.
Q: Before whom may a deposition be taken in the
Philippines?
A:
Q: Before whom may a deposition be taken in foreign
countries?
A: Sec. 11
Sec. 12. Commission or letters rogatory
A commission or letters rogatory shall be issued only hen
Q: Who may not be a deposition officer?
A: Sec. 13.
No deposition shall be taken before a person who is a
relative within the sixth degree of consanguinity or affinity,
or employee or counsel of any of the parties; or who is a
relative within the same degree, or employee of such
counsel; or who is financially interested in the action.
Q: What orders may the court issue for the protection of
the parties and deponent.
Section 17. Record of examination; oath; objections.
Q: what shall be recorded?
A:
1) All objections made at the time of the
examination to the qualifications of the officer
taking the depositin, or to the manner of taking it,
or to the evidence presented. Go to Sec. 29.
2) Ojbections to the conduct of any party;
3) Any other objection to the proceedings.
The deposition officer, generally, cannot rule on the
admissibility.
Q: What shall the deposition officer do after the deposition
of the testimony is taken?
A: Sec. 19 and 20.
1) The deposition shall be submitted to the witness
for examination;
2) Shall be read to or by him, unless such
examination and reading are waived by the
witness and by the parties.
Sec. 20. Certification and filing by officer.
The officer shall certify on the deposition that the witness
was duly sworn to by him and that the deposition is a true
record of the testimony given by the witness. He shall then
securely seal the deposition in an envelope indorsed with
the title of the action and marked.
That is the mechanical aspect.
Sec. 21. Notice of filing.
The officer taking the deposition shall give prompt notice
of its filing to all the parties.
Sec. 22. Furnishing copies.
Upon payment of reasonable charges therefor, the officer
shall furnish a copy of the deposition to any party or to the
dependent.
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Sec. 23. Failure to attend of party giving notice.
If the party giving the notice of the taking of a deposition
fails to attend and proceed therewith and another attends
in person or by counsel pursuant to the notice, he court
may order the party giving the notice to pay such other
party the amount of the reasonable expenses incurred by
him and his counsel in so attending including reasonable
attorney’s fees.
Sec. 25. Deposition upon written interrogatories; service of
notice and of interrogatories.
Sec. 29. Effect of errors and irregularities in depositions.
As to form of written interrogatories.
Q: What are the periods again?
A: 10 days, then 5 days
Rule 134. Perpetuation of the testimony
OCTOBER 3, 2016
RULE 30: TRIAL
TRIAL: an examination before a competent court or
tribunal of the facts or law put on issue.
 PURPOSE: to determine such issue.
SEC. 1: When is trial conducted? Usually after the Pre-
Trial.
 In the Pre-Trial now, in the Preliminary Conference,
where the parties submit whatever they will present
during the trial.
 There would be marking of exhibits,
comparison of the original with the
photocopies.
 Other than that, the parties will identify the
witnesses.
 Also, the issues are limited, and the
evidence that the parties will present are
related to the issue involved.
 Then the parties will also submit the names
of their witnesses and their testimonies.
 In fact, during the PT, the parties are already
required to submit the direct testimonies of
the parties, in compliance with the Judicial
Affidavit Rule.
 One of the matters are required for the
parties is to open their case, and the court
shall determine what remains controverted.
 Upon entry of the case in the trial calendar: during
the PT, the dates will already be fixed.
 As to how many minutes will be consumed
per witness, and the trial dates shall be fixed.
 MANNER: ensure receipt 5 days from such date.
SEC. 2: ADJOURNMENT and POSTPONEMENT: from
day to day.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 No longer followed.
SECS. 3 and 4: GROUNDS FOR POSTPONEMENT:
(1) ABSENCE OF EVIDENCE: REQUISITES:
a. Upon affidavit, showing the materiality or
relevancy of such evidence;
b. Due diligence has been used to procure it.
(2) ILLNESS OF A PARTY OR COUNSEL:
REQUISITES:
a. Upon affidavit or sworn certification that the
presence of such party or counsel at the trial
is indispensable; and
 From the doctor.
b. That the character of his illness is such as to
render his non-attendance excusable.
SEC. 5: ORDER OF TRIAL: trial shall be limited to the
issues stated in the Pre-Trial Order.
 REASON: if the issue is not stated therein, and you
present evidence on that, the counsel of the
adverse party will be objecting.
 Plaintiff will adduce evidence in chief in support of
his complaint.
 Then he will rest his case.
 Then, the defendant will adduce evidence in chief in
support of its defense, counterclaim, third-party
complaint.
 Then, the third-party defendant will present
evidence, and so forth.
 The parties then may reduce rebuttal evidence
only, unless the court for good reason and in
furtherance of justice permits them to adduce
evidence in chief.
 Then, the case is submitted for decision.
 UNLESS the court orders the parties to submit their
respective memoranda or nay further pleadings.
 After the parties have formally offered their
evidence, and he court has ruled on the
admissibility of evidence, then the case shall be
submitted to decision.
 WHY NECESSARY TO DETERMINE WHEN
DEEMED SUBMITTED: to comply with the
Constitution, that for:
(1) Trial Courts: they shall decide within 90 days
from the time the case was submitted for
decision.
(2) Appellate Courts: shall decide within 1 year.
(3) Supreme Court: 2 years.
GENERAL RULE: upon admission of evidence, then that
is the time that the case is deemed submitted for decision.
 Mag-start „yung counting of 90 days.
 UNLESS the parties are directed to orally argue or
submit their respective memoranda.
Usually, the plaintiff will go first, then defendant, third-party
defendant, then rebuttal.
 HOWEVER, there is REVERSE ORDER OF TRIAL
(the same as in Criminal Cases): where the
defendant admits, although raising a special
defense.
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YU V. MAPAYO (1972): plaintiff filed an action for
collection of P2,800 representing unpaid balance of the
purchase price of an engine. In his Answer, the defendant
admitted the allegation set forth in the Complaint. But he
put up the defense that the machine had a hidden defect
and that he was forced to spend P2,800 for the repairs.
Before, when the case was appealed in the CFI, maging
trial de novo noon. At the trial, the CFI ordered the
defendant to produce evidence. The plaintiff counsel
requested that the defendant shall be made to present
evidence first, while plaintiff reserved his right to present
rebuttal evidence. The court denied the motion and
dismissed the case on the ground that there was failure to
prosecute.
o SC: Where the answer admits defendant's
obligation as stated in the complaint, albeit special
defenses are pleaded, plaintiff has every right to
insist that it is for defendant to come forward with
evidence in support of his special defenses.
NOTE: Defendant not having supported his special
defenses, the dismissal of the case for failure to prosecute
on the part of counsel for the plaintiff was manifestly
untenable and contrary to law.
 In a criminal case, that is the same.
 For instance, where the accused is charged
with homicide, and the accused admits that
he killed the victim, but raises the special
defense of complete self-defense, in which
case there will be a reverse trial.
 The prosecution will not present evidence as
the crime was already admitted.
 If it is already admitted, there is no need for trial.
RULE 31: CONSOLIDATION OR SEVERANCE
SEC. 1: CONSOLIDATION: when actions involving
common question of law or fact are pending before the
court.
 EXAMPLE: an action for quasi-delict, and the
passengers sued the bus company, the court may
order its consolidation.
 Same facts; same law.
 If the passengers hired the same lawyer,
then there is joinder of parties: pwede din
„yan.
SEC. 2: SEPARATE TRIAL: in furtherance of
convenience or to avoid prejudice.
 Of any claim, issue.
 EXAMPLE: if we are all landowners, the City of
Angeles field an expropriation case against us to
convert our properties to a public market, of each of
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
us has a special defense, the court may order
separate trial.
 Iba iba kasi ang defenses.
RULE 32: TRIAL BY COMMISSIONER
Can either be:
(1) By consent of the parties (SEC. 1): by written
consent of both parties.
(2) Without consent of the parties (SEC. 2): reference
ordered on motion.
 MEANING: no consent of both parties.
 Upon application of or of the motion itself of
the court.
 Only for certain cases:
a. Examination of a long account;
b. Taking of an account is necessary for
carrying a judgment or order into
effect;
c. Question of fact, other than upon the
pleading arises.
EXAMPLE: as when there is a question of interest, and for
how long already, and when there is compounded
interests.
 To determine how much.
SEC. 3: ORDER OF REFERENCE: the order of reference
may specify or limit the powers of the commissioner:
(1) To report only upon particular issues, or
(2) To do or perform particular acts, or
(3) To receive and report evidence only.
(4) May fix the date for beginning and closing the
hearings and for the filing of his report.
POWERS OF THE COMMISSIONER:
(1) Exercise power to regulate the proceedings before
him;
(2) Issue subpoenas and subpoenas duces tecum;
(3) Swear witnesses (administer oaths); and
(4) Unless otherwise provided in the order of reference,
rule upon the admissibility of evidence;
(5) Do all acts and take all measures necessary or
proper for the efficient performance of his duties.
HOW SHALL TRIAL BY COMMISSIONER PROCEED?
Shall proceed in all respects as it would if held before the
court.
SEC. 6: FAILURE OF PARTIES TO APPEAR.
SEC. 7: REFUSAL OF WITNESS: it shall be the court who
shall declare the witness in contempt, not the
commissioner.
SEC. 8: the commissioner may be asked to expedite the
proceedings.
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SEC. 9: WHEN SHALL THE COMMISSIONER FILE HIS
REPORT? Upon the completion of the trial or hearing or
proceedings before the commissioner.
 WHAT SHALL IT CONTAIN? Upon the matters
submitted to him contained in the order of
reference.
SEC. 10: after report: NOTICE OF THE
COMMISSIONERS REPORT given to the parties.
 Notified by the Clerk and they shall be allowed for
10 DAYS within which to signify grounds of
objections to the findings.
 Objections not raised will not be considered by the
court.
 In other words, the objections then available before
the hearing of the commissioner should be raised
already.
 What may be raised during the hearing? Primarily
on the findings and conclusion of the report.
 But on the procedural aspect, the court will
also consider that if you raise it during the
trial commissioner.
 In other words, there are two categories of
objections:
(1) On the findings and conclusions made
on the report;
(2) On the objection raised during the trial
before the commissioner.
 What is the effect of lack of notice to the parties of
the filing of the commissioner’s report? That is a
violation of due process.
SEC. 11: then hearing.
 The court shall issue an order adopting, modifying,
or rejecting the report in whole or in part, or
recommitting it with instructions, or requiring the
parties to present further evidence before the
commissioner or the court.
 What matters shall the court consider?
MANILA TRADING & SUPPLY V. PHIL. LABOR UNION
(1941): The court cannot be expected to rehear the case,
but will review only insomuch as may be drawn in question
by proper objection.
o Although the parties were not notified of the filing of
the commissioner’s report, and the court failed to
set the said report for hearing, if the parties who
appeared before the commissioner were duly
represented by counsel and given the opportunity to
be heard, the requirement of due process has been
satisfied and a decision on the basis of such report
with the other evidence of the case, is a decision
which meets the requirements of a fair and open
hearing.
NOTE: When the Court of Industrial Relations refers a
case to a commissioner for investigation, report and
recommendation, and at such investigation the parties
were duly represented by counsel, heard or the least given
an opportunity to be heard, the requirement of due
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
process has been satisfied, even if the court failed to set
the report for hearing, and a decision on the basis of such
report, with the other evidence of the case, is a decision
which meets the requirement of a "fair and open hearing."
HOWEVER:
THE DE LA RAMA STEAMSHIP COMPANY V.
NATIONAL DEVELOPMENT CORP. (1962): where the
court designated a board of accountants to examine the
claims of the plaintiff against the defendant, and there was
an understanding that the court will give the defendants
the opportunity to submit its objection to the amount stated
in the report, and the decision of the court is based mostly
on the findings and examination of the chairman, it is a
clear violation of the right of the party to be heard, of the
due process clause of the Constitution, of the TC to render
its decision without notifying the parties of the submission
of the report and without setting a court hearing.
NOTE: The action of the judge in rendering a decision
without giving the defendant the opportunity to submit its
objections to the amounts stated in the report of the
chairman of the board of accountants, is a violation of the
right of a party to be heard and of the due process clause
of the Constitution. It cannot be said that for failure of the
defendant to present a motion for reconsideration, it
waived its right to be heard on the report, as there was no
conduct on its part amounting to a waiver, because upon
the rendition of the decision, the appeal was promptly
presented, and the denial of the right to be heard on the
said report was one of the errors assigned in the appeal.
Hence, the case should be remanded to the lower court so
as to give the defendant the opportunity to submit its
objections to the report.
Is the commissioner’s findings binding upon the court? OF
COURSE NOT.
 The court is free to adopt, modify or reject, in whole
or in parts of the report, etc.
 EXCEPTION (SEC. 12): when the parties stipulate
that a commissioner’s findings of facts shall be
final, only questions of law shall be considered
thereafter.
 The court is bound by the findings of fact of
the commissioner.
SEC. 13: COMPENSATION OF COMMISSIONER.
RULE 33: DEMURRER TO EVIDENCE
SEC. 1: when may a defending party file a motion for
judgment on demurrer to the evidence? Only after the
plaintiff has completed the presentation of his evidence.
 Same as in criminal cases.
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 A motion for judgment of demurrer to evidence may
only be presented by the defending party only when
the plaintiff has rested its case / completed the
presentation of his evidence.
 So after the plaintiff has completed the presentation
of evidence, the defendant may move for the
dismissal.
 GROUND: upon the facts and the law the
plaintiff has shown no right to relief.
 On the basis of the evidence presented, he
has not proven his case.
EFFECT IF THE MOTION IF DENIED: he shall have the
right to present evidence.
 He shall not lose his right to present evidence.
 EXCEPTION (last sentence): if the motion is
granted but on appeal the order of dismissal is
reversed, he shall be deemed to have waived the
right to present evidence.
 REASON: the appellate court will render judgment
on the basis of the evidence available on record, if
appealed.
 Compare with Demurrer in Criminal Cases:
 May be filed after the prosecution has rested
its case.
 The court may dismiss the action on the
ground of insufficiency of evidence.
 There are two ways to file a demurrer: if
motion is denied:
(1) WITH LEAVE OF COURT: the
accused has still the right to present
evidence.
(2) WITHOUT LEAVE OF COURT: the
accused loses/waives his right to
present evidence.
 Within what time should the demurrer be
filed, if with leave? Within a non-extendible
period of FIVE (5) DAYS after the
prosecution has rested its case.
 The prosecution may oppose the motion
within a non-extendible period of FIVE (5)
DAYS from its receipt.
 If with leave of court is GRANTED, TEN (10)
DAYS from notice, and prosecution has the
same period from its receipt.
 If DENIED, NOT reviewable by appeal or by
certiorari before judgment.
 If demurrer to evidence in a criminal case is
GRANTED, may the prosecution appeal?
NO, because that will constitute double
jeopardy.
 In a civil case, if demurrer to evidence is
GRANTED, may the plaintiff appeal the order
granting the demurrer? YES.
 That is why there is a distinction between
with and without leave in criminal cases,
because if they are granted, acquittal iyan.
 For civil cases, you can appeal it.
 That is why in a civil case, if the TC grants
demurrer, and on appeal it is reversed, then
the defendant is deemed to have waived his
presentation of evidence.
 Those are the risks: as a lawyer, tantiyahin
mo iyan.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
RULE 34: JUDGMENT ON THE PLEADINGS
When may the court render judgment on the pleadings?
TWO INSTANCES:
(1) Where the answer fails to tender an issue: when is
an answer deemed to have failed to tender an
issue? When there is failure on the part of the
Answer to make a specific denial.
 In other words, the denial is a general denial.
 Effect when there is a general denial: facts
are deemed admitted, EXCEPT
UNLIQUIDATED DAMAGES.
 Must comply with the requirements of the
Rules: take the basis of the denial.
 As when you have lack of knowledge:
CANNOT be used if allegations of facts of
the complaint are expected to be within the
knowledge of the defendant.
 If you still state lack of knowledge,
that is still considered a general
denial, and a deemed admission.
 REMEMBER: no specific denial, denial
considered as a general denial, defendant is
deemed to have admitted the factual
averments of the complaint.
 EXCEPT: unliquidated damages.
(2) When the Answer otherwise admits the material
allegations of the adverse party’s pleading: kung in-
admit, bakit ka pa magta-trial? Eh „di judgment na.
 There is nothing left to the court but to
decide (CAPITAL MOTORS V. YABUT).
Judgment on the Pleadings may even be done after the
Pre-Trial.
 If the material facts ad allegations constituting his
cause of action are admitted by the defendant,
there is no more left but to judge on the basis of the
pleadings of the parties.
 There would only be trial if there are controverted
and actual issues.
 Where the issues are now admitted in the Answer,
there is no need to conduct a formal trial.
 Otherwise, aksaya ng panahon.
EXCEPTION TO THE RULES ON JUDGMENT ON THE
PLEADINGS (last sentence): material facts alleged in the
complaint must be proved in actions for:
(1) Declaration of nullity or
(2) Annulment of marriage or
(3) For legal separation.
REASON: the family is the basic social institution.
FALCASANTOS V. HOW SUY CHING (1952):
99
Falcansantos filed an action for legal redemption against
99
What is the nature of an action for legal redemption? It is an action
where a co-owner sells property without offering it first to his co-
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defendant, the administrator of the estate of the deceased
Tan Kiok. The complaint alleged that the property in
question belong to the undivided share of the siblings
Falcansantos, including plaintiff herein. That one of the
siblings sold her rights to Tan Kiok, although the sale has
not been registered. Plaintiff offered to redeem the same
from Tan Kiok for P420, but the latter refused to resell.
The defendant answered, admitting all the allegations in
the complaint, that he knows the property is co-owned, it
was sold to him, and there was an offer to redeem by
tendering payment and he refused to resell. But the
defendant set up the defense that the redemption has
been barred by art. 1524 of the Old Civil Code, because
"the plaintiff has had knowledge of sale since long before
nine days prior to the filing of the complaint.‖ There was a
motion for judgment on the pleadings as the facts were
admitted. TC rendered judgment for the plaintiff, relying on
the fact that the DOS was never registered, and there was
nothing on the record that plaintiff had knowledge or actual
knowledge of the sale since a certain particular date.
o ISSUE: WON the TC was correct.
o SC: Judgment is REVERSED.
o REASON: the starting date of the 9-day period is
either registration of sale or in the absence thereof,
knowledge of the conveyance of the co-owner.
o In this case, the defendant’s answer alleged that
plaintiff had knowledge of the sale.
o This allegation is deemed admitted by the plaintiff
because it is a rule that one who prays for the
judgment on the pleadings, without offering
proof as to the truth of his own allegations, and
without giving the opposing party an
opportunity to introduce evidence, must be
understood to admit the truth of all the material
and relevant allegations of the opposing party,
and to rest his motion for judgment upon those
allegations taken together with such of his own as
are admitted in the pleadings.
o If a party moves for judgment on the pleadings, he
also admits the material averments of the opposing
party’s claim, which taken together with his own, are
submitted to the court for judgment.
o Since in this case there was an allegation that the
plaintiff had knowledge, that is also admitted, as that
is in the Answer.
o That is why it is called judgment on the PLEADINGS
→ lahat.
o RATIONALE: where the movant files judgment on
the pleadings, he does not only submit the case on
the basis of the admission of the opposing party of
his allegations in the complaint, but he is also
deemed to have admitted the material averments
raised in the opposing party’s answer.
o The plaintiff has not offered proof as to the truth of
his allegation, d the opposing party was not given
opportunity to introduce evidence on his defenses
→ so patas kayo.
o The allegation of the adverse party is also admitted.
owners. If the seller-co-owner fails to give notice to his co-owners, then
the latter can exercise the right of legal redemption. The purpose of the
law is to terminate co-ownership.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
APELARIO V. CHAVEZ (1961): plaintiff filed an action for
recovery of a sum of money, representing the price of
certain articles purchased by the defendants. In their
Answer, the defendants admitted their indebtedness and
non-payment, but requested the plaintiff to waive as their
accounts receivable have not been collected.
o Can a judgment of the pleadings be asked? YES.
o How about the fact that they are asking plaintiff to
waive? NEGATIVE PREGNANT.
 REASON: while you deny, it is pregnant with
admissions.
 It is no defense at all, as a debtor cannot
delay payment due just to suit its
convenience, and the creditor is not an
underwriter of his debtor's business unless
so stipulated.
o The Answer in this case did not raise any material
issues.
NOTE: The defendants-appellants admitted all the
material allegations of the complaint concerning the
existence of the debt and its non-payment. The pleaded
excuse, that they had requested plaintiff to wait because
appellants' many accounts receivable had not yet been
collected, is no defense, for a debtor can not delay
payment due just to suit its convenience, and the creditor
is not an underwriter of his debtor's business unless so
stipulated. The denial of the averment concerning the
stipulated fees of plaintiff's attorney tendered no genuine
issue, for even without such allegation, it was discretionary
in the court to allow reasonable attorney's fees by way of
damages, if it found it just and equitable to allow their
recovery (Civil Code, Article 2208). Nor does the denial of
the complaint's averments concerning the fraudulent
removal and disposition of defendant's property constitute
a bar to a judgment on the pleadings, since the defendant
neither claimed nor asked for any damages on account of
the issuance and levy of the writ of attachment. Under the
circumstances, judgment of the pleadings was proper.
LAKI V. BALMORES: defendant in his Answer alleged,
―he denies the allegations contained in said complaint,‖
without stating any basis thereof.
o SC: that is considered a general allegation.
o The defendant is deemed to have admitted the
material averments.
NOTE: Cannot find the case.
CAPITOL MOTORS V. YABUT (1970): the allegations of
the complaint states that Yabut bought a car, that he
executed a PN, and in that PN he will pay the purchase
price in installments, with an acceleration clause, that
despite repeated demands, defendant failed to pay. In his
Answer, the defendant denied all the allegations of the
complaint, except his personal circumstance alleged in the
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complaint, for lack of knowledge sufficient to form a belief
as to the truth thereof. Plaintiff filed a motion for judgment
in the pleadings. TC rendered judgment in favor of plaintiff.
Defendant questioned the decision, on the ground that
lack of knowledge is a form of specific denial.
o SC: NO; he was in the position to know those facts
alleged in the complaint.
o You invoke lack of knowledge in good faith → that
you are really not expected to have knowledge of
those facts.
(2) BY THE DEFENDANT (SEC. 2): at any time, even
before an answer has been filed.
SECS. 3 and 4: PROCEDURE: motion shall be served at
least TEN (10) DAYS before the hearing, as the other
party must have the opportunity to submit its affidavits.
 Not just three-day notice rule.
 After hearing, the judgment shall be rendered if the
pleadings, etc. show that there is no genuine issue
as to any material fact and that the movant is
entitled to a judgment as a matter of law, except as
to the amount of damages.

If there is only partial adjudication on motion (SEC. 4):

judgment is not rendered upon the whole case or for all
RULE 35: SUMMARY JUDGMENTS the reliefs sought and a trial is necessary.

 Ascertain material facts without substantial

SUMMARY JUDGMENT PROCEEDINGS: a method to controversy.
promptly dispose of actions in which there is no genuine
SEC. 5: REQUISITES OF SUPPORTING AND
issue as to any material fact.
OPPOSING AFFIDAVITS:

(1) Based on personal knowledge;

SUMMARY JUDGMENT JUDGMENT ON THE
PLEADINGS
Proper if there is no Proper if there is no issue
genuine issue of fact. of fact at all, either
because:
- There is an issue of
fact, but it is not (1) The Answer admits the
genuine as it does not averments of the
go into the very complaint;
material allegations of (2) Where the Answer
fact constituting the does not tender an
opposing party’s claim. issue.
Rendered on the basis of Rendered on the basis of
facts appearing in the the admissions contained in
pleadings, the affidavits, the pleadings and the
depositions, admissions of attached documents
facts. therein.
IN WHAT ACTIONS THE REMEDY OF SUMMARY
JUDGMENT IS AVAILABLE: the Rules do not impose
any limitation as to the type of actions this remedy is
available.
(2) It shall set forth the facts admissible in evidence;
 Two rules of admissibility: relevance and
admissibility.
 There are those evidence relevant but not
admissible in evidence.
 Examples:
(a) Confession or admission of an
accused without him being informed
of his Constitutional rights to remain
silent.
(b) If a search is made as an offshoot of a
result of a warrantless arrest, the
evidence obtained, although relevant,
is not admissible in evidence, if the
search was not preceded by a lawful
warrantless arrest → fruit of the
poisonous tree.
(3) It shall show affirmative link that the affiant is
competent to testify on those facts; and
 He is not feeble-minded.
(4) Sworn or certified copies of the documents referred
to are attached.

 In actions for annulment of marriage, etc., NOT
ALLOWED, as in the same manner as the remedy
of judgment on the pleadings is now allowed.
WHEN PROPER: when the material facts are clear and
undisputed and there is no genuine issue of fact.
WHO MAY FILE:
(1) BY THE PLAINTIFF (SEC. 1): may at any time file
after the pleading in answer thereto has been
served.
 Only after the pleading in answer to his claim
is served.
 A claimant may only file such motion after
issues are joined: an Answer has been
served.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
PNB V. PHIL. LEATHER CO. (1959): PNB issued a letter
of credit to defendant, covering the value of certain
machineries. After the delivery of the machineries, plaintiff
presented to defendant for payment drafts, which the
defendant accepted. It its Answer, the defendant admitted
the letters of credit, that the materials were delivered, that
the bank has paid to cover letter of credits; essentially
defendant admitted all the material averments of the
complaint, EXCEPT the correctness of the amount due on
the drafts, which defendants alleged that it was checking
or verifying still. The bank filed for a motion for summary
judgment, attaching the affidavit of the manager of its
special assets department, stating the particular payments
made by the defendant and the remaining balance. TC
rendered summary judgment.
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o ISSUE: WON this case is a proper case for
summary judgment.
o SC: YES because there is no more genuine issue
of material facts constituting the cause of action of
the plaintiff.
o What is left as a controverted factual issue is the
amount / balance.
o But on the material facts: admitted, so there is no
longer no controversy.
o No genuine issue was raised by the defendant in
his Answer.
o There was an issue of fact, but it is not genuine as
it does not have anything to do with the cause of
action of the plaintiff.
URMANETA V. MANZANO (1962): plaintiff filed a suit for
the recovery of land, covered by a homestead application.
The plaintiff alleged in the complaint that he is the owner
of the land, and defendant took possession of the land and
deprived him of its produce, and defendant refused to
restore possession of the property despite demands. He
attached the following documents: the order of the Dir. Of
Lands’ transfer of homestead patent rights from the heirs
of Novesteros to the plaintiff; another order of the Dir.
Ordering the transfer of the rights. Defendant filed a MTD
for lack of cause of action, attaching thereto: order of the
Dir. Of Lands confirming the right of Manzano over portion
B of the land in question; certification of the land
registration commissioner to the effect that declared the
land as public land; and the order of the court dismissing a
criminal case filed by the plaintiff earlier against the
defendant. TC denied the MTD after hearing. Defendant
filed an Answer, alleging among others, that he has no
interest over the disputed land (meaning, he is not an
owner), except as a tenant of Manzano. Plaintiff filed
motion for summary judgment, stating that Manzano, the
alleged landlady of defendant had sold to plaintiffs all of
her interest in the land, as shown by the Deed of Transfer
of Homestead Rights. TC denied. Plaintiff filed a second
motion for summary judgment, attaching thereto more
documents (5). Then, in a motion filed by Manzano, she
reiterated the fact that he had sold the land to the
plaintiffs, and defendant had never been her tenant. She
did not deny the material averments of the complaint. TC
rendered summary judgment.
o ISSUE: WON such judgment is proper.
o SC: YES, the TC properly rendered summary
judgment.
o There was no genuine issue of fact, as the owner
admitted them.
o The only issue remaining here which is not genuine
anymore is is he a tenant?
o It is quite evident from the pleadings that plaintiff
was the owner of the land in question.
 Allegation of the defendant has been
categorically denied by the owner herself.
NOTE: Where there is no genuine issue between the
parties, as to any material facts, or, if ever there is, it can
easily be determined from the pleadings and documents
attached thereto, the trial court may render a summary
judgment on the basis on the said pleadings and
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
documents.
VERGARA V. SUELTO (1987): Vergara filed a complaint
for unlawful detainer alleging that he is the owner of a
commercial building consisting of three sections, separate
from those occupied by the defendants. That under the
lease contract of the defendant, the lease is on a month to
month basis on the original rental of P350, increased later
to P450. Vergara’s lawyer sent defendants demand letter
for payment of back rentals and to vacate the premises.
Defendant sent a joint reply confirming their verbal
commitment to vacate, but requesting extension to enable
them to find new space. One of the defendants paid part
of the arrears. Then they announced their refusal to
vacate on the ground that the lot on which the building
stands, although titled in Vergara’s name, was part of the
track of land which is ordered reverted to the public
domain by a judgment of the RTC. Defendants answered
and denied the averments of the complaint, as to theirs
and plaintiff’s personal circumstances, and Vergara’s
ownership of the land, and that they have been occupying
the premises in the concept of owners. Vergara filed a
motion for summary judgment. TC denied the motion,
saying that there is a genuine issue of fact; there is no
admission in the pleadings.
o SC: respondent judge confuses the MSJ with
judgment of the pleadings.
o The fundamental issue in a summary judgment is
NOT whether the answer tenders a valid issue, but
whether the issue thus tendered is valid, genuine,
or fictitious, sham, characterized by bad faith.
NOTE: Section 1, Rule 19 of the Rules of Court provides
that where an answer "fails to tender an issue, or
otherwise admits the material allegation of the adverse
party's pleading, the court may, on motion of that party,
direct judgment on such pleading." The answer would fail
to tender an issue, of course, if it does not comply with the
requirements for a specific denial set out in Section 10 (or
Section 8) of Rule 8; and it would admit the material
allegations of the adverse party's pleadings not only where
it expressly confesses the truthfulness thereof but also if it
omits to deal with them at all.
Now, if an answer does in fact specifically deny the
material averments of the complaint in the manner
indicated by said Section 10 of Rule 8, and/or asserts
affirmative defenses (allegations of new matter which,
while admitting the material allegations of the complaint
expressly or impliedly, would nevertheless prevent or bar
recovery by the plaintiff) in accordance with Sections 4
and 5 of Rule 6, a judgment on the pleadings would
naturally not be proper.
GALICIA V. POLO (1989): it was the defendant who filed
a MSJ.
o FACTS: Palajos instituted a complaint for forcible
entry against the Galicias, charging that the
defendant forcibly entered the eastern portion of the
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property of Palajos’ father. The defendants filed for
numerous postponement and failed to be present,
so the TC received plaintiff’s evidence ex parte.
Ultimately, TC ruled for the plaintiff and against the
defendants to pay damages / reasonable use of the
land. When that judgment became final, and by
reason of the defendants’ failure to pay such
damages, the land adjoining the subject of the
forcible entry case owned by the defendant was
levied upon. The highest bidder was the plaintiff.
Then the defendants filed an action for recovery of
ownership over the land that was sold at public
auction. The plaintiff filed a motion of SJ, which the
TC granted.
o ISSUE: Proper? YES.
o For failure to redeem the land within the period of
redemption, defendant cannot now claim that they
still own the said property.
NOTE: The Rules of Court authorizes the rendition of
summary judgment if the pleadings, depositions and
admissions on file together with the affidavits, show that,
excepts as to the amount of damages, there is no issue as
to any material fact and that the moving party is entitled to
a judgment as a matter of law (Sec. 3, Rule 34).
Controversely, summary judgment is not proper where the
pleading tender vital issues the resolution of which call for
the presentation of evidence (Villanueva v. NAMARCO, 28
SCRA 729 [1969]; Guevarra, et al., v. CA, et al., 124
SCRA 297 [1983].
Summary judgment "is a device for weeding out sham
claims or defenses at early stage of litigation, thereby
avoiding the expense and loss of time involved in a trial.
The very object is "to separate what is formal or pretended
in denial or averment from what is genuine and
substantial, so that only the latter may subject a suitor to
the burden of trial.' The test, therefore, a motion for
summary judgment is — whether the pleadings, affidavits,
exhibits in support of the motion are sufficient to overcome
the opposing papers and to justify a finding as a matter of
law that there is no defense to the action or the claim is
clearly meritorious" (Estrada v. Hon. Consolacion, et al.,
71 SCRA 523 [1976].
SEC. 6: AFFIDAVITS IN BAD FAITH: the court shall
forthwith order the offending party or counsel to pay to the
other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur OR adjust
guilty of contempt.
RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY
THEREOF
FINALITY OF JUDGMENTS: a.k.a ENTRY OF
JUDGMENT.
 Applies also to criminal cases.
JUDGMENT: the final consideration and determination of
the court of the rights of the parties as those rights
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
presently exist, upon matters submitted to the court in
action or proceeding.
 In the pleadings.
ESSENTIAL REQUISITES OF A VALID FINAL
JUDGMENT:
(1) That the court rendering judgment must have
jurisdiction over the subject matter;
(2) That the court rendering judgment must have
jurisdiction over the person of the defendant;
(3) IN CRIMINAL CASES: venue is properly laid.
(4) That the court rendering judgment must have
jurisdiction over the issues;
 EXAMPLE: If the action is for reconveyance
on the ground that plaintiff’s cause of action
is based on a sale, then the court renders
judgment that the party inherited it → that is
not an issue there.
 A violation of due process as no
opportunity to meet that issue.
 He only presented evidence to
controvert the issue, which is sale.
 Without prejudice to an amendment to
conform the evidence.
 The judgment shall decide only the issues
raised by the parties in their pleadings.
(5) That the court rendering the judgment must be a
validly constituted court, and the judge should be
a de jure or ide facto judge; and
(6) The judgment must be made after a lawful
hearing.
 The due process has been properly
observed.
SEC. 1: FORMAL / PROCEDURAL REQUISITES OF A
VALID JUDGMENT: applies not only to a judgment, but
also to a FINAL ORDER.
FINAL ORDER: opposite of an interlocutory order.
FINAL ORDER JUDGMENT
One that disposes off the A disposition and
case, such that there is determination of the rights
nothing more for the court of the parties after trial.
to do in the case, except to
execute the judgment / final
order.
 But the court can also dispose of a case by a final
order.
 EXAMPLE: a MTD was filed on the ground of
improper venue or lack of jurisdiction → GRANTED
→ that is a FINAL ORDER.
 Nothing more is to be done by the court
except to execute it.
 Also when a plaintiff fails to prosecute his
cause for an unreasonable length of time
and the court grants it → that is a FINAL
order.
 It dismisses the case with prejudice.
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INTERLOCUTORY ORDER: there remains to be done.
 If a defendant files a MTD on the ground of lack of
jurisdiction, and the trial court DENIES the motion
→ INTERLOCUTORY.
 There is more to be done, as the defendant
has to Answer, PT, then trial.
FORMAL REQUISITES OF A VALID JUDGMENT:
(1) In writing;
(2) Personally and directly prepared by the judge;
(3) Stating clearly and distinctly the facts and laws
within which it is based;
(4) It must be signed by the judge; and
(5) Filed with the clerk of court: that is how you
promulgate the decision.
Is there a distinction between judgment and opinion of the
court? YES, as while the two are usually combined in one
instrument, generally called decision:
JUDGMENT OPINION
As the final order or Found in the findings and
disposition of the court is conclusion of the court,
found in the dispositive otherwise the RATIO
portion of the decision. DECIDENDI.
- WHEREFORE xxx - Where the judge sets
- Determines the rights of forth the facts and the
the parties to the laws within which it is
controversy. based → constitutional
requirement.
 In case of conflict, who shall prevail? It is the
JUDGMENT.
 REASON: it is elementary in procedure that
the resolution of the court in a given as
embodied in the dispositive portion of the
decision, is the controlling factor that
determines and settles the rights of the
parties and resolves the questions presented
therein.
SIN PERJUICIO JUDGMENT: without prejudice.
 One that contains only the dispositive portion, with
the reservation of the making of findings of facts
and laws in a subsequent judgment.
 That is NOT allowed, as the Constitution clearly
provides for it.
NUNC PROTUNC JUDGMENT: judgment NOW for
THEN.
 FUNCTION: to record some acts done by the court
done at a former time, which have not been carried
into the records, and the power to make such entry
is restricted to placing upon the record evidence of
judicial actions, which has actually been taken.
 It may be used to make the records speak the truth,
but not to speak what it did not speak but ought to
have spoken.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
JUDGMENT UPON A COMPROMISE: a judgment
rendered with the consent of the parties, the purpose is to
effect a compromise or settlement of an action.
 EFFECTS:
(1) NOT appealable and immediately executory;
(2) Cannot be annulled EXCEPT upon error,
deceit, violence, or forgery of documents;
 Remedy available is not through
appeal but through petition for
certiorari.
(3) It is res judicata.
 Is the court required to make findings of facts and
conclusions of law?
SC IN ONE CASE: in a compromise agreement, the court
is not anymore required to make findings of facts and
conclusions of law.
o REASON: the court is deemed to have adopted the
statements of facts and conclusions of law made by
the parties themselves in their compromise
agreement, and their consent has been made.
o It is now unnecessary for the court to still make a
preliminary adjudication of these matters, as these
matters are already covered by the compromise
agreement.
OCTOBER 6, 2016
REQUIREMENTS TO A VALID JUDGMENT:
SUBSTANTIAL REQUISITES:
(1) The court must have jurisdiction over the subject
matter and over the person of the defendant;
(2) The court or tribunal must be clothed with
authority to hear and determine the matter before
it;
(3) The evidence must have been considered by the
tribunal in deciding the case; and
(4) The parties must have been given an opportunity
to be heard.
FORMAL REQUISITES:
(1) Must be in writing;
(2) Personally and directly prepared by the judge;
(3) State clearly and distinctly the facts upon which the
decision was based, and the law on which it is
based;
(4) It should contain a dispositive part;
(5) Signed by the judge;
(6) Filed with the clerk of court.
JUDGMENT UPON A COMPROMISE: the court is not
required to make a findings of facts and conclusions of
law.
 REASON: the court is deemed to have adopted the
statement of facts and conclusions of law made and
resolved by the parties themselves.
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Does a pronouncement of judgment in open court
constitute a valid rendition of judgment? NO.
CrimPro case: the witness that is supposed to be crossed
examined failed to appear, including the private
prosecutor. Because of that, that accused field a Motion to
Dismiss the Case on the ground of the violation of his
rights to speedy trial. The court granted the motion orally.
Then, the witness and the private prosecutor arrived,
explaining that there was a vehicular accident, which
prevented them to arrive in court. Finding such
explanation meritorious, the TC reconsidered its original
order dismissing the case and reset the case for another
day.
o Is that double jeopardy? Is there already dismissal?
o SC: NOT a valid dismissal / final order, as it was
only verbally, and not yet reduced in writing, signed
by the judge, and filed with the COC.
o The mere pronouncement of a judgment or final
order in open court with the stenographer taking
notes thereof cannot constitute a rendition of
judgment.
o It is the filing of the signed with the COC which
constitutes rendition of judgment.
o While it was presumed that the judgment that was
dictated in open court will be the judgment of the
court, the court may still modify the judgment, and
may not therefore constitute a real judgment of the
court.
FINAL ORDER: one that disposes off the case other than
the merits of the case / upon the pleadings presented.
JUDGMENT FINAL ORDER
Based on the evidence. Final disposition of the case
not necessarily on the
merits.
Example: SEC. 3, RULE
100
17: failure to prosecute .
SEC. 2: ENTRY: WHERE: in the book of entries of
judgments by the COC.
 DATE OF FINALITY: deemed to be the date of its
entry.
 Even if actual entry is later.
 CONTAINS: dispositive portion of the judgment or
final order and shall be signed by the clerk AND
certificate that it is final and executory.
 WHEN IS IT ENTERED? When the judgment has
become final and executory.
 WHEN IT ATTAINS FINALITY:
(1) If no appeal; or
(2) No motion for new trial is filed within
the time provided in these Rules.
 FINALITY OF ENTRY is equal to FINALITY OF
JUDGMENT.
100
Not based on the pleadings.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 HOWEVER, actual entry may be made
latter, but it shall retroact to the date of
finality of the judgment.
 REASON: you can only verify later that the
period to appeal or file an MR has already
lapsed.
 EFFECT OF FINALITY OF JUDGMENT: produces
three effects:
(1) The prevailing party is entitled to have
execution issue as a matter of right;
(2) The court rendering the judgment losses
jurisdiction over the case, so that it can no
correct the judgment in substance, except to
make corrections of clerical errors, mistakes
plainly due to error or inadvertence; and
(3) Res judicata supervenes.
 EXCEPTIONS ON THE RULE OF FINALITY OF
JUDGMENT:
(1) JUDGMENT FOR SUPPORT: can be
modified at any time, as the obligation to
give support depends not only the resources
of the obligors, but also on the ever changing
needs of the obligee.
(2) If execution of the judgment will be UNJUST:
cannot be executed.
BUSTOS V. COURT OF APPEALS: when a defendant in
an unlawful detainer / ejectment case becomes the owner
of the land.
o To execute the judgment to evict him from a lot
which he now owns would be unjust.
RE: a case of a child who was left by his parents to a
family friend. The parents then went abroad. After 10/12
years, the parents came home to settle permanent herein,
and they wanted to get the child back, but the child and
the family friend did not want to. There was a trial for
custody. The TC ordered the child to be given to the
parents. SC affirmed. Now, the judgment was being
executed.
o The child did not really want to go back to his
parents. He testified during the hearing for its
execution, that if he will go back to them, he will kill
himself.
o SC: reversed; even if the judgment is final, but it is
not anymore for the best interest of the child.
SEC. 3: JUDGMENT FOR OR AGAINST ONE OR MORE
OF SEVERAL PARTIES:
 When justice so demands, the court may require
the parties of each side to file adversary pleadings
as between themselves.
 ESCOLIN’S COMMENT: That can happen in
a counterclaim, cross-claim, but under the
rules, failure to file the same operates as a
bar.
 Bakit makialam ang court? If they do
not assert their rights, they waive it.
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 Reconcile with compulsory counterclaims and  Therefore, it is already immediately

cross-claims: leave it to the parties to secure their appealable, as you are already taking about
rights. execution (MIRANDA V. COURT OF
APPEALS).
SECS. 4 and 5:  Only that the court can stay to await the
resolution of the next issue.

SEVERAL JUDGMENTS SEPARATE JUDGMENTS SEC. 6: JUDGMENT AGAINST ENTITY WITHOUT

(SEC. 4) (SEC. 5) JURIDICAL PERSONALITY: persons not incorporated as
a separate juridical person, enters into a certain
WHEN RENDERED: In an Upon determination of the transaction.
action against several issues material upon a
defendants, the court may, particular claim, as when  SEC. 15, RULE 3: they may be sued in the
when several judgment is there is joinder of causes of common name they may be known.
proper, may render
101
action .  Summons: SEC. 8, RULE 14: service upon
judgment against one or any one of them, or the person in charged in
more of them, leaving the the place of business.
action to proceed against  The judgment shall set out their individual or proper
the others. names if known.
WHEN NOT PROPER: the EXAMPLE: expropriation
defendants are sued jointly proceedings → if one
or in a common cause of defendant raises a special CONSOLIDATED BANK V. COURT OF APPEALS
action → only when it is defense not applicable to (1990): here, a judgment of the CA was rendered.
separable. others, then, it shall render
a separate trial and render o What constitutes a valid rendition of a judgment?
- EXAMPLE order separate judgment only for Signed and filed to the COC.
separate trials. that defendant. o In the decision of the CA (3 justices), it was signed
first by the ponente, and thereafter to the senior
Once judgment against one
member, then to the junior member.
is made, the action may
 His decision was concurred by the other two
proceed against the other.
members of the division.
 While it was in the junior member, the
CERTAIN PROCEEDINGS WHICH HAVE MULTI- ponente died.
TIERED ISSUES: the determination of one issue is
 Then, after he junior member signed it, the
already subject to a separate judgment: decision was delivered to the COC, three
days after the death of the ponente.
 EXAMPLE: expropriation proceeding:  Then the same division annulled the decision
(1) Right for expropriation: separate judgment. for being tardily promulgated.
 Authority AND for a public purposes. o Was that correct? YES.
 If the court finds for the plaintiff, the o In a single sala court, decision may no longer be
court will issue order of expropriation. promulgated after the death of the judge, and the
(2) Determination of the just compensation, same is also binding to collegiate courts.
subject to a separate judgment. o Was that a valid rendition of judgment? NO, valid
 The disposal of the first issue is already appealable, annulment.
without awaiting for the next issue to be resolved. o SC: a decision becomes binding only upon its
 The judgment of just compensation can likewise be promulgation → delivery to the COC.
appealed. o If a member of the collegiate court has already
 In case the court renders separate judgment, the vacated his office, by death, then his vote is
court may order STAY ITS automatically withdrawn.
ENFORCEMENT/execution while waiting for the
resolution of the second issue, and may prescribe
conditions as necessary to secure the benefit
JUDGMENT UPON A COMPROMISE:
thereof in whose party the judgment is rendered →
immediately appealable.
 So you can enforce it, only when it is final
and executory. WORLD MACHINE V. IAC (1990): JR Lithoplates
acquired a printing press machine from World Machine,
payable in monthly installments. Because Lithoplates
defaulted, World Machine commenced action. At the
101
Plaintiff, in one complaint, against the same defendant, may join hearing, they presented a compromise agreement on the
collection of 1M, rescission of a contract, an action from damages basis of which the court rendered a decision, settling the
arising from quasi-delict, specific performance (need not arise from the schedule of three payments to be made. Lithoplates filed
same contract or transaction or relations of the parties) → present to pay the stipulated amount on the second payment, so
rules on joinder only subject to the four rules. So the court will first on motion, the court issued a writ of execution. Lithoplates
consider the first cause of action, then dispose of that, and render a filed motion insisting that there was an extension of time
SEPARATE JUDGMENT on that. Then it will hear the second, then the granted to him by World Machine, and when this was
third, and the last cause of action.
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denied, Lithoplates appealed. CA sustained.
o SC: NO, a judicial compromise has the force of law,
and is conclusive between the parties, and it has
upon them the result of res judicata.
o The claim that there was an extension period was
not in the decision.
o Court applied herein the parole evidence rule: when
an agreement has been reduced to writing, then
that writing is deemed to have contained all the
terms of their agreements and no party is allowed to
present any other evidence/parole evidence to
contradict the terms and conditions of the written
agreement.
 It is deemed to be the sole and only
repository of the agreement of the parties.
 When not there: deemed waived or
abandoned.
SUAREZ V. COURT OF APPEALS (1991): respondent
common law wife (with a child) filed a petition for habeas
corpus against her common law husband to recover the
custody of their minor child. Before she was finished
presenting evidence, she filed a motion to dismiss without
prejudice to file another action for custody of minor, to
determine as to who has a better right to the custody of
102
the minor (dismissal under SEC. 2, RULE 17 ). The
judge dismissed the case, but with prejudice (unless
otherwise provided).
o An action for custody is filed. Defendant filed a MTD
on the ground of res judicata, as the first case was
dismissed with prejudice. TC denied the MTD and
only granted the mother two visitation times and
custody of minor during Christmas season.
o ISSUE: was there already with prejudice?
o SC: The order of dismissal with prejudice is NULL
AND VOID for having been rendered without
expressing therein the facts and the laws upon
which it is based.
 TC should have decided whether the MTD
shall be allowed, and in pursuant to SEC. 2,
RULE 17.
 Foremost, the TC did not state the facts of
the on which it is based → pero pilit „yan,
pero tama naman din.
 Here, under such terms and conditions
therein.
NOTE: The purpose of the plaintiff in dismissing the first
action for a writ of habeas corpus was not to end litigation
concerning the right of the former to the custody of her
child but on the contrary, to pursue it in a second action,
this time for custody of minor. It is worthy to note that the
ground upon which respondent Manese filed her motion
for dismissal is erroneous since the question as to who
shall have the custody of the child can be sufficiently
resolved in the petition for writ of habeas corpus pursuant
to Rule 102, Revised Rules of Court without the necessity
of filing a separate action under Rule 99 of the said rules
102
Dismissed upon motion of the petitioner by leave of court, after
service of action.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
for that purpose. Nevertheless, it is error for the trial court
to dismiss the first case with prejudice to the filing of the
second action without stating the reasons or basis thereof
This should not prevent the filing of the second action for
custody of minor, since no opportunity was granted by the
trial court to the plaintiff to raise this issue for the
determination of the court in the habeas corpus case.
Hence, We believe that the order of dismissal of the
petition for the writ of habeas corpus cannot be considered
as a valid adjudication on the merits which would serve as
a bar to the second action for custody of minor.
AMBIGUITY IN THE DECISION: can that be a subject for
clarification? YES, in the same court.
PHILINVEST V. COURT OF APPEALS (1993): due to the
apparent ambiguity of the TC, the remedy of the two
defendants was to ask for clarification to the TC before
interposing an appeal.
 The TC has jurisdiction to clarify its own decision,
even after their finality.
 But herein, the decision was appealed immediately
to the CA, the said court can clarify the ambiguity in
deciding on the errors sought thereof instead of
remanding it to the court of origin.
 When there is ambiguity, and judgment shall be
read in connection with the entire record then
construed accordingly.
 In such a case, it is proper to construe the pleadings
and the evidence.
PEOPLE V. CFI QUEZON (1993): a criminal case for
attempted rape was tried and submitted for decision in
Branch X, preside by Judge Nañadiego. However, he
retired, without deciding the case. Judge Montecillo of
Branch III was designated to take over Branch X. The
attempted rape case decided by Judge Montecillo on May
22. On June 9, Judge Antona was appointed as presiding
judge of Branch X. on June 20, the COC promulgated the
decision of Judge Montecillo.
o ISSUE: is that decision valid (acquitting the
accused)? VALID.
 People’s contention: it was promulgated, but
the judgment of acquittal was penned by
Judge Montecillo.
o SC: it is not necessary that he be the presiding
judge of Branch X at the time the decision is
promulgated.
 Even in the expiration of his temporary
designation at Branch X, he continued to be
the incumbent judge of Branch III.
 After all, where a CFI is divided into several
branches, each of the branches is not a court
distinct and separate from the others → it is
just one RTC.
 Jurisdiction is vested in the court, not in the
judges, so that when a complaint is filed
before one branch of judge, jurisdiction does
not attach to the said branch of that judge
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alone, to the exclusion of all other judges.
NOTE, APPLICATION: In the instant case, the judgment
of acquittal penned by Judge Montecillo must be declared
valid. It is not necessary that he be the presiding judge of
Branch X at the time his decision was promulgated since
even after the expiration of his temporary designation at
Branch X he continued to be an incumbent of Branch III.
After all, where a Court of First Instance (now Regional
Trial Court) is divided into several branches, each of the
branches is not a court distinct and separate from the
others. Jurisdiction is vested in the court, not in the judges,
so that when a complaint or information is filed before one
branch or judge, jurisdiction does not attach to said branch
of the judge alone, to the exclusion of the others. Judge
Montecillo penned the decision on 22 May 1978 while his
temporary designation at Branch X expired only on 10
June 1978 when Judge Antona qualified for the position.
And, Judge Montecillo was still an incumbent judge of the
Court of First Instance of Quezon, being then the
permanent judge of Branch III, at the time his decision was
promulgated. Thus, he continued to possess authority to
dispose of the case. In fact, even after his temporary
designation, he continued to have authority and could
decide the case as it was one of those submitted to him
for decision during his detail.
Stating upon the facts and laws upon which it is based:
GRIÑEN V. CONSOLACION (1962): the decision of the
judge was a one-page decision. The auditor of the PCS
sent a letter-complaint to the City Prosecutor, requesting
evaluation of the evidence gathered against Grinen, the
cashier of PCS. When the prosecutor initiated an
investigation against Grinen, Grinen filed a petition with
the court to stop the proceedings, as there was no
complainant.
o TC: issued a brief decision.
o ISSUE: did the decision not state clearly and
distinctly the facts and law on which the decision is
based?
o SC: the decision satisfies the requirements here of
the constitution:
(1) It stated the facts on which it is based: a
judge only must make pertinent findings of
facts and conclusion upon the pertinent
matter.
 ULTIMATE TEST: Whether they are
comprehensive enough and pertinent
to the issues raised and provide a
basis for the decision.
(2) LAW.
NOTE: The trial judge need only make a brief, definite and
pertinent findings and conclusions upon controverted
matters. The ultimate test to the sufficiency of trial Court's
findings of facts is whether they are comprehensive
enough and pertinent to the issue raised to provide a basis
for decision. When the issue involved is simple, the trial
court is not required to make a finding upon all the
evidence adduced. It must state only such findings of facts
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
as are within the issue presented and necessary to justify
the conclusions (Ongsiako vs. Magsilang, 50 Phil. 7380; I
Moran's Rules of Court, 3rd Ed., pp. 617; 618).
FABULAR V. COURT OF APPEALS (1982): res judicata,
where the court loses jurisdiction of the case when the
judgment attains finality.
o This is a land registration case. The court confirmed
title to the applicant and ordered the applicant to
pay the oppositors of P20, the value of the two non-
bearing coconut trees found to have been planted
by the oppositor’s father therein. The decision
became final and executory. Two months after the
issuance of the writ of execution and four years
after the promulgation of the decision, the court,
upon the oppositor’s motion amended the writ of
execution by declaring the oppositor the owner of all
the coconut trees and ordering the applicant to pay
him P20 per tree.
o This amendment, according to the TC, was made to
conform to the substance of the decision.
o SC: a final judgment cannot be modified, the
dispositive portion, NOT the ratio decidendi thereof,
is controlling.
NOTE: Settled is the rule that after a judgment has
become final, no additions can be made thereto, and
nothing can be done therewith except its execution;
otherwise, there would be no end to litigations, thus setting
at naught the main role of courts of justice, which is to
assist in the enforcement of the rule of law and the
maintenance of peace and order, by setting justiciable
controversies with finality. (Fariscal Vda. de Emnas vs.
Emnas, 95 SCRA 474). In the present case, it is beyond
the power of the lower court or this Court for that matter, to
modify the former's judgment which had long become final
and had in fact been executed.
PAJARITO V. SENERIS (1978): the accused was
charged with double homicide through reckless
imprudence. The information alleged that he was driving a
bus at the time of the accident, owned and operated by
Ayson. Upon arraignment, the accused pleaded guilty. He
was convicted and sentenced to pay indemnity of P12,000
to the heirs of the victim. A writ of execution was issued
against the driver, but returned unsatisfied. Whereupon,
the mother of the victim filed an alias writ of execution
against the employer of the accused-driver/owner of the
bus. The TC denied the motion, as the owner is not a
party to the criminal case, which is a violation of due
process.
o PROPER REMEDY: if the employer cannot pay the
award of civil liability in the criminal judgment, and
you want to enforce the subsidiary liability of the
employer, file a case.
o But here, the SC said even if the employer is not a
party of the case, an alias writ of execution may still
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issue without violation of the due process. 2) A second motion for the rule that the motion
o Can judgment be enforced upon him? YES. new trial on a ground must specify specific
o The writ should be issued and it may be enforced available to the party matters;
against the employer as the judgment of conviction when the first motion 3) It failed to substantiate
is CONCLUSIVE upon the employer, not only with was filed. the alleged errors;
the latter’s civil liability, but also with respect to its 4) It merely alleged that
amount thereof. the decision in question
o To require the petition to file a separate case for the was contrary to law;
liability of the employer will not only prolong the 5) The adverse party was
litigation, but require unnecessary expenses. not given notice
o RE: claim that he was no longer the owner → that thereof.
issue could have been ventilation in the hearing for WHEN: 15 to 30 days → within the period to file/perfecting
the issuance of the alias writ. an appeal.
o PRINCIPLE: When a judgment in a criminal case is EFFECT: period to appeal is not interrupted (SEC. 2).
rendered against an employee for civil damages,
the employer is only SUBSIDIARY LIABLE: the
When is a Motion for New Trial (MNT), if the ground is
judgment awarding damages against the driver is FAME, considered as pro forma? There is no AFFIDAVIT
conclusive upon the employer. OF MERIT.
 When does subsidiary liability attach? Only
when the principal debtor is insolvent. GROUND: NEWLY CONSIDERED EVIDENCE:

1) If testimonial evidence: attach to the motion their

OCTOBER 13, 2016 affidavits of the witnesses that were newly
discovered, stating that evidence was not
discovered, or
RULE 37: NEW TRIAL OR RECONSIDERATIONS 2) Authenticated documents.

SEC. 2: what are the FORMAL REQUIREMENTS of a

MNT/R? To not be considered as NOT pro forma:
SEC. 1: Is there a distinction between MNT and an MR?
(1) It must be in writing;
(2) State the grounds therefor;
MOTION FOR NEW TRIAL MOTION FOR (3) Written notice shall be served on the adverse party
RECONSIDERATION by the movant.

GROUNDS: GROUNDS: NOTE: just comply for the requirement of a motion.

1) FAME, which ordinary 1) Damages awarded are  This notice requires compliance with:
prudence could not excessive; 1) RULE 13: three-day notice rule.
have guarded against 2) The evidence is 2) Notice of hearing must state the date and
and by reason of which insufficient to justify the time of the hearing.
such aggrieved party decision or final order;
has probably been or SUBSTANTIVE REQUIREMENTS: non-compliance shall
impaired in his rights; 3) The decision or final not toll the reglementary period of appeal.
2) Newly discovered order is contrary to law.
evidence. (1) MOTION FOR NEW TRIAL:
a. FAME: must be supported by affidavit of
Procedurally, is there a difference? YES. merits, containing:
i. the facts and circumstances
constituting the FAME, and
ii. he has a good and meritorious
MOTION FOR NEW TRIAL MOTION FOR
defense.
RECONSIDERATION
b. Newly discovered evidence: supported by:
i. affidavits of the witnesses by whom
WHEN CONSIDERED WHEN CONSIDERED such evidence is expected to be given
PRO FORMA: PRO FORMA: (testimonial),
ii. duly authenticated documents
1) Not supported by 1) It was a second MR. which are proposed to be introduced
103
affidavits of merits 2) It did not comply with in evidence (documentary).

NATURE OF THE NEWLY DISCOVERED EVIDENCE:

103
Must contain: the following must concur:
1) The circumstances constituting the FAME; a. The evidence have been discovered after the trial.
2) That the movant has a substantial cause of action or
defense.
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b. It could not have been discovered and produced  There will be NO new trial and
at the trial even with exercise of reasonable the court will re-examine the
diligence; law/evidence.
c. It must be material and not merely collateral,  EFFECT: the original judgment
cumulative, corroborative or impeaching; and will also be vacated / modified.
 It is necessary to support the motion with the  If before, party 1 won, the
affidavits of the witnesses that was newly movant will now win as the
discovered, or the documents. court.
 If you do not attach that, the court cannot  The court will render another
determine whether they would change the decision, different from the first.
result of the case, if admitted.
 Also applicable to FAME → must state the WHEN IS FRAUD A SUFFICIENT GROUND FOR NEW
circumstances to become the basis of the TRIAL? As when a party was not able to present his case
court in granting new trial. properly.
 Also if no statement of good and meritorious
defense, it will be an exercise of futility.  He was misled by the other party, such that he was
d. The evidence is of such weight that if admitted not able to properly present his side.
would probably alter the result of the action.  EXTRINSIC FRAUD: unlike when lifting order of
default, as then it will be VERIFIED.
(2) MOTION FOR RECONSIDERATION: necessary:  Here, just the affidavits.
a. Must point out specifically the findings and  If there is already a judgment, do not file
conclusion of the judgment or final order MTLOOD, but file a MNT.
which are not supported by the evidence or  If the judgment is already final and
which are contrary to law. executory, then file a petition for relief from
b. The evidence on record which is contrary judgment (RULE 38).
to the conclusions made by the court.
 State/pinpoint the evidence which the BEFORE JUDGMENT Motion To Lift Order of
court has overlooked. Default (FAME)
 So that the court will know what are
AFTER JUDGMENT BUT Motion for New Trial
the evidence contrary to its decision.
NOT YET FINAL AND (FAME)
c. The provisions of law which the court did
EXECUTORY
not apply.
 If the court misinterpreted the law, cite WHEN JUDGMENT IS Petition for Relief from
the proper jurisprudence interpreting FINAL AND EXECUTORY Judgment (FAME)
that law.
 RULE 47: annulment of judgment, FRAUD ONLY.
OTHERWISE, it shall be considered a pro forma as the  When is FRAUD EXTRINSIC?
court will not know that its decision is contrary to the
evidence / law.

What happens if a MNT is GRANTED? SEC. 6: the INTRINSIC FRAUD EXTRINSIC FRAUD
original judgment or final order shall be vacated, and the
action shall stand for trial de novo. Refers to acts of a party Connotes any fraudulent
during the trial which does scheme executed by the
 But the recorded evidence taken upon the former not affect the prevailing party outside of
trial, insofar as the same is material and competent presentation of the case. the trial against the losing
to establish the issues, shall be used at the new party who because of such
trial without retaking the same. fraud is prevented from
 The court will then conduct a new trial. presenting his side of the
 If it is based on fraud, then substantial by evidence case.
that there was fraud. EXAMPLE: presentation of Prevent witness from
 There is a hearing. a forged promissory note. testifying.
 Then if there is a substantial defense, the
court will grant the motion and a new trial will
be conducted.
ASIAN SURETY V. ISLAND STEEL, INC. (1982): Island
 Similarly, if the ground for NT is newly
Steel filed a suit for recovery of sum of money against
discovered evidence, and the court believed
Asian Surety on the basis of the bond issued by the surety
the same (requisites are complied with), the
to guarantee the performance of the obligation of a certain
court will now vacate the original judgment
Villanueva. Villanueva obtained a bond as they entered
and set the case for new trial.
into an agreement for the buying of GI sheets on credit
 Subject: present the newly discovered
from Island Steel. Asian Surety put up the performance
evidence.
bond, and it will pay in the event that Villanueva fails to
 Is that the same procedure if an MR
pay its obligation. Villanueva failed to pay for the delivery
is granted? NO.
of the sheets. For failure to pay the obligation, Island Steel
demanded and sued Asian Surety. The trial court

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rendered a judgment, ordering Asian Surety to pay Island
Steel the obligation of Villanueva pursuant to the bond
issued.
o An appeal was made to the CA, and CA affirmed
the judgment of the trial court.
o There was an attempt to go up to the SC, but there
was failure to file the petition for review within the
extended period granted by the court → the
judgment became final.
o Asian Surety sought for the annulment of judgment
on the ground of fraud.
 Allegation: there was non-delivery of the
goods at all.
 It was a purchase which is moro moro (there
was no sale at all).
 And that ultimately, the surety would
have to pay, and the actions of
Villanueva and Island Steel are
fraudulent.
 Only for the purpose of making Asian
Surety liable for the amount.
 In short, the fraud committed by the
defendants is INTRINSIC FRAUD.
o ISSUE: is that a proper ground for a MNT, or a
petition for relief of judgment?
o SC: NO, it was NOT extrinsic fraud.
o It is not that fraud which can be a ground for
annulment of judgment, or relief from judgment, or
new trial, as it is INTRINSIC FRAUD.
 It is a fraud that did not prevent the party
from presenting his case.
 MEANING: it can be the very issue/merits in
the case, or a defense that could have been
raised in the case.
 If not raised as a defense, then deemed
waived.
o What kind of fraud can be a ground for the
following? It must be extrinsic fraud committed by
the winning party.
NOTE: The finding of the Court of First Instance in Civil
Case No. 51586 that there was indeed delivery of the
goods to Villanueva by the appellee pursuant to a contract
to sell entered into in good faith, as affirmed by the Court
of Appeals sub silentio, laid to rest the issue as to validity
of the said contract to sell as well as the fact of delivery of
the goods in question. To allow Asian Surety to revive the
same question by the instant action to annul the judgment
would not only violate the rule of res judicata, but would
encourage the appellant's contumacious resistance of a
just and valid obligation. Hence, the order of dismissal of
the complaint for annulment of the decision in Civil Case
No. 51586 should be affirmed.
DEMETRIOU V. COURT OF APPEALS (1994): here is a
property owner who sold his property to Demetriou. The
property is covered by a TCT, which has two copies (one
is the original on file in the RD, and the other is in the
possession of the owner [owner’s duplicate certificate of
title]). The TCT was delivered to Demetriou but he did not
have it registered under his name in the meantime. As it
stands, the property is still registered in the name of the
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
previous owner. The original owner/seller filed a petition
for the reconstitution of a loss/destroyed owner’s duplicate
of certificate of title. Because of that, the LRC granted the
petition and ordered the issuance of a new CT. Demetriou
learned about it, and he filed a petition for annulment of
judgment on the ground of fraud.
o SC: The fraud committed in this case is INTRINSIC,
and that is not the kind of fraud as a proper ground.
o LR case: the whole world is constructively notified.
o EXTRINSIC: any fraudulent act of the prevailing
party in the litigation which is committed
outside of the trial of the case, whereby the
defeated party has been prevented from
exhibiting fully his side of the case, by fraud or
deception practiced on him by his opponent.
o In this case, the fraud committed by the seller was
not the kind of fraud that prevented the party from
presenting his case.
o That issue should have been a ground to oppose
the petition for reconstitution.
 But that is not a ground for annulment of
judgment, or for petition for relief from
judgment, or a MNT, or a ground to lift order
of default.
NOTE: The appellate court is certainly right in holding that
the use of a false affidavit of loss does not constitute
extrinsic fraud to warrant the invalidation of a final
judgment. The use of the alleged false affidavit of loss by
private respondent is similar to the use during trial or
forged instruments or perjured testimony. In the case at
bar, petitioners were not really kept out of the proceedings
because of the fraudulent acts of the private respondent.
They could have rebutted or opposed the use of the
affidavit and shown its falsity since they were theoretically
parties in the case to whom notice had been duly given.
EXAMPLE OF EXTRINSIC FRAUD: Where a party served
his motion to set and notice of hearing on the collaborating
attorney at the time when the said attorney was absent,
when all previous notices were sent in the principal
counsel.
FRAUD BY A CO-DEFENDANT: Is fraud committed by a
co-defendant sufficient ground for new trial?
 RULE: fraud must be committed by the kalaban.
 OLD CASE: the judgment will not be set aside if the
defendant has been a victim of his co-defendant.
 It shall not affect the right of the plaintiff who has
obtained judgment.
 BUT, it would be different if the co-defendant
connived with the plaintiff, but that must be shown.
WHEN IS ACCIDENT A SUFFICIENT GROUND FOR A
NEW TRIAL? Where the aggrieved party failed to attend,
say, due to a vehicular accident or illness.
 Or where his Answer field within the period
prescribed by the rules sent by mail was lost in the
mail.
 The filing in the post office is the filing in
court.
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 The responsibility of such failure must not be
imputed to the party.
 The post office has been chosen as
an agent through which the court may
be notified.
 The failure of the agent to make a
delivery does not constitute failure
and cannot be contributed as
negligence on the part of the
defendant.
 Sufficient ground for NT.
WHEN IS MISTAKE A SUFFICIENT GROUND FOR A
NEW TRIAL? Where a party failed to answer and appear
at the trial, put up a defense for the reason of a pending
compromise agreement believed in GF that it was not
necessary for him to appear on trial, there was a
MISTAKE which will constitute NT.
 Is mistake of an attorney a ground for a NT? NO,
NOT generally a ground for NT.
 Mistake, lack of foresight or preparation on
the part of an attorney will not be admitted as
reason for NT.
 Otherwise, there would never ben an end to
the suit so long as new counsel employed
can show that prior counsel was insufficient,
not diligent, or learned.
 HOWEVER, where the incompetency of the
counsel was so grave, that the defendant was
prejudiced, as when failed to present his defense,
or because of some serious error on the part of the
attorney in the conduct of the case, the MNT shall
be granted.
WHEN IS NEGLIGENCE A SUFFICIENT GROUND FOR
A NEW TRIAL? EXCUSABLE negligence.
 It would depend upon the circumstances of the
case.
 There is a standard: negligence is EXCUSABLE
where it is caused by failure to receive notice of the
action or trial by a genuine miscalculation/mistake
upon reliance to a well-founded belief that the case
will not reach trial or by circumstances not involving
fault of the parties, by reliance to the assurances of
the other party within whom they depend.
 The standard here of care required: which an
ordinary prudent man bestowed on his important
business.
NEWLY DISCOVERED EVIDENCE:
(1) Discovered after trial;
(2) Could not have been discovered by due
diligence;
(3) It would change the results if admitted.
TUMANG V. COURT OF APPEALS (1989): this a quarrel
between two siblings. Tumang was contending that she
was the original owner of a parcel of land in Baguio City.
She sold that property to her brother-in-law and her sister.
After the sale, Tumang filed an action to annul the sale on
the ground that the sale was fictitious/simulated (no
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
consideration). According to Tumang, the property was
just placed in trust to enable his brother-in-law, who is an
employee in the BIR to ―puff up‖ his personal holdings, as
they are required to make a full disclosure of all their
properties. The defendants denied the allegations. After
trial, judgment was rendered in favor of Tumang, annulling
the sale as fictitious. CA affirmed the decision of the TC.
After CA’s decision, but before its finality, defendants filed
104
a MNT on the ground of newly discovered evidence.
The receipts signed by the Tumang, having received the
payment for the purchase price, were discovered after the
trial because of a typhoon, and they found them in an old
desk. CA granted MNT.
o SC: These receipts are properly considered as
NEWLY DISCOVERED EVIDENCE.
o Even by the exercise of due diligence, katagal na
noon.
o These receipts which were previously believed to be
lost and gone, found in a bottom back portion of an
old desk, in the course of a general cleaning, due to
flood caused by heavy rains, could hardly been
located even upon exercise of reasonable diligence.
o All the elements were there.
NOTE: A motion for new trial upon the ground of newly
discovered evidence, is properly granted where there is
concurrence of the following requisites, namely:
a) the evidence had been discovered after trial;
b) the evidence could not have been discovered and
produced during trial even with the exercise of
reasonable diligence; and
c) the evidence is material, and not merely
corroborative, cumulative, or impeaching and is of
such weight that if admitted, would probably alter
the result.
It seems quite reasonable to assume that the respondents
would have exerted all efforts to locate the receipts earlier;
it was clearly in their interest and to their advantage to
have presented them during the trial had they in fact been
effectively available to them at that time, since the receipts
appear to contradict petitioner's express denial of receipt
of any money in connection with the transfer of 9/10 of her
interest in the property involved. The receipts also appear
to support respondent spouses' defense that the three (3)
documents nullified by the trial court were not simulated
merely to avoid possible anti-corruption charges against
respondent Daniel del Mundo but had in fact been
executed for value. The receipts are, in other words,
apparently of such import that a reasonably prudent man
would have most diligently searched for them. There is no
question then that the receipts involved are material and
relevant to the issue of lack of consideration, and could
possibly effect a change in the result reached by the trial
court.
BELAMIDE V. COURT OF APPEALS (1979): this is a
land registration case. ISSUE: Whether the land was
104
BTW, in the TC, the ground for MNT are two (FAME, and newly
discovered evidence). In the CA, only newly discovered evidence.
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acquired during the first marriage of Vicenta Montoya to
Martine Montoya, or the second marriage of Vicenta
Montoya to Velardo.
105
o TC: property was acquired during the second
marriage and accordingly divided the property: ¼ to
the heirs of the first marriage, ¾ to the heirs of the
second marriage.
o CA: affirmed.
o Thereafter, a MR and MNT were filed by the heirs of
the second marriage, the basis of which is that they
discovered that Exhibit 8 (―Birth Certificate‖) of the
oppositors, the heirs of the first marriage, was
falsified.
 While in the official records of the Civil
Registrar of Silang, Cavite, shows that the
name of the father was on blank in the
original records.
 Exhibit 8 falsely indicated that the father was
Montoya (superimposed).
 That that person was forcedly declared as an
heir.
o ISSUE: Is this newly discovered evidence?
o SC: NOT newly discovered as it did not comply with
the second requirement, that it would not have been
discovered despite exercise of reasonable
diligence.
o Petitioners should have attacked the genuineness
of the BC when presented in the TC, as they had
every opportunity to check it in the Civil Registrar of
Silang.
 They did not do it.
o These documents are public documents available to
anybody.
o It was not attacked when originally presented in the
court, and they should have exercise reasonable
diligence during the trial by checking the authenticity
of the document.
 In TUMANG, the receipts were believed to
have been gone forever, as the sale was
long time ago.
o First and last elements were present, but not the
second.
NOTE: There can be no grave abuse of discretion by the
Court of Appeals in denying petitioners' Motion for New
Trial. The document alleged to be falsified (Exh. 8) was
presented in the trial in the lower court. Petitioners should
have attacked the same as falsified with competent
evidence, which could have been presented, if they had
exercised due diligence in obtaining said evidence, which
is Annex "A" to the Motion for New Trial (Annex F to
Petition). It is, therefore, not a newly discovered evidence
that could justify a new trial (Rule 37 [1-b], Rules of Court).
AFFIDAVIT OF MERIT: the one which recites:
105
NOW, before you remarry, you must liquidate the properties of the
first marriage. Otherwise, the second marriage would be NULL AND
VOID, although the children in the second marriage would be
considered legitimate. REASON: precisely, so that the two sets of
children will not be in conflict.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
1) The nature and character of the FAME on which the
Motion is based,
2) Movant’s good and substantial cause of action or
defense,
3) The evidence he intends to present when the
motion is granted.
NOTE: there is substantial compliance with the affidavit of
merit if FAME is incorporated in the main motion itself,
provided the motion is VERIFIED, rather than preparing
affidavits of merits.
 Usually, the form is: motion, verification.
EFFECT OF FAILURE TO FILE AN AFFIDAVIT OF
MERIT: GENERAL RULE: a MNT would be fatally
defective if it is not supported by an Affidavit of Merit.
 EXCEPTION: when the MNT is demandable as a
matter of right, as when the judgment and order is
null and void, as when the court has never
acquired jurisdiction over the person of the
defendant or that it has no jurisdiction over the
subject matter.
 SANTOS V. PNOC: Santos used to be a member
of the BOD of PNOC, and a car plan was given to
him as one of the perks.
 Santos failed to pay, and a case was filed
against him. Summons could not be served
as he transferred residence. The court
granted service of summons by publication.
Trial ensued. After the presentation of
plaintiff’s evidence but before judgment
could be rendered, Santos filed a Motion to
Lift Order of Default and to Admit Answer.
 SEC. 14, RULE 14 applicable?
 TC ruled that he was effectively in default.
 BUT the SC ruled that there was no Motion
to Declare Default, so the defendant cannot
be in default.
 But the argument should have been on
jurisdiction → over the person of the
defendant.
 HOWEVER, the SC in this case ruled that
there was jurisdiction over his person as
there was publication.
 If under the exceptions, there is no need for
affidavit of merit.
SEC. 6: EFFECT: the action shall stand for new trial, BUT
the recorded evidence, insofar as competent, shall be
used in the NT without retaking them.
 Is trial de novo always the effect of granting the
motion? NO, if it is MR, as when it awarded
excessive damages or when the judgment is
contrary to law or jurisprudence, the court will just
amend its judgment without granting a new trial
(SEC. 3, RULE 37).
SEC. 4: must be resolved within THIRTY (30) DAYS from
the time it is submitted for resolution.
 TC: 90 days to render judgment from the time it is
submitted from decision.
 CA, appellate collegiate courts: one year.
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 SC: two years.

SEC. 5: May a second Motion for New Trial or
Reconsideration be permissible? NO, those not included
are deemed waived (Omnibus Motion Rule).
 BUT if based on the ground not existing nor
available when made, may be filed.
 If you file a MNT on the ground of fraud, and
while it was pending, you discovered that
you had newly discovered evidence.
Meaning, the second ground was not yet
present when the first MNT was filed.
 If both grounds are existing at that time, then it
shall be waived.
Second MR for a judgment or final order: NOT ALLOWED.
 It is equitable in character: it is only allowed in
EXCEPTIONAL CASES.
 Only when there is no other available or
other adequate remedy.
 But if there are other available remedies, it
cannot be used.
 Because of its equitable nature, it is not
regarded with favor, as the judgment is
already final and executory.
 A judgment will not be voided if the party
complaining has by exercising proper
diligence have adequate remedy at law.
 Can only be availed if there is no other available or
adequate remedy at law, or if there is, HOWEVER,
through negligence, it was not availed of, then this
CANNOT be resorted to.

 If plaintiff files a complaint, and a MTD is filed by

the defendant, the period to file Answer is tolled,
and the TC denied the motion.
 May a party file a MR to the order denying a
MTD?
 Assuming he filed a MR, will the tolling within
which he could file an Answer still continue?
 Suppose after the denial for the first MR, the
defendant files a second MR, is that allowed?
FRANCISCO V. PUNO (1981): defendant was declared
as in default for failure to attend Pre-Trial, and the plaintiff
is allowed to present evidence ex parte. He filed an MR of
106
the order declaring him as in default. The same was
denied. He did not question the denial. What he did was
that he allowed the judgment to become final and
executory. After that period, he filed a petition for relief
from judgment under RULE 38.

SEC. 7: PARTIAL NEW TRIAL OR o ISSUE: is that proper? NO, where another remedy
RECONSIDERATION: the court may order a new trial or is available, when in fact the defendant here had
grant reconsideration as to such issues if SEVERABLE filed an MR of such order, and when it was denied,
without interfering with the judgment or final order upon he allowed the judgment to attain finality, then
the rest. alleging practically the same ground in his MR to his
present petition for relief, which was already
SEC. 9: REMEDY OF DENIAL: NOT appealable, the previously denied by the court, what he should have
remedy being an appeal from the judgment or final done is to take in the higher courts the question of
order, but not from the denial of the order denying the such denial.
same. o An MR was a remedy available at law, BUT IT
DOES NOT END THERE.
 Usually, in practice, what they do is that they  If that is denied, you should have questioned
appeal both. that to the other courts.
 If not, the judgment itself, which has become
final and executory, magtuloy „yan.
RULE 38: RELIEF FROM JUDGMENTS, ORDERS, o THEY ARE EXCLUSIVE OF EACH OTHER.
OR OTHER PROCEEDINGS  It is only in appropriate cases where an
aggrieved party who has not been able to file
a MR/MNT that a petition for relief can be
filed.
MOTION FOR NEW TRIAL V. RELIEF FROM  If there are remedies at law, and the party
JUDGMENT: MNT on the grounds of FAME is fails to avail of them, they cannot later on
substantially similar to Relief from Judgment. resort to a petition for relief from judgment.
 An appeal is a remedy at law which is
 Difference: available at the time when it was rendered.
o He should have appealed the same, as it was a
remedy at law when the judgment is not yet final.
MOTION FOR NEW TRIAL RELIEF FROM
JUDGMENTS
WHEN FILED: Before Filed after the judgment has 106
MR: when the defendant is declared as in default, to the order
judgment has become final become final and allowing the plaintiff to present evidence ex parte; file an MR of the
and executory. executory. order declaring him as in default.
FAME and newly FAME only. MTLOOD: it is not enough that you state the FAME, and that you have a
discovered evidence. meritorious defense, like in a new trial, and verified.
NOTE: where a party fails to appear during the PT, the court declares
the defendant AS in default, as practically, the defendant cannot
NATURE OF PETITION FOR RELIEF FROM
participate in the trial because the plaintiff is allowed to present his
JUDGMENT: an equitable remedy.
evidence ex parte.
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NOTE: A party who has filed a timely motion for new trial
cannot file a petition for relief after his motion has been
denied. These two remedies are exclusive of each other. It
is only in appropriate cases where a party aggrieved by a
judgment has not been able to file a motion for new trial
that a petition for relief can be filed.
FAJARDO V. BAYONA (1956): petitioner’s appeal was
dismissed. What he did was to question the dismissal of
his appeal by the TC through a petition for certiorari under
RULE 65, which was denied. Instead of going further to
the SC, what he did was to later on to question through a
petition from relief of judgment.
o ISSUE: is that correct? NO.
o It was already a judgment: affirmed by the appellate
court.
o You lost it, you cannot avail of it anymore via a
petition from relief of judgment.
o When a remedy at law has been availed on, and
you lost it, can you still avail of RULE 38? No more.
 Unless there was no remedy attributed to a
fault of his own.
o One of the most important principles underlying our
rules of procedure is that denying multiplicity of suits
or remedies.
NOTE: The remedy under Rule 38 is to be availed of only
in exceptional cases, and where there is other remedy at
bar, it should not be allowed to be used. In the case at bar,
aside from petitioner's fatally defective affidavits of merits,
the presentation of the petition for relief for the purpose of
securing an appeal from the judgment should not be
allowed petitioner because he already had the opportunity
to prosecute or compel the allowance of his appeal from
the judgment, when he instituted the action of certiorari
and mandamus against the judge who had refused to
approve his record on appeal.
When and on what grounds may a party file a petition for
relief from judgment?
SECS. 1 and 2: A party may file a petition from relief of
judgment when he has been unjustly deprived from
attending the hearing, or prevented from taking an appeal,
on the ground of FAME.
 In another case, may a petition for relief filed by a
party prosper when previously his appeal was
dismissed, and upon dismissal, he filed a certiorari
proceeding? NO MORE (FAJARDO), as the first
remedy pursued is a remedy at law.
 The vicious practice in which the party fails
to pursue a legal remedy and later abandons
and prosecute that inequity, there would be
no end to litigation, or the parties will be
allowed to avail of the remedies one after
another.
 THEREFORE, availed only in exceptional
cases, and when there is another remedy
at law, it should not be allowed to be
pursued.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
SEC. 3: within what period must a PRJ be filed? Within
SIXTY (60) DAYS after petitioner learns of the
judgment, final order or other proceeding, AND Not
more than SIX (6) MONTHS after such judgment or
final order was entered, or such proceeding was
taken.
 OTHER PROCEEDINGS: unable to appeal on time
due to FAME.
 ENTRY OF JUDGMENT: when it has already
become final and executory.
 TWO PERIODS THAT MUST CONCUR:
(1) SIXTY (60) DAYS from knowledge or from
the time petitioner learns; AND
(2) SIX (6) MONTHS after the judgment and
final order was entered or such proceeding
was taken.
 MUST ACCOMPANY: Affidavits showing FAME
and the facts constituting good and substantial
defense as the case may be.
 Is the period for filing PRJ EXTENDIBLE? NO, as
this remedy is merely an act of grace or
benevolence intended to afford the litigant a
penultimate opportunity to protect his interest.
 Considering the nature of such relief and the
purpose behind it, the period fixed for the
said Rule is not extendible, cannot be
interrupted, nor be subject to any
condition or contingency, as it was a
device to meet a condition or
contingency.
FORM AND CONTENTS: must be verified and must be
accompanied by affidavits showing FAME, and the facts
constituting good and substantial defense / cause of action
as the case may be.
 EFFECT OF LACK OF AFFIDAVIT OF MERIT: the
failure to accompany the same, showing the ground
relied upon, and the facts consisting good and
substantial defense is a FATAL DEFECT which
warrants the denial sought.
 It is the affidavit of merit which serves as the
jurisdictional basis for the court to entertain a
PRJ.
 But the affidavit of merit may be set forth in
the petition itself; it need not be on a
separate document, so long as the petition is
verified.
 Is there an instance where an AFFIDAVIT OF
MERIT is NOT required? In a PRJ if the judgment
or order complained off is an absolute nullity, as
when petitioner is deprived of his day in court for
the reason that the court never acquired jurisdiction
over the person of the defendant, or over the
subject matter of the suit.
 Go into the very jurisdiction of the court.
 Also bound by the period? NEITHER.
PROCEDURE: TWO-TIERED PROCEEDINGS:
FIRST PART:
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(1) If the petition is sufficient in form and substance:
court will issue an ORDER requiring the respondent
to Answer with FIFTEEN (15) DAYS from receipt.
 Served in the same manner as the court may
direct.
(2) Once the Answer is filed or the period has expired:
court shall hear the petition (SEC. 6).
 Present evidence of the FAME as alleged in
the petition.
(3) If allegations found FALSE: dismiss the same.
(4) If allegations found to be TRUE: issue an ORDER
setting aside the judgment, final order, etc.
 The case shall stand as if the judgment set
aside had never been issued or taken.
SECOND PART: when judgment has already been set
aside; after the issuance of set-aside order:
(1) The court shall proceed and hear the case as if a
timely MNT has been granted.
 Parang nag-37 ka.
 There would now be trial de novo.
SEC. 5: PROVISIONAL REMEDY that petitioner may take
advantage of pending the proceedings for relief:
PRELIMINARY INJUNCTION.
How many hearings does the court have? TWO.
(1) To determine whether the judgment, etc. should be
set aside.
(2) If the decision thereon is in the affirmative, hearing
on the merits of the principal case, where trial de
novo is conducted.
SEC. 7: IS TRIAL DE NOVO ALWAYS THE
CONSEQUENCE OF GRANTING A PRJ? Not
necessarily.
 If the petition is directed against an order or
proceedings of the court, as when the appeal is
dismissed and appellant questions the dismissal of
the appeal under RULE 38, and the petition is
granted, the appellant simply PERFECTS His
appeal, as if no previous dismissal was ever taken
at all.
In general, period of appeal is 15 DAYS. Now, the
th
appellant filed his notice of appeal on the 16 day. It was
dismissed, as an appeal can only be filed during that
period. It turned out later on that the last day of appeal fell
th
on a Sunday, in which case, the last day is on the 16
day, but the court did not take note of that. Therefore, the
appeal has been perfected on time or seasonably filed.
o MISTAKE „yun.
o But no trial de novo.
OTHER MODES OF ATTACKING A JUDGMENT: RULE
47.
ANURAN V. AQUINO (1918): Anuran, the widow of
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
Amborsio Aquino, after her death, the natural child of
Ambrosio’s sister instituted intestate proceeding of the
estate of the deceased, wherein a certain person was
appointed as administrator therein. The estate was later
adjudicated to the niece, nawala na si misis. The widow
moved to set aside. TC denied the motion as it was filed
after the lapse of more 6 months since the questioned
order was entered. She instituted then an independent
action to declare the action null and void, grounded on
fraud and collusion that prevented her from attending on
her case.
o Such fraud is EXTRINSIC OR COLLATERAL.
NOTE: There can be no question as to the right of any
person adversely affected by a judgment, to maintain an
action to enjoin its enforcement, and to have it declared a
nullity, on the ground of fraud and collusion practiced in
the very matter of obtaining the judgment, when such
fraud is extrinsic or collateral to the matters involved in the
issues raised at the trial which resulted in such judgment;
and fraudulent collusion between an administrator and a
third person resulting in an order or judgment whereby an
interested person is unjustly deprived of his rights in, or to
the estate under administration, has always been
recognized as a sufficient ground for the grant of relief
from the order or judgment thus fraudulently procured.
ANG LAM V. ROSILLOSA (1950): it can be the subject of
an annulment of judgment.
o Potenciano Rosillosa, by virtue of a homestead
patent, sold a parcel of land to Maximo Alpay. Then
Alpay sold it to Eugenia Peregrina. Then later on,
Rosillosa, the original owner instituted an action
against Peregrina for legal redemption under the
provisions of the Public Land Act (because of the
strong public policy under the Constitution). Upon
petition of Rosillosa that defendant Peregrina
cannot be found, the judge ordered that said
defendant be summoned by publication in the
Manila Chronicle. The defendant having failed to
appeal, she was declared in default. TC, after
receiving evidence, rendered a decision ordering
Peregrina to execute a deed of resale in favor of
Rosillosa, as it was sold within the prohibited period.
It turned out that Peregrina died several years
before the action was commenced. Thereafter, Ang
Lam, the administrator of the estate of deceased
Peregrina filed a petition praying that judgment be
set aside on the ground that the court has not
acquired jurisdiction over the person of the
deceased. TC denied the petition on the ground,
among others, that the petition to set aside was
presented after the lapse of six (6) months upon
finality provided under RULE 38.
o In relation to SEC. 14, RULE 14, when the
defendant is an unknown defendant or his
whereabouts cannot be known even by due
diligence, alternative remedy: summons by
publication.
o SC: it did not acquire jurisdiction.
o The res / property is in the Philippines.
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o So bakit hindi pwede?
o Like in CHING, the defect here is that the defendant
was already deceased.
 As it is a process of conversion from in
personam to in rem.
 You cannot convert the action if the
defendant is already deceased.
 If INCONVERTIBLE: only natural or juridical
persons can be parties to action. If a person
is deceased, he ceased to be a person. So
how can you convert something from in
personam to in rem when you cannot have
an in personam action in the first place?
 It presupposes that the defendant is alive.
o It never acquired jurisdiction.
o Bound by the 60-6 month period? NO, as it goes to
the very jurisdiction of the court over the person of
the defendant.
o Since petitioner was not a party to the original case
(administrator of the estate), and he did not seek
relief from judgment on the ground of FAME, his
ground being lack of jurisdiction over the person for
annulment of judgment, RULE 38 to a certain extent
is NOT applicable here.
NOTE: A judgment rendered by a court which has not
acquired jurisdiction either over the subject matter or over
the person of the defendant, is void. A void judgment may
be assailed or impugned at any time either directly or
collaterally, by means of a petition filed in the same case
or by means of a separate action, or by resisting such
judgment in any action or proceeding wherein it is invoked.
AFFIDAVIT OF MERIT:
SUZARA V. CALUAG (1962):
NOTE: In order that a motion may be considered as a
petition for relief, the following requisites must be present:
(1) it must be verified;
(2) it must be filed within 60 days from the time
petitioner learns of the decision but not more than 6
months from entry thereof; and
(3) the petition must be accompanied by affidavits of
merit showing the fraud, accident, mistake or
excusable negligence relied upon and the facts
constituting petitioner's cause of action or defense.
When petitioner's motion for new trial is verified and sets
forth his special defense as well as the facts on which it is
based insinuating that the amounts claimed are not true
and correct and part thereof constitutes a violation of the
Usury Law, the trial Court cannot deny petitioner's right of
appeal from the order denying said motion for new trial
unless it appears that the appeal is flagrantly frivolous.
MESINA V. MEER (2002): the remedy of relief from
judgment is available only against judgments of the
RTC/MTC, not judgment of the CA.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
o The remedy under RULE 38 is available only
against a judgment rendered by MTC / RTC.
o It is not a remedy available to the judgments of the
CA and SC.
o When the loss of the remedy at law is due to the
party’s negligence, or a mistake made of the proper
procedure, otherwise, the petition for relief will be
tantamount to reviving the right of appeal which has
already been lost, either because of negligence or
mistake.
NOTE: The procedural change in Rule 38 is in line with
Rule 5, prescribing uniform procedure for municipal and
regional trial courts and designation of
municipal/metropolitan trial courts as courts of record.
While Rule 38 uses the phrase "any court", it refers only to
municipal/metropolitan and regional trial courts.
The procedure in the Court of Appeals and the Supreme
Court are governed by separate provisions of the Rules of
Court and may, from time to time, be supplemented by
additional rules promulgated by the Supreme Court
through resolutions or circulars. As it stands, neither the
Rules of Court nor the Revised Internal Rules of the Court
of Appeals 25 allow the remedy of petition for relief in the
Court of Appeals.
ANURAN V. AQUINO (1918): example of fraud.
NOTE: There can be no question as to the right of any
person adversely affected by a judgment, to maintain an
action to enjoin its enforcement, and to have it declared a
nullity, on the ground of fraud and collusion practiced in
the very matter of obtaining the judgment, when such
fraud is extrinsic or collateral to the matters involved in the
issues raised at the trial which resulted in such judgment;
and fraudulent collusion between an administrator and a
third person resulting in an order or judgment whereby an
interested person is unjustly deprived of his rights in, or to
the estate under administration, has always been
recognized as a sufficient ground for the grant of relief
from the order or judgment thus fraudulently procured.
GORDULAN V. GORDULAN (1961): no recital of facts
constituting FAME and good defense.
o The petition for relief was denied.
o While the petition was duly sworn and did contain a
recital of fact that the land in question was owned in
common by the plaintiff and defendant, there was
nothing to show that petitioner’s failure to join to
each of the defendant was due to FAME, such that
he was prevented from presenting his case
properly.
NOTE: Rule 38 of the Rules of Court is a special remedy
and the requirements therein set forth are considered as
conditions sine qua non to the proper allowance of relief.
Section 2 and 3 thereof are explicit, and require not only a
sworn statement of the facts constituting petitioner's good
and substantial defense, but likewise a showing that the
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failure to file an answer was by reason of fraud, accident,
mistake or excusable negligence, while in the case at bar,
appellant's petition for relief contains a recital of facts, duly
sworn to by him, that the lot in dispute is owned in
common by the plaintiff and the defendant in equal shares,
nothing is offered to show that there was fraud, mistake,
accident or excusable negligence in the failure of the
lawyer to timely join issues with the plaintiff. Hence, the
petition was correctly denied.
ARCILLA V. ARCILLA (1985): 60 DAYS and SIX
MONTHS.
o In order for a relief under RULE 38 to be
entertained, the petitioner must show that he has
strictly complied with SEC. 3 in the periods.
o LESSON: The general allegation made therein to
the effect that "petitioner has a good and valid
defense considering that the late Segunda O. Vda.
de Arcilla voluntarily and willingly executed the
document of Sale", is not sufficient compliance with
the rules.
 Sabihin mo why.
NOTE: The rule, therefore, is that in order for a petition for
relief filed under Rule 38 to be entertained by the court,
the petitioner must satisfactorily show that he has faithfully
and strictly complied with the provisions of said Rule 38.
Consequently, in assailing the lower court's dismissal of
his petition for relief for having been filed out of time, it is
incumbent upon herein petitioner to show that the said
petition was filed within the reglementary period specified
in Section 3, Rule 38. He has failed to do so, instead he
argues on the merits of his petition for relief, without first
showing that the same was filed on time in the court
below. On this ground alone, the instant case should be
dismissed.
SUZARA V. CALUAG (1962): no affidavit of merit.
OCTOBER 17, 2016
RULE 39: EXECUTION, SATISFACTION AND EFFECT
OF JUDGMENTS
RULE 39: EXECUTION:
SEC. 1: EXECUTION AS A MATTER OF RIGHT: on
motion, upon a judgment or order that disposes of the
action or proceeding upon the expiration of the period
to appeal therefrom if no appeal has been duly
perfected.
 If an appeal has been taken, the judgment must be
executed if it is finally resolved.
 It must have been FINAL AND EXECUTORY.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
PROCEDURE: There must be a motion duly filed.
 State that the judgment has already been final and
executory: that there was failure to appeal the
same.
 Must serve a copy to the adverse party (3-day
notice rule, RULE 15).
 Is this a litigious motion? YES, as the other party
has the right to oppose the motion if the judgment is
not yet final and executory and prejudicial to him.
If an appeal has been made: the judgment shall be
executed after it has been finally resolved.
 After finality.
 GENERAL RULE: an appellate court can never
issue the writ of execution.
 The application of the writ of execution
must be applied for in the court of origin.
 WHERE: COURT OF ORIGIN.
 HOW: on motion of the judgment obligee
with notice to the adverse party.
 SUPPORTING DOCUMENTS TO BE
107
ATTACHED:
1) Certified true copies of the judgment/s
or final order/s sought to be enforced;
and
2) The entry thereof issued by the
appellate court (SEC. 2, RULE 36).
 Even when the records of the case has not
yet been remanded, unlike in the old Rules.
 PAR. 3: appellate court may direct the court of
origin to issue the writ of execution.
 On motion in the same case, when the
interest of justice so requires.
 But the appellate court cannot issue the
writ of execution.
GENERAL RULE: if not yet final, execution cannot issue.
108
 SEC. 4 : EXCEPTIONS WHERE THE
APPELLATE COURT MAY ISSUE THE WRIT:
109
EXECUTION PENDING APPEAL :
110
1) For INJUNCTION : to enjoin one from
causing irreparable injury.
2) RECEIVERSHIP: to preserve the property in
the hands of a neutral person called a
receiver.
111
3) ACCOUNTING ;
112
4) Award of SUPPORT ;
5) Such other judgment as are now or may
thereafter be declared as immediately
107
Even if the records had not yet been remanded to court of origin.
108
Unless otherwise ordered by the trial court. And the appellate court
may modify, suspend, etc. the same.
109
REASON: As the records are with the appellate court; it is still
pending appeal.
110
The court will issue this, because if it will not it will cause damage /
injury, although without prejudice to appeal the same.
EXAMPLE: action for injunction against a factory near your house
emitting smoke, and it was granted. If you will still wait for the appeal,
you would have died of lung cancer already.
111
EXAMPLE: action for partition and accounting of the fruits.
112
By the time natapos ‘yung appeal, hindi na nakaaral yung bata.
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executory shall be enforceable after their
execution, unless otherwise declared by the
court:
a. Order of expropriation
b. Ejectment (forcible entry or unlawful
detainer)
 UNLESS otherwise ordered by the TC, or
subject also to the discretion of the appellate
court.
 AC before whom the case is heard in appeal
may modify, suspend, restore, or grant the
same.
NOTE: they must by necessity be implemented
immediately, otherwise, they will cause irreparable injury
to one of the parties.
ROQUE V. DELGADO (1954): Delgado is the owner of a
cockpit. Then Secretary of Interior issued an order to stop
the operation of the cockpit, as it is within a prohibited
radius of 200M. Now, Delgado contested the order and
filed an action for injunction, with preliminary injunction.
The TC issued the preliminary injunction to stop the
implementation of the Order of the Secretary. However,
after trial, the judge dismissed the case, the judgment
saying that the cockpit was indeed the prohibited radius.
The writ of preliminary injunction is also dissolved.
However, Delgado filed a Motion to Re-Impose the
Preliminary injunction Pending Appeal, which the TC
granted.
o ISSUE: WON the TC had such authority? YES,
UNLESS OTHERWISE ORDERED BY THE TC.
o TC had the authority to re-issue, IN ANTICIPATION
of an appeal.
 APPLICABLE only in the first 4: injunction,
receivership, accounting and support (for
Escolin only).
 For other provisions in special, governed by
specific rules, so the special rule prevail over
the general rules.
NOTE: Under section 4, Rule 39 of the Rules of Court,
when an appeal is taken from a judgment granting,
dissolving or denying an injunction, the trial court, in its
discretion, may make an order suspending, modifying,
restoring, or granting such injunction during the pendency
of the appeal. Although this provision speaks of an appeal
being taken and of the pendency of the appeal, the court
may restore the injunction before an appeal has actually
been taken. As a matter of fact there is authority to the
effect that the trial court may restore a preliminary
injunction in anticipation of an appeal.
 FINAL V. INTERLOCUTORY ORDER:
FINAL ORDER INTERLOCUTORY ORDER
An order which disposes An order which does not
of the case, that nothing disposes of the case, that
more need be done by the there is still more for the
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
court, except to execute court to do with respect to
the judgment. the merits of the case.
Example: An order granting Example: An order denying
the MTD of the defendant. the MTD: it leaves
something else to be done
→ Pre-Trial, Trial,
Judgment.
OLYMPIA V. COURT OF APPEALS (1989): The
insurance company bought some typewriters from
Olympia, payable on installment, secured by chattel
mortgage on the typewriters. For failure to pay the
amortizations, Olympia filed a replevin suit with prayer for
writ of preliminary replevin. The court issued the writ of
preliminary replevin and ordered the sheriff to repossess
the typewriters. The sheriff implemented the writ. The
typewriters were delivered back to Olympia. Later on,
there was a join motion by the parties to have the case
dismissed, as the parties will pursue the settlement of the
case (dismissal pursuant to SEC. 2, RULE 16), which the
court granted. However, since no settlement was arrived
at by the parties, Olympia filed a motion to revive the case.
It was revived, then eventually it was dismissed. After it
was dismissed, a year later, the insurance company
sought to have the typewriters returned, which the TC
granted.
o ISSUE: Did the court commit GAD when it ordered
the return of the typewriters? NO.
o The order of dismissal, although upon joint motion
of the parties, was a final order as it disposed of
the case.
o EFFECT UPON FINALITY OF THAT ORDER: the
TC loses jurisdiction over the case, but without
prejudice (SEC. 2, RULE 17).
 Can it revive the case? NO.
 Although that dismissal was without
prejudice, the only remedy is to refile the
case and pay docket fees again.
o How about the order of the court GRANTING the
return to the insurance company of the typewriters?
Can it be ordered by the court? YES, as it is to
execute the final judgment / order of the court.
o The preliminary writ was merely an INCIDENTAL
order issued by the court → deemed also abrogated
upon the dismissal of the main case.
 Since there is no more preliminary writ or
replevin, the court ordering the return was
merely to execute the final order of
dismissal.
 FINAL ORDER: one that disposes of the
case.
o Here, the return was merely to execute the order.
o It can be so done by the court as the writ of
preliminary replevin is merely incidental to the main
case such that the dismissal of the main case
carries with it the dismissal of all the incidental
orders issued by the court in the case that was
dismissed.
NOTE: That the lower court retained jurisdiction to carry
into effect its final and executory order of December 15,
1972 is beyond cavil for while Alpha's motion was filed
three (3) years after the issuance of said dismissal order,
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the same may still be taken cognizance of by the lower
court in accordance with Section 6, Rule 39 of the Rules of
Court which states: Sec. 6. Execution by motion or by
independent action. — A judgment may be executed on
motion within five (5) years from the date of its entry or
from the date it becomes final and executory. After the
lapse of such time, and before it is barred by the statute of
limitations, a judgment may be enforced by action.
SO, in a case pending appeal, judgment is NOT YET
executory.
 REASON: the appellate court still has to resolve it.
SEC. 2: DISCRETIONARY EXECUTION: even if the
judgment is not final and executory, nonetheless, the
prevailing party may ask for EXECUTION PENDING
APPEAL/discretionary execution.
 REQUIREMENTS:
1) On motion of the prevailing party;
2) With notice to the adverse party;
3) To be filed in the TC:
a. While it has jurisdiction over the
case; and
b. In possession of either the original
record or record on appeal as the
case may be, at the time of the
filing of such motion.
 IN ITS DISCRETION, order execution, even if
before the expiration for period for appeal.
 WHEN TC HAD LOST ITS JURISDICTION: may be
filed in the appellate court → UPON GOOD
REASONS, stated in the special order, after due
hearing.
 SUBSTANTIVE REQUIREMENT.
 WHEN FILED IN THE TC: provided that the two
conditions are still present.
 WHEN THE COURT LOSSES JURISDICTION
OVER THE CASE (Sec. 9, Rule 41):
 There are two kinds of ordinary appeal:
1) Appeal by mere notice of appeal;
2) Appeal by record on appeal
 PERFECTION OF APPEAL:
1) NOTICE OF APPEAL: deemed
perfected as to him upon the FILING
of notice of appeal in due time.
 When MR is filed: NEYPES
RULING (fresh period) 15
days after receipt of the denial
of the MR.
2) RECORD ON APPEAL: Deemed
perfected as to him with respect of the
subject matter thereof upon
APPROVAL of the record on appeal
by the TC.
 LOSS OF JURISDICTION OF THE TRIAL
COURT:
1) NOTICE OF APPEAL: Upon
perfection of the appeal filed in due
time AND the expiration of the time to
appeal by the other parties.
2) RECORD ON APPEAL: Upon
approval of the records on appeal
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
AND the expiration of the time to
appeal by the other parties.
ASSOCIATED BANK V. GONONG (1987): Nov. 3: RTC
of Manila rendered a decision in favor of plaintiff Bank
against defendants. Nov. 5: defendant Role filed Notice of
Appeal and on Nov. 4, the other defendant appealed. Nov.
19: plaintiff bank filed Motion for Execution Pending
Appeal. Dec. 16: TC denied execution on the theory of the
TC Judge that it cannot anymore issue such execution
because by the perfection of the appeal, the court has lost
jurisdiction over the case.
o SC: NO.
o REASON: when plaintiff filed his execution, it has its
own 15 days within which to ask for execution
pending appeal.
o When the court issues its notice of judgment / final
order, parties do not necessarily receive it on the
same date, even if sent by registered mail on the
same day.
o Immediately upon receipt on Nov. 10, counsel for
the defendant perfected his appeal five days later.
o May the court still entertain execution pending
appeal? YES, as the other party who received the
notice on a different day has 15 days to which to
seek execution pending appeal.
NOTE: The plaintiff or plaintiffs may not deprive the
defendants or co-plaintiffs and neither may the defendant
or defendants deprive the plaintiff or co-defendants of the
right to file a motion for reconsideration or to move for a
new trial or an execution pending appeal by immediately
filing a notice of appeal. The filing of an appeal by a losing
party does not automatically divest the party favored by a
decision of the right to move for a more favorable decision
or to ask for execution pending appeal. It is only after all
the parties' respective periods to appeal have lapsed that
the court loses its jurisdiction over the case. As pointed
out in Universal Far East Corporation v. Court of Appeals
(131 SCRA 642) the period when a court considers and
acts upon a motion for execution may take some time. As
a matter of fact, the resolution of a motion may take place
long after the expiration of the reglementary fifteen-day
period for appeal.
ONG V. COURT OF APPEALS (1991): the mere filing of
the notice of appeal does not divest the court of its
jurisdiction over the case.
o PROVIDED such motions are filed within 15 days
from notice by said parties of the decision of the
court.
NOTE: The mere filing of appellant's notice of appeal does
not divest the trial court of its jurisdiction over the case.
The court may still take cognizance of the other party's
motion for new trial under Rule 37, if he should opt to file
one, or, as in the instant case, a motion for execution
pending appeal, provided of course, such motions are filed
within 15 days from said party's notice of the decision.
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What is crucial to determine is the timeliness of the filing of
the motion for execution pending appeal (Sonia Industries,
Inc. v. Wasan, Sr., supra).
 MUST CONCUR:
1) That the TC has still has jurisdiction of the
case;
2) Has possession of the original record or
record on appeal.
SEC. 9, LAST PAR., RULE 41: RESIDUAL
JURISDICTION: in either case (when the court has lost
its jurisdiction by notice of record on appeal), prior to the
transmittal of the original record or on record on appeal,
the court may:
(1) issue orders for the protection and preservation of
the rights of the parties which does not involve any
matter litigated in the appeal;
(2) approve compromises;
(3) permit appeals of indigent litigants;
(4) order execution pending appeal in accordance with
SEC. 2, RULE 39; and
(5) allow withdrawal of appeal.
While the TC/court a quo has already lost jurisdiction over
the case, nonetheless it still retains residual jurisdiction.
 Prior to the transmittal of the original record / record
on appeal, the court may order, among others,
EXECUTION PENDING APPEAL.
 ONE CONDITION: prior to the transmittal.
 SEC. 2, RULE 39: a court may issue EXECUTION
PENDING APPEAL, provided that two conditions
concur:
(1) The TC has not yet loss its jurisdiction over
the case; and
(2) The records are still with it.
 What is the difference between the two?
 Will a court issue an order for execution pending
appeal even if it has lost jurisdiction? YES.
 ―In either case‖ → in either case when the
court has lost jurisdiction, as long as the
original record / record on appeal has not yet
elevated.
 TWIN REQUIREMENT: Required only at the time
of the filing of the motion of execution pending
appeal.
 BEFORE it has lost jurisdiction: it can issue.
 REQUIREMENT: records are still in
the court of origin.
 Jurisdiction over the case is not a
requirement at the time of the
issuance of the order execution
pending appeal, but only upon the
filing of such motion.
 In other words, the TC can issue
execution pending appeal if at the
time of the filing of the motion, it still
has jurisdiction and the records are
with it.
 BUT, insofar as the actual issuance of
the order allowing execution pending
appeal, all that is required is that the
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
records are in the court, even if it has
lost jurisdiction of the case.
 If at the time of the filing of application of the
motion, it no longer has jurisdiction, HINDI NA
PWEDE.
GOOD REASON: other than the merits of the case.
 Execution pending appeal cannot issue on the
basis of the merits of the judgment being appealed.
 If otherwise, then, the general rule is that any
prevailing party can ask for execution, kasi
panalo siya.
 It should be other than the merits of the
case, which is the very subject of the appeal.
 And the court can never deny an appeal on
the ground that is frivolous.
 Is the filing of the bond a good reason to grant
execution pending appeal? NO.
 BEFORE, yes.
 BOND: to protect; so that in the event that
the judgment is reversed, that will answer for
the damages suffered by the party against
whom the execution pending appeal was
issued.
 NOW, no more.
ONG V. COURT OF APPEALS (1991): execution pending
appeal cannot be premised on:
a. The appeal is frivolous and dilatory: the authority
pertains to the appellate court.
b. That the bond required by the court has been
posted by the prevailing party: would make the
issuance routinary.
RATIONALE why execution pending appeal is not favored:
while there are remedies for restitution, nonetheless, there
is a possibility that the judgment will be in whole or in part
be reversed, and if that happens, it will result in damage to
the party against whom execution was issued.
NOTE: Where the reason given is that an appeal is
frivolous and dilatory, execution pending appeal cannot be
justified. It is not proper for the trial court to find that
an appeal is frivolous and consequently to disapprove
it since the disallowance of an appeal by said court
constitutes a deprivation of the right to appeal. The
authority to disapprove an appeal rightful pertains to the
appellate court (Heirs of Gavino Sabenal v. Hon. Benjamin
Gorospe, G.R. No. 50168, September 30, 1988, 166
SCRA 145). Having declared that the trial judge may not
rightfully determine that an appeal from its own decision is
frivolous or dilatory, it is clear that the writ of execution
pending appeal would be premised solely on the bond
posted by Sarmiento.
In the case of Roxas v. Court of Appeals (157 SCRA 370),
we clarified the doctrine as follows: ". . . to consider the
mere posting of a bond a 'good reason' would
precisely make immediate execution of a judgment
pending appeal routinary, the rule rather than the
exception. Judgments would be executed immediately, as
a matter of cause, once rendered, if all that the prevailing
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party needed to do was to post a bond to answer for
damages that might result therefrom. This is a situation, to
repeat, neither contemplated nor intended by law.
VALENCIA V. COURT OF APPEALS (1990): Valencia
filed action for rescission of the lease. Meanwhile, the term
of the lease expired and the defendants peaceably
surrendered the fishpond. TC: declared the complaint
moot and academic, and the only remaining issue for
adjudication is only the amount of damages. In due
course, the court awarded damages, attorney’s fees and
costs. The defendants received a copy on Jan. 3, and
plaintiff received on Jan. 10. Jan. 10 filed notice of appeal.
Jan. 17: the defendants filed an execution pending appeal,
offering to post a bond, for which they did. TC granted the
motion on the ground that ―an offer of a bond for
immediate execution is a good ground for execution
pending appeal.‖
o SC: FIRST ISSUE: may the court still entertain
execution pending appeal? YES, motion for
execution field before the last day to appeal.
o SECOND ISSUE: the rule is now well-settled that
the mere filing of a bond by the successful party is
NOT a good reason for ordering execution pending
appeal.
 Certiorari lies when execution is not founded
upon good reasons.
 That the losing party appealed the judgment
does not bar the certiorari action, as an
appeal cannot be a remedy for such
premature execution.
o THIRD ISSUE on what may be the subject,
assuming there is good reason, of execution
pending appeal: awards for moral and exemplary
damages CANNOT be the subject of execution.
o ONLY ACTUAL DAMAGES: because of the
possibility of its reduction, if not elimination by the
appellate court, it is still considered as unliquidated
damages.
 UNLIQUIDATED: not yet verifiable,
depending upon there is bad faith, etc.
 ACTUAL: it is verifiable.
NOTE: The rule is now settled that the mere filing of a
bond by the successful party is not a good reason for
ordering execution pending appeal, as clarified in Roxas
vs. Court of Appeals, et al., which we are constrained to
quote for the benefit of the parties: "It is not intended
obviously that execution pending appeal shall issue as a
matter of course. Good reasons, special, important,
pressing reasons must exist to justify it; otherwise, instead
of an instrument of solicitude and justice, it may well
become a tool of oppression and inequity. But to consider
the mere posting of a bond a 'good reason' would
precisely make immediate execution of a judgment
pending appeal routinary, the rule rather than the
exception. Judgments would be executed immediately, as
a matter of course, once rendered, if all that the prevailing
party needed to do was to post a bond to answer for the
damages that might result therefrom. This is a situation, to
repeat, neither contemplated nor intended by law."
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 EXAMPLE of good reason: For the election
offenses.
ENGINEERING CONSTRUCTION, INC. V. NAPOCOR
(1988): Judgment was rendered in favor of petitioner,
ordering NPC and Meralco to pay the following: actual and
compensatory, consequential, and exemplary damages,
attorney’s fees. Before perfecting its appeal, a bond was
filed by petitioner for execution pending appeal, and the
same is granted.
o SC: REQUISITES FOR THE EXECUTION TO BE
ALLOWED:
1) Motion with notice to the adverse party was
made;
2) Good reason/s;
3) Good reason/s must be stated in the order.
o With respect to the damages aside than actual
damages, the TC has exceeded the limits of its
jurisdiction.
 Execution must have been postponed until
the time as the merits of the case have been
determined in the regular appeal.
 In the fairly recent case of RCPI, et al vs.
Lantin, "The execution of any award for moral
and exemplary damages is dependent on the
outcome of the main case. Unlike actual
damages for which the petitioners may
clearly be held liable if they breach a specific
contract and the amounts of which are fixed
and certain, liabilities with respect to moral
and exemplary damages as well as the exact
amounts remain uncertain and indefinite
pending resolution by the Intermediate
Appellate Court and eventually the Supreme
Court. The existence of the factual bases of
these types of damages and their causal
relation to petitioners' act will have to be
determined in the light of the assignments or
errors on appeal. It is possible that the
petitioners, after all, while liable for actual
damages may not be liable for moral and
exemplary damages. Or as in some cases
elevated to the Supreme Court, the awards
may be reduced."
o Execution of any award for moral and exemplary
damages is dependent on the outcome of the case.
SEC. 3: STAY OF DISCRETIONARY EXECUTION: if the
court has issued an order allowing execution pending
appeal, may it be STOPPED / PREVENTED by the other
parties? YES,
 HOW: upon approval by the proper party of a
SUPERSEDEAS BOND.
 CONDITION: upon the performance of the
judgment or order allowed to be executed, in
case it shall finally be sustained in whole and
in part.
 HOW TO PROCEED WITH THE BOND: on
motion with notice to the surety.
 With hearing.
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 Can you stop the implementation of a motion for
execution pending appeal? YES, by filing of a
supersedeas bond.
 In which case, pwedeng ma-execute iyan.
SEC. 4: EXCEPTIONS: shall be enforced, and not stayed.
 GENERAL RULE: the effect of an appeal is that it
will stay execution of judgment.
 UNLESS otherwise provided by law, or this Rules.
Exceptions SUBJECT to the phrase: unless otherwise
ordered by the TC / AC.
LAST PAR.: The stay of execution shall be upon such
terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the
adverse party.
 If the TC suspends, modify, restore, grant
injunction, etc., it shall be upon such terms as a
BOND or otherwise as may be considered for the
security and protection of the rights of the adverse
party.
SEC. 5: EFFECT OF REVERSAL: RESTITUTION /
REPARATION: if a judgment s rendered by the TC, and
execution pending appeal is granted, then on appeal it is
reversed, balik, restitution ha.
 RULES:
ARANDA V. COURT OF APPEALS (1990): here, the CFI
of Bulacan rendered judgment ordering defendant De
Laras to reconvey to the plaintiffs Arandas several parcels
of land covered by 16 TCTs. De Laras appealed, but the
plaintiffs were granted execution pending appeal upon a
P15,000-bond. By filing of such bond, the court issued
execution pending appeal. As a consequence, the TCTs
were transferred in the names of the plaintiffs.
Furthermore, a jeepney belonging to the defendants was
also sold to the public auction, and the amount of P42,000
was garnished and turned over to the plaintiffs. During the
pendency of the appeal, the plaintiffs mortgaged EIGHT of
the 10 reconvened lots to Cruz. Then, again, they
mortgaged TWO more lots to Oxiles. When the loans
matured, the plaintiffs failed to pay and redeem them, so
they were foreclosed and sold to the mortgagees Cruz and
Oxiles. When the period to redeem expired, these
properties were consolidated in the mortgagees. Later on,
defendant filed a notice of lis pendens. In resolving the
appeal, the AC reversed the decision of the TC, and said
decision was affirmed by the SC. So now defendants filed
a motion to nullify the 16 titles transferred to the plaintiffs.
However, in resolving the motion, the court ordered the
cancellation of the titles covering the lots which were not
sold to Cruz and Oxiles.
o Hindi na maibalik yan.
 REASON: they are purchasers in GF for
value.
 The annotation of the notice of lis pendens
was made only after the buyers at public
auction have consolidated ownership on the
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
properties in question.
o ISSUE: was that correct?
o SC: when a judgment is executed pending and
subsequently overturned in the appellate court, the
party who moved for immediate execution will be
required to make specific restitution of the
property of the prevailing party may have acquired.
NOTE: When a judgment is executed pending appeal and
subsequently overturned in the appellate court, the party
who moved for immediate execution should, upon return
of the case to the lower court, be required to make specific
restitution of such property of the prevailing party as he or
any person acting in his behalf may have acquired at the
execution sale. If specific restitution becomes
impracticable, the losing party in the execution
becomes liable for the full value of the property at the
113
time of its seizure , with interest.
While the trial court may have acted judiciously under the
premises, its action resulted in grave injustice to the
private respondents. It cannot be gainsaid that it is
incumbent upon the plaintiffs in execution (Arandas) to
return whatever they got by means of the judgment prior to
its reversal. And if perchance some of the properties might
have passed on to innocent third parties as happened in
the case at bar, the Arandas are duty bound nonetheless
to return the corresponding value of said properties as
mandated by the Rules.
OCTOBER 24, 2016
SEC. 5: RESTITUTION: effect of reversal.
RULES: if the purchaser is:
(1) JUDGMENT OBLIGEE: he must return the property
to judgment obligor and pay reasonable rental
value of the sale (JM PO PAOCO V. JUNCO,
114
1926 ).
(2) Judgment obligor may elect, however, to affirm the
sale, in which case, the judgment obligee accounts
only for the purchase price: (HILARIO V. HICKS,
115
1919 ).
(3) If the JUDGMENT OBLIGEE cannot return it as it
already sold it to another person: account for the
full value of the property at the time of the levy plus
interest.
113
Escolin did not like this.
114
When a judgment is prematurely executed pending appeal and the
cause is subsequently reversed in the Supreme Court, the plaintiff in
the execution should, upon return of the cause to the lower court, be
required to make specific restitution of such of the property of the
judgment debtor as may have been acquired at the execution sale by
the plaintiff or by any other person acting in his behalf; and if specific
restitution becomes impracticable, the plaintiff in the execution
becomes liable for the full value of the property at the time of its
seizure, with interest.
115
Although, as above stated, a judgment debtor may, upon reversal,
require the creditor to make specific restitution of the property
purchased at the sheriff's sale by the creditor, the debtor nevertheless
has the right of election to affirm the sale as to such property and
compel the creditor to account for the same at the value for which he
bought it.
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(4) If the purchaser in the execution sale is a THIRD
PERSON: judgment obligee shall be liable for the
obligor for the purchase price, plus interest.
(5) If the judgment is MODIFIED by merely reducing
the recovery: the judgment obligee is only liable for
the excess between the amount of the sheriff’s sale
and the amount finally awarded.
 Happens if there is execution pending
appeal and the judgment of the trial court is
reversed, totally or partially annulled on
appeals.
SEC. 6: HOW AND WHEN MAY A JUDGMENT BE
ENFORCED:
(1) By MERE MOTION at any time before the
expiration of the period of FIVE (5) YEARS from the
date of entry of judgment.
(2) By ACTION after that period but before the lapse of
the statute of limitation (10 YEARS).
STATUTE OF LIMITATIONS ON A JUDGMENT: TEN
(10) years.
 After the period of 5 years, and the judgment of the
court is not enforced by mere motion, then the
judgment becomes a DORMANT JUDGMENT.
 It is one that has not been enforced by
motion within 5 years after its entry.
 Therefore, it is reduced to a mere right of
action in favor of the judgment obligee.
NATURE AN ACTION FOR REVIVAL/ENFORCEMENT
OF A DORMANT JUDGMENT: is an ORDINARY CIVIL
ACTION.
 PURPOSES: two-fold:
(1) To revive the dormant judgment; and
(2) To execute the judgment reviving it.
 The rights of the judgment obligee depends now on
the second judgment.
 Being an ordinary civil action, therefore, it is subject
to all defenses: objections, and counterclaims,
which the judgment obligor may have, EXCEPT
that no inquiry can be made as to the merits of the
first judgment.
 Nature of the first judgment: res judicata.
 It is subject to all the defenses.
 EXCEPT those defenses and objections the
inquiry of which goes to the merits of the first
judgment → that cannot be raised.
 The defense of lack of jurisdiction, collusion,
fraud, prescription may be set up by the
judgment obligor.
 EXCEPTION ON THE RULE ON DORMANT
JUDGMENT: judgment for SUPPORT → does not
become dormant nor does it prescribe, except as to
the installments not collected during the period
fixed by the statute of limitation.
 Enforceable by mere motion at any time.
 VENUE OF AN ACTION TO ENFORCE A
DORMANT JUDGMENT: subject to the same rules
as in civil actions:
a. REAL ACTION: where the property is
located.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
b. PERSONAL ACTION: follow the general
rule.
 WHO ARE THE PARTIES TO THE ACTION: same
parties must appear in the action.
 Solidary judgment: revived and enforced against
any of the debtors.
EXECUTION BY MERE MOTION AND BY
INDEPENDENT ACTION:
DAVID V. EJERCITO (1976): Gomez filed an ejectment
suit against David and David was declared in default for
failure to answer. May 12, 1969: judgment was rendered
ordering David to vacate the premises and to pay
reasonable rentals. Sept. 24, 1969: writ of execution was
issued but defendant refused to comply. March 11, 1970:
motion for the demolition of the defendant’s house was
filed, and the corresponding order was issued by the court,
but defendant still refused to comply with the other. An
alias writ was issued, but the defendant again resisted it.
March 25, 1975: another order demolition was issued.
This time defendants promised in writing voluntarily
removed his house after 30 days. However, April 11,
1975, instead of complying, he filed a motion to recall
demolition on the ground that the judgment was
unenforceable, due to lapse of the 5-year period since the
day of finality of the judgment. TC denied the motion.
o SC: the writ of execution may be enforced by mere
motion even after the lapse of the 5 years where the
defeated party himself was the one who caused the
delay in the execution of the judgment.
o The delay here was caused by the defendant.
o What is being considered here that would render
the judgment dormant is INACTION on the part of
the judgment-obligee.
 But here, he took all the steps to have the
judgment enforced.
 The delay was caused by the judgment
obligor.
NOTE: Where all the delay in the execution of a final
judgment in an ejectment suit lasting for almost eight (8)
years is due to defendant's own acts, the plaintiff's motion
for alias writ of execution and for demolition filed after the
five-year limitation within which a decision may be revived
by mere motion, for reasons of equity, is treated as
constituting in effect an action to revive the said judgment
under Section 6, Rule 39 of the Rules of Court and a
substantial compliance therewith.
NAPOCOR V. COURT OF APPEALS (1992): FIRST
CASE: a civil case rendered by the court of Manila
ordering Sebastian and Associates to pay PCI Bank a
certain sum of money. That decision became final and
executory on Mar. 2, 1972. SECOND CASE: Sebastian
sued NAPOCOR and Sebastian was able to obtain a
judgment against for a certain amount. This judgment
became final on June 20, 1976. July 20, 1976: PCI Bank
obtained a writ of execution in the first case and pursuant
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thereto, a notice of garnishment (form of execution where
116
you go against the debtor of the judgment obligor) was
issued to the Treasurer of NAPOCOR levying upon goods
and monies in the possession of NAPOCOR owing the
Sebastian. March 11, 1976: TC ordered NAPOCOR to pay
PCI Bank. NAPOCOR made partial compliance by paying
a certain sum. Subsequent attempts to compel payments
were turned down. November 8, 1988: PCI Bank field
motion to require NAPOCOR to satisfy the judgment. This
was opposed on the ground that the writ of execution has
expired. The period to revive the judgment had already
prescribed.
o NOTE: judgment became final on March 2, 1972,
and PCI only obtained a writ of execution on July
20, 1976.
o SC: so the prescriptive period for enforcement of a
final judgment by ordinary action is TEN YEARS
computed from the time the judgment became final
and the lifetime of the writ of execution THEN was
60 days after receipt by the levying officer.
 NOW, no more life time of 60 days.
o The judgment obligor (PCI Bank) exerted all its
efforts to have the judgment satisfied, but the delay
in fulfilling the notice of garnishment can be
attributable only to the delaying acts of NAPOCOR.
 So do not count that.
o TEST: who caused the delay.
NOTE: However, in the case at bar, it was the petitioner
who caused the delay in the payment of the remaining
balance of the aforesaid Notice of Garnishment.
Therefore, the delay of more than 10 years from the time
the judgment of November 26, 1970 became final and
executory should not be counted in computing the 5-year
period in executing a judgment by motion, since the delay
was not respondent's doing but petitioner's. It is well-
settled that: "In computing the time limited for suing out an
execution, although there is authority to the contrary, the
general rule is that there should not be included the time
when execution is stayed, either by agreement of the
parties for a definite time, by injunction, by the taking of an
appeal or writ of error so as to operate as a supersedeas,
by the death of a party, or otherwise. Any interruption or
delay occasioned by the debtor will extend the time within
which the writ may be issued without scire facias."
Can the revived judgment be revived again within ten
years from the revived judgment? YES.
 The revived judgment may also be enforced by
motion within five (5) years from the date of its entry
and thereafter by action before it is barred by the
statute of limitations.
STA. ANA V. MENLA (1961): action for revival of
judgment does not apply to land registration cases and
other special proceedings the purpose of which is to
establish a status, fact or a right.
116
EXAMPLE: judgment obligor has a deposit in a bank. When you have
a deposit in a bank, it really is a loan in mutuum para iyung banko,
ipautang niya rin.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
o The LRC on May 14, 1958, on motion of the
applicant, ordered the revival of the Nov. 28, 1931
decision in a land registration case (decree of
registration became final and executory). On May
14, 1958, the court ordered the revival of the
decision, only by mere motion. The order is now
being assailed NOT by independent action on the
ground that the assailed decision, which was issued
over ten years earlier, cannot be enforced except by
action.
o SC: Sec. 6 of Rule 39 refers to CIVIL ACTIONS
only, and is not applicable to special proceedings,
such as a land registration case.
 REASON: the purpose of which (special
proceedings) is to establish status, condition
or fact, or right, and the ownership of the
person over the land after ownership has
been proved and confirmed by judicial
declaration, no further proceedings is needed
to enforce the same, except if the adverse
party is in possession of the land and the
winning party decides to oust him therefrom.
 Once the decree of registration is final, you
can ask its enforcement ANYTIME, even by
mere motion, even after the lapse of 10
years.
o What constitutes enforcement in this case? It is the
issuance of the original certificate of title.
 It is just evidence of title.
 Can the registered owner not necessarily be
the owner? YES.
NOTE: The provision in the Rules of Court to the effect
that the judgment may be enforced within five years by
motion, and after five years but within 10 years by an
action (Sec. 6, Rule 39) refers to civil actions and is not
applicable to special proceedings, such as land
registration cases. This is so because a party in a civil
action must immediately enforce a judgment that is
secured as against the adverse party, and his failure to act
to enforce the same within a reasonable time as provided
in the Rules makes the decision unenforceable against the
losing party. In special proceedings the purpose is to
establish a status, condition or fact; in land registration
proceedings, the ownership by a person of a parcel of land
is sought to be established. After the ownership has been
proved and confirmed by judicial declaration, no further
proceeding to enforce said ownership is necessary, except
when the adverse or losing party had been in possession
of the land and the winning party desires to oust him
therefrom.
There is no provision in the Land Registration Act similar
to Section 6, Rule 39 of the Rules of Court regarding the
execution of a judgment in a civil action, except the
proceedings to place the winner in possession by virtue of
a writ of possession. The decision in land registration
case, unless the adverse or losing party is in possession,
becomes final without any further action, upon the
expiration of the period for perfecting an appeal.
CANONIZADO V. BENITEZ (1984): a judgment for
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support can still be enforced by mere notion for a writ of (2) state the name of the court, the case number and
execution notwithstanding the lapse of FIVE YEARS title, the dispositive part of the subject judgment or
provided for in SEC. 6. order; and
(3) require the sheriff or other proper officer to whom it
o REASON: Because said provision does NOT apply is directed to enforce the writ according to its terms.
to judgments for support.
Against the property of To satisfy the judgment,
NOTE: In the case at bar, although petitioner obtained the the judgment obligor with interest, out of the real
favorable judgment on January 21, 1969, she can still or personal property of
enforce the same by a motion for a writ of execution, NOTE: can be money such judgment obligor.
notwithstanding the lapse of the five-year period provided judgment.
for in Rule 39, Section 6 of the Rules of Court because a Against real or personal To satisfy the judgment,
judgment for support does not become dormant and the property in the hands of with interest, out of such
five-year period for executing it by motion does not apply personal representatives, property.
thereto. (Gumba vs. Juvenile and Domestic Relations heirs, devisees, legatees,
Court, 108 SCRA 93; citing Velayo vs. Velayo, L-23538, tenants, or trustees of the
July 21, 1967, 20 SCRA 734, 65 O.G. 2096). Furthermore, judgment obligor
since the obligation is a continuing one, the court never
loses jurisdiction to enforce the same. NOTE: judgment on real or
personal property.
For the sale of real or Apply the proceeds in
SEC. 7: IN CASE OF DEATH OF A PARTY: personal property to sell conformity with the
such property describing judgment, the material
(1) Death of the JUDGMENT-OBLIGEE: the it parts of which shall be
application may be applied for by his executor, recited in the writ of
administrator or successor-in-interest. NOTE: execution here is to execution.
(2) Death of the JUDGMENT-OBLIGOR: the judgment order the selling of real or
for recovery of real and personal property. personal property.
 Against the executor or administrator, For the delivery of the To deliver the possession
successor-in-interest of the judgment obligor. possession of real or of the same, describing it,
(3) Death of the JUDGMENT-OBLIGOR: after personal property to the party entitled thereto,
execution is actually levied upon any of his and to satisfy any costs,
property, the same may be sold for the satisfaction NOTE: an action to deliver damages, rents, or profits
of the judgment obligation, and the officer making title or possession. covered by the judgment
the sale shall account to the corresponding out of the personal property
executor or administrator for any surplus in his Example: unlawful detainer of the person against whom
hands. cases, or reconveyance, it was rendered, and if
 Money judgment is rendered here. plus damages, profits etc. sufficient personal property
 Read with SEC. 20 of RULE 3: ask for cannot be found, then out
enforcement in a manner provided for in this of the real property; and
Rules for prosecuting clams against the
estate, and NOT execution. In all cases, the writ of execution shall specifically state
 HOWEVER, why does (c) allow execution
the amount of the interest, costs, damages, rents, or
here to continue? Why not for prosecuting
profits due as of the date of the issuance of the writ, aside
claims against the estate of the deceased from the principal obligation under the judgment.
person?
 HERE, execution is also actually SECS. 9, 10, 11: ENUMERATION OF KINDS OF
levied upon any of his properties. JUDGMENTS:
 LEVY: creates a lien (SEC. 12, RULE
39).
SEC. 9: (1) IMMEDIATE PAYMENT ON
 However, if there is NO levy, prior to the
Judgment DEMAND: By demanding from the
death of the judgment obligor, then the court
FOR MONEY judgment obligor the immediate
that rendered the judgment may NOT
payment of the full amount stated in
enforce its judgment because it can only be
the writ of execution and all lawful
satisfied by prosecuting a claim against the 117
fees. (by the sheriff)
estate of a deceased person in a manner
provided for in this Rules. FORM OF PAYMENT: in cash, certified
bank check payable to the judgment
SEC. 8: FORM AND CONTENTS OF THE WRIT OF
obligee, or any other form of payment
EXECUTION:
acceptable to the latter.
(1) issue in the name of the Republic of the Philippines
from the court which granted the motion;

117
Under the OLD rules, wala iyan. Levy agad.
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(3) DELIVERY OR RESTITUTION OF

121
Sheriff shall receive the lawful fees and REAL PROPERTY ;
118
deposit them immediately. (4) REMOVAL OF IMPROVEMENTS
ON PROPERTY SUBJECT OF
122
(2) SATISFACTION BY LEVY: the EXECUTION;
sheriff will only proceed to levy SEC. 11: SPECIAL JUDGMENT: judgment that is
properties upon failure of the SPECIAL not covered by or mentioned in the two
judgment obligor to pay all or part JUDGMENTS proceedings sections.
of the obligation after a demand
has been made in letter (a). - It is not a judgment for money or for
specific acts.
If the judgment obligor does not exercise
the option, the officer shall: PROCEDURE:

a. levy on the personal properties, if

any, and SECs. 9 and 10 SEC. 11
b. then on the real properties if the
personal properties are insufficient. Directed to the Directed to the
sheriff for the party against
Real property, stocks, shares, debts, whom the
enforcement of
credits, and other personal property, or judgment was
the writ.
any interest in either real or personal rendered.
property, may be levied upon in like
manner and with like effect as under a
writ of attachment.

(3) GARNISHMENT: in the possession

and control of third parties.

HOW LEVY MADE: by serving upon the

third person of the notice of garnishment.

- Then await second notice to

deliver the amount (within TEN
DAYS).

The garnishee shall make a written report

to the court within five (5) days from
service of the notice of garnishment.

Can the bank here reveal the amounts of

the deposits? YES.
SEC. 10: (1) CONVEYANCE, DELIVERY OF
Judgment DEEDS, OR OTHER SPECIFIC
119
FOR ACTS : the court may direct the act 121
To deliver possession. EXAMPLE: accion interdictal. Here, the sheriff
SPECIFIC to be done at the cost of the must first demand for them to vacate within three (3) working days.
ACT disobedient party by some other Thereafter, he should oust them with the assistance of the police.
person appointed by the court and - Here, it is the act of delivering or restitution of real property.
the act when so done shall have like - Balik yung possession.
122
effect as if done by the party. Must be upon special order of the court, issued upon motion of the
(2) SALE OF REAL AND PERSONAL judgment obligee upon due notice and hearing and upon failure to
120 remove of the other party.
PROPERTY ;
- Here, you are removing improvements.
- There must be a special order of the court for that.
118
This provision is for the sheriff, kasi in the past, maraming - Removal or Break Open Order, when REQUIRED: that the
magnanakaw na sheriffs. execution relates to improvements constructed or planted by
119
If the judgment-obligor is required to reconvey a property through a the judgment obligor
deed of reconveyance, and he refuses, then the court may just order PROCEDURAL REQUIREMENTS:
another party to execute the conveyance and that act of the third party (1) There must be a motion to remove, destroy or demolish the
would be as if an act of the judgment-obligor. improvements field by the judgment-obligee (there must be a
hearing);
RECONVEY: the court may just issue an order (i.e. order the RD to (2) If after hearing, the court finds the motion meritorious, then it
cancel the title under the name of the judgment obligor and issue a issues an order (a) containing the reason for such order, then
new one in the name of the judgment obligor). (b) give the judgment obligor a period of reasonable time
120
As in an act for partition: the court may order that the property be within which to demolish or remove it.
sold and the proceeds will be distributed to the heirs. So the sheriff will (3) Only after the expiration of that reasonable period may the
sell. actual demolition, or removal be accomplished.
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If judgment Can be punished
obligor refuses to by contempt if
comply, he disobeyed.
cannot be
punished by
contempt, as the
writ was directed
to the sheriff.
If the sheriff didn’t
want to execute,
then he shall be
declared in
123
contempt.
In no case shall the executing sheriff demand that any
payment by check be made payable to him.
SEC. 9:
PAL V. COURT OF APPEALS (1990): a judgment was
rendered in favor of Amelia Tan against PAL for a sum of
P25,000 plus P5,000 attorney’s fees. To satisfy the
judgment, PAL paid the amount in check, payable to the
sheriff, Emilio Reyes. However, the sheriff deposited the
same to his account and absconded with the money. On
motion, the court issued an alias writ of execution against
PAL again. PAL contended that it already paid.
o ISSUE: May another writ of execution issue? YES.
o SC: the judgment was NOT satisfied and the
issuance of an alias writ is proper.
o But here the Court was divided: it was a split
decision.
o According to the majority, the judgment was not
executed; kawawa naman „yung judgment-obligee.
o The minority, on the other hand, said, bakit niyo
naman sisihin ang PAL? Pinangalan nila sa sheriff
„yung cheke because he is an agent of the court.
 If you follow the rule on agency.
123
EXAMPLES:
[1] Writ of certiorari: plaintiff files an action against the defendant.
Defendant filed a MTD on the ground that the court does not have
jurisdiction over the subject matter. The TC denied the motion because
it is of the opinion that it has jurisdiction. Defendant filed a petition for
certiorari to annul the order of the court denying the motion to dismiss,
then prohibition asking the appellate court to order the lower court not
to proceed with the case at it does not have jurisdiction, and
mandamus to order the court to dismiss the case, as it does not have
jurisdiction. CA granted the extraordinary writs. Then it is remanded to
the TC for enforcement.
- That cannot be made by the sheriff as it does not have
authority over that.
- It is only the judge of the lower court who can stop the
proceedings and dismiss the case.
- If the judge refuses to comply with the writ issued by the
superior court, contempt ha.
[2] May a spouse file for a petition of mandamus to compel the other
spouse to comply with his conjugal obligations? Not proper, perhaps 
If allowed, but the husband refuses to comply, the sheriff cannot
compel him to perform.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 If both parties are innocent: the one who will
suffer the loss is the one who gave occasion
for the loss.
 But that was not applied here.
 The result of that is kawawa ang judgment-
obligee.
o It was a difficult decision.
o The Constitution also provides that no amount of
public funds shall be dispersed unless there is an
appropriation for it.
 The court cannot even be asked to pay for it.
NOTE: The attention of this Court has been called to the
bad practice of a number of executing officers, of requiring
checks in satisfaction of judgment debts to be made out in
their own names. If a sheriff directs a judgment debtor to
issue the checks in the sheriff's name, claiming he must
get his commission or fees, the debtor must report the
sheriff immediately to the court which ordered the
execution or to the Supreme Court for appropriate
disciplinary action. Fees, commissions, and salaries are
paid through regular channels. This improper procedure
also allows such officers, who have sixty (60) days within
which to make a return, to treat the moneys as their
personal funds and to deposit the same in their private
accounts to earn sixty (60) days interest, before said funds
are turned over to the court or judgment creditor (See
Balgos v. Velasco, 108 SCRA 525 [1981]). Quite as easily,
such officers could put up the defense that said checks
had been issued to them in their private or personal
capacity. Without a receipt evidencing payment of the
judgment debt, the misappropriation of finds by such
officers becomes clean and complete. The practice is
ingenious but evil as it unjustly enriches court personnel at
the expense of litigants and the proper administration of
justice. The temptation could be far greater, as proved to
be in this case of the absconding sheriff. The correct and
prudent thing for the petitioner was to have issued the
checks in the intended payee's name.
The pernicious effects of issuing checks in the name of a
person other than the intended payee, without the latter's
agreement or consent, are as many as the ways that an
artful mind could concoct to get around the safeguards
provided by the law on negotiable instruments. An angry
litigant who loses a case, as a rule, would not want the
winning party to get what he won in the judgment. He
would think of ways to delay the winning party's getting
what has been adjudged in his favor. We cannot condone
that practice especially in cases where the courts and their
officers are involved. We rule against the petitioner.
SEC. 10:
CASANOVA V. LACSAMANA (1979): this is an ejectment
case. After the judgment became final and executory, the
plaintiff moved for the issuance of an order of demolition.
The judge issued an order considered the motion
submitted without further argument. The defendant asked
for postponement of the hearing of the motion for
demolition, but the judge denied it, saying that the order
was issued already considering the same submitted.
Thereafter, the court issued the demolition order.
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o ISSUE: WON such was proper. NO.
o SC: he questioned order is VOID, having been
issued without due hearing and without further
granting the petitioner a reasonable time within
which to remove his house from the premises,
because actual demolition may only be undertaken
after the judgment obligor failed to demolish /
remove his improvements within a reasonable time.
o Here, the court did not give him a reasonable time:
the court just issued an order.
o PROCEDURAL REQUIREMENTS: motion and
hearing, and then the order itself must contain a
period given to the judgment obligor within which to
demolish or remove his improvements.
 It is only upon failure of the obligor to comply
within that reasonable time, then, that is the
only time that the order of demolition may be
implemented.
NOTE: An order of demolition issued without hearing and
without granting the defendant a reasonable time within
which to remove the improvements he constructed on the
property subject of execution is null and void. Under
Section 14, Rule 39 of the Revised Rules of Court, the
officer called upon to enforce a final judgment involving
delivery or restitution of property may do so by placing the
plaintiff in possession of such property but the official shall
not destroy, demolish or remove the improvements made
by the defendant or his agent on the property except by
special order of the court which may only issue upon
petition of the plaintiff, after due hearing, and upon the
failure of the defendant to remove the improvements
within a reasonable time fixed by the court. This
requirement is not an empty gesture. This safeguard is
necessary to give the defendant's an opportunity to protect
his interest. Defendant's house could not be removed
pending plaintiff's recourse to the court for a special order
for the demolition and removal of improvements
constructed by him, which order is to be issued upon
petition of plaintiff, after due hearing and after the
defendant has failed to remove the same within a
reasonable time fixed by the court.
ARCADIO V. YLAGAN (1986): this is an administrative
case against Atty. Ylagan, with the sheriff and two other
public officials, for having used ―force and violence to
break open complainant’s domicile without special
authority from the court‖ under this Section. It appears the
judgment has been rendered against complainant here,
Arcadio, by the MTC of QC. Complainant appealed to the
RTC, but respondent Judge granted execution pending
appeal of the decision. Complainant filed a petition for
certiorari with the CA, but the petition was eventually
dismissed. So, a writ of execution now was issued by the
RTC, and pursuant thereto, Atty. Ylagan, the sheriff, and
the two barangay officials proceeded to the premises and
when they found that no one is inside the apartment, what
they did is broke open the door and entered the place.
Before leaving, they locked the door and the gate with new
padlocks. So an administrative charge is filed against
them, as there was no special order.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
o ISSUE: is that correct?
o SC: it is not disputed that no one was in the
apartment at the time the execution was carried in
effect, and the doors and windows, and other gates,
are padlocked.
o In such instance, there was no need for the
respondents to secure break open order, inasmuch
as the character of the writ in their hands authorized
them to break open the apart if they cannot
otherwise execute this command.
o In other words, it is in (d), delivery and restitution.
o So here, the writ was delivered.
o Under the NEW RULES: demand then give three (3)
days, but before, nothing like that.
o Moreover, there is merit in the position taken by the
respondent, manifested in a memorandum of
authorities submitted to supplement his comment,
that there is only one instance in the Rules of Court
which requires a special "break-open" order – that
referred to in Section 14 (now SEC. 3(d)), Rule 39.
o The situation contemplated under the foregoing
section is very much different from the case at bar.
 REASON: there is no building or structure
constructed by the tenant demolished or
required to be demolished.
o Who owns the apartment? The judgment obligee,
NOT the judgment obligor.
o The charge therefore cannot prosper, in the
absence of any rule which imposes upon the officer
the duty to obtain a break open order.
o The break open / demolition order is only
required when it relates to improvements
constructed or planted by the judgment obligor
or his agents.
 Mga iskwater.
SEC. 11:
CALUAG V. PECSON: special judgment is a judgment
which requires a performance of an act other than by
payment or money, or sale of personal or real
property. It refers to a specific act which a party / person
must personally do, by reason or because his personal
qualifications and circumstances have been taken into
consideration.
o In other words, he is the only person who can do it.
SEC. 14: what is the effective date of a writ of execution?
CONTINUOUS.
 ―Such writ shall continue in effect during the period
within which the judgment may be enforced by
motion.‖
 During the FIVE (5)-YEAR period.
 Under the Old Rules, the effectivity period of a writ
of execution is 60 days from receipt of the officer,
after which period, the writ becomes ineffective /
functus officio.
 So that you had to apply for the issuance of
an alias writ.
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SEC. 12: (just read)
SEC. 13: what properties are exempt from execution?
(a) The judgment obligor's family home as provided by
law, or the homestead in which he resides, and
land necessarily used in connection therewith;
 When does a home become a family home?
Does it require an act in order to become
one?
 OLD LAW: can be done judicially or
extra-judicially.
 PRESENT LAW: the constitution of
the family home is AUTOMATICALLY
CREATED when there is a HEAD OF
THE FAMILY.
 HEAD OF THE FAMILY: when
you are supporting someone
who by law, you are required to
support.
 Example: children, parents,
brothers and sisters.
 Maski single ka: if you are
supporting your brother and
sister, you are the head of the
family.
 VALUE: P200,000.00 and P300,000.00 in
urban areas.
 WHEN VALUE IS RECKONED: at the time
of ITS CONSTITUTION, NOT at the time of
execution.
 That is why if your family home is executed,
oppose it, or if you are the judge, conduct a
hearing to determine value at the time of the
constitution.
 Also, under the Family Code, assuming that
the value of the property exceeds the limits
at the time of its constitution, then the
proceeds of the auction sale must first be
returned to the judgment obligor.
 Only the EXCESS will be the subject
of the payment to the judgment-
obligee.
 HOMESTEAD: doon ka talaga nakatira.
 EXCEPTIONS (under the FC):
1) for non-payment of taxes,
2) in satisfaction of debts secured by the
mortgage constituted on the family
home,
3) debts due to laborers, mechanics,
124
architects, builders, material men
and others who have rendered
service or furnished materials for the
construction of the family home,
(b) Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
 What are special tools? What is even an
ordinary tool? (sipao reference )
(c) Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;
124
Material men’s lien.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 If you are a farmer, pwede, dapat matira sa
iyo yun.
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
 It will not be nice when someone is deprived
of his clothing’s.
 Otherwise, you will be guilty of
indecent exposure 
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select, of a value not
exceeding one hundred thousand pesos;
 VALUE: not exceeding P100,000.00 (not any
more realistic).
(f) Provisions for individual or family use sufficient for
four months;
 Example: bigas, corn.
(g) The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and
other professionals, not exceeding three hundred
thousand pesos in value;
(h) One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned
by a fisherman and by the lawful use of which he
earns his livelihood;
 It must be used for the livelihood of the
obligor, and not for pleasure fishing.
(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the
four months preceding the levy as are necessary
for the support of his family;
GAA V. COURT OF APPEALS (1985): Now, even
―wages‖ of laborers, are included.
NOTE: Article 1708 used the word "wages" and not
"salary" in relation to "laborer" when it declared what are to
be exempted from attachment and execution. The term
"wages" as distinguished from "salary", applies to the
compensation for manual labor, skilled or unskilled, paid at
stated times, and measured by the day, week, month, or
season, while "salary" denotes a higher degree of
employment, or a superior grade of services, and implies a
position of office: by contrast, the term "wages" indicates
considerable pay for a lower and less responsible
character of employment, while "salary" is suggestive of a
larger and more important service (35 Am. Jur. 496).
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing
or in any manner growing out of any life insurance;
 Kaya kumuha na kayo ng life insurance.
(l) The right to receive legal support, or money or
property obtained as such support, or any pension
or gratuity from the Government;
 Basta pension or gratuity from the
government.
 Kapag private?
(m) Properties specially exempted by law.
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NOTE: ―… and no other,‖ → nature of these exemptions
from execution: the right to exemption from execution is
PURELY STATUTORY.
 In other words, courts have no power to extend,
modify, or restrict these exemptions since they are
SUBSTANTIVE, and NOT procedural, in character.
 They constitute a right, given to the judgment-
obligor, and a right which must be resisted upon.
 Otherwise, it would be lost.
 Because it is merely statutory, the BURDEN of
showing the right to exemption is upon the
JUDGMENT-OBLIGOR.
 He must show that he is entitled to it.
 Otherwise, the right does not become
effective.
 PURELY STATUTORY RIGHTS.
―But no article or species of property mentioned in this
section shall be exempt from execution issued upon a
judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon‖ → same as in the Civil
Code.
 To recover its price.
 Example: if you bought SCRAs from Rex and you
were unable to pay Rex for their purchase price,
Rex can claim the SCRAs.
PENTAGON SECURITY V. JIMENEZ (1990): it being a
juridical person—it being a business enterprise—it does
not use the firearms personally, but its employees.
 They are PERSONAL.
NOTE: The term "tools and implements" refers to
instruments of husbandry or manual labor needed by an
artisan craftsman or laborer to obtain his living. Here
petitioner is a business enterprise. It does not use the
firearms personally, but they are used by its employees.
Not being a natural person, petitioner cannot claim that the
firearms are necessary for its livelihood. Private
respondent invites the Court to take judicial notice of the
fact that there are security guards rendering service
without firearms.
There is no question, in our mind, that a security agency
without firearms to equip its guards is useless.
However, it would appear that the exemption
contemplated by the provision involved is personal,
available only to a natural person, such as a dentist's
dental chair and electric fan (Belen v. de Leon, G.R. No. L-
16412, 30 Nov. 1962). As pointed out by the Solicitor
General, if properties used in business are exempt from
execution, there can hardly be an instance when a
judgment claim can be enforced against the business
entity.
WHEN EXEMPTIONS SHOULD BE INVOKED: must be
presented before its sale on execution.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
GOMEZ V. GEALONE (1991): the invocation of the
exemption in this case was raised only six months after
the bill of sale was issued.
 The properties here relate to an agricultural land,
with a residential house. These properties were sold
at public auction.
 The exemption was only invoked six months after
the final bill of sale was issued → after levy of these
properties and sold in a public auction.
 ISSUE: WON the exemption may still be invoked.
 SC: Although the Rules of Court does not prescribe
the period within which to claim the exemption, the
rule is, nevertheless, well-settled that the right of
exemption is a personal privilege granted to the
judgment debtor and as such, it must be claimed
not by the sheriff, but by the debtor himself at the
time of the levy or within a reasonable period
thereafter: (Moran, M.V., Comments on the Rules
of Court, vol. II, 1979 ed., 294, citing Young vs.
Olivares, 41 Phil. 391, 395 Cruz Herrera vs.
McMicking, 14 Phil. 641; 25 C.J. 133).
NOTE: "In the absence of express provision it has
variously held that claim [for exemption] must be made at
the time of the levy if the debtor is present, that it must be
made within a reasonable time, or promptly, or before the
creditor has taken any step involving further costs, or
before advertisement of sale, or at any time before sale, or
within a reasonable time before the sale, or before the
sale has commenced, but as to the last there is contrary
authority."
Reasonable time, for purposes of the law on exemption,
does not mean a time after the expiration of the one-year
period provided for in Section 30 of Rule 39 of the Rules of
Court for judgment debtors to redeem the property sold on
execution, otherwise it would render nugatory final bills of
sale on execution and defeat the very purpose of
execution – to put an end to litigation. We said before, and
We repeat it now, that litigation must end and terminate
sometime and somewhere, and it is essential to an
effective administration of justice that, once a judgment
has become final, the winning party be not, through a
mere subterfuge, deprived of the fruits of the verdict. We
now rule that claims for exemption from execution of
properties under Section 12 of Rule 39 of the Rules of
Court must be presented before its sale on execution
by the sheriff.
SEC. 14: There is NO expiry date for the lifetime of a writ
of execution.
 All the law requires is that if after 30 DAYS, if
execution is not fully satisfied, the sheriff must
make a report and state why.
SEC. 15: SALE OF PROPERTY ON EXECUTION:
 This Section states the NOTICES TO BE GIVEN
WHEN A PROPERTY IS SOLD.
 EFFECT OF ABSENCE OF SUCH NOTICE: the
sale is null and void and passes no title.
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 PREFERABLE PLACES: city hall, post office, and
public market where the sale will take place.
PERISHABLE By posting written notice of the time and
PROPERTIES place of the sale in three (3) public
places for such time as may be
reasonable, considering the character
and condition of the property.
NOTE: no five days. Depending on the
character and condition of the property.
OTHER By posting a similar notice in the three
PERSONAL (3) public places for not less than five
PROPERTIES (5) days.
REAL By posting for twenty (20) days in the
PROPERTY three (3) public places a similar notice
particularly describing the property and
stating where the property is to be sold,
and if the assessed value of the
property exceeds fifty thousand
(P50,000.00) pesos, by publishing a copy
of the notice once a week for two (2)
consecutive weeks in one newspaper
selected by raffle, whether in English,
Filipino, or any major regional language
published, edited and circulated or, in the
absence thereof, having general
circulation in the province or city.
NOTE: better to have it published in a
local newspaper with general circulation,
kasi mahal sa broadsheets.
NOTE: written notice of the sale shall be given to the
judgment obligor, at least three (3) days before the sale,
except as provided in paragraph (a) [perishable] hereof.
 HOW NOTIFY: service of pleadings and other
notices.
 MUST SPECIFY: place, date and exact time of the
sale which should not be earlier than nine o'clock in
the morning and not later than two o'clock in the
afternoon.
 PLACE OF SALE: may be agreed upon by the
parties.
PROPERTY OR PROPERTY OR
PERSONAL PROPERTY PERSONAL PROPERTY
NOT CAPABLE OF CAPABLE OF MANUAL
MANUAL DELIVERY DELIVERY
(1) HOW: by paying the amount required by the
execution and the costs that have been incurred
therein.
(2) WHEN: At any time before the sale of property on
execution.
SEC. 19: HOW PROPERTY MAY BE SOLD ON
EXECUTION: TIME: not be earlier than nine o'clock in the
morning and not later than two o'clock in the afternoon.
 Must start at the exact time fixed on the notice.
 RULE: When sufficient property was sold to satisfy
the execution: no more shall be sold.
 SALE OF REAL PROPERTIES CONSISTING OF
SEVERAL LOTS: must be sold separately.
 When a portion of the property is claimed by a third
person, that third person may require (that part) to
be sold separately.
 SALE OF PERSONAL PROPERTY CAPABLE OF
MANUAL DELIVERY: must be sold within view of
those attending the same and in such parcels as
are likely to bring the highest price.
 May the judgment obligor directly order the sale?
YES.
 The judgment obligor, if present at the sale,
may direct the order in which property, real
or personal shall be sold, when such
property consists of several known lots or
parcels which can be sold to advantage
separately.
SEC. 21: May the judgment-obligee participate in the
execution sale? If so, what is the effect if he becomes the
highest bidder? YES, he can participate.
 When the purchaser is the judgment obligee, and
no third-party claim has been filed, he need not pay
the amount of the bid if it does not exceed the
amount of his judgment.
 If it does, he shall pay only the excess.
 GENERAL RULE: if the judgment obligee is the
one who will participate in the bid, he does not
have to pay if he only pays up to the amount of his
judgment.
 EXCEPTIONS: when the judgment obligee as the
purchaser has to pay:
(1) If there is a third party claim;
(2) If he bids in excess of his judgment, in
which case, he pays the excess.
SEC. 22: ADJOURNMENT OF SALE: by written
consent of the parties.

In the office of the clerk of In the place where the  WITHOUT SUCH AGREEMENT: may be adjourned
court of the Regional Trial property is located. from day to day.
Court or the Municipal Trial  May the sale be adjourned? YES.
Court which issued the  The sheriff may adjourn the sale from day to
writ of or which was day.
designated by the  REASON: if it becomes necessary to do so
appellate court. for lack of time to complete the sale.
 In other words, gabi na.
SEC. 16: THIRD PARTY CLAIMS: see below.  Kulang na araw; bukas na ulit.
 HOWEVER, if it were not for reasons of lack
SEC. 18: May the judgment obligor prevent the sale of of time, may the sale be adjourned? YES,
execution? YES. but only by written consent of the parties
concerned.
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 If no written consent: you have to post have been held considering that the said schedule
again and give notices on the new complied with all the requirements of law regarding a
date fixed. public sale, including notice and publication. The officer
may adjourn the sale from day to day if it is necessary to
do so for lack of time to complete the sale on the date
ABROGAR V. INTERMEDIATE APPELLATE COURT fixed in the notice. But he may not adjourn to another date
(1988): for failure of the defendant to satisfy the judgment unless with the written consent of the parties. This was
of the court in the amount of P2,553, two parcels of land precisely the point of the appellate court when it stressed
valued at P75,000 were levied upon and advertised for the fact that there was no written agreement between the
sale. The auction sale was scheduled on March 27, 1971, debtor and the creditor to postpone the sale, and in fact
but it did not proceed as the court, on motion of the there was no sale held on the scheduled date to warrant
defendant, issued an order that publication be made by the application of Section 24, Rule 39 of the Revised
the movant. So there was a controversy on who should Rules of Court.
pay the publication fees. HOWEVER, on the scheduled
day (March 27), considering that movant did not pay the
publication fees, the sheriff conducted the sale FOUR SEC. 16: THIRD PARTY CLAIMS: refer to that claim of a
MONTHS later. There was no showing that the defendant stranger to the proceedings, claiming his right (ownership,
agreed to the new schedule of the auction sale, and for instance) to the property which the sheriff has levied.
neither was there a new notice or publication of the
auction sale.  PROCEDURE:
 The third party claimant must make an
o TC ruling: the sheriff’s final sale is null and void for AFFIDAVIT, showing his title and right to the
lack of notice and publication, and awarded P2,553 possession of the property levied on;
and attorney’s fees to the defendant.  Serve it upon the sheriff making the levy,
o ISSUE: WON the TC is correct in annulling the sale, and the copy thereof upon the judgment
as it was conducted four months later after March obligee.
27, which was the scheduled date of sale as  The sheriff is not anymore bound to
contained in the notice of sale. keep the property.
o SC: YES, the new schedule was NULL AND VOID  UNLESS, the judgment
because there was NO VALID POSTPONEMENT obligee posts an indemnity
OF SALE. bond in the amount NOT
 There was no written agreement of the greater than the property levied
parties authorizing the sheriff to adjourn the upon.
sale.  EFFECT:
o Again, how to you adjourn a sale? The sheriff may
do so ONLY for lack of time to complete the sale,
kasi gabi na, bukas na lang. SHERIFF MAY NOW IF SHERIFF PROCEEDS
o BUT to postpone it to another day, for reasons other PROCEED WITH THE WITHOUT THE BOND
than above, it is required that the parties must give AUCTION SALE
their written consent.
o Absent their written consent, then the postponement
The bond will now answer The sheriff will be
is not valid, UNLESS it undergoes the procedure for personally liable for any
for any damages that the
new notices and publications of the new auction third party claimant may damage that the third party
sale. now suffer. claimant may suffer by
reason of the levy.
NOTE: As correctly pointed out by the respondent court
(and the trial court), "the proper notice and publication in a
newspaper was made for the sale at public auction  The third party claimant may file an action for
damages: within ONE HUNDRED TWENTY
scheduled for March 27, 1971. On motion, however, of
(120) DAYS from the posting of the bond.
private respondents, the trial court in an Order dated
March 26, 1971, directed the sale set for March 27, 1971 o OTHER REMEDY: file an
independent action for recovery of
postponed provided the movant would pay the publication
fees, otherwise the public auction would continue at a date said property.
to be designated by the Sheriff. The movant did not pay  WHO WOULD BE THE
the publication fees hence there was no postponement of DEFENDANTS: the sheriff and
the public auction sale since the condition precedent or the judgment obligee.
suspensive condition (that of paying the publication fees) o OR an action of damages by the
was not complied with. There was therefore no valid judgment obligee against the third
postponement of the public auction sale. And there was no party claimant for frivolous and
written consent of debtor and creditor and neither was spurious third party claims.
there any agreement in writing by the parties authorizing  But may be done in the same
the sheriff or the officer making the sale to adjourn the action / same court which
same "to any date agreed upon in writing by the parties." issued the writ, OR through a
separate action.
The public auction sale set for March 27, 1971, should  REMEDY OF THIRD PARTY
CLAIMANT:

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a. Action for damages, within 120
days against the bond, OR
b. Separate reinvindicatory action
in a separate case.
 REMEDY OF THE JUDGMENT-
OBLIGEE: File damages against the
third party claimant because the third
party claim is frivolous or spurious in
the same proceedings OR in a
separate action,
 If writ was issued in favor of the Philippines:
no bond shall be required.
 WHO MAY FILE: any person other than the
judgment debtor or his agent may file.
 WHEN: anytime, so long as the property is with the
sheriff or before sale in public auction.
 IF THIRD PARTY CLAIM DENIED:
 File separate reinvindicatory action against
the judgment obligee or the purchaser of the
125
property after the public auction ; or
 Action of damages against the indemnity
bond posted by the obligee in favor of the
sheriff, within 120 days from the posting of
the bond.
 Remedy of certiorari or prohibition is NOT
allowed.
 Neither is may an appeal be made against
such denial of the court of the third party
claim.
ISSUE: In case of a third party claim, is that not
considered as undue interference with the processes of
another co-equal court?
 Can it ask a writ for preliminary injunction to prohibit
the sheriff from pursuing the sale? YES.
 Is that PI valid, considering that the sheriff was
acting pursuant a valid order from a co-equal court
of jurisdiction?
ARABAY, INC V. SALVADOR (1978): a judgment was
rendered against the defendant by the CFI of Manila,
ordering the defendant to pay Arabay certain sums of
money. The judgment became final and executory and
pursuant thereto, a writ of execution was issued and
accordingly, certain properties of the defendant were
levied upon. However, before the scheduled auction sale,
a certain Pascual filed a third party claim, alleging that he
is the owner of said personal property because they were
sold to him by the deputy sheriff of Caloocan City in an
earlier case where the defendant was also the defendant.
Arabay posted an indemnity bond and the sale was
rescheduled. The sale however, did not take place
because Pascual sued the sheriff and Arabay before the
Caloocan Court, praying that the sale be enjoined and that
the defendants pay damages. The Caloocan court then
enjoined the sheriff from proceeding of the sale.
o ISSUE: WON the Caloocan court may stop/enjoin
the processes of the Manila court.
o SC: YES, the Caloocan CFI can stop the processes
125
NOTE: if he resorts to this, he LOSES HIS RIGHT TO DAMAGES if he
does not follow the procedure for a third party claim.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
of the Manila court against properties not belonging
to the judgment debtor.
o The injunction would not constitute interference with
the processes of a court of coordinate or co-equal
jurisdiction.
o REASON: as a third party claimant, Pascual has the
right under the Rules to vindicate his claims to the
properties levied upon by means of a proper /
separate action under SEC. 16.
NOTE: The Supreme Court held that the injunction in this
case would not constitute an interference with the process
of a court of coordinate and co-equal jurisdiction, because
Rules 39, Sec. 17 of the Rules of Court recognizes the
right of a third party claimant to vindicate his claim to the
properties levied upon by filing a separate and
independent action to establish ownership to the
properties levied upon and to secure in said action an
injunction to restrain the sale of the attached property.
When the sheriff acting beyond the bounds of his
authority, seizes a strangers property, the writ of
injunction, which is issued to stop the auction sale of that
property, is not an interference with the writ of execution
issued by another court because the writ of execution was
improperly implemented by the sheriff. Under the writ, he
could attach the property of the judgment debtor. He is not
authorized to levy upon the property of the third-party
claimant.
A judge acted within his jurisdiction and did not commit
any grave abuse of discretion in enjoining the auction sale
where a sheriff has no authority to attach the property of
any person under an execution except that of the
judgement debtor. If a sheriff does so, the writ of execution
affords him to justification, for the action is not in
obedience to the mandate of the writ. So long as the
officer confines his act to the authority of the writ, he is not
liable but all of his acts which are not justified by the writ
are without authority of law. An injunction is a proper
remedy to prevent a sheriff from selling the property of one
person for the purpose of paying the debts of another.
ESCOVILLA V. COURT OF APPEALS (1989): RTC of
Davao rendered a judgment in favor of Cuison
Engineering and Machinery Co., Inc. against del Rosario
and Sons Logging Enterprises, Inc., ordering Logging
Enterprises to pay damages to the former. So a writ of
execution was issued and the sheriff levied upon a
welding machine. Then, a third party claim was filed by
Rama, office manager of Sibagat Timber Corporation.
Because the levy of the welding machines, Sibagat
instituted a separate special civil action for prohibition with
preliminary injunction and damages before the RTC of
Butuan. Subsequently, a motor launch, named Pixie Boy
No. 5, was also levied upon and del Rosario filed a third
party claim. After an indemnity bond was filed by Cuison
Engineering for the sheriff, the second civil case in Butuan
was amended to include additional petitioner del Rosario
and the sheriff as defendants. The sale was scheduled
and was in fact conducted on motion of Cuison. After the
injunction case, the Butuan RTC rendered a decision in
favor of the plaintiff.
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o Judgment here was rendered by the RTC of Davao.
o Then third party claim was filed in the City of
Butuan.
o SC: The indemnity bond is LIABLE.
o The purchaser of the thing acquires it subject to the
outcome of the claim of the third arty claimant.
o RE: contention that the Butuan RTC cannot interfere
with the orders issued by the Davao RTC → the
same applies only in cases where no third party
claim is involved.
o So it is NOT undue interference because the
authority of the sheriff of the RTC of Davao is only
to levy properties belonging to the judgment-obligor.
 If the sheriff of Davao levies property
belonging to a third person, effectively he
EXCEEDS his authority when he
implemented the order of the court.
NOTE: In the case of Traders Royal Bank v. Intermediate
Appellate Court, (133 SCRA 141 [1984]) where the Court
held: "Generally, the rule that no court has the power to
interfere by injunction with the judgments or decrees of a
concurrent or coordinate jurisdiction having equal power to
grant the injunctive relief sought by injunction, is applied in
cases where no third-party claimant is involved, in order to
prevent one court from nullifying the judgment or process
of another court of the same rank or category, a power
which devolves upon the proper appellate court (Arabay,
Inc. v. Salvadro, 82 SCRA 138). The purpose of the rule is
to avoid conflict of power between different courts of
coordinate jurisdiction and to bring about a harmonious
and smooth functioning of their proceedings.‖
BAYER V. AGANA (1975): BAYER GERMANY and
BAYER PHILIPPINES obtained in Civil Case No. Q-14029
a money judgment against Standard Industrial Co. After
the same had become final, a writ of execution was issued
and levy on the properties of the judgment debtor was
instituted. Ownership over the properties was claimed by
third persons and on an indemnity bond filed by BAYER,
the Sheriff proceeded to conduct the auction sale but he
was refused entrance at the premises. Thereafter, a
motion before Judge Ericta's court was filed asking
authority to break open the gates to effect entry. The same
was granted and the third party claimants filed action for
damages against BAYER and the Sheriff. Judge Agana, to
whom the case was assigned, issued an order to maintain
the status quo but despite this, Judge Ericta granted
BAYER'S motion to reiterate its order to break open the
gates and to take hold of the goods for sale. Thereafter
came Judge Agana's order of contempt for violation of the
status quo. Subsequently, these two separate petitions
were filed, one essentially a counterclaim to the other.
G.R. No. 38701 is a petition for certiorari and prohibition to
annul and set aside the orders of respondent Judge
Enrique Agana in Civil Case Q-18881 of the CFI of
Quezon City enjoining herein petitioners BAYER
GERMANY and BAYER PHILIPPINES, the City Sheriff
and his deputy in Quezon City from breaking open the
gates of the premises located at No. 17-18 Judge Juan
Luna St., San Francisco del Monte, Quezon City and
taking out the properties therein and that order finding
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
petitioner's BAYERPHIL division manager and counsels
guilty of contempt on the ground that Judge Agana's
orders constitute undue and illegal interference with the
exercise by Judge Ericta of his co-ordinate and co-equal
authority as Judge of the CFI on matters properly before
him. G.R. No. L-38881 is a petition to annul and set aside
the orders of Judge Vicente Ericta issued in Civil Case Q-
14029 designed to authorize the sale on execution of the
goods claimed by the third party claimants notwithstanding
the restraining order issued by Judge Agana on the
ground that Judge Ericta exceeded his jurisdiction in
assuming that his order of May 9, 1974 denying San
Francisco's and Isidoro's motion to quash the levy on the
properties in question, which was not appealed by the
movants, constituted a valid final adjudication of the
ownership of the properties involved.
 A right of a third party claimant over the property
levied upon by the sheriff may not be taken up with
the case where such claim is presented, but in a
separate independent action instituted by the
claimant.
 Can that be considered as an intervention? NO, as
intervention may not be allowed AFTER
126
judgment.
 Here, there is already a final and executory
judgment.
 Intervention is NOT allowed as this is more
likely to inject confusion with the issues of the
parties with which that third party claimant
has nothing to do, and thereby retard, instead
of facilitate, the prompt dispatch of the
controversy.
 Besides, intervention may not be permitted
AFTER trial has been concluded and final
judgment has been rendered.
NOTE: The moment a third-party claim is filed, the sheriff
is not bound to keep the property levied upon, unless the
creditor insists that it should be continued, which may be
done if such creditor files a bond sufficient to indemnify the
sheriff for whatever damages he may be held liable for
should the third-party succeed in vindicating his title in a
proper action brought separately for the purpose. The
sheriff is not required to examine the title deeds to pass
upon the validity of the title since this is a question to be
determined by the proper court.
Under Section 17 of Rule 39 a third person who claims
property levied upon on execution may vindicate such
claim by action. A judgment rendered in his favor,
declaring him to be the owner of the property, would not
constitute interference with the powers or processes of the
court which rendered the judgment to enforce which the
execution was levied. The property, being that of a
stranger, is not subject to levy, hence an interlocutory
order such as injunction, upon a claim and prima facie
showing of ownership by the claimant, cannot be
considered as an interference with the co-ordinate and co-
equal authority of the court which rendered the judgment
subject of execution.
126
Intervention is allowed only BEFORE judgment.
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SEC. 23: When does a purchaser acquire ownership/title
over the property? Upon payment of the purchase price
AND delivery of the property with the purchaser IF
CAPABLE OF MANUAL DELIVERY.
 Without delivery: res perit domino.
 If personal property, title passes to the purchaser
upon the delivery of the thing.
 Example: bumili ka ng kotse. Nabayaran mo na,
and the buyer gave you the keys. You said, ―bukas
ko na lang kunin „yan [susi].‖ Nasunog. Pwede pa
bawiin yung pera? YES, as there was still NO
delivery YET.
 But if you bought a car and the seller said,
―Heto na yung susi,‖ and the buyer got the
keys. The next day, the car was burned,
pwede ba mabawi yung pera niya? NO, as
there was already delivery.
 See law on sales.
SEC. 24: NOT CAPABLE OF MANUAL DELIVERY:
delivery here constitutes the issuance of the certificate of
sale.
 Tradition Longa Manu: constructive delivery.
 CERTIFICATE OF SALE: conveys to the purchaser
all the rights which the judgment obligor had in such
property as of the date of the levy on execution or
preliminary attachment.
SEC. 25: WHEN OWNERSHIP IS ACQUIRED BY THE
PURCHASER OVER REAL PROPERTY: upon the
expiration of the period of redemption, and no redemption
has been exercised.
 The officer must give to the purchaser a certificate
of sale, containing the following:
(a) A particular description of the real property
sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption
expires one (1) year from the date of the
registration of the certificate of sale.
 CERTIFICATE OF SALE: must be registered in the
RD where the property is situated.
 REASON: so that the period for redemption
will start to run.
 The one year period starts from the
registration of the sheriff’s certificate of sale.
SEC. 26: CLAIMED BY THIRD PERSON: the Certificate
of Sale shall make express mention of the existence of
such third party claim.
SEC. 27: RIGHT OF REDEMPTION: NATURE (as per the
Supreme Court): not predicated on a proprietary right
which after the sale of the property leaves the judgment-
obligor and vests in the purchaser. Rather, the right is
predicated on bare statutory privilege which may be
exercised only by the persons expressly named in the law.
 In other words, the law does not vest actual
ownership at the time of the sale, as redemption is
a CONDITION PRECEDENT to the exercise
thereof.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 REASON: the right follows the person, and not the
property.
 TO BE EFFECTIVE: redemption must be exercised
by the persons, and in the time and manner,
prescribed by the rules, which are EXCLUSIVE.
 If not exercised in the manner provided for,
wala yan.
 Rules must be strictly complied.
 Redemption applies only when the property levied
and sold is a REAL PROPERTY.
 If it is personal property, upon its delivery,
tapos ang boksing.
 A purchaser in a public auction does not
necessarily acquire title by virtue of the
execution sale, as he only acquires identical
interest that the judgment-obligor had in the
property as of the time of levy, attachment or
execution.
 As when a chattel mortgage is
executed over a house (though the
land on which it was built was
excluded), and proceeded with the
notices as it is a chattel. Did the
purchaser acquire the title? NO, still a
real property.
 The one that determines the nature of
the property is the law.
 Notwithstanding that the designation
of the parties as a chattel, the
procedure laid down for execution of
real property must be strictly
complied.
 PERSONS ENTITLED TO REDEEM REAL
PROPERTY (2):
(1) The judgment obligor, or his successors in
interest;
 Examples of successor-in-interest:
(a) One to whom the judgment-
obligor has transferred his right
127
of redemption.
(b) To whom he conveyed his
interest in the property for the
purpose of redemption.
(c) Succession by operation of
law: one who succeeds the
interest of the debtor → heir.
 May a surety
128
against whom the
judgment was rendered join/exercise
redemption as a successor-in-
interest? NO, by paying the judgment
debt, he is subrogated to the rights of
the judgment-obligee, and he cannot
be considered as a successor-in-
interest of the judgment obligor.
 In short, he was not a
successor, but the judgment-
obligee himself.
(2) Creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold.
 SUBSEQUENT TO THE LIEN under
which the property is sold.
127
Right to redemption is a property right, and can thus be sold.
128
Who was obliged to pay/has paid part of the judgment.
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 Such person is called a  ATTACHMENT: levy
REDEMPTIONER: it refers to a
JUNIOR LIEN ORDER / JUNIOR
ENCUMBRANCER → he is a creditor
having a lien to the property.
 May surety exercise as a redemption
after paying part of the obligation? -
NO, he cannot, as the lien which he
acquires and to which he is
subrogated by virtue of his payment,
is the same judgment that the obligee
held and by virtue of which the
property was sold.
 To be a redemptioner, his lien,
whether by attachment, judgment
or mortgage, must be other than
and subsequent to the judgment
under which the property was sold,
not the same.
 EXAMPLES: ordinary creditor having
a final judgment subsequent to that
under which the property was sold.
 May redeem as a redemptioner
even if not levied by him.
 As such judgment creditor or
obligee has preferential right
under the Civil Code, which is
equivalent to a LIEN: Art. 2244
(14).
 Or a complainant of a criminal case
who attaches the property of the
accused to satisfy the civil liability of
the latter, provided that it was
SUBSEQUENT to the judgment under
which the property was sold
(SECOND LIEN HOLDER).
 Illustration: you have a property
worth P10M, and then you
went to a bank to obtain a loan
in the amount of P2M. Then
you went again to another bank
and again obtained another
loan for P3M this time. The
second creditor bank was fine
with that, as the property’s
value was big. The first bank is
superior over the second. Upon
foreclosure, is the second bank
a redemptioner? YES, because
it is SUBSEQUENT by
judgment, attach-ment, or
mortgage to the lien under
which the property was sold.
 Also, if there is a judgment
against a defendant, attaching
a property, even if the loan was
less than the value of the
attached property, then a
person who acquires
subsequent judgment against
the defendant is a
REDEMPTIONER (by
judgment).
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
129
before finality
of judgment.
 REASON (Supreme Court): it is to
enable these second lien holders to
protect the interest of the property of
the judgment-obligor.
 Being subsequent or junior lien
holders, if the judgment-obligor
does not redeem, then the
purchaser gets the property
free from all lien or
encumbrance.
 What if there is a conflict between the two
(judgment obligor and a redemptioner)? In such
case, the judgment-obligor shall be preferred as the
right of redemption inures to him primarily, being
the owner of the property.
 The rights of the redemptioner will not be
prejudiced kasi pwede niya iyan birahin
niyan.
 The redemptioner can even ask for
execution.
RIGHT OF REDEMPTION: can be sold voluntarily.
 Can the right of redemption be levied upon by the
judgment-obligee in the same case and sold for the
satisfaction of the balance of the judgment there?
NO, the right of redemption pertaining to the
judgment obligor cannot be levied upon by the
judgment obligee.
 REASON (Supreme Court): that would
tantamount to defeating the purpose of the
law in granting the right of redemption to the
judgment obligor.
 Kalokohan na lang.
 Kung ganun, i-levy mo na rin „yung right
saka ung yung property.
 However, the right of redemption being a property
right, may be sold, and levied upon or sold to the
satisfaction of the judgment.
 BUT that judgment should be rendered
subsequent or in another case.
 The right is a property right which can be
sold voluntarily.
 Consequently, that right of redemption may
be levied upon and sold for the satisfaction
of a judgment rendered in another case.
 BUT the right of redemption pertaining to the
judgment obligor CANNOT be levied upon
by the judgment obligee IN THE SAME case.
SEC. 28: PERIODS OF REDEMPTION:
Judgment obligor Redemptioner Redemptioner
(first or exercising redeeming from
subsequent SUBSEQUENT another
redemption) and redemption redemptioner
129
Technically, levy is AFTER judgment.
LEVY: a lien in favor of the judgment obligee, segregating such property
from the rest of the property of the judgment obligor for the purpose
of SATISFYING the judgment.
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Redemptioner o REASON: the status of a redemptioner is a fact

exercising FIRST which does not appear with the records of the
redemption proceedings.
o And in order to prevent the redemption by an
ONE YEAR from SIXTY (60) Even beyond unauthorized person, proof is required.
the registration of DAYS from ONE (1) YEAR
the certificate of previous period, SEC. 31: the redemption period of ONE YEAR, the
sale within which redemption PROVIDED he is judgment obligor RETAINS POSSESSION of the property.
to redeem. within which to within the 60-day
redeem. period counted SEC. 32: RENTS, EARNINGS, INCOME during the period
from the last of redemption: JUDGMENT OBLIGOR is entitled to the
previous same.
redemption.
o The purchaser is not entitled to them → only
EFFECT OF REDEMPTION BY THE JUDGMENT AFTER the expiration of the period of redemption.
OBLIGOR: effect of the sale is terminated and given
certificate of redemption. OCTOBER 27, 2016

SEC. 33: REDEMPTION:

AMOUNTS PAYABLE ON REDEMPTION:

a. FIRST REDEMPTION:
a. Purchase price;
b. 1% interest per month thereon;
c. Assessment and taxes paid by the purchase
after the purchase;
d. 1% per month interest on the total amount of
assessment or taxes;
e. If the purchaser be also a creditor having a
PRIOR lien to that of the redemptioner, other
than the judgment under which the purchase
was made, then the amount of such lien, with
interest.
b. SUBSEQUENT REDEMPTION: bayaran mo yung
dalawang utang mo.
o The sum paid on the last redemption;
o 2% interest thereon;
o Assessment and taxes paid by the last
redemptioner after last redemption;
o Interest on the total assessment and taxes;
o Amount of prior lien held by the prior
redemptioner.
REQUISITE TO THE EXERCISE OF RIGHT OF
REDEMPTION BY THE JUDGMENT OBLIGOR: None.
o The judgment obligor is ENTITLED to redeem the
property sold without further requisite than that of
paying the redemption price.
o He is not required to present proof of its being a
judgment obligor, as his right of redemption,
inherent on him, appears in the proceedings and
the documents held by the purchaser.
SEC. 30: Upon the other hand, there is a REQUISITE for
the exercise of redemption of a REDEMPTIONER: he
must prove his status as such.
o HOW: by producing to the officer, or person from
whom he seeks to redeem, and serve with his
notice to the officer a copy of the judgment or
final order under which he claims the right to
redeem, certified by the clerk of the court wherein
the judgment or final order is entered.
 If attachment, then the order of attachment.
 If mortgage, the mortgage deed.
ABROGAR V. INTERMEDIATE APPELLATE COURT:
Postponement of an auction sale: cannot be done unless
a written agreement of the parties authorizing the sheriff to
adjourn the sale.
o EXCEPT when it is an adjournment for day to day,
on the ground that there is lack of time to finish the
auction sale.
CENAS V. SANTOS (1991): Pulido spouses mortgaged
their land to Pasay City Savings and Loan Association.
Subsequently, the same land was levied upon pursuant to
a writ of execution issued in a certain civil case by the
RTC of QC in Punzalan v. Pulido. Judgment became final
and the said land was levied on execution by the QC
court. At the auction sale, Cenas was the highest bidder,
but there was an existing mortgage. Later on, the
Association assigned all its rights as mortgagee to Cenas.
It appears later on that a certain Dr. Santos, to whom the
Pulido’s right of redemption was assigned, then Santos
redeemed the property from Cenas. Cenas, later, as
creditor having a prior lien, did not demand payment of his
other lien (as mortgagee, as he acquired the rights of the
Association). Then, Santos filed to the sheriff an
extrajudicial foreclosure of the same property, which was
redeemed by Cenas, being the assignee of the
Association. Santos filed an adverse claim, saying that he
had already redeemed the property. Santos also filed a
petition for prohibition with preliminary injunction to enjoin
the sheriff from proceeding with the extrajudicial
foreclosure sale.
(1) ISSUE: Did the redemption by Santos extinguish
the pre-existing mortgage obligation of the
judgment-obligor to the Association? NO.
(2) Santos, as successor-in-interest of Pulido, is
deemed to have been subrogated of the rights and
the obligations of the obligor, who has a subsisting
obligation to the mortgagee-bank.
(3) Therefore, the extrajudicial foreclosure pursued by
Cenas as assignee of the mortgage can proceed,
as it is a PRIOR LIEN.

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(4) He is therefore, called a PURCHASER WHO IS A
CREDITOR HAVING A PRIOR LIEN with such
purchase was made.
NOTE: In the instant case, it will be recalled that on May 3,
1976, the Pulidos mortgaged the subject property to
Pasay City Savings and Loan Association, Inc. who, in
turn, on January 8, 1977, assigned the same to petitioner
Cenas. Meanwhile, on July 19, 1976, pursuant to the writ
of execution issued in Civil Case No. Q-2029 (Petitioner
Cenas is not a party in this case No. Q-2029), the subject
property was sold to petitioner Cenas, being the highest
bidder in the execution sale. On July 19, 1977; private
respondent Dra. Rosario M. Santos redeemed the subject
property. Therefore, there is no question that petitioner
Cenas as assignee of the mortgage constituted over the
subject property, is also a creditor having a prior
(mortgage) lien to that of Dra. Rosario M. Santos.
Accordingly, the acceptance of the redemption amount by
petitioner Cenas, without demanding payment of her prior
lien — the mortgage obligation of the Pulidos — cannot
wipe out and extinguish said mortgage obligation. The
mortgage directly and immediately subjects the property
upon which it is imposed, whoever the possessor may be,
to the fulfillment of the obligation for whose security it was
constituted (Art. 2126, Civil Code). Otherwise stated, a
mortgage creates a real right which is enforceable against
the whole world. Hence, even if the mortgaged property is
sold, (Art. 2128) or its possession transferred to another
(Art. 2129), the property remains subject to the fulfillment
of the obligation for whose security it was constituted
(Padilla, Civil Code annotated, Vol. VII, p. 207, 1975 ed.).
Moreover, it must be stressed that private respondents
redeemed the property in question as "successor in
interest" of the judgment debtor, and as such are deemed
subrogated to the rights and obligations of the judgment
debtor and are bound by exactly the same condition
relative to the redemption of the subject property that
bound the latter as debtor and mortgagor (Sy vs. Court of
Appeals, 172 SCRA 125 [1989]; citing the case of
Gorospe vs. Santos, G.R. No. L-30079, January 30, 1976,
69 SCRA 191). Private respondents, by stepping in the
judgment debtor's shoes, had the obligation to pay the
mortgage debt, otherwise, the debt would and could be
enforced against the property mortgaged (Tambunting vs.
Rehabilitation Finance Corporation, 176 SCRA 493
[1989]).
COMETA V. INTERMEDIATE APPELLATE COURT
(1987): there was a suit for damages in the CFI of Rizal,
ordering the defendant Cometa to pay plaintiff Franco a
sum of money. After the writ of execution was issued, the
sheriff sold in the auction sale three commercial lots
belonging to Cometa. The court later on issued an order
cancelling the certificate of title of Cometa, and ordering
the issuance of a new certificate under the name of the
plaintiff Franco. Subsequently, Herco Realty, claiming to
have acquired the properties in question from Cometa
PRIOR to the execution sale, filed an action to annul the
levy and sale on the ground that the sheriff disregarded
proper practice and immediately proceeded to its real
property without exhausting first his personal property.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
Also, the sale was made en masse, and not per parcel
(the commercial lots valued at P500K were only sold for
P57K); and that price was grossly inadequate. After filing
of such complaint, Franco filed a motion for the issuance
of writ of possession.
a. When is a party entitled to WRIT OF
POSSESSION? After expiration of 1 year from
registration of the sheriff’s sale.
1. Issuance is ministerial.
b. He now seeks for the issuance of writ of
possession, which was opposed by Cometa on the
ground that there is a pending action for annulment
of the levy and sale of the properties in question.
The court granted the writ of possession,
nonetheless, but later on this order was
reconsidered and reversed by the same court.
c. Because the trial court here reconsidered its
previous order, Franco now questioned it in a
certiorari proceeding in the CA, and the appellate
court granted the writ of possession.
d. Thus, Herco filed a petition in the SC, on the issue
of WON Cometa can be ordered to deliver
possession of the property sold at public auction
despite the pendency of the said action for
annulment.
e. SC: possession of property sold on execution sale
shall be conferred under the conditions set forth in
Sec. 33, Rule 39.
2. The issuance of writ of possession should be
DENIED.
f. But a writ of possession is a mere consequence of a
writ of execution, as well as the ensuing public
auction sale.
g. The issuance of the writ of possession is therefore
dependent on a valid execution of the procedural
steps preceding it, and any flaw affecting any of its
stages could affect the validity of the issuance.
h. Since the validity of the levy and sale is directly put
it issue in another case, that issue necessarily
requires pre-emptive resolution.
3. For if respondent had not acquired any right
therein by virtue of the levy, then he is not
entitled to its possession.
i. The failure of Cometa to exercise redemption is of
no moment, as redemption is inconsistent of his
claim of invalidity of the sale.
j. Writ of possession may be denied as the very
validity of the levy and sale has been put on issue.
k. Other than that, if the validity of the sale / levy is
not put on issue, is there any ground that the court
may refuse to issue the writ of possession? YES,
see below.
NOTE: the writ of possession may issue in favor of a
purchaser in an execution sale when the deed of
conveyance has been executed and delivered to him after
the period of redemption has expired and no redemption
has been made by the judgment debtor.
A writ of possession is complementary to a writ of
execution (see Vda. de Bogacki v. Inserto, 111 SCRA 356,
363), and in an execution sale, it is a consequence of a
writ of execution, a public auction sale, and the fulfillment
of several other conditions for conveyance set by law. The
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issuance of a writ of possession is dependent on the valid
execution of the procedural stages preceding it. Any flaw
afflicting any of its stages, therefore, could affect the
validity of its issuance.
In the case at bar, the validity of the levy and sale of the
properties is directly put in issue in another case by the
petitioners. This Court finds it an issue which requires pre-
emptive resolution. For if the respondent acquired no
interest in the property by virtue of the levy and sale, then,
he is not entitled to its possession.
SEC. 33, LAST PAR.: UNLESS a third party is actually
holding the property ADVERSELY to the judgment obligor.
o Meaning, a third person does not derive his
possession from the judgment obligor.
o In fact, the third party’s claim is adverse to that of
the judgment obligor.
o In the absence of the attack on the validity of
the levy and sale, the writ of possession is a
ministerial matter on the part of the court to
issue, EXCEPT when the third person who has
possession / claim of ownership over the
property based his right adverse to (he does not
derive it) from the judgment obligor.
ROXAS V. BUAN (1988): Valentin executed a REM to
secure a loan in favor of Juan. For his failure to pay, the
130
mortgage was foreclosed extra judicially. At the auction
sale, the property was bought by Buan as the highest
bidder. When the property was not redeemed during the
period of redemption, Buan was issued a final bill of sale,
and a writ of possession. The sheriff tried to serve the
same, but found a certain Atty. Roxas in actual possession
of the property. He claimed that he bought it from Valentin,
and he refused to vacate it, but the court ordered him to
vacate. Atty. Roxas was claiming that he bought the same
from Valentin and a new action must be filed, and the act
of ousting him is a deprivation of his property without due
process of law.
o ISSUE: Is there a need for another case to oust
him? NO.
o Anyone who derives title from the judgment-obligor
can be ousted and is bound by the judgment.
o SC: (BASIS: Sec. 33, Rule 39) as transferee of
Valentin, the judgment obligor, the judgment obligor
Roxas steps into his shoes.
o Considering that property has already been sold at
a public auction pursuant to an extra-judicial
foreclosure, the only interest that may be
transferred is the right to redeem it within the period
prescribed by law.
4. Roxas is therefore, the successor-in-interest of
Valentin to whom the latter has conveyed his
interest to the property for the purpose of
redemption.
o Consequently, Roxas’ occupancy thereof cannot be
considered as adverse to Valentin.
o The purchaser’s right of possession is recognized
130
See Act No. 3135.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
only as against the judgment debtor, his
successors-in-interest, but NOT against a person
whose right of possession is ADVERSE to the latter.
NOTE: In the extrajudicial foreclosure of real estate
mortgages, possession of the property may be awarded to
the purchaser at the foreclosure sale during the pendency
of the period of redemption under the terms provided in
Sec. 6 of Act 3135, as amended (An Act to Regulate the
Sale of Property Under Special Powers Inserted In or
Annexed to Real Estate Mortgages), or after the lapse of
the redemption period, without need of a separate and
independent action [IFC Service Leasing and Acceptance
Corp. v. Nera, G.R. No. L-21720, January 30, 1967, 19
SCRA 181]. This is founded on his right of ownership over
the property which he purchased at the auction sale and
his consequent right to be placed in possession thereof.
This rule is, however, not without exception. Under Sec.
35, Rule 39 of the Revised Rules of Court, which was
made applicable to the extrajudicial foreclosure of real
estate mortgages by Sec. 6 Act No. 3135, the possession
of the mortgaged property may be awarded to a purchaser
in extrajudicial foreclosures "unless a third party is actually
holding the property adversely to the judgment debtor."
[Clapano v. Gapultos, G.R. Nos. 51574-77, September 30,
1984, 132 SCRA 429, 434; Philippine National Bank v.
Adil, G.R. No. 52823, November 2, 1982, 118 SCRA 110;
IFC Service Leasing and Acceptance Corp. v. Nera,
supra.] As explained by the Court in IFC Service Leasing
and Acceptance Corp. v. Nera, supra:
. . . The applicable provision of Act No. 3135 is
Section 6 which provides that, in cases in which an
extrajudicial sale is made, "redemption shall be
governed by the provisions of sections four hundred
and sixty-four to four hundred and sixty-six, inclusive,
of the Code of Civil Procedure in so far as these are
not inconsistent with the provisions of this Act."
Sections 464-466 of the Code of Civil Procedure were
superseded by Sections 25-27 and Section 31 of Rule
39 of the Rules of Court which in turn were replaced
by Sections 29-31 and Section 35 of Rule 39 of the
Revised Rules of Court. Section 35 of the Revised
Rules of Court expressly states that "If no redemption
be made within twelve (12) months after the sale, the
purchaser, or his assignee, is entitled to a conveyance
and possession of the property . . ." The possession of
the property shall be given to the purchaser or last
redemptioner by the officer unless a party is actually
holding the property adversely to the judgment debtor.
[Id. at 184-185; Emphasis in the original.]
MALONZO V. MARIANO (1989): for failure to pay loan of
Universal Ventures to Banco Filipino, the bank foreclosed
extra-judicially two parcels of land with the improvements
(commercial buildings thereon). At the auction, sale,
Banco Filipino was the highest bidder and the properties
was awarded to them. No redemption was made, and a
final certificate of sale was issued to the bank. A writ of
possession was likewise issued. Now, the occupants of
the property, claiming to be lessees of Universal Ventures
filed an action against the bank, alleging that they were
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not parties on the ejectment case.
o ISSUE: can the writ of possession be stopped
against the lessees? NO as their claim of
possession is not adverse.
o In fact, they derive their right of possession by the
virtue of the lease from the judgment obligor.
NOTE: The lessees of the mortgagor cannot be
considered third parties "actually holding the property
adversely" to said party from whom they derive their rights
to the possession to the property; their rights to the
possession to the property; their rights cease with those of
the mortgagor, and a writ of possession is enforceable
against them.
MARIANO V. COURT OF APPEALS (1989): A judgment
was rendered against the wife only, who was engaged in
business. Apparently, with the consent of the husband.
After an execution pending appeal was issued, defendant
(husband) filed a separate action to vindicate his claim by
proper action after he had filed a third party claim.
o SC: the husband is NOT a stranger to the case.
NOTE: Section 17, Rule 39 of the Rules of Court,
authorizes a "third person," i.e., "any other person than the
judgment debtor or his agent," to vindicate "his claim to
the property by any proper action." The "proper action"
referred to in the section "is and should be an entirely
separate and distinct action from that in which execution
has issued, if instituted by a stranger to the latter suit;" and
in "such separate action, the court may issue a writ of
preliminary injunction against the sheriff enjoining him
from proceeding with the execution sale."
Upon the other hand, if the claim of impropriety on the part
of the sheriff in the execution proceedings is made by a
party to the action, not a stranger thereto, any relief
therefrom may be applied for with, and obtained from, only
the executing court; and this is true even if a new party
has been impleaded in the suit.
The husband of the judgment debtor cannot be deemed a
"stranger" to the case prosecuted and adjudged against
his wife.
REMEMBER: the meaning of the word ―ADVERSE.‖
SEC. 34: INSTANCES WHERE THE BUYER AT A
PUBLIC AUCTION MAY RECOVER WHAT HE HAS
PAID:
a) The purchaser of his successor-in-interest fails to
recover possession of the property;
b) The purchaser, after having acquired possession, is
evicted, due to:
(1) Irregularities concerning the sale: importance
of publication and notice requirements.
(2) Reversal or setting aside of the judgment: as
when it is pending appeal.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
(3) The fact that the property was exempt from
131
execution
(4) A third person has vindicated his claim to the
property: there is another person who has a
better right.
HOW MAY THE PURCHASE PRICE BE RECOVERED?
TWO REMEDIES:
(1) The purchaser may file a motion in the same action,
or in a separate action to recover from the
judgment-obligee for the price paid, with interest, or
132
(2) Have the original judgment revived in his name,
REMEDIES AVAILABLE TO THE JUDGMENT-OBLIGEE
IN AID OF EXECUTION: (just read the Rules here,
according to Sir)
(1) SEC. 36: he may cause the EXAMINATION of the
judgment obligor as to his property and income;
 File a motion to have the obligor examined in
court.
(2) SEC. 37: EXAMINATION of the obligor of the
judgment obligor.
 Those that you can garnish.
 Example: the manager of a bank, or the
judgment obligor’s lessee.
(3) SEC. 40: if there are properties under the first two,
either in his own hands or that of another person,
then the court may ORDER the property to be
applied for the satisfaction of the judgment.
 If the earnings of the judgment obligor are
more than sufficient for his family’s needs:
court may order payment in installments.
(4) SEC. 41: APPOINT a receiver or forbid a transfer or
disposition of or interference with such property.
 Kasi baka ibenta niya.
(5) SEC. 42: after examination, if the obligor has an
ascertainable interest (mortgagor/mortgagee) in a
real property and his interest can be ascertained
without controversy, the court may order the SALE
of such interest.
 The court then cannot force the obligor to
deliver the property if the property is with
controversy: if obligor claims ownership
(6) SEC. 43: if a person alleged to have the property of
the judgment-obligor, OR an obligor of the
judgment obligor, claims an adverse interest in the
property or denies the debt, the court may
AUTHORIZE the obligee to institute an action,
within 120 days from notice of the order, and may
punish for contempt for the disobedience of such
order.
If there is no controversy, the court will just order the
judgment obligor to deliver the same.
 If he denies, the court has no authority to order that
person if he denies the debt or he has an adverse
interest to that of the judgment-obligor, then the
court may authorize the judgment-obligee to sue
for the recovery of such property or debt.
131
PASO NA NGAYON: You must claim exemption PRIOR to auction sale
now.
132
He became the judgment obligee.
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 In the meantime (when an action has yet to be
filed), he can order/forbid the obligor of the
judgment-obligor from disposing off of the property
for a period of 120 DAYS from the notice of the
order.
SEC. 44: SATISFACTION OF JUDGMENT: may be
compelled by the judgment-obligee by means of
execution, or by the judgment obligor by means of
voluntary payment.
 EFFECT OF COMPELLING SATISFACTION OF
JUDGMENT: the party who compels satisfaction of
judgment admits the correctness of the judgment
and is therefore, estopped from questioning/taking
an appeal the judgment.
133
 ENTRY OF SATISFACTION OF JUDGMENT ,
WHEN MADE:
(a) When the return of the execution satisfied,
OR
(b) By filing of an admission of satisfaction of
judgment (executed as in conveyance of
property by the judgment-obligee or his
attorney), OR
(c) Endorsement of such admission by the
obligee or his attorney by the fact of the
record of the judgment, OR
(d) When the judgment is satisfied other than
upon execution, the court may order entry of
satisfaction of judgment without the
judgment-obligee or his attorney
accomplishing any of the foregoing
requisites (Read SEC. 45).
 Let us ay satisfaction of judgment is
not through execution, but dacion en
pago (a property was ceded as
payment).
SEC. 47: EFFECT OF FINAL AND EXECUTORY
134
JUDGMENT: provided that the court has jurisdiction to
promulgate the judgment, the effect of such judgment are
as follows:
(a) IN REM / QUASI IN REM: Judgment / final order
against a specific things / probate of a will /
administration of an estate of a deceased person /
to the personal, political or based on legal condition
135
or status of a person / relationship to another:
CONCLUSIVE UPON THE TITLE TO THE THING /
WILL / ADMINISTRATION / CONDITION / STATUS
/ RELATIONSHIP.
 HOWEVER, the probate of a will or granting
of letter of administration shall only be
PRIMA FACIE evidence of the death of the
testator or the testatrix.
(b) IN PERSONAM: (in other cases) judgment / final
order is with respect to:
(1) The matter directly adjudged,
(2) Or any matters which can be raised in
relations thereto. (BAR BY FORMER
JUDGMENT [1] and [2]).
133
In other words, tapos na; nabayaran na.
134
Premise the concept of res judicata to the jurisdiction of the court to
promulgate the judgment.
135
Example: Naturalization, marriage.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
(3) Conclusive between the parties and their
successors in interest by title subsequent to
the commencement of the action or the
proceedings, litigating the same case, under
the same title and under the same capacity.
(CONCLUSIVENESS OF JUDGMENT) (See
detailed discussion below)
CONCLUSIVENESS OF JUDGMENT: Others: deemed to
have adjudged in the formal judgment or final order which
appears upon its face to have been so adjudged or could
actually or necessarily included therein, or necessary
thereto.
 (2) Principle of splitting causes of action, or
defenses not raised are deemed waived (a
matter/objection that could have been raised).
 Compulsory counterclaim and crossclaims
barred forever, as that matter could have
been raised.
 WHAT IS CONCLUSIVE IN THE FINAL
JUDGMENT: not just to the matter directly
adjudged, but also to other matters not
raised, but could have been raised. .
 The case cannot be opened anymore as it is
now conclusive, and you cannot raise
another defense.
AGAINST WHOM THE JUDGMENT IS CONCLUSIVE:
not only to the parties in the case, but also their
successors-in-interest by title subsequent to the
commencement of the action or special proceedings.
 If there has been a transfer of interest in the subject
matter of the action pendent lite, even if there is no
actual amendment to the pleading, will the
transferee of the interest be bound by the
judgment? YES, as he is a successor-in-interest by
title subsequent to the commencement of the
action.
 If title has been transferred PRIOR to the
commencement of the action, the transferee is not
bound by the judgment.
136
RES JUDICATA : (Supreme Court) it rests on the
principle that parties are ought not to be permitted to
litigate the same issue more than once.
 Just like forum shopping, litis pendentia.
 That once a right or fact has been judicially tried
and determined by a court of competent jurisdiction,
or an opportunity for such trial has been given, the
judgment of the court would be conclusive to the
parties and his privies.
 Otherwise, litigations will become interminable.
 Rights of the parties would be involved in endless
confusion; courts would be stripped of their most
efficient power—the most important function of
government—that of ascertaining rights would go
unfulfilled.
 In other words, once a case has been decided, it
should finally end / rest there.
 It is against public policy to revive the same.
136
Also known as ESTOPPEL BY FORMER JUDGMENT: estopped from
raising matters that could have been raised in the first action.
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LAW OF THE CASE: when a case has been decided on
the basis of a particular doctrine laid down by the court,
any posterior change in that jurisprudence can only be
PROSPECTIVE, and cannot be applied retroactively, as
there has already been the law of the case.
 If a case has been decided on the basis of the
abandoned doctrine, that is now the law of the
case.
LEE BUN TING V. ALIGAEN (1977): the parties in this
case are already heirs. Judge Dinglasan here has a parcel
of land. He sold the same to the father of Lee Bun Ting
(Lee Leung). Later on, realizing that she committed a
mistake in selling the property, Lee Leung being a
foreigner, she filed an action for reconveyance. However,
the SC denied this action, saying that she is in pari delicto
(the Court left the parties as they are). The remedy is only
available only to enforce the Constitutional provision re:
ownership of land. However, the doctrine of in pari delicto
was abandoned later on by the Supreme Court in the case
of Philippine Banking v. Lui She, due to the very strong
public policy involved. Because of that, the heirs now filed
a new case for reconveyance—the same that the father
filed before. Now, there was a motion to dismiss on the
ground of res judicata. However, the judge Aligaen
refused, as the doctrine has already changed. The case
went up to the Supreme Court.
o SC: one specie of res judicata is what is known as
the LAW OF THE CASE: ―Law of That Case.‖
o Public policy demands that once a case is finally
decided, let is rest forever.
 Hindi mo na pwede buhayin ulit.
NOTE: The decision of this Court in G. R. No. L-5996,
"Rafael Dinglasan, et al. vs. Lee Bun Ting, et al."
constitutes a bar to Civil Case No. V-3064 before the
respondent court. Said Civil case, therefore, should have
been dismissed because it is a mere relitigation of the
same issues previously adjudged with finality, way back in
1956, between the same parties or their privies and
concerning the same subject matter. We have consistently
held that the doctrine of res judicata applies where,
between a pending action and one which has been finally
and definitely settled, there is identity of parties, subject
matter and cause of action.
The concept of res judicata as a "bar by prior judgment"
was explained in Comilang vs. Court of Appeals, et al.,
promulgated on July 15, 1975, 6 thus:
"'The fundamental principle upon which the doctrine of
res judicata rests is that parties ought not to be
permitted to litigate the same issue more than once;
that, when a right or fact has been juridically tried and
determined by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment
of the court, so long as is remains unreversed, should
he conclusive upon the parties and those in privity with
them in law or estate. . . . .
xxx xxx xxx
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
"This principle of res judicata is embodied in Rule 39,
Sec. 49(b) and (c) of the Rules of Court, as follows:
'(b) In other cases the judgment or order is, with
respect to the matter directly adjudged or as to any
other matter that could have been raised in relation
thereto, conclusive between the parties and their
successors in interest by title subsequent to the
commencement of the action or special proceeding,
litigating for the same title and in the same capacity.
'(c) In any other litigation between the same parties or
their successors-in-interest, that only is deemed to
have been adjudged in a former judgment which
appears upon its face to have been so adjudged, or
was actually and necessarily included therein or
necessary thereto.'
"Sec. 49(b) enunciates that concept of res judicata
known as 'bar by prior judgment' while Sec. 49(c)
refers to 'Conclusiveness of judgment.' There is 'bar
by prior judgment' when, between the first case where
the judgment was rendered and the second case
which is sought to be barred, there is identity of
parties, subject matter and cause of action. The
judgment in the first case constitutes an absolute bar
to the subsequent action. It is final as to the claim or
demand in controversy, including the parties and
those in privity with them, not only as to every matter
which was offered and received to sustain or defeat
the claim or demand, but as to any other admissible
matter which might have been offered for that purpose
and of all matters that could have been adjudged in
that case. But where between the first and second
cases, there is identity of parties but no identity or
cause of action, the first judgment is conclusive in the
second case, only as to those matters actually and
directly controverted and determined and not as to
matters merely involved therein." (pp. 76-78).
REQUISITES OF RES JUDICATA:
(1) The judgment or order invoked as res judicata must
be a FINAL ORDER;
 Kind of final order or judgment: the judgment
that may be invoked as res judicata s that
which is FINAL and EXECUTORY.
 Not merely final and appealable.
 REASON: if it is final and executory, the
court will no longer have the power to alter
the judgment, while if it is final and
appealable, it is still subject to modification
by the appellate court.
(2) The court rendering the same must have
jurisdiction over the subject matter, over the
137
parties/person ;
137
Res judicata applies provided that the court has jurisdiction over the
subject matter and the parties of the case.
HOW: proper service of summons or voluntary surrender.
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(3) There must be between the two cases identical
parties, identity of subject matter, and identity of
cause/s of action; and
(4) The judgment or order must be upon the merits of
the case.
May a FOREIGN JUDGMENT be invoked as res judicata?
NO, as a foreign judgment has NO EXISTENCE in law.
May a judgment obtained through FRAUD constitute a bar
to an action to annul it? NO, such judgment cannot be
invoked as res judicata.
 REASON: public policy which favors stability of
judicial decision are mute in the presence of fraud,
which the law abhors.
JUDGMENT UPON THE MERITS: for purposes of res
judicata.
 A judgment of the merits is one finally settling the
issues raised in the pleadings.
 In other words, it is only when the court disposes of
the case based on the issues raised in the
proceedings.
 EXCEPTION: refers to those orders of DISMISSAL
which by provision of the Rules have an effect of
adjudication upon the merits.
 Example: on Pre-Trial → failure to appear at
the Pre-Trial on the part of the plaintiff will
cause the dismissal of the action, and the
dismissal will have the effect of adjudication
of the merits of the case (See Sec. 5, Rule
18).
 Dismissal is WITH prejudice, unless
otherwise ordered by the court.
 This is NOT raised in the pleadings,
like the cause of action insofar as the
plaintiff and the defenses insofar as
the defendant.
 This is by a specific rule.
 This is even if not in the merits.
 Nonetheless, the effect is res judicata
→ You cannot re-file it.
 ALSO, failure to prosecute (Sec. 3, Rule 17).
 The dismissal is WITH prejudice,
unless otherwise ordered by the court.
 Unlike Sec. 1, where the dismissal is
WITHOUT prejudice, unless
otherwise stated.
 Also, see TWO DISMISSAL RULE.
IDENTITY OF PARTIES, SUBJECT MATTER AND
CAUSES OF ACTION:
 IDENTITY OF PARTIES: when the parties in the
second action are the same as the parties in the
first, or the parties in the second are successors-in-
interest of the parties in the first action (e.g. heirs,
purchasers who acquired title after the
commencement of the first action).
 By title SUBSEQUENT to the
commencement.
 Does res judicata apply to a purchaser who
acquired title of the property BEFORE the
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
commencement of the first action? If an
action is filed against a vendor after he has
parted with his title in favor of a third person,
the third person is not bound by the
judgment which may be rendered against the
vendor and his successors-in-interest.
 In such case, the principle of res
judicata does not apply because the
vendee acquired title BEFORE, and
not after, the commencement of the
action.
 IDENTITY OF SUBJECT MATTER: if the second
case is the same thing as the first, or is included in
the first case.
 So a judgment for an action for recovery of a
large tract of land shall be a bar for the
subsequent action for the recovery of its
smaller parcels included in the large tract of
land.
 For the judgment of the recovery of a
property would be a bar for the subsequent
action for the recovery of its value.
 Judgment for an action for accounting for
certain funds will be a bar for a subsequent
action for partition of the same funds.
 When another case is filed, you either say it
is SPLITTING.
 But you can also say litis pendentia.
 Actually, res judicata and litis pendentia are of the
same nature.
RES JUDICATA LITIS PENDENTIA
The two cases are still One is already final and
pending. executory.
ELEMENTS OF LITIS PENDENTIA:
(1) Same parties, or the parties in the two cases at
least represents the same interest/s;
(2) Same rights involved: the identity in the parties and
the rights or reliefs prayed for are derived from the
same rights;
(3) That a judgment in one case, whoever is the
successful party, will always be res judicata to the
other;
(4) Identity of causes of action.
 IDENTITY OF CAUSE OF ACTION: when
two actions are based on the same act or
omission.
 There can only be one action for a single
cause of action.
 How singleness of a cause of action is
determined: if it is based on the same delict
or wrong / act or omission.
INDUSTRIAL FINANCE CORP. V. APOSTOL,
BACHRACH V. ENCARANGAL: an action for collection
would have the effect of nullifying or abandonment of the
mortgage.
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o When you collect on the note, the real estate legal consequence. The
mortgage established thereon, or any mortgage, judgment is now
whether chattel or real, re also deemed WAIVED. conclusive, as the defense
o REASON: if allowed to subsists, then effectively, has never existed at all.
you are allowing a second action for the foreclosure
of the mortgage, which would constitute splitting. - Even if you raised it
 It would be allowing two actions for the same and you didn’t have
cause of action / act or omission. proof back then, and
you raise it now when
you have proof, NO.
TWO CONCEPTS ON THE DOCTRINE OF RES
JUDICATA: the doctrine of res judicata embraces to
different concepts: In ejectment (where the only issue is possession de facto),
if the issue of ownership is raised, and the issue of
possession cannot be determined or resolved without
BAR BY FORMER CONCLUSIVENESS OF resolving the issue of ownership, then the MTC may rule
JUDGMENT JUDGMENT on the issue of ownership.

Assuming that the court has jurisdiction  BUT its findings of the issue of ownership IS NOT
Said judgment which is in That only deemed to have CONCLUSIVE.
respect to the matter been adjudged in the former  May be a subject of a separate independent
nd
action (2 par., Sec. 18, Rule 70).
directly adjudged or to any judgment which appears
other matter that can be upon its face so adjudged,
For purposes of applying res judicata, what portion of the
raised thereto, conclusive or which was actually
between the parties and necessarily included therein decision controls? DISPOSITIVE PART OF THE
their successors-in-interest or necessary thereto. DECISION.
by title subsequent to the
 Does the doctrine of res judicata also apply to
action, litigating for the
same thing, under the orders? YES, to final orders.
same title, and in the same
SEC. 48: FOREIGN JUDGMENT: EFFECT:
capacity.
All three identities must be Identity of parties AND
present: parties, subject subject matter only: no
AGAINST A SPECIFIC AGAINST A PERSON
matter, cause of action. identity of cause of action
THING
with the two cases.

- All other requisites Conclusive upon the title to Presumptive evidence of a

EFFECT: the first judgment
constitutes an ABSOLUTE
BAR to all matter directly
adjudged, as well as
matters that might have
been raised in relation
thereto.
EXAMPLE: A judgment
rendered upon a note payable in installments
promissory note is
conclusive as to the validity
of the instrument, and the
amount due upon it.
Although it be
subsequently alleged that
perfect defense actually
existed of which no proof
was offered, such as
forgery / want of
consideration or payment,
so if such defenses were
not presented in the action
and established by
competent evidence, the
subsequent allegation of
their existence is now of no
must be present. the thing. right as between the parties
and their successors in
The first judgment is
interest by a subsequent
conclusive only on the
matters actually litigated title.
and adjudged in the first
action. POSSIBLE DEFENSES AGAINST AN ACTION FOR
ENFORCEMENT OF JUDGMENT: Judgment may be
repelled by:
EXAMPLE: A promissory
(1) Want of jurisdiction;
→ provided that the PN (2) Want of notice to the party;
(3) Collusion;
does not contain an
(4) Fraud; or
escalation clause, every
installment due may be the (5) Clear mistake of law or fact.
subject of a separate action.
CLEAR MISTAKE OF FACT OR LAW: What court has
jurisdiction? RTC, an action of incapable of pecuniary
- So here, when you sue
for the next estimation.
installment, you no
 REASON: Read Mijares.
longer need to prove
 NOTE: there is no jurisprudence on point.
the due execution of
the PN, as the same
has been conclusive in PROCESS: when a judgment of a foreign tribunal is
the first case. rendered, can that be enforced in our country? YES,
provided that an action for the enforcement of a foreign
- What is being litigated
judgment is filed with the court.
here is just the amount
due.

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 REASON: we cannot take judicial notice of the
judgment of the foreign court.
MIJARES V. RAÑADA (2005): human rights victims were
awarded USD1.9B. They cannot enforce it outside the
Philippines. Thus, they filed an action with the Makati
RTC, and were asked to file docket/filing fees in proportion
to the award.
o SC: when an action for enforcement of a foreign
judgment is filed in our court, our courts cannot
delve upon the merits of the case.
 If it is a claim or an award for damages,
regardless of the amount, it cannot be filed in
the MTC.
 What is being proved in this case is the
judgment issued by a foreign tribunal and its
existence.
 After that, tapos ka na.
 The defendant can raise the issue of want of
jurisdiction, lack of notice, fraud, collusion.
o TINGA, J: do not base it anymore on the amount
sought to be enforced, as the issue is not WON
they are entitled to the same (already been
litigated).
 The issue is WON the foreign judgment can
be enforced in the Philippines.
 HOW PROVED: to prove that there is such a
decision (existence).
 Therefore, the issue there is incapable of
pecuniary estimation.
 The only issue herein is a legal one: WON
there has been a foreign judgment rendered:
conclusive / presumptive right.
 If it is proven, then it can be enforced here.
o It is a judgment in personam: presumptive basis of
a right.
o COMITY: reciprocity.
 Allowed only in countries we have diplomatic
relations with.
o If it is a claim/award of damages, what you are still
proving here is that there is a judgment issued by a
foreign tribunal.
o After that, then you’re done.
o The adverse party may raise the following issues.
NOTE: It bears noting that Section 48, Rule 39
acknowledges that the Final Judgment is not conclusive
yet, but presumptive evidence of a right of the petitioners
against the Marcos Estate. Moreover, the Marcos Estate is
not precluded to present evidence, if any, of want of
jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact. This ruling, decisive as it is on
the question of filing fees and no other, does not render
verdict on the enforceability of the Final Judgment before
the courts under the jurisdiction of the Philippines, or for
that matter any other issue which may legitimately be
presented before the trial court. Such issues are to be
litigated before the trial court, but within the confines of the
matters for proof as laid down in Section 48, Rule 39. On
the other hand, the speedy resolution of this claim by the
trial court is encouraged, and contumacious delay of the
decision on the merits will not be brooked by this Court.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
ACTION REQUIRED: enforcement of a foreign judgment.
HANG LUNG BANK V. SAULOG (1991): Hang Lung
Bank of Hong Kong secured a judgment against a
corporation and the latter’s sureties. Finding no properties
in Hong Kong to enforce the judgment, the Bank found out
that the surety had properties in the Philippines. Hang
Kung filed a case in the RTC of Makati for the
enforcement of the judgment rendered by the HK court.
o ISSUE: WON the Bank can have access to our
courts, as it is a bank which has no license to do
business in the Philippines.
o TC: No, dismissed.
o SC: TC erred → ISOLATED TRANSACTION
RULE: it is not the lack of license.
 Rather, it is the doing business in the
Philippines without a license that bars a
foreign entity from having access to our
courts.
o So if a corporation is not doing business in the
Philippines, then, there is no need to secure a
license.
o They may sue under the isolated transaction rule.
NOTE: The complaint therefore appears to be one of the
enforcement of the Hong Kong judgment because it prays
for the grant of the affirmative relief given by said foreign
judgment. Although petitioner asserts that it is merely
seeking the recognition of its claims based on the contract
sued upon and not the enforcement of the Hong Kong
judgment, 18 it should be noted that in the prayer of the
complaint, petitioner simply copied the Hong Kong
judgment with respect to private respondent's liability.
However, a foreign judgment may not be enforced if it is
not recognized in the jurisdiction where affirmative relief is
being sought. Hence, in the interest of justice, the
complaint should be considered as a petition for the
recognition of the Hong Kong judgment under Section 50
(b), Rule 39 of the Rules of Court in order that the
defendant, private respondent herein, may present
evidence of lack of jurisdiction, notice, collusion, fraud or
clear mistake of fact and law, if applicable.
REMEDIES BEFORE A JUDGMENT BECOMES FINAL
AND EXECUTORY
1. Motion for Reconsideration;
2. Motion for New Trial;
3. Appeal
REMEDIES AFTER A JUDGMENT BECOMES
EXECUTORY:
1. Petition for Relief from Judgment;
2. Action to Annul a Judgment;
3. Certiorari;
4. Collateral Attack of A Judgment;
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Motion for Motion for New Appeals final order is

Reconsideration Trial contrary to
law;
(Rule 37) (Rule 37) Resolution of the Resolution of
motion: within 30 the motion:
One that is The aggrieved An appeal may days from the within 30 days
directed against a party may move be take from a time it is from the time it is
final judgement or the trial court to judgment or submitted for submitted for
a final order set aside final order that resolution resolution
judgment or final completely
order and grant disposes the If the motion is If the motion is
a new trial case (Sec 1, denied: denied:
Rule 41)
The movant has The movant has
When to file: When to file: When to file: fresh period or 15 fresh period or
days from receipt 15 days from
A motion for A motion for By notice of or notice of receipt or notice
reconsideration is reconsideration appeal: within denying or of denying or
filed within the is filed within the 15 days after dismissing the MR dismissing the
period for taking period for taking notice to within which to file MR within which
an appeal an appeal appellant of the notice of appeal – to file notice of
judgment or final the appeal appeal – the
By notice of By notice of order appealed
appeal: within 15 appeal: within 15 referred herein is appeal referred
from; appeal from the herein is appeal
days after notice days after notice 141
to appellant of the to appellant of By record on judgment itself ; from the
judgment or final the judgment or
140
appeal : within judgment
(FRESH PERIOD 143
itself ;(FRESH
order appealed final order 30 days from RULE or
from; appealed from; notice of PERIOD RULE
NEYPES or NEYPES
judgment or final 142
RULING )
By record on By record on order; RULING)
138 139
appeal : within appeal : within
30 days from 30 days from
notice of judgment notice of
or final order; judgment or final HOW: file notice
order; of appeal or Effect of Effect of
record of appeal granting a granting a
to the court Motion for Motion for New
which rendered Reconsideration: Trial:
the judgment
and serve a copy The court may The original
thereof to the amend the judgment or final
adverse party; judgment or final order shall be
order. The vacated, and the
GROUNDS: GROUNDS: amended action shall stand
judgment is in the for trial de novo.
(a) that the (a) FAMEN – by nature of a new
damages reason of
judgment which
awarded are which the
superseded the
excessive; aggrieved
(b) that the party has original judgment.
evidence is probably
insufficient been
to justify the impaired in 141
decision or his rights; Because an order denying a motion for reconsideration is NOT
final order; (b) Newly- APPEALABLE. It cannot be a subject of Certioarari under A.M No. 07-7-
(c) that the discovered 12-SC. The amendment seeks to prevent the filing of a petition for
Certiorari under Rule 65 based on an order denying a motion for new
decision or evidence
trial or a motion for reconsideration.
142
Applies to: Rule 41, Rule 40, Rule 42 , Rule 43 and Rule 45; Criminal
138
A record on appeal shall be required only (1) in special proceedings cases;
143
and (2) other cases of multiple or separate appeals; Because an order denying a motion for new trial is NOT
139
A record on appeal shall be required only (1) in special proceedings APPEALABLE. It cannot be a subject of Certioarari under A.M No. 07-7-
and (2) other cases of multiple or separate appeals; 12-SC. The amendment seeks to prevent the filing of a petition for
140
A record on appeal shall be required only (1) in special proceedings Certiorari under Rule 65 based on an order denying a motion for new
and (2) other cases of multiple or separate appeals; trial or a motion for reconsideration.
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RULE 41: APPEAL FROM THE REGIONAL TRIAL
COURTS
SEC. 1: WHAT IS THE SUBJECT OF AN APPEAL? An
appeal may be taken from:
(1) A JUDGMENT, or
(2) FINAL ORDER: one that completely disposes off
the case.
 If an order does not totally disposes off the
case, then that is NOT a final order.
 EXAMPLE: if defendant files a MTD
on the ground of lack of jurisdiction,
and the court grants it and dismisses
the case, is that a final order? YES,
as there is nothing left to do.
 If it denies the same, is that a final
order? NO, as something still has to
be done (file an Answer, Pre-Trial,
Trial).
 OPPOSITE: interlocutory order.
(3) A particular matter, when declared by this Rules to
be APPEALABLE: even if does not finally disposes
off the case, but the Rules so declares.
 Usually happens in multi-tiered proceedings.
 EXAMPLE: in action for EXPROPRIATION:
two issues:
a. Right of the plaintiff to expropriate and
the issue of WON the plaintiff is
authorized to expropriate and the
same is for a public purpose.
 It shall issue an order: ORDER
OF EXPROPRIATION.
 That is already appealable
without awaiting for the
resolution of the second issue
(MIRANDA V. COURT OF
144
APPEALS, 1976 ).
 So technically, the does not
disposes off the case, but
jurisprudence so provide.
b. Amount / just compensation.
 Also, PARTITION: existence of co-ownership
and then accounting / issue of the fruits or
the rents.
 RULE 109:
(a) Allows/disallows a will: file a petition
for probate of the will.
 After resolution of that, that
issue is already appealable.
144
Rule 59, Section 4 recognizes that in actions involving the rendition
of an accounting, an appeal may be taken from the judgment ordering
the accounting and directs that during the pendency of the appeal, or
even before the appeal is taken, the rendition of the accounting shall
not be stayed, unless otherwise ordered by the trial court. Thus, if the
judgment directing an accounting is upheld on appeal, there would be
no time lost and the accounting as rendered could be passed upon by
the trial court at the stage of execution of judgment; and if the
judgment were reversed on appeal, reimbursement of the actual
expenses incurred by the successful appellant in rendering the
accounting could be awarded.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 The, the court will determine
executor/administrator: letters
testamentary / letters of
administration, which is against
appealable.
 Then there will be an inventory
/ making of a bond.
 Then to render an accounting
within 1 year from the time of
issuance, which is also subject
to appeal.
(b) Determines who are the lawful heirs
of a deceased person, or the
distributive share of the estate to
which such person is entitled;
(c) Allows or disallows any claim against
the estate of a deceased person:
claim by the creditors;
(d) Settles the account of an EATG;
(e) Final determinations of the rights of
the party appealing, EXCEPT
appointment of a special
administrator;
(f) Final order or judgment rendered in
the case, and affects the substantial
rights of the person appealing.
NO APPEAL MAY BE TAKEN FROM:
(a) RULE 38: an order denying a petition for relief or
any similar motion seeking relief from judgment;
 In the old Rules, it was appealable
(SERVICEWIDE SPECIALIST V. SHERIFF).
 Under the present Rules, it CANNOT
anymore be appealed.
 Even if it is a FINAL ORDER.
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal (by
the trial court): even if it is a final order.
(d) An order denying a motion to set aside a judgment
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other
ground vitiated consent.
 A judgment by consent, by confession or by
a compromise judgment is IMMEDIATELY
EXECUTORY.
 Even if the court renders judgment on the
compromise, it is not appealable.
 You cannot use appeal as a mode of relief.
 There is another relief for that.
(e) An order of execution;
(f) A judgment or final order for or against one or more
of several parties, or in separate claims,
counterclaims, cross-claims and third party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; (SEPARATE
145
and SEVERAL JUDGMENTS , Read SECS. 4
and 5, RULE 36) and
 It is NOT appealable if the court renders a
separate or several judgments. but this rule
does not tell us the proper procedure:
―unless the court allows an appeal
therefrom.‖
145
The court may render judgment to one or more of them.
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In MIRANDA V. COURT OF
APPEALS, 1976, in multi-tiered
proceedings, appeal agad, and you
must not wait for the others.
 Does that last phrase mean that you
must first ask for permission to
appeal, or to appeal and see whether
the court will allow it?
(g) An order dismissing an action without prejudice.
 Even if it is a final order.
 If defendant files a MTD on the ground of
lack of jurisdiction, and the court grants the
motion and orders the dismissal of the case,
and the plaintiff disagrees, is that a final
order? YES, as it completely disposes of the
case.
 As it is a WITHOUT PREJUDICE,
there is NO REMEDY OF APPEAL.
 EXCEPT (f), (h) and (i) as they are
146
WITH PREJUDICE , so remedy of
appeal is AVAILABLE.
 NOT APPEALABLE, as it is a
dismissal without prejudice.
 So take note, even if it is a final
order (it completely disposes off
the case), see still if the dismissal
is with or without prejudice.
 If it is with prejudice,
APPEALABLE.
 If it is without prejudice, it is
NOT appealable.
 SEC. 5, RULE 117: if a MTQ is
147
sustained (without prejudice ),
EXCEPT when the motion is based
on (g) Extinguishment of criminal
liability and (i) Double jeopardy of
Sec. 3 (SEC. 6), then, it is NOT
appealable.
 REMEDY is an appropriate civil action:
petition for certiorari, mandamus or
prohibition → ORIGINAL ACTION, and NOT
an appeal.
 ORIGINAL: refers to the power of the court
to hear a particular case in the first instance.
 APPEAL: where a case has already been
decided by a lower court, and it is retried or
reheard before a superior court, and it is just
a continuation of the exercise of jurisdiction.
 NATURE OF RIGHT TO APPEAL:
statutory, and not a constitutional,
right.
 Due process only requires that
you have been heard/tried
once.
SEC. 2: MODES OF APPEAL:
i. ORDINARY APPEAL (Sec. 2[a]):
(1) Appeal by notice of appeal: in all other
cases.
146
Shall bar the filing of the same action.
147
Court may order the case to be refiled.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
(2) Appeal by record on appeal: proper only in
148
TWO INSTANCES:
a. Special proceedings;
b. In cases of multiple or separate
appeals (several and separate
judgments), where the Rules so
require and admit multiple appeals. .
ii. PETITION FOR REVIEW [b]: to the Court of
Appeals.
iii. PETITION BY CETIORARI [c]: where only
questions of law are raised to the Supreme Court.
SEC. 5. RULE 36, LAST SENTENCE: separate judgment
is rendered: the court may stay its enforcement until the
rendition of subsequent judgment.
 What can be stayed: the enforcement only, BUT
NOT THE PERIOD WITHIN WHICH TO APPEAL.
 Judgment can be enforced as a matter of right if it
is final and executory.
i. ORDINARY APPEAL: how to we perfect an appeal?
 Appeal as a matter of right, unlike petition for
review and petition for certiorari.
 When is an ordinary appeal allowed?
(1) An appeal from the MTC to the RTC;
(2) An appeal from the RTC in cases within its
original jurisdiction;
 If such, then the appeal to the Court
of Appeals is by ordinary appeal.
 However (see right below)
ii. PETITION FOR REVIEW: Where the decision of the
RTC is in the exercise of its appellate jurisdiction—
meaning it is a case which originated from the MTC—
then the appeal is not anymore by ordinary appeal.
 How perfected? In accordance with RULE 42.
iii. CERTIORARI: NATURE: where only questions of
law are raised, NOT questions of fact, OR mixed
questions of fact or law.
 ONLY: only one, and NOT mixed.
 Example of a question of FACT: when the judgment
of the court is contrary to the evidence or contrary
to law.
 Where only questions of law are raised: SUPREME
COURT, and perfection is in accordance with
RULE 45.
 Can you appeal a decision of the RTC, hearing a
cases in its original jurisdiction, to the SC directly,
bypassing the CA? YES, if it only involve questions
of law.
 From the CA to the SC: can you raise a question of
fact? NO, as you can only raise a question of law.
 Though there are EXCEPTIONS.
 What if from the MTC, can you file to the SC
directly via RULE 45? YES, if only questions of law
are raised / involved.
 As that appeal to the SC is discretionary;
baka mapalpak ka.
148
In all other cases, appeal is by mere notice of appeal.
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 But if it is through ORDINARY APPEAL, that
is an appeal which is a matter of right.
 The appellate court has no discretion
on WON to accept the appeal.
 If it is a PETITION FOR REVIEW or BY
CERTIORARI, that is discretionary.
149
RULE 40: APPEAL FROM MUNICIPAL TRIAL
COURTS TO THE REGIONAL TRIAL COURTS
SEC. 1: HOW TO PERFECT AN APPEAL: MTC to the
RTC exercising jurisdiction over the area to which the
MTC pertains.
 So if the plaintiff lost, it shall be ―plaintiff-appellant
vs. defendant-appellee.‖
 The title remains the same, and the designation is
the only one which changes.
 PERFECTION OF AN APPEAL: when and how to
appeal.
 Right to appeal is not a constitutional right,
and since it is only a privilege to be heard
the second time around, the appellant must
follow the procedure strictly laid down by the
law.
 If there is failure to comply, then the right to
appeal is lost,
SEC. 2: WHEN TO APPEAL:
a. Within FIFTEEN (15) DAYS after notice of
judgment or final order;
b. Within THIRTY (30) DAYS, where record on appeal
is required from notice of judgment or final order by
filing a notice of appeal and a record on appeal.
SEC. 5: payment of court docket and other lawful fees.
(1) APPEAL BY MERE NOTICE: file notice of appeal
and pay appellate docket fees within 15 days from
notice (receipt) of the judgment appealed.
(2) RECORD ON APPEAL:
(1) Notice of appeal;
(2) Record on appeal;
(3) Pay the appropriate dockets fees (within the
same period);
 The Clerk of Court that rendered the
judgment, NOT to the appellate court.
(4) Within THIRTY (30) DAYS from notice of the
judgment appealed.
SEC. 3, RULE 41: If a timely MR/MNT is filed, when
should you perfect an appeal when it is denied? NEYPES
150
V. COURT OF APPEALS (2005) .
149
EXCEPT RULE 47, as it is an action for the annulment of judgment →
that is NOT an appeal.
150
The Supreme Court may promulgate procedural rules in all courts. It
has the sole prerogative to amend, repeal or even establish new rules
for a more simplified and inexpensive process, and the speedy
disposition of cases. In the rules governing appeals to it and to the
Court of Appeals, particularly Rules 42, 43 and 45, the Court allows
extensions of time, based on justifiable and compelling reasons, for
parties to file their appeals. These extensions may consist of 15 days or
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 Also applicable from MTC to RTC.
 OLD RULE: remaining balance.
 FRESH PERIOD RULE: 15- or 30-day period
starts anew from notice of the judgment or final
order appealed from, or notice of the denial of the
MR/MNT.
CONTENTS OF A NOTICE OF APPEAL:
(1) The parties to the appeal,
(2) Judgment or final order or part thereof appealed
from;
(3) To what court you are appealing to;
(4) The material dates showing the timeliness of the
151
appeal (MATERIAL DATA RULE);
 To show that the appeal was seasonably
filed within the period.
 ―Since this is filed within xxx days from
receipt, thus, the appeal is timely filed.‖
(5) Serve notice to the adverse party within the same
period.
 If not served, kulang ka → the appeal has
not been perfected.
SEC. 4: governed by the provisions of SEC. 9, RULE 41:
 Is the mere perfection of an appeal result of having
an effect of depriving the court of its jurisdiction
over the case? NO.
SEC. 5: like filing fees.
 TO WHOM: to the COC which rendered the
judgment or final order appealed from.
 Proof of payment → to be transmitted to the
appellate court with the record of the case.
SEC. 6: WHEN SHOULD THE RECORDS OF THE CASE
BE ELEVATED TO THE RTC? Within FIFTEEN (15)
DAYS from the perfection of the appeal.
 Once the appeal has been perfected.
 Certify as complete by the COC of the lower court.
 Parties must likewise be furnished.
SEC. 7: PROCEDURE IN THE RTC:
more. To standardize the appeal periods provided in the Rules and to
afford litigants fair opportunity to appeal their cases, the Court deems
it practical to allow a fresh period of 15 days within which to file the
notice of appeal in the Regional Trial Court, counted from receipt of
the order dismissing a motion for a new trial or motion for
reconsideration. Henceforth, this "fresh period rule" shall also apply to
Rule 40 governing appeals from the Municipal Trial Courts to the
Regional Trial Courts; Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-
judicial agencies to the Court of Appeals and Rule 45 governing appeals
by certiorari to the Supreme Court. The new rule aims to regiment or
make the appeal period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for reconsideration
(whether full or partial) or any final order or resolution.
151
Rule 41: Include to what court you are appealing.
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(1) Upon receipt of the complete record / record on
appeal, the COC of the RTC shall notify the parties
of such fact.
(2) Within FIFTEEN (15) DAYS from such notice,
appellant must submit its memorandum.
 Failure to file shall be a ground for dismissal
of the appeal.
 On the part of the appellant, it is mandatory
for him to file a memorandum (like
appellant’s brief).
(3) Within FIFTEEN (15) DAYS from the receipt of the
appellant’s memorandum, the appellee may file his
memorandum.
(4) Upon the filing of the appellee’s memorandum or
expiration of the period to do so: case is submitted
for decision.
BASIS OF THE DECISION OF THE RTC: entire records
of the proceedings in the court of origin elevated to it AND
the memoranda of the parties.
 No hearing: one is heard the second time through
their memoranda.
APPELLANT’S MEMORANDUM: file his memorandum
within 15 day AND furnish the same to the appellee.
 If not complied with, the appeal may be dismissed.
SEC. 8: INSTANCES WHERE THE PROCEDURE FOR
APPEAL DIFFERS FROM APPEALS FROM THE RTC
TO THE CA: only applicable for appeals from MTC to the
RTC.
 The case was dismissed without trial on the merits
→ RTC may affirm or reverse it.
 As when an MTD is filed on the ground of
res judicata.
 There was no trial on merits in that case.
 IF AFFIRMED, AND THE GROUND IS LACK OF
JURISDICTION OVER THE SUBJECT MATTER →
RTC, if it has jurisdiction, shall try/hear the case on
the merits, as if the case ORIGINALLY filed with it.
 IF REVERSED: remanded for further
proceedings.
 IF CASE WAS TRIED ON THE MERITS BY THE
LC WITHOUT JURISDICTION OVER THE
SUBJECT MATTER → the RTC on appeal shall not
dismiss the case again.
 If it has jurisdiction, shall decide on the case.
 Without prejudice to the admission of
amended pleadings and additional evidence
in the interest of justice.
 If the defendant files a MTD in the MTC on the
ground that the latter has no jurisdiction, and the
MTC dismissed it, agreeing with the appellant:
 GENERAL RULE: that order of dismissal is
not appealable under RULE 41, as that kind
of dismissal is a dismissal WITHOUT
prejudice.
 EXCEPTION: MTC → if the MTC dismisses
the case on a MTD on the ground of lack of
jurisdiction, it is APPEALABLE.
 ONLY if the MTC has no jurisdiction over the
subject matter → if all others, see if with prejudice.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
SEC. 9: applicability of RULE 41.
 Insofar as not inconsistent and serve to supplement
the provisions of RULE 40.
 WHEN NOT APPLICABLE: if inconsistent with
RULE 41.
NOVEMBER 3, 2016
RULE 41: APPEAL FROM THE REGIONAL TRIAL
COURTS
REGIONAL TRIAL COURT:
SEC. 3: PERIOD OF ORDINARY APPEAL:
 See previous notes on period and how appeal is
made.
 EXCEPT appeals for habeas corpus: within FORTY
EIHT (48) HOURS from notice of the judgment or
final order appealed from.
PERIOD, WHEN INTERRUPTED: filing for a MTR or MR.
 EFFECT: It shall interrupt the period within which to
perfect the appeal.
 No motion for extension of time shall be allowed to
file MNT and MR.
 If a MNT / MR is denied, within what period
of time shall the aggrieved party perfect his
appeal? FRESH PERIOD RULE.
 That does not just apply to the
decisions of the RTC being appealed
to the CA.
 ALSO applicable to decisions of the
MTC appealed to the RTC. (PCI
LEASING FINANCE V. MILAN,
2010)
152
152
In accordance with Section 3, Rule 41 63 of the Rules of Court, an
ordinary appeal of a judgment by the RTC shall be taken within fifteen
(15) days from notice of the judgment or final order appealed from.
Said period shall be interrupted by a timely motion for new trial or
reconsideration. In Neypes v. Court of Appeals, 64 the Court had the
occasion to clarify the rule regarding the period within which an appeal
may be taken should a motion for new trial or reconsideration be filed.
Thus:
To standardize the appeal periods provided in the Rules and to
afford litigants fair opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of 15 days within which
to file the notice of appeal in the Regional Trial Court, counted
from receipt of the order dismissing a motion for a new trial or
motion for reconsideration.
Henceforth, this "fresh period rule" shall also apply to Rule 40
governing appeals from the Municipal Trial Courts to the Regional
Trial Courts; Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals; Rule 43 on appeals from
quasi-judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court. The new
rule aims to regiment or make the appeal period uniform, to be
counted from receipt of the order denying the motion for new
trial, motion for reconsideration (whether full or partial) or any
final order or resolution.
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 Similarly, you cannot file a motion for
extension of time within which to perfect an
appeal.
 REASON:
 Under the OLD RULES, you can file a
motion for extension of time within which to
perfect an appeal.
 HABALUYAS ENTERPRISES, INC.
V. JAPZON, 1985: the TC has no
authority to extend the period to
perfect an appeal, or for that matter a
MNT and MR, as the same should be
filed within the period to perfect an
153
appeal (SEC. 1, RULE 37 ).
 The effect of filing a MNT under this
Rule is it will toll the running of the
period within which to appeal.
BAYACA v. IAC (1986), FERIA, J.: because of the
Habaluyas ruling, you cannot anymore file a motion of
extension of time within which to perfect an appeal.
o HOWEVER, if the appeal is by record on appeal,
you can file a motion for extension of time within
which to file the record on appeal.
o The filing of notice of appeal cannot be beyond
thirty (30) days, neither the payment of docket
fees.
o But the appellant may ask for an extension of time
to file record on appeal.
NOTE: On May 30, 1986, this Court, speaking through Mr.
Justice Jose T. Feria, restated and clarified the rule on this
point as follows: ―1. Beginning one month after the
promulgation of this Resolution, the rule shall be strictly
enforced that no motion for extension of tie to file a motion
for new trial or reconsideration may be filed with the
Metropolitan or Municipal Trial Courts, the Regional Trial
Court, and the Intermediate Appellate Court. Such motion
may be filed only in cases pending with the Supreme
Court as the court of last resort, which may in its sound
discretion either grant or deny the extension requested.‖ In
other words, or up to June 30, 1986, within which the rule
barring extensions of time to file Motions for new trial or
reconsideration is, as yet, not strictly enforceable.
 If a MNT/MR was denied, within what time does he
have to perfect an appeal? FRESH PERIOD
(NEYPES V. COURT OF APPEAL).
 Applicable to decisions of the MTC (PCI
LEASING FINANCE V. MILAN).
xxx xxx xxx
To recapitulate, a party litigant may either file his notice of appeal
within 15 days from receipt of the Regional Trial Court's decision
or file it within 15 days from receipt of the order (the "final
order") denying his motion for new trial or motion for
reconsideration. Obviously, the new 15-day period may be availed
of only if either motion is filed; otherwise, the decision becomes
final and executory after the lapse of the original appeal period
provided in Rule 41, Section 3. (Emphases ours.)
153
“Within the period of taking an appeal…”
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
(1) This fresh period rule shall also apply
to Rule 40 governing appeals from the
MTC to the RTC.
(2) Petitions for review from the RTC to
the CA,
(3) Appeals from quasi-judicial agencies
from the CA;
(4) Petitions of appeal by certiorari to the
SC.
SEC. 4: full payment of the docket and other lawful fees to
the COC (from which the decision is appealed from).
SEC. 5: NOTICE OF APPEAL:
 CONTENTS:
a. Parties;
b. Judgment or final order appealed from, or
portion thereof;
c. The material dates showing the timeliness of
the appeal: to show that it was seasonably
filed.
FORM; RECORD ON APPEAL:
(1) Full names of all the parties to the proceedings
stated in the caption of the record;
(2) The judgment or final order from which the appeal
is taken;
(3) In chronological order, copies of ONLY such
pleadings, petitions, motions and all interlocutory
orders as are related to the appealed judgment for
the proper understanding of the issue involved.
 Must be relevant to the understanding of the
appeal.
 If not relevant, do not include the same.
 Example: Motion for Postponement →
IF it is not relevant.
 CHRONOLOGICAL: which came first based
on the dates.
(4) The appeal was perfected on time: repeat the
material dates (MATERIAL DATA RULE).
(5) ISSUE OF FACT: by reference all the evidence,
testimonial and documentary, taken upon the
issues involved.
 By exhibit number or letter when it was
admitted or identified during the hearing, or
by the names of the witnesses.
 WHOLE TESTIMONY OF THE
WITNESSES: statement to that effect is
sufficient without mentioning the names or
the numbers or letters of exhibits.
 If only specific ones: specify them, on the
markings, and the witnesses.
(6) If exceeding 20 PAGES: must include a subject
index.
SEC. 7: APPROVAL OF RECORD ON APPEAL:
 Three things: file notice and record on appeal, pay
the docket fees within the period of thirty (30) days.
 Upon service to the adverse party of the record on
appeal, he can object to the sufficiency of the
record on appeal.
 If the adverse party and the court, motu
proprio, is of the opinion that there were
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omissions in the pleadings, an objection may
be filed.
 If not objected by the appellee within five (5) days
from receipt of the copy of the record of appeal: TC
may
(1) Approve it as presented, or
(2) Direct its amendment by the inclusion of
omissions deemed essential.
 AMENDMENT: within TEN (10) DAYS [if no time is
fixed by the order] from receipt thereof, shall redraft
the record, for approval, upon notice to the
appellee, in like manner as the original draft.
SEC. 8: where both parties are appellants, they may file a
JOINT RECORD ON APPEAL.
GENERAL RULE: when an appeal is made from the MTC
to the RTC, or the RTC to the CA, the entire records of the
case are elevated to the appellate court.
 Why is there still record on appeal? In special
proceedings, and in cases which the law requires
multiple appeals, the appeal is BY RECORD ON
APPEAL.
 REASON: For multi-tiered proceedings.
 If the record will be elevated when one issue
is resolved, the lower court will be
immobilized on resolving the other issues.
 EXAMPLE: expropriation cases:
 WON plaintiff has the right to
expropriate: order of expropriation is
issued as a form of judgment.
 Appealable by record on
appeal.
 If the entire record is elevated,
then the lower court can no
longer determine the just
compensation.
 For purposes of the resolution
of the issue appealed, the
basis will be the record.
 WHY THIRTY (30) DAYS? You need more time
within which to prepare and file a record on appeal.
 You can file a motion for extension of time
within which to submit for approval the
record on appeal, but not the notice of
appeal and payment of the appellate docket
fee.
 State the material dates (MATERIAL DATA
RULE).
 REASON: an appeal is not a
constitutional right, and not part of
due process.
 It is merely a privilege.
 There are certain instances
where the law does NOT
allow an appeal:
 From decisions of
Constitutional bodies,
unless otherwise
provided by law.
 EXCEPT:
Decision of the
CSC, appealable
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
now to the CA
(RULE 43).
 Before, there was
no appeal, but
only through a
petition by
certiorari to the
SC, which is an
original action.
 House electoral tribunal,
senate electoral tribunal,
presidential electoral
tribunal.
SEC. 9: WHEN APPEAL IS PERFECTED:
(1) NOTICE OF APPEAL: deemed perfected as to him
(ONLY) upon the filing of the notice of appeal in
due time.
(2) RECORD ON APPEAL: as to him (ONLY) upon
approval of the record on appeal field in due time.
WHEN THE COURT LOSES ITS JURISDICTION BY
NOTICE OF APPEAL: two events:
(1) Upon perfection of the appeal in due time;
(2) Expiration of the time to appeal of the other parties.
WHEN THE COURT LOSES ITS JURISDICTION OVER
THE SUBJECT MATTER THEREOF BY RECORD ON
APPEAL:
(1) Upon the approval of the records of appeal filed in
due time; and
(2) Expiration to appeal by the other parties.
In either case, after the court has lost its jurisdiction over
the case (it cannot anymore substantially alter the
judgment), the jurisdiction is now shifted to the appellate
court.
 The Lower Court still retains RESIDUAL
JURISDICTION: prior to the transmittal of the
record or record on appeal, the court may issue:
(1) Protection, preservation of the rights of the
parties, provided it does not involve any
matter raised on the appeal;
 Example: appointment of a receiver.
(2) Approve compromise;
(3) Permit appeals of indigent litigants;
(4) Order execution pending appeal (SEC. 2,
RULE 39);
(5) Allow withdrawal of appeal.
 Once elevated: NO RESIDUAL JURISDICITON
ALREADY.
SEC. 10: DUTIES OF THE CLERK OF COURT: PERIOD:
THIRTY (30) DAYS from the perfection of all the appeals.
 If MTC to the RTC: FIFTEEN (15) DAYS from the
notice of the RTC that the records are now in it
(SEC. 6, RULE 40).
 Then appellant will file his memorandum
within 15 days (SEC. 7) thereafter.
 LETTER OF TRANSMITTAL: to be written by the
COC of the lower court.
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 To be furnished to the parties.
SEC. 11: TRANSCIPT: five copies of the testimonial
evidence referred to in the record on appeal.
SEC. 12: TRANSMITTAL: original records or the
approved record on appeal within THIRTY (30) DAYS
from the perfection of the appeal, and proof of payment,
etc.
SEC. 13: prior to the transmittal, the TC may motu proprio
or on motion, dismiss the appeal for:
(1) Having been taken out of time or
(2) Non-payment of the docket and other lawful fees
within the reglementary period.
The TC CANNOT dismiss the appeal on the ground that it
was FRIVOLOUS.
 The TC can only dismiss the appeal based on the
two grounds above.
 Of course, the lower court will always believe that
its decision is correct, and that any appeal
therefrom is a frivolous one.
RULE 44: ORDINARY APPEALED CASES
ORDINARY APPEAL (RULE 41): by mere notice or by
record on appeal.
 Cases appealed to the CA from the MTC (after
going through the RTC).
SEC. 1: TITLE OF CASES: title will remain as it was in the
court of origin.
 APPELLANT: party appealing the case.
 APPELLEE: adverse party.
SEC. 2: COUNSEL AND GUARDIANS: if umiba yung
abogado mo, go through the usual withdrawal of
appearance.
 Withdrawal of the counsel need NOT be with the
approval of the court if it is with the consent of the
client.
 If no consent of the client, the approval of the court
must be sought.
SEC. 3: ORDER OF TRANSMITTAL: if not transmitted
within THIRTY (30) DAYS, either party may file a motion
with notice.
 If you do not do so, especially for the appellant,
then he might be guilty for failure to prosecute
appeal.
 EFFECT OF FAILURE TO PROSECUTE: render
the judgment of the TC final and executory.
SEC. 4: DOCKETING OF THE CASE: COC of the CA
shall docket the case and notify the parties.
 ―C.A.—G.R. No.‖
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 APPEALS BY RECORD ON APPEAL: Within ten
(10) days from receipt of said notice, the appellant,
shall file with the COC seven (7) clearly legible
copies of the approved record on appeal, together
with the proof of service of two (2) copies thereof
upon the appellee.
 So if there is already notice from the CA that the
records are complete, the appellant must submit
the copies of the record on appeal.
 GROUND FOR DISMISSAL OF APPEAL: Any
unauthorized alteration, omission or addition.
SEC. 5: COMPLETION OF RECORD: it is the duty of the
court to complete the same within the shortest possible
time.
SEC. 6: DISPENSING WITH COMPLETE RECORD: due
to insuperable or extremely difficult causes, may declare
that the records so far available are already sufficient to
decide the issues.
 Issue an order explaining the reasons for such
declaration.
 As when the records are lost, or eaten 
SEC. 7: APPELLANT‘S BRIEF: within FORTY-FIVE (45)
DAYS from receipt of the notice of the clerk that the
records are complete.
MTC to RTC RTC to CA
Memorandum Appellant’s Brief
FIFTEEN (15) DAYS from FORTY-FIVE (45) DAYS
receipt of notice. from receipt of notice.
SEC. 8: APPELLEE‘S BRIEF: within FORTY-FIVE (45)
DAYS from receipt of the appellant’s brief.
SEC. 9: APPELLANT‘S REPLY BRIEF: within TWENTY
(20) DAYS from receipt of the appellee's brief may file a
reply brief answering points in the appellee's brief not
covered in his main brief.
 Discretionary.
 MTC to RTC: no such thing as Reply
Memorandum.
SEC. 10: di kasama iyan dito.
SEC. 11: SEVERAL APPELLANTS OR APPELLEES:
MANY COUNSEL → one copy may be served to any one
of his counsel.
 If the counsel is representing many
appellants/appellees, then you will only be served
one copy.
 Ordinarily, one copy per party; but if you are
representing many, then they all get just one
copy.
SEC. 12: EXTENSION OF TIME FOR FILING BRIEFS,
EXCEPTION: must be for good and sufficient cause, and
only if the motion for extension is filed before the
expiration of the time sought to be extended.
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 NOTE: ginagawa daw ito ni Prof. palagi.
 Customary, in the CA, that is around ninety (90)
days.
 Reasons: heavy workload, sickness.
SEC. 13: CONTENTS OF THE APPELLANT‘S BRIEF:
Read.
(a) Subject index of the matter in the brief and a table
of cases alphabetically arranged, textbooks and
statutes cited with references;
(b) Assignment of errors separately, distinctly and
concisely stated without repetition and numbered
consecutively;
(c) "Statement of the Case,‖ a clear and concise
statement of the nature of the action, a summary of
the proceedings, the appealed rulings and orders of
the court, the nature of the judgment and any other
matters necessary to an understanding of the
nature of the controversy with page references to
the record;
(d) "Statement of Facts," a clear and concise statement
in a narrative form of the facts admitted by both
parties and of those in controversy, together with
the substance of the proof relating thereto in
sufficient detail to make it clearly intelligible, with
page references to the record;
(e) Statement of the issues of fact or law;
(f) "Argument," the appellant's arguments;
(g) "Relief," a specification of the order or judgment
which the appellant seeks; and
(h) If not brought up by record on appeal: appendix, a
copy of the judgment or final order appealed from.
SEC. 14: CONTENTS OF THE APPELLEE‘S BRIEF:
(a) Subject index of the matter in the brief and a table
of cases textbooks and statutes cited;
(b) "Statement of Facts," the appellee shall state that
he accepts the statement of facts in the appellant's
brief, or "Counter-Statement of Facts," he shall
point out such insufficiencies or inaccuracies as he
believes exist; and
(c) "Argument," the appellee shall set forth his
arguments in the case on each assignment of error
with page references to the record.
SEC. 15: QUESTIONS THAT MAY BE RAISED ON
APPEAL: the appeal can raise only questions of law or
fact that:
(1) Has been raised in the court below; and
(2) Which is within the issues framed by the parties.
Example: There was non-compliance of condition
precedent (non-referral to the Lupon for conciliation), and
a MTD was filed, but was denied, can you still raise that
on appeal? YES, as that has been raised in the court
below AND which is within the issues framed by the
parties.
 But if you never raised it in a MTD, can you raise
that? NO, waived.
 Defenses and objections not raised in a MTD
are deemed waived.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 They must be raised seasonably: MTD or
Answer.
 EXCEPTIONS:
(1) Lack of jurisdiction over the subject
matter;
(2) An issue not properly raised during
trial when there is plain error;
(3) When there are jurisprudential
developments affecting the issues; or
(4) When the issues raised present a
matter of public policy.
 File a MTD on the ground of improper venue and it
was denied. Can you raise it again? YES, as it is
raised in the court below.
 If it is an interlocutory order, you cannot appeal
that, but you can raise that as a defense later on.
 Underlying reason: due process → the other party
must be given the opportunity to object or place a
defense.
RULE 42: PETITION FOR REVIEW
RULE 42: If the RTC has rendered judgment in the
exercise of its APPELLATE JURISDICTION.
SEC. 1: HOW APPEAL TAKEN: verified petition for
review with the CA and payment of the corresponding
docket and other lawful fees [to the CA], costs, furnish the
RTC and the adverse party with the copy of the petition.
 PETITION FOR REVIEW and PAYMENT OF FEES
within the period of 15 days from receipt of the copy
of the judgment or final order, or from notice of the
denial of the MNT or MR (FRESH PERIOD RULE).
 WHEN PERFECTED: Petition for review, payment
and deposit of cost BEFORE expiration of the
period to file.
 UNLESS granted ANOTHER FIFTEEN (15)
DAYS within which to file the petition for
review.
 No further extension shall be granted except
for the most compelling reason and in no
case to exceed FIFTEEN (15) DAYS.
 In which case, THIRTY (30) DAYS in all.
 Filing with the CA AND serving copies to the RTC
and to the adverse party.
 WHEN: FIFTEEN (15) DAYS from notice.
 WHERE FILED: Court of Appeals.
RULE 42 RULE 40 and 41
PAYMENT OF Paid to the court of origin
APPELLATE DOCKET (the court which rendered
AND LAWFUL FEES: paid the judgment being
to the Court of Appeals. appealed).
FILING OF A MOTION NOT allowed: an appellant
FOR EXTENSION OF cannot file such motion.
TIME WITHIN WHICH TO
PERFECT AN APPEAL:
petitioner is allowed to do
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so → FIFTEEN (15) DAYS.
- Only upon motion
and payment.
TIME FOR FILING: FIFTEEN (15) DAYS from notice of
decision, OR from denial of petitioner’s MNT or MR.
 Can the appellant-petitioner file a motion for
extension of time within which to file the petition for
review? YES, upon motion and payment of the
fees, before the expiration of the reglementary
period.
 For FIFTEEN (15) DAYS within which to file the
petition for review.
 REASON: all your arguments are already
there in the petition for review.
 Unlike in an ordinary appeal, the record
would have to be transmitted first, then you
have forty-five (45) days.
SEC. 2: FORM AND CONTENTS: See Memory Aid.
 PETITIONER: the appellant.
 RESPONDENT: the adverse party.
 ―This is a Petition for Review under Rule 42, ROC
of the judgment of the RTC, Br. xx in Civil Case No.
xx, which originated from the MTC, Br. xx‖
 So you know where it came from.
 Statement of the material dates, of the case, of the
facts, and errors of the TC, arguments.
 Like a brief.
 Depende on how you will arrange it.
 Duplicate-original true copies of the judgment and
final orders by both of the LC, certified correct by
the COC of the RTC.
 Nandoon na din yung record of the case.
 By the COC of the RTC as all the records
have been elevated to the RTC → the record
stays there.
 CERTIFICATION OF NON-FORUM SHOPPING
SEC. 3: EFFECT OF FAILURE TO COMPLY WITH THE
REQUIREMENTS: sufficient ground for the dismissal
thereof:
(1) To pay the docket and other lawful fees,
(2) The deposit for costs,
(3) Proof of service of the petition, and
(4) The contents of and the documents which should
accompany the petition: if not certified true copies,
especially of the judgment.
 REASON: the Rule provides for such.
SEC. 4: ACTION ON THE PETITION: CA may:
(1) Require the respondent to file a COMMENT within
TEN (10) DAYS from receipt;
(2) Dismiss the petition outright: it will not grant a
review.
NOTE: so unlike an appeal in the first instance (from MTC
to the RTC) which is a matter of right and cannot be
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
dismissed outright, the appeal under RULE 42 is NOT a
matter of right.
 CA has the discretion to dismiss the case outright.
 REASON: kasi pangalawang appeal ka na.
 If the case will reach to the SC, that is a total
of four courts which heard the case.
SEC. 5: CONTENTS OF COMMENT: when the
petitioner’s record are not sufficient, respondent shall file
the certified true copies of the omitted portions.
 Same as with the statement of facts.
 That is why we have trials: there is always
two sides of a story.
SEC. 6: DUE COURSE: since this is discretionary, the
court may or may not give due course to the petition.
 If CA finds prima facie that the lower court
committed an error of fact or law, which shall
warrant the reversal of the decision: give due
course.
 After considering the petition and the
comment filed.
 Otherwise, the petition will be denied due course.
SEC. 7: ELEVATION OF RECORD: this is discretionary.
 When CA deems it necessary.
 PERIOD: within FIFTEEN (15) DAYS from notice.
 If not necessary, the hearing for the petition will
continue.
SEC. 8: PERFECTION OF APPEAL AND EFFECT:
WHEN TC LOSES JURISDICITON OVER THE CASE:
AS TO THE PETITIONER AS TO OTHER PARTIES
(WHEN APPEAL IS (WHEN LC LOSES
DEEMED PERFECTED) JURISDICTION)
(1) Timely filing of the (1) Upon perfection of the
petition, and appeals filed in due
(2) Payment of the docket time, and
and other lawful fees (2) The expiration of the
time to appeal of the
other parties.
 RESIDUAL JURISDICTION OF THE RTC: WHEN:
(1) Issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal,
(2) Approve compromises,
(3) Permit appeals of indigent litigants,
(4) Order execution pending appeal in
accordance with section 2 of Rule 39, and
(5) Allow withdrawal of the appeal.
 CUT-OFF OF RESIDUAL JURISDICTION: before
CA gives due course to the petition.
 If already given due course: NO more
residual jurisdiction.
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 OTHER THAN SUMMARY PROCEDURE: appeal
shall stay the judgment or the final order.
 EFFECT OF AN APPEAL (RULE 40): stays
execution.
 Same effect as in RULE 41, as the judgment
thereon is not yet final and executory.
 As under SEC. 1, RULE 39: execution as a
matter of right if only after the judgment has
become final and executory.
 EXCEPTIONS: SEC. 4, RULE 39: when
execution may issue pending appeal:
a. Judgments in actions for injunction,
b. Receivership,
c. Accounting and
d. Support, and
e. Where the law or the Rules allow
execution notwithstanding appeal.
CASES COVERED UNDER THE SUMMARY RULES:
within the original jurisdiction of the MTC.
 GENERAL RULE: Once the MTC renders a
decision, and an appeal is made to the RTC under
RULE 40, the judgment appealed from is STAYED.
 EXCEPTION: In summary rules, the decision of the
RTC becomes executory as a matter of right,
without prejudice to further appeal under RULE 40.
 So an appeal under RULE 42, in cases covered by
Summary Rules, shall NOT anymore stay the
execution of judgments by the RTC.
 SEC. 4, RULE 39: (e) Where the law or Rules
provide otherwise.
 Under Summary Rules, once the RTC renders
judgment in the exercise of its appellate jurisdiction,
that judgment of the RTC is IMMEDIATELY
EXECUTORY if it is covered by Summary
Procedures, without prejudice to further appeal
under RULE 42.
SEC. 9: SUBMISSION FOR DECISION: if given due
course by the CA, it may:
(1) Set the case for oral argument or
(2) Require the parties to submit memoranda within a
period of FIFTEEN (15) DAYS from notice.
WHEN DEEMED SUBMITTED FOR DECISION: upon the
filing of the last pleading or memorandum required by
these Rules or by the court itself.
 Usually, the CA will ask the parties to file a
MEMORANDUM/MEMORANDA, para matagal
tagal ang pag-count ng submission for decision.
RULE 43: APPEALS FROM THE COURT OF TAX
APPEALS AND QUASI-JUDICIAL AGENCIES TO THE
COURT OF APPEALS
RULE 43: Practically the same as RULE 42.
SEC. 1: This Rule shall apply to appeals from judgments
or final orders of the Court of Tax Appeals and from
awards, judgments, final orders or resolutions of or
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
authorized by any quasi-judicial agency in the exercise of
its quasi-judicial functions.
 Administrative bodies are part of the executive
branch.
 They only execute the law.
 They do not sit in judgment; they do not have
judicial powers.
 However, Congress, in its infinite wisdom and
knowledge, confers upon these administrative
bodies what is known as QUASI-JUDICIAL
FUNCTIONS.
 This is where the law allows them to be
judges.
 When does an administrative agency exercise
QUASI-JUDICIAL FUNCTIONS? Only when they
are called upon to resolve a controversy.
 If there is no controversy, then that is not
quasi-judicial → that is only purely executive.
 ADMINISTRATIVE/EXECUTIVE
FUNCTION: subject to judicial appeal? NO,
EXCEPT when there is grave abuse of
discretion (The second aspect of judicial
power).
 But when an administrative agency resolves
a controversy, then it sits as a JUDGE.
 Therefore, its decision is subject to
appeal by the courts.
 That is not grave abuse.
 In other words, GAD is under RULE 65 →
that is an ORIGINAL ACTION.
 It raises issues of jurisdiction:
meaning, no jurisdiction, or acted in
excess of jurisdiction, or with grave
abuse of discretion.
 You are raising jurisdictional
issues.
 But in an APPEAL, you raise
ERRORS OF JUDGMENT, not errors
of jurisdiction.
 Although sometimes in
appeals, such errors can be
raised.
 But when you invoke the court’s
exercise of the GA clause under the
Constitution, you must always raise
an error of jurisdiction, in which case
the remedy is RULE 65 → NOT an
appeal.
 So therefore, among these agencies are the Civil
Service Commission, Central Board of Assessment
Appeals, Securities and Exchange Commission,
Office of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics
Board, Bureau of Patents, Trademarks and
Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
Compensation Commission, Agricultural Invention
Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and
voluntary arbitrators authorized by law.
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 REASON FOR OP: as in such instance, the
President does not sit as the chief executive,
but as a judge.
 When the office acts as a judge, it is
not anymore in the exercise of his
executive or administrative function.
 RE: LRA → when denied by the RD, and
from the LRA to the CA (RULE 43).
 RE: SSS → as when someone died, and he
has two families and there is a controversy
as to the beneficiaries.
 RE: CAB → denied increase of fares.
 When an administrative agency is in the exercise of
its QUASI-JUDICIAL function, you go to court on
appeal, NOT to the RTC.
 REASON: the RTC and the quasi-judicial
bodies are equal in rank.
 So you go to the CA.
 However, unlike the decisions of the RTC where
you go on appeal under RULE 41, and despite
being in the same rank, an appeal from a quasi-
judicial body is under RULE 43.
 Which is practically the same procedure as
RULE 42.
 Why is that? Because these quasi-judicial
agencies were given quasi-judicial powers
because of their EXPERTISE.
 EXAMPLE: NLRC → even though no appeal
ST. MARTIN FUNERAL HOMES V. NLRC (1998): there
is no appeal recognized.
o The remedy is an original special civil action under
Rule 65: raise errors for jurisdiction, and not errors
of judgments.
NOTE: While we do not wish to intrude into the
Congressional sphere on the matter of the wisdom of the
law, on this score we add the further observations that
there is a growing number of labor cases being elevated to
this Court which, not being a trier of fact, has at times
been constrained to remand the case to the NLRC for
resolution of unclear or ambiguous factual findings; that
the Court of Appeals is procedurally equipped for that
purpose, aside from the increased number of its
component divisions; and that there is undeniably an
imperative need for expeditious action on labor cases as a
major aspect of constitutional protection to labor.
Therefore, all references in the amended Section 9 of B.P
No. 129 to supposed appeals from the NLRC to the
Supreme Court are interpreted and refer to petitions for
certiorari under Rule 65. Consequently, all such petitions
should henceforth be initially filed in the Court of Appeals
in strict observance of the doctrine on the hierarchy of
courts as the appropriate forum for the relief desired.
is allowed under the Labor Code.
NOTE: the list is NOT exclusive → kasama lahat even if
they are not enumerated here.
 EXAMPLE: Office of the Ombudsman.
FABIAN V. DESIERTO: The very provision cited by
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
petitioner specifies that the appellate jurisdiction of this
Court contemplated therein is to be exercised over "final
judgments and orders of lower courts," that is, the courts
composing the integrated judicial system. It does not
include the quasi-judicial bodies or agencies, hence
whenever the legislature intends that the decisions or
resolutions of the quasi-judicial agency shall be reviewable
by the Supreme Court or the Court of Appeals, as specific
provision to that effect is included in the law creating that
quasi-judicial agency and, for that matter, any special
statutory court. No such provision on appellate procedure
is required for the regular courts of the integrated judicial
system because they are what are referred to and already
provided for in Section 5, Article VIII of the Constitution.
THE REVISED RULES OF CIVIL PROCEDURE
PRECLUDE APPEALS FROM QUASI-JUDICIAL
AGENCIES TO THE SUPREME COURT VIA RULE 45. —
Apropos to the foregoing, and as correctly observed by
private respondent, the Revised Rules of Civil Procedure
preclude appeals from quasi-judicial agencies to the
Supreme Court via a petition for review on certiorari under
Rule 45. This differs from the former Rule 45 of the 1964
Rules of Court which made mention only of the Court of
Appeals, and had to be adopted in statutes creating and
providing for appeals from certain administrative or quasi-
judicial agencies, whenever the purpose was to restrict the
scope of the appeal to questions of law. Under the present
Rule 45, appeals may be brought through a petition for
review on certiorari but only from judgments and final
orders of the courts enumerated in Section 1 thereof.
Appeals from judgments and final orders of quasi-judicial
agencies are now required to be brought to the Court of
Appeals on a verified petition for review, under the
requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a uniform
rule of appellate procedure for quasi-judicial agencies.
SEC. 2: CASES NOT COVERED: to judgment or final
orders issued under the Labor Code of the Philippines.
 As there is a specific provision there.
SEC. 3: WHERE TO APPEAL: CA → whether the appeal
involves questions of fact, of law, or mixed questions of
fact and law.
SEC. 4: PERIOD TO APPEAL: within FIFTEEN (15)
DAYS:
(1) From notice of the award, judgment, final order or
resolution, or
(2) From the date of its last publication, if publication is
required by law for its effectivity, or
(3) Of the denial of petitioner's motion for new trial or
reconsideration duly filed in accordance with the
governing law of the court or agency a quo.
RULE: only one MOTION FOR RECONSIDERATION
shall be allowed.
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 Motion AND full payment of the docket fees,
BEFORE expiration of the period → additional
FIFTEEN (15) DAYS only.
 HOWEVER, if in the most compelling reason →
another FIFTEEN (15) DAYS.
 Do not apply the Habaluyas Doctrine here.
 MEANING: can you file a Motion for
Extension of Time within which to file the
appeal? YES, within FIFTEEN (15) DAYS,
and another FIFTEEN (15) DAYS for
compelling reasons.
SEC. 5: HOW APPEAL TAKEN → the same as in RULE
42.
 Serve it also to the court or agency which rendered
judgment, aside from the adverse party.
EXEMPTION AS PAUPER LITIGANT (SEC. 21, RULE 3):
no money or property sufficient and available for food,
shelter and basic necessities for himself and his family.
 An appeal in forma pauperis → if CA denies the
Motion, petitioner shall pay the docket fees within
FIFTEEN (15) DAYS from notice.
SEC. 6: CONTENTS OF THE PETITION: practically the
same as RULE 42.
SEC. 7: EFFECT OF FAILURE TO COMPLY WITH THE
REQUIREMENTS: ground for the dismissal thereof.
SEC. 8: ACTION ON THE PETITION: CA may:
(1) Require the respondent to file a COMMENT on the
petition not a motion to dismiss, within TEN (10)
DAYS from notice, or
(2) DISMISS the petition if it finds the same to be
patently without merit, prosecuted manifestly for
delay, or that the questions raised therein are too
unsubstantial to require consideration.
REMEMBER: when an agency is in the exercise of its
quasi-judicial powers, then it has the same rank as an
RTC.
 HOWEVER, the appeal from the RTC is a matter of
right → an appeal from the decision of an agency
exercising quasi-judicial powers is
DISCRETIONARY.
 The court may deny due course.
 REASON: the agency a quo has the
expertise.
 EXAMPLE: Bureau of Mines → on who shall
be entitled to the mining concession, and the
decision of the Bureau is appealed to the
Sec. of DENR, then to the Office of the
Pres., and from there, to the CA.
 Same as in the HLURB → as when one is a
buyer of a subdivision of a condominium for
the recovery of the payment of the purchase
price of the condominium, then to the Office
of the President OR to the CA directly
through RULE 42.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 But usually, you go to the Office of the
President → EXHAUSTION OF
154
ADMINISTRATIVE REMEDIES.
SEC. 9: CONTENTS OF COMMENT: counter it.
SEC. 10: DUE COURSE: CA finds prima facie error of fact
or law that would warrant reversal or modification.
 DISCRETIONARY: ―it may give due course…‖
 Findings of fact of the court or agency concerned,
when supported by substantial evidence: BINDING
on the CA.
 SUBSTANTIAL EVIDENCE: required in an
administrative case.
SEC. 11: TRANSMITTAL OF RECORD: CA may require
the transmittal of the original or a legible certified true copy
of the entire record of the proceeding under review.
SEC. 12: EFFECT OF APPEAL → here lies the difference
between this Rule and RULE 42.
 EFFECT: Shall NOT stay the award, judgment, final
order or resolution.
 EXCEPTION: UNLESS the CA shall direct
otherwise upon such terms as it may deem just.
 In petition for review under RULE 42 (a case which
originated from the MTC and the decision subject to
review is the judgment of the RTC acting as an
appellate court), STAYS he judgment, UNLESS
there is a law stating otherwise.
RULE 42 RULE 43
GENERAL RULE: STAYS GENERAL RULE: does
the judgment. NOT stay the judgment.
EXCEPTION: Summary EXCEPTION: Unless the
Rules, etc. CA directs otherwise.
Execution of the judgment Execution of the judgment
CANNOT be had (governed may be asked from the
by the GENERAL RULE agency.
under SEC. 1, RULE 39).
 The CA may issue a Preliminary Injunction to stay
the execution of the judgment appealed.
 REMEMBER: exceptions under SEC. 4, RULE 39
→ same effect as here.
 They are immediately executory, like a
judgment of a quasi-judicial agency, and
shall not be stayed by an appeal therefrom,
unless otherwise ordered.
 But the GENERAL RULE still remains → that you
can ask for execution in the agency or in the court a
quo.
 You can only ask for the execution of
judgment after it has become final and
executory.
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Exhaust all remedies within the agency or department concerned.
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OMBUDSMAN: the Supreme Court changed their minds a  However, hindi na pwede yung ―unless the
number of times regarding this issue. Court of Appeals directs otherwise.‖ Why is
that?
 BENCHMARK (publication): ―Ombudsman  Kaya nga ung appeal nasa CA na, it can
decisions in administrative disciplinary cases choose to stay its execution.
immediately executory,‖
 Upholding the rule making powers of the RULE 45: APPEAL BY CERTIORARI TO THE
Office of the Ombudsman under the
SUPREME COURT
Constitution, and RA 6770 (the Ombudsman
At of 1999), the SC recently held that the
execution of the decision of the Office of the
Ombudsman suspending a former City This is the THIRD mode of appeal: APPEAL BY
Treasurer of Albay is immediately executory, CERTIORARI / CERTIORARI as a mode of appeal.
and may not be stayed for the filing of an
appeal or the issuance of an injunctive writ.  The other kind of certiorari is CERTIORARI as a
 CORONA, J: the Court noted that under Sec. special civil action (RULE 65).
7, Rule 3, of the Rules of the Procedure of  That is NOT an appeal → it is an original
the Office of the Ombudsman, the special civil action.
Ombudsman’s decision imposing the penalty
of suspension for ONE YEAR of the former RULE 45 RULE 65
City Treasurer Samaniego is immediately
executory pending appeal. It stressed that Certiorari as a mode of Certiorari as a special civil
the promulgation of such rule is authorized appeal. action.
by ART. XI, SEC, 13, NO. 8 of the
Constitution, and SECS. 18 and 27 of RA Errors of judgments: Questions of jurisdiction: where
6770. The Court thus modified its further error in the exercise of a court or tribunal acts without
decision insofar as it declared that the the jurisdiction of the jurisdiction; or that it has
imposition of the penalty is stayed by the court. jurisdiction, but it has exceeded
filing and the pendency of the CA appeal. its exercise; or acted in GAD,
The Court explained that even in the CA, the amounting to depriving the
decisions of the Ombudsman cannot even
party of his right under the law.
issue an injunction to stop the immediate
execution pending appeal, as the Rules of
Procedure of the Office of the Ombudsman,
SEC. 1: FILING OF PETITION WITH SUPREME COURT:
supersedes the discretion given to the CA
a judgment or final order or resolution of:
under SEC. 12, RULE 43, ROC to order the
staying of the decision of the Ombudsman of
(1) The Court of Appeals,
an disciplinary case appealed to it. The
(2) The Sandiganbayan,
provisions in the Rules of Procedure in the
(3) The Regional Trial Court or
Office of the Ombudsman, that the decisions
(4) Other courts whenever authorized by law.
are immediately executory is a special rule
 EXAMPLE: MTC, quasi-judicial bodies.
that prevails over the provisions of the ROC.
When two rules apply to a particular case,
NATURE OF THIS APPEAL: purely questions of law.
that which is specially designed for the said
case must prevail over the other.
 Directed to the SC when the appeal raises only
 If there is a conflict between the special law
questions of law.
and the general law → the specific law shall
155  Under BP 129, SEC. 9: CA has jurisdiction over the
prevail.
three categories of cases:
 Professor agrees to the aforementioned as all
(1) Issuance of the extraordinary writs:
appeals under RULE 43 are immediately executory. 156
original.
 Concurrent with the CA and the RTC.
(2) Actions for the annulment of judgment of the
155 RTC (RULE 47): (exclusive) original.
Professor’s comment: actually, that is wrong. The application of the
doctrine CANNOT be had. That can only be applied if the two rules
(3) All final judgments, decisions, resolutions,
emanate from the same body that promulgated them (same rule- orders or awards of the RTC: (exclusive)
157
making body). If the same rule-making body makes two laws, then that appellate (RULE 41 if the RTC is in the
doctrine is applicable. However, here, the Rules of Procedure of the exercise of its original jurisdiction, RULE 42
Ombudsman should only apply to the Ombudsman; and those Rules if the RTC is in the exercise of its appellate
can never apply to courts. Similarly, the ROC cannot apply to the Rules jurisdiction), or quasi-judicial agencies,
of the Ombudsman. The Rules of Ombudsman is promulgated by the instrumentalities, boards, or commissions,
Ombudsman, and the ROC is promulgated by the Court. Thus, the including the SEC, SSC, etc.
doctrine cannot apply, they emanating from two rule-making bodies.
156
NOTE: Also for COMELEC, there are special rules promulgated by the SC It is an exercise of a court or tribunal over a case in the first instance.
157
in election cases. But they refer only to the procedure in court. If the Authority of a superior court to rehear a case, which has already
same is appealed to the COMELEC, the Rules of COMELEC shall apply. been tried and decided by a lower court.
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 EXCEPT those falling within the
appellate jurisdiction in accordance
with the Constitution, under the Labor
Code, and Sec. 17 of the Judiciary
Act of 1948 (pure questions of law).
WHEN APPEAL TO THE SC IS MADE FROM THE RTC:
when you are raising PURE QUESTIONS OF LAW.
APPELLATE JURISDICTION OF THE SUPREME
COURT UNDER THE CONSTITUTION (SEC. 5A): the SC
shall have the power to review, revise or reverse, or affirm
on appeal either by appeal or by certiorari:
(1) Where the constitutionality of law, statute,
ordinance, executive order is in issue;
(2) Where it involves the validity of any tax, impose or
duties;
(3) Where the penalty imposed is reclusion perpetua or
higher: question of FACT (exception);
(4) Where the issue involves jurisdiction of the lower
court;
(5) Pure questions of law (actually, Nos. 1, 2 and 4 are
all questions of law).
Does that mean that the CA has no jurisdiction over these
issues? NOT necessarily.
 When is the CA EXCLUDED from determining
these issues, as enumerated in the Constitution?
Where only questions of law are raised
(Constitution and Judiciary Act of 1948).
 However, if the constitutionality of a law is
raised, the CA can also hear it on appeal
and determine its constitutionality if what is
raised in appeal is a MIXED questions of fact
and law, or a pure question of fact.
 Not anymore pure.
 So, the CA has exclusive appellate
jurisdiction, provided it is in the exercise of
its original jurisdiction, where the issue
raised is a question of fact, or mixed
questions of fact and law.
 But if what is raised on appeal is PURE QUESTION
OF LAW, then, go to the SC.
NOTE: that applies only when the decision of the RTC is
in the exercise of its original jurisdiction.
 However, where the decision being appealed was
rendered by the RTC in the exercise of its appellate
jurisdiction, can you raise pure questions of law to
the CA? YES, ―the Court of Appeals finds prima
facie that the lower court has committed an error of
fact or law (SEC. 6, RULE 42).‖
 However, jurisdiction must be conferred by
law, and not by the rules.
 STATUTORY BASIS: BP 129, SEC. 22
(appeal to the RTC of the decisions of the
MTC): the decision of the RTC in such cases
shall be appealable by petition for review to
the CA which may give it due course only
when the petition shows prima facie that the
lower court has committed an error of fact or
law xxx.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 So, if the judgment of the RTC is
issued in the exercise of its appellate
jurisdiction, then, indeed, it is fact OR
law.
Suppose the judgment of the MTC was appealed to the
RTC, and you are raising pure questions of law, does the
RTC have competence to hear the same? YES, whether
question of fact, of law, or mixed.
 You can go to the RTC.
 STATUTORY BASIS: SEC. 22, first sentence →
―the RTC shall exercise appellate jurisdiction over
all cases decided by the MTC xxx.‖
 NO distinction.
However, if it is a decision of the MTC and you are raising
a pure question of law, can you also go directly to the SC
under RULE 45? YES.
 But you do not always do that, as the appeal to the
SC is PURELY DISCRETIONARY.
 If you are not given due course, patay ka na.
 It is better to go to the RTC, then to the CA, then to
the SC → you have many chances.
In an appeal under RULE 43 from a quasi-judicial agency
to the CA, can you raise a PURE QUESTION OF LAW?
YES.
 STATUTORY BASIS: SEC. 10, RULE 43 → ―the
Court of Appeals finds prima facie that the court or
agency concerned has committed errors of fact or
law xxx.‖
 Same wording.
 SEC. 9, first par, BP 129: ―xxx except those
falling within the appellate jurisdiction of the
SC in accordance with the Constitution, and
of sub-par. 1 of the third par. And sub. Par. 4
of the fourth par. Of Sec. 17 of the Judiciary
At of 1948 xxx‖
 It defines there that the RTC (CFI, then) was
in the exercise of its ORIGINAL jurisdiction.
 Therefore, go to the GENERAL RULE (SEC. 9):
exclusive original jurisdiction over final judgments,
decisions or awards of the RTC and quasi-judicial
agencies.
 That is why the only instance when there is
no appeal to the CA from the decision of the
RTC when only pure questions of law are
raised → when the RTC is in the exercise of
its ORIGINAL jurisdiction.
QUESTION OF LAW:
QUESTION OF FACT QUESTION OF LAW
When the doubt or Exists when the doubt or
difference arises as to the difference arises as to what
TRUTH or FALSEHOOD of the law is on a certain state
of facts.
the alleged facts, or when
the query necessarily
invites calibration of the
whole evidence considering
mainly the credibility of
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witnesses, relevance and
specific surrounding
circumstances, their relation
to one another, and to the
whole, and the probability of
158
the situation.
QUESTION OF FACT: EXAMPLE: the LC believed the
version of the plaintiff. Defendant (losing party) may
appeal on a question of fact.
 There can only be a question of fact when evidence
has been presented by the parties to prove the truth
or falsehood of the allegations in the pleadings.
 Thus, where no evidence is presented on a factual
issue, then necessarily, there are no facts/evidence
to calibrate.
 In other words, before a question of fact can be
involved as an issue in a case, evidence must have
been presented by the parties for the court to
appreciate which is true, and which is not.
 Ergo, if there is no evidence presented, there is no
dispute of fact.
SOUTHERN NEGROS DEVELOPMENT BANK V.
COURT OF APPEALS (1994): Plaintiff here filed a case
with RTC, Br. 19 (Roxas City), which is a complaint for
annulment and reformation of contract with damages. The
defendant filed a MTD on the ground that venue was
improperly laid, because of the stipulation in the document
subject of the complaint that actions arising from that
document was to be filed only in the courts of Bacolod
City. In resolving, the RTC granted the motion, on the
ground of improper venue. It further ruled that plaintiff is
now estopped from questioning the validity of the contract,
as that is the very basis of his complaint. The plaintiff filed
an Omnibus Motion to admit Amended Complaint for
Reconsideration, attaching thereto the Amended
Complaint. TC denied admission of the same. Plaintiff filed
notice of appeal. After the appellant’s brief was filed,
defendant filed a motion to dismiss appeal, on the ground
that the appeal raises pure question of law.
o SC: YES, the appeal to the CA was wrong.
o REASON: What is raised here is a pure question of
law → it must be by certiorari to the SC under
RULE 45.
o ISSUES:
(1) Did the trial court err in dismissing the
158
RULE ON PLEADINGS: failure to state a cause of action → no
allegation of a right, obligation or act or omission, or when he is not the
real party in interest. When an MTD is filed, at that point, the court is
not called upon the truth or falsity of those allegations. As trial will
come after. Then, during the Pre-Trial, stipulations of facts are made.
Also, when the allegations in the complaint are admitted, one can ask
for judgment on the pleadings. As in that case, the Answer does not
tender an issue (as when the third mode of denial was not properly
invoked). The effect is he is deemed to have admitted the averments of
the complaint, meaning, there was admission of facts. If there is such
an admission, wala ng pagaawayan na facts. Judgment ka na. there is
only trial when there are facts which are under dispute.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
complaint for improper venue?
 QUESTION OF LAW: the issue does
not involve the determination of
evidence.
 Base it on the interpretation of the
stipulation on venue in the document.
 To interpret the provision therein on
whether it is exclusive or not, you do
not need a trial; you just interpret the
stipulation.
 There is no calibration of the evidence
involved.
 What is the law on a certain set of
facts? → the conclusion is drawn from
the stipulation.
(2) Did the trial court err in not admitting the
Amended Complaint?
 QUESTION OF LAW: application or
interpretation of the provision of law.
 Amendment of the complaint a matter
of right, and LC erred in denying its
admission? → question of LAW.
 This is regarding RULE 10 on
amendments.
(3) Did the trial court disregard the rule that in
filing a motion to dismiss, petitioner was
deemed to have admitted all the allegations
in the complaint?
 QUESTION OF LAW: the resolution
of the issue will not require the
examination of the probative value of
the evidence of the parties, as in fact,
none was presented.
NOTE: The Court, in Atlas Consolidated Mining and
Development Corporation v. Court of Appeals, 201 SCRA
51 (1991) had occasion to pass upon the issue at hand, as
follows:
"Under Section 5, subparagraph (2) (e), Article VII of
the 1987 Constitution, the Supreme Court is vested
with the power to review, revise, reverse, modify, or
affirm on appeal or certiorari as the law or the Rules
of Court may provide, final judgments and orders of
lower courts in all cases in which only an error or
question on law is involved. A similar provision is
contained in Section 17, fourth paragraph,
subparagraph (4) of the Judiciary Act of 1948, as
amended by Republic Act No. 5440. And, in such
cases where only questions of law are involved,
Section 25 of the Interim Rules and Guidelines
implementing Batas Pambansa Blg. 129, in
conjunction with Section 3 of Republic Act No. 5440,
provides that the appeal to the Supreme Court shall
be taken by petition for certiorari which shall be
governed by Rule 45 of the Rules of Court.
The rule, therefore, is that direct appeals to this Court
from the trial court on questions of law have to be
through the filing of a petition for review on certiorari.
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xxx xxx xxx
Petitioner is correct that the proper mode of appeal from
judgments of the Regional Trial Court on pure questions of
law is a petition for review on certiorari to the Supreme
Court in the form and manner provided for in Rule 45 of
the Revised Rules of Court. . . . Private respondents, in
their Appellant's Brief filed with the appellate court, raised
the following issues: (1) Did the trial court err in dismissing
the complaint for improper venue?; (2) Did the trial court
err in not admitting the Amended Complaint?; and (3) Did
the trial court disregard the rule that in filing a motion to
dismiss, petitioner was deemed to have admitted all the
allegations in the complaint? The issue of whether the trial
court erred in holding that the venue of an action was
improperly laid is a question of law (See Philippine
Banking Corporation v. Hon. Tensuan, G. R. No. 104649,
February 28, 1994). The second issue likewise involves a
question of law. What is called for in the resolution of such
issue is the application or interpretation of a provision of
law. Anent the third issue raised in their Appellants' Brief,
private respondents argue that "the trial court clearly
violated the cardinal rule on hypothetical admissions in
basing its order of dismissal on estoppel and assuming
that the agreement was valid and/or freely, knowingly and
voluntarily executed by the plaintiffs-appellants" (At p. 8).
Clearly, private respondents were assailing the legal
conclusions made by the trial court. A resolution of the
issue would not require an examination of the probative
value of the evidence of the parties, as in fact none were
presented.
RAMOS, ET AL. V. PEPSI-COLA BOTTLING CO. OF
THE P.I. (19 SCRA 289): ". . . a question of law — which
exists 'when the doubt or difference arises as to what the
law is on a certain state of facts' — 'there is a question of
fact when the doubt or difference arises as to the truth or
the falsehood of alleged facts.‖
MARCOS-ARANETA V. COURT OF APPEALS (2008):
Whether a determinative question is one of law or of fact
depends on the nature of the dispute. A question of law
exists when the doubt or controversy concerns the correct
application of law or jurisprudence to a certain given set of
facts; or when the issue does not call for an examination
of the probative value of the evidence presented, the truth
or falsehood of facts being admitted. A question of fact
obtains when the doubt or difference arises as to the truth
or falsehood of facts or when the query invites the
calibration of the whole evidence considering mainly the
credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances, as well as their
relation to each other and to the whole, and the probability
of the situation.
VICTORIAS MILLING V. INTERMEDIATE APPELLATE
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
COURT (1991): Onstott filed with CFI, then, a complaint
against Pacific Airways Corp. and Victorias Milling Co. for
recovery of moral and exemplary damages, attorney’s
fees, expenses on litigation in court, based on Arts. 19, 20,
and 21 of the Civil Code. As a consequence of his alleged
dismissal without any valid or just cause, as the President
and General Manager of Pacific Airways Corp. So he was
invoking a violation of human relations. The dismissal is
contained in a resolution of the Board of Pacific, that he
served the corporation for 34 years. However, no
allegation whatsoever in the complaint which states that
he was ever employed by Victorias (petitioner). As could
be gathered from the complaint, the only possible reason
of impleading petitioner to the action was the Victorias
Milling is the majority owner of Pacific Airways. Victorias
filed a MTD, contending that the court has no jurisdiction
(this being a labor case which involves an employer-
employee relationship) and that there was failure to state
cause of action against it (it being a mere stockholder, and
Pacific Airways having a separate juridical personality
from Victorias or from its stockholders; there was also no
showing of facts where piercing the veil can be invoked).
TC dismissed the case on the ground that it has no
jurisdiction over the subject matter of the case, and that
there was no cause of action. An MR was filed, and the
other judge, denied the same, but it only stated the court
has no jurisdiction over the subject matter of the case,
without ruling on the failure to state the cause of action
against Victorias. Onstott appealed to the CA. Victorias
filed a motion to dismiss the appeal, on the ground that
what is being raised in the appeal is a pure uestion of law.
o SC: YES, what is being raised is a pure question of
LAW.
o WON the dismissal is correct → PURE QUESTION
OF LAW.
o Again, here, you hypothetically admit the averments
made by the petitioner, and it should be solely
judged in the four corners of the complaint.
o SC: it is not proper for the court to receive evidence
allunde for the purpose of determining whether the
complaint states a cause of action.
 You do not determine the truth or falsity of
the allegations.
 Question of LAW: there was no evidence
and it does not involve their calibration.
 REASON: there is a hypothetical admission
alleged on the complaint, and thus, does
NOT allege any question of fact.
NOTE: The appeal interposed by Onstott stems from the
Order of the trial court dated 23 June 1983 dismissing the
complaint "for lack of jurisdiction over the subject matter of
the action pursuant to the provisions of the Labor Code,as
amended by Presidential Decree No. 1691." Whether or
not such dismissal is correct is neither a question of fact
nor of fact and law; it involves a pure question of law
because what is to be resolved is whether, admitting the
facts alleged in the complaint to be true, the trial court
has jurisdiction over it in the light of the laws
governing jurisdiction. Settled is the rule that what
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determines the nature of the action and correspondingly,
the court which has jurisdiction over it, are the allegations
in the information or complaint. In cases of motions to
dismiss on ground of lack of jurisdiction, the
159
allegations in the complaint are deemed admitted.
The hypothetical admission of the facts alleged
renders them beyond dispute and forecloses any
issue of fact for purposes of the motion. The court is
not called upon to rule on their probative value. However,
whether the conclusion drawn therefrom for purposes of
applying the law on jurisdiction is accurate or correct is a
question of law. Otherwise stated, there is a question of
law in a given case when the doubt or difference arises as
to what the law is on a certain state of facts.
Jurisdiction is conferred by law, and judicial decisions
applying or interpreting the laws or the Constitution shall
form part of the legal system of the country. The Court's
interpretation of a statute constitutes part of the law as of
the date it was originally passed since it merely
establishes the contemporaneous legislative intent that the
interpreted law carried into effect.
Consequently, the first assigned error in the Brief for
Appellant — that the trial court erred in not assuming
jurisdiction over the case — is unequivocally a question of
law.
CAIÑA V. PEOPLE (1992): The case of Cheesman v.
Intermediate Appellate Court, 193 SCRA 93, 100-101
[1991],distinguishes between questions of fact and
questions of law. We quote: ". . . a question of law —
which exists 'when the doubt or difference arises as to
what the law is on a certain state of facts' — 'there is a
question of fact when the doubt or difference arises as to
the truth or the falsehood of alleged facts,' (Ramos, et al.
v. Pepsi-Cola Bottling Co. of the P.I., et al., 19 SCRA 289,
292, citing II Bouvier's Law Dictionary, 2784, and II Martin,
Rules of Court, 255; SEE also, Francisco, The Rules of
Court, Annotated and Commented, 1968, ed., Vol. III, pp.
485-488) or when the 'query necessarily invites calibration
of the whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific surrounding
circumstances, their relation to each other and to the
whole and the probabilities of the situation.' (See Lim
v.Calaguas, 83 Phil. 796, 799, and Mackay Radio & Tel.
Co. v. Rich, 28 SCRA 699, 705, cited in Moran,
Comments on the Rules, 1979 ed., p. 474)
Questions on whether or not there was a preponderance
of evidence to justify the award of damages or whether or
not there was a causal connection between the given set
of facts and the damage suffered by the private
complainant or whether or not the act from which civil
liability might arise exists are questions of fact. In this
regard, the petitioner's case should not have been
elevated to this Court since a petition for review on
159
AFFIRMATIVE DEFENSE: that while hypothetically admitting the
material averments of the complaint constituting the cause of action,
nonetheless, it would bar recovery. EXAMPLE: lack of jurisdiction.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
certiorari under Rule 45 allows only questions of law to be
raised (Section 2, Rule 45, Rules of Court). The proper
procedure that he should have adopted was to file a
petition for review with the Court of Appeals within 15 days
from notice of judgment pointing out errors of fact or law
that will warrant a reversal or modification of the decision
or judgment sought to be reviewed (See Resolution of
Court of Appeals dated August 12, 1971, par. 22 [b] of
Interim Rules of Court and Sec. 22, BP 129).
SESBRENO V. COURT OF APPEALS (1995): In
Bernardo v. Court of Appeals, 216 SCRA 224 (1992), this
Court clarified the distinction between a question of law
and a question of fact in this wise: ". . . As distinguished
from a question of law which exists 'when the doubt or
difference arises as to what the law is on certain state of
facts' — 'there is a question of fact when the doubt or
difference arises as to the truth or the falsehood of alleged
facts;' or when the 'query necessarily invites calibration of
the whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific surrounding
circumstances, their relation to each other and to the
whole and the probabilities of the situation.'"
An examination of the petition filed before the Court of
Appeals disclosed that indeed no question of fact was
raised. What private respondent asserted therein was that
the facts as alleged and proved by petitioner did not
constitute a criminal offense. Clearly then, the only issue
to be resolved by the Court of Appeals, which it did
resolve, was whether private respondent could be held
liable for estafa under the facts obtaining in the criminal
case. This certainly is a question of law that should fall
within the jurisdiction of this Court.
PROF.‘s comment: J. Quiason was correct here, but he is
wrong in another sense. As to the issue of WON it was a
question of law, he was correct in saying that this rule is
applicable here.
NOVEMBER 5, 2016
QUESTION OF LAW: as when the TC rendered judgment
on the pleadings, the judgment rendered on the premise
that the Answer does not tender an issue or that
defendant has admitted the material averments of the
complaint.
 When may judgment of the pleadings be rendered?
(1) When the Answer fails to tender an issue, or
(2) When the Answer otherwise admits the
material averments of the complaint.
 If it is being admitted, then there is NO issue of fact.
 That is why the court does not even conduct
a trial anymore it renders a judgment on the
pleadings.
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 Meaning, the assumption there is that the

facts have already been admitted, so the
court will now draw a conclusion from those Appeal by certiorari. Appeal for petition for
facts. review.
 Where the facts are already UNDISPUTED
as they are either admitted or that the An appeal from ALL courts, An appeal from the RTC in
Answer does not tender an issue. whether regular or quasi- the exercise of its appellate
 WHEN ANSWER DOES NOT TENDER AN ISSUE: judicial, where you raise a jurisdiction, or from QUASI-
when the Answer is not a specific denial, but a
pure question of law (see JUDICIAL agencies.
general denial.
jurisdiction of the SC in the
 In which case, your appeal from the RTC is by 162
RULE 45, and not by RULE 41. Constitution).

The distinction between a question of fact and a

question of law becomes significant only when the
appeal is from a judgment of the RTC in the exercise
of its original jurisdiction.
 That is the only instance it becomes significant.
 Because if the decision of the RTC is in the
exercise of its appellate jurisdiction, the mode
of appeal there would be a petition for review
RULE 42.
 If you appeal under that mode, since that is
decision which originated from the MTC, then the
second appeal to the CA, can you raise a pure
question of law? YES, as per SEC. 22, BP 129.
 Where the CA May give due course to the
petition for review under RULE 42 if it finds
that there is a prima facie showing that the
lower court has committed an error fact or
law.
 In that case, the appellant may raise a
question of fact, mixed question of fact and
law, and even purely a question of law.
 From the decision of the MTC, and go up to the
RTC, can you raise a pure question of law? YES,
as the RTC has jurisdiction over all cases decided
by the MTC, within their respective territorial
jurisdiction (SEC. 22, BP 129) (RULE 40).
 Definitely, you can raise a question of fact,
and mixed question of fact or law.
 So it does NOT make any distinction as to
what kind of cases, whether those cases
involve pure question of law or fact.
 If we talk about appellate jurisdiction, similar to
original jurisdiction, it must be conferred by law.
What happens when there is a wrong appeal? (SEC. 2,
RULE 50)
 An appeal under RULE 41 (RTC in the exercise of
its original jurisdiction to CA → ordinary appeal),
raising ONLY questions of law shall be dismissed.
 Mali ang mode of appeal kasi.
 Bawal kapag rule 41.
 It should have been RULE 45.
 Similarly, an appeal by notice of appeal instead of
by petition for review from the appellate judgment of
an RTC shall be dismissed.
 REASON: if the RTC renders a judgment in
the exercise of its appellate jurisdiction, the
mode of appeal is through a PETITION FOR
REVIEW.
 If only by mere notice of appeal under RULE
41, dali ka, and your appeal will be
dismissed.
 An appeal erroneously taken to the Court of
Appeals shall not be transferred to the appropriate
court but shall be dismissed outright.
 OLD LAW: if there is an erroneous appeal, or a
MISDIRECTED APPEAL, then the appeal will be
referred to the proper court.
 NOW, appeal erroneously taken shall NOT
be transferred.
 This is a 180 degree change from the Old
Rules.
If you go to the SC, nagkamali ka ng appeal mo, and you
should have gone to the CA (as the issue being submitted
is of fact), what will happen? May be referred to the Court
of Appeals for decision or appropriate action (PAR. 2,
SEC. 6, RULE 56)
 That is optional to the SC → SC can dismiss the
same.
 It is also an erroneous appeal, so it can be
dismissed.
SEC. 2, RULE 50 PAR. 2, SEC. 6, RULE 56
An appeal erroneously Appeal by certiorari taken
taken to the Court of to the Supreme Court (SC)
Appeals (CA)
Shall not be transferred to May be referred to the
162
Power of the SC to review, revise and reverse on appeal or
certiotrari, as the ROC may provide, in cases where:

(1) Where the constitutionality of law, statute, ordinance,

160 161 executive order is in issue;
RULE 45 RULE 42 and 43
(2) Where it involves the validity of any tax, impose or duties;
(3) Where the penalty imposed is reclusion perpetua or higher:
question of FACT (exception);
160
Decisions decided by the RTC in the exercise of its appellate (4) Where the issue involves jurisdiction of the lower court;
jurisdiction. (5) Pure questions of law (actually, Nos. 1, 2 and 4 are all questions
161
Decisions or judgments of quasi-judicial bodies to the CA. of law).
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the appropriate court but Court of Appeals for  ALL on motion before the expiration of the
shall be dismissed outright. decision or appropriate reglementary period.
action.  It cannot be extended if made after.
 So here, outright, THIRTY (30) DAYS.

 The determination of the Supreme Court on
whether or not issues of fact are involved shall be
final (J. Callejo).
 Prof. before appealed to the SC (question of law),
but the SC, siguro tamad, pinasa sa CA, and when
it was referred there, it was dismissed as he was
only raising questions of law. But Prof.’s appeal
was correct, why was he being punished? Was it
his fault that the SC referred the case to the CA for
decision? But J. Callejo explained to him was that
the determination of the SC WON questions of fact
are involved shall be final. Even though the
emphasis was on fact, J. Callejo called Prof. and
clarified it to him.
Going back to:
RULE 45: APPEAL BY CERTIORARI TO THE
SUPREME COURT
SEC. 1: FILING OF PETITION WITH THE SC: a judgment
or final order or resolution of
(1) The Court of Appeals,
(2) The Sandiganbayan,
(3) Court of Tax Appeals,
(4) The Regional Trial Court or
(5) Other courts whenever authorized by law.
OTHER COURTS: MTC included? YES.
 Quasi-judicial bodies? YES.
The petition shall raise only questions of law which must
be distinctly set forth.
 Therefore, if only a pure question of law is raised
from a judgment in the MTC, theoretically, you can
go directly to the SC via a petition for certiorari
under this Rule.
SEC. 2: TIME FOR FILING; EXTENSION: apply FRESH
PERIOD rule.
 Can you ask for extension of time within which to
file Petition? YES, as it is only prohibited to do so
under RULE 40 and 41.
 The appeal under those Rules cannot be
extended (HABALUYAS ENTERPRSES V.
JAPZON).
 But under RULE 42, 43, and 45, extensions
are ALLOWED:
a. RULE 42 and 43: FIFTEEN (15)
DAYS, and another FIFTEEN (15)
DAYS in extreme cases.
b. RULE 45: FIFTEEN (15) DAYS,
THIRTY (30) DAYS for justifiable
causes.
SEC. 3: DOCKET AND OTHER LAWFUL FEES; PROOF
OF SERVICE OF PETITION: to the Clerk of the Supreme
Court.
 Proof of service on the lower court AND adverse
party shall be submitted with the petition.
 This is the court whose decision is being
appealed from.
 With PROOF OF SERVICE.
SEC. 4: CONTENTS OF PETITION: Same s in RULE 42
and 43.
 Only the NUMBER OF COPIES are different:
EIGHTEEN (18) COPIES.
 Contents:
(1) Full name of the appealing party as the
petitioner and the adverse party as
respondent, without impleading the lower
courts or judges thereof either as petitioners
or respondents;
(2) The material dates showing when notice of
the judgment or final order or resolution
subject thereof was received, when a motion
for new trial or reconsideration, if any, was
filed and when notice of the denial thereof
was received;
 To show compliance of the
reglementary period within which to
file an appeal.
(3) Statement of the matters involved, and the
reasons or arguments relied on for the
allowance of the petition;
(4) Clearly legible duplicate original, or a
certified true copy of the judgment or final
order or resolution certified by the clerk of
court of the court a quo and the requisite
number of plain copies thereof, and such
material portions of the record as would
support the petition; and
 Same as RULE 42 and 43; ikaw na
din gumagawa ng record on appeal.
 Formal requirements:
a. Either it is the original copy, or
b. Certified true copy.
(5) A sworn certification against forum shopping
as provided in the last paragraph of section
2, Rule 42.
NOTE: appeals made under RULE 42, 43 and 45, all of
them requires a Certification of Non-Forum Shopping, and
also for initiatory pleadings (e.g. complaint).
SEC. 5: DISMISSAL OR DENIAL OF PETITION: an
appeal to the SC is DISCRETIONARY on them on
whether they will hear your appeal.
 Whether your petition will be granted: given due
course.
 GROUNDS:

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(1) Failure to comply with any of the  In criminal cases, if the penalty imposed is NOT
requirements, or any of those mentioned above, the mode of appeal
(2) The appeal is without merit, or is by RULE 45.
(3) Prosecuted manifestly to delay, or  But if the penalty in criminal cases imposed by the
(4) The questions raised are too unsubstantial to lower court is ANY of those mentioned, then, RULE
require consideration. 45 is inapplicable.
 The proper mode of appeal will be SEC.
SEC. 6: REVIEW DISCRETIONARY: not a matter of right. 3(c), RULE 122 → by notice of appeal to the
COURT OF APPEALS.
 WHEN REVIEW GRANTED: Special and important  SEC. 3(e), RULE 122: except as provided in
reasons therefore. SEC. 13 of RULE 124, all other appeals to
 CONSIDERATIONS: the SUPREME CURT should be by petition
(a) When the court a quo has decided a for review on certiorari under RULE 45.
question of substance, not theretofore  But when the penalty imposed is
determined by the Supreme Court, or has reclusion perpetua, life imprisonment
decided it in a way probably not in accord or death, then, the decision of the CA
with law or with the applicable decisions of can be appealed by (SEC. 13(c) of
the Supreme Court; or RULE 124):
 There are issues of first impression a. DEATH: the court shall make a
which has never been the subject of a judgment but will refrain from
decision of the SC. making an entry of judgment,
 Especially when the judges below are and certify the case and
paid, and their decisions are thus not elevate the entire record to the
in accords with the law. SC for review.
(b) When the court a quo has so far departed  MEANING: there is
from the accepted and usual course of automatic review of the
judicial proceedings, or so far sanctioned decision, even without
such departure by a lower court, as to call for anything done by the
an exercise of the power of supervision. appellant.
 A departure from procedure.  As the Constitution
provides that when the
SEC. 7: PLEADINGS AND DOCUMENTS THAT MAY BE penalty imposed is
REQUIRED; SANCTIONS: pleadings, briefs, memoranda death penalty, that is
or documents as it may deem necessary within such automatic.
periods and under such conditions as it may consider  In which case, this is the
appropriate. only instance where the
Constitution itself states
 Only the SC can do this. the same.
 AND impose corresponding sanctions:  It is part of the
CONTEMPT. constitutional due
 Unauthorized filing: huwag kang mag-file ng kahit process →
ano. MANDATORY
 EXAMPLE: you were asked to file a APPEAL/REHEARING.
Comment, do not file a Reply if you are not b. RECLUSION PERPETUA /
required to do so. LIFE IMPRISONMENT: is the
 When you file a Reply, that is unauthorized appeal also automatic? NO. by
filing. (SEC. 13(c) of RULE 124)
 Better thing to do: also file a Motion to Admit  The judgment may be
Reply. appealed with the SC by
 In response to that, you can file a NOTICE OF APPEAL
Motion to File Rebuttal Pleading to the filed with the COURT
Reply. OF APPEALS.
 But the main pleading is already  Can you raise a
attached. question of fact upon
 Always file a motion by leave of court. appeal to the SC? YES,
as the only mode of
SEC. 8: DUE COURSE; ELEVATION OF RECORDS: appeal where you can
within FIFTEEN (15) DAYS from notice. only raise a question of
law is under RULE 45,
 Also discretionary on the part of the SC. and this is NOT that
Rule, as it is RULE 124.
SEC. 9: RULE APPLICABLE TO BOTH CIVIL AND c. IN ALL OTHER CASES:
CRIMINAL CASES: except in criminal cases where the appeal is considered merely a
penalty imposed is death, reclusion perpetua or life privilege.
imprisonment.

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REMEMBER: the effect of perfection of appeals.
MIRANDA V. COURT OF APPEALS (1976): an action for
partition and accounting, with two issues, namely WON
the parties are co-owners, and partition/accounting.
o If the first issue is decided, is that already
appealable? YES; do not wait for the accounting or
actual physical partition.
 Those two can be the subject of another
appeal.
o This is one of the instances where multiple appeals
are allowed.
NOTE: The Court's considered opinion is that imperative
considerations of public policy and of sound practice in the
courts and adherence to the constitutional mandate of
simplified, just, speedy and inexpensive determination of
every action call for considering such judgments for
recovery of property with accounting as final judgments
which are duly appealable (and would therefore become
final and executory if not appealed within the reglementary
period) with the accounting as a mere incident of the
judgment to be rendered during the course of the appeal
as provided in Rule 39, section 4 or to be implemented at
the execution stage upon final affirmance on appeal of the
judgment (as in Court of Industrial Relations unfair labor
practice cases ordering reinstatement of the worker with
accounting, computation and payment of his backwages
less earnings elsewhere during his layoff) and that the
only reason given in Fuentebella for the contrary ruling,
viz, "the general harm that would follow from throwing the
door open to multiplicity of appeals in a single case" is of
lesser import and consequence.
Furthermore, the premise that the accounting portion of
the judgment would give rise to a second appeal in the
same case is erroneous because taken as a mere incident
to the judgment as provided in the cited Rule or as a
matter to be implemented in the execution stage, no
appeal would lie from the lower court's action approving or
disapproving the accounting unless there were gross
error, oppression, fraud or grave abuse of discretion
amounting to lack of jurisdiction that would be correctible
on a special writ of certiorari. It must also be noted that the
resort to multiple appeals in a single case has been
considerably lessened since the enactment on September
9, 1968 of Republic Act 5440 which did away with the right
of appeal to this Court save in the three special cases
therein provided 56 and provides only for review on
certiorari in this Court of all other final judgments and
decrees of inferior courts at its judgment and discretion.
MUNICIPALITY OF BINAN V. GARCIA (1989): in an
expropriation case, likewise, has two issues.
o It is a multi-tiered proceeding:
(1) The determination whether plaintiff has the
right to expropriate: once that is determined,
a judgment is issued.
 If the court rules in favor of the
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
plaintiff, it shall issue an order of
expropriation.
 Immediately appealable? YES, even
without awaiting for the decision of the
court on the matter of just
compensation.
(2) Just compensation.
NOTE: Now, this Court has settled the question of the
finality and appealability of a decision or order decreeing
partition or recovery of property and/or accounting. In
Miranda v. Court of Appeals, decided on June 18, 1986,
the Court resolved the question affirmatively, and
expressly revoked the ruling in Zaldarriaga v. Enriquez—
that a decision or order of partition is not final because it
leaves something more to be done in the trial court for the
complete disposition of the case, i.e, the appointment of
commissioners, the proceedings for the determination by
said commissioners of just compensation, the submission
of their reports, and hearing thereon, and the approval of
the partition-and in Fuentebella vs. Carrascoso—that a
judgement for recovery of property with account is not
final, but merely interlocutory and hence not appealable
until the accounting is made and passed upon. As pointed
out in Miranda, imperative considerations of public policy,
of sound practice and adherence to the constitutional
mandate of simplified, just, speedy and inexpensive
determination of every action require that judgments for
recovery (or partition) of property with accounting be
considered as final judgments, duly appealable. This,
notwithstanding that further proceedings will still have to
be rendered by the party required to do so, it will be
ventilated and discussed by the parties, and will eventually
be passed upon by the Court. It is of course entirely
possible that the Court disposition may not sit well with
either the party in whose favor the accounting is made, or
the party rendering it. In either case, the Court's
adjudication on the accounting is without doubt a final one,
for it would finally terminate the proceedings thereon and
leave nothing more to be done by the Court on the merits
of the issue. And it goes without saying that any party
feeling aggrieved by that ultimate action of the Court on
the accounting may seek reversal or modification thereof
by the Court of Appeals or the Supreme Court.
The Miranda doctrine was reiterated in de Guzman v. C.A.
Valdez v. Bagaso; Lagunzad v. Gonzales; Cease v. C.A.,
Macadangdang v. C.A. and Hernandez v. C.A., Gabor v.
C.A. Fabrica v. C.A .
No reason presents itself for different disposition as
regards cases of eminent domain. On the contrary, the
close analogy between the special actions of eminent
domain and partition already pointed out, argues for the
application of the same rule to both proceedings.
The Court therefore holds that in actions of eminent
domain, as in actions for partition, since no less than two
(2) appeals are allowed by law, the period for appeal from
an order of condemnation is thirty (30) days counted from
notice of order and not the ordinary period of fifteen (15)
days prescribed for actions in general, conformably with
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the provision of Section 39 of Batas Pambansa Bilang  REASON: the entire records cannot
129, in relation to paragraph 19 (b) of the Implementing be elevated, as other defendants
Rules to the effect that in "appeals in special proceedings cannot litigate their case.
in accordance with Rule 109 of the Rules of Court and  The original record has to remain with
other cases wherein multiple appeals are allowed, the the trial curt so it can proceed to hear
period of appeal shall be thirty (30) days, a record of the case for other defendants, and so
that the appellate court can now
appeal being required.
resolve the case of the first defendant
n the basis of the record on appeal.
These are instances where there can be multiple appeals.
When is there an appeal on record on appeal? (SEC. 2(a),
RULE 41)
 Multiple appeals can either be when there are
several judgments, or when there are separate
 GENERAL RULE: NO record on appeal should be
judgments.
required, because the entire records must be
 SECs. 4 and 5, RULE 36:
elevated.
 EXCEPTIONS: when record on appeal is required:
(1) In SPECIAL PROCEEDINGS: can be multi-
SEVERAL JUDGMENTS SEPARATE JUDGMENTS tiered.
In an action against When more than one claim  It can also be single-tiered as when a
several defendants, the for relief is presented in an petition of change of name is filed. Isa
court may, when proper, action, the court, at any lang iyon, wala ng susunod, pero
render judgment against stage, upon a determination special proceeding iyun.
one or more of them. of the issues material to a  Also a petition for correction of entry
particular claim and all in the civil register is a special
counterclaims arising out of proceeding.
the transaction or occurrence  Another is adoption, and once the
which is the subject matter of adoption is granted or denied, that is
appealable, even though it only has
the claim.
one proceeding.
Municipality of Binan v. Miranda v. Court of Appeals:  In all those cases, is record on appeal
163 required?
Garcia. partition, accounting.
 But for multi-tiered special
proceedings, the resolution of the very
There are many There are many issues
last issue, is that appealable by
defendants. involved, so multiple appeals
record on appeal? Or when there is
is admitted. See SEC. 5.
only one-tiered, should it also be by
record on appeal, as the law says
there are two exceptions where a
Where the case involves multiple appeals, what is the record on appeal is required.
mode of appeal? RECORD ON APPEAL, for thirty (30)
 The law did not distinguish
days.
between multi-tiered and one-
tiered proceedings.
 Does that mean that all issues are multiple as well?
 ANSWER: YES.
As in MIRANDA VS. COURT OF APPEALS, as
regarding the issue of partition (are the parties co-
(2) OTHER CASES of multiple or separate
owners and partition of the property), if the court
appeals where law n these Rules so require.
decided the first issue that they are co-owners, that
 In an action for partition where the
is already appealable by record on appeal.
first issue was resolved that there
 REASON FOR SUCH MODE: because the
exist co-ownership, the resolution on
original record has to remain with the trial
the second issue of accounting is also
court in order for the court to determine the
appealable. Should the second
other issue, which is the accounting.
stage of the accounting matter be
 If the entire records are elevated,
also by record on appeal?
wala ng magagawa.
 But with regard to BINAN V. GARCIA, there
are many defendants, and whoever wins MARINDUQUE MINING AND INDUSTRIAL CORP. VS.
between the parties, that is appealable. COURT OF APPEALS (2008): Marinduque Mining is the
 Mode of appeal is also by record on owner of a tract of lands in Lanao Del Norte. PNOC
appeal, for a period of THIRTY (30) decided to expropriate that property belonging to
DAYS. Marinduque Mining for the purpose of constructing
transmission lines. Only a portion, and not the entire area
of the property was the subject of expropriation. The court
163
Do not wait for the decision for the accounting. Upon rendering the issued the order of expropriation. There was no issue
judgment on the reconveyance issue, that is already appealable there, and it was not appealed. Then, a decision of the
(Carrascoso case).
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expropriation court fixing the just compensation of the
property that was expropriated, and the court fixed it at
P120/square meters. There was an attempt to appeal by
PNOC, but later withdrew the appeal. So nothing
happened. Then, a third decision came, fixing the amount
of the consequential damages with respect to the portion
that was not expropriated.
164
On the property not
expropriated, P60/square meters for consequential
damages. PNOC now appealed. However, it merely filed a
notice of appeal.
o In the CA, a dismissal of appeal was filed against it,
on the ground that it is a multi-tiered proceedings,
and where the law or the rules allow multiple
appeals, then the appeal should be by record on
appeal.
 Since it was a wrong mode of appeal, and
there was failure to comply with the material
data rule, it should be dismissed.
o NAPOCOR argued that the filing of a record on
appeal is superfluous, as it can already be made by
mere notice, as the trial court has nothing else to
resolve, the third decision finally disposed of the
case.
 Petitioners only raised this issue in their
Comment before the Court of Appeals.
o ISSUE: WON the appeal taken by PNOC should
have been by record on appeal.
o SC: NO, because if there is nothing more
substantial to be resolved, tapos na lahat at
pinakahuli na, then, even if it is a proceeding is
multi-tiered, the last one may be appealed by mere
notice of appeal.
NOTE: No record on appeal shall be required except in
special proceedings and other cases of multiple or
separate appeals where the law or the Rules of Court so
require. The reason for multiple appeals in the same case
is to enable the rest of the case to proceed in the event
that a separate and distinct issue is resolved by the trial
court and held to be final. In such a case, the filing of a
record on appeal becomes indispensable since only a
particular incident of the case is brought to the appellate
court for resolution with the rest of the proceedings
remaining within the jurisdiction of the trial court.
Jurisprudence recognizes the existence of multiple
appeals in a complaint for expropriation because there are
two stages in every action for expropriation. The first stage
is concerned with the determination of the authority of the
plaintiff to exercise the power of eminent domain and the
propriety of its exercise in the context of the facts involved
in the suit. The order of expropriation may be appealed
by any party by filing a record on appeal. The second
164
Under expropriation, the court should not only determine the
amount of just compensation, but also assess the consequential
damages or consequential benefits. This is with respect to the portion
that is not the subject of expropriation. If a land was expropriated for
the building of roads, the market value of your property will increase,
as the road now is accessible, and that is beneficial to the owner. But if
you will be prejudiced, you can be given damages.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
stage is concerned with the determination by the court of
the just compensation for the property sought to be
expropriated. A second and separate appeal may be taken
from this order fixing the just compensation.
In this case, since the trial court fully and finally resolved
all conceivable issues in the complaint for expropriation,
there was no need for NAPOCOR to file a record on
appeal. In its 5 December 2001 Decision, the trial court
already determined NAPOCOR's authority to exercise the
power of eminent domain and fixed the just compensation
for the property sought to be expropriated. NAPOCOR
filed a motion for reconsideration. But after the trial court
denied the motion, NAPOCOR did not appeal the decision
anymore. Then, in its 19 March 2002 Supplemental
Decision, the trial court fixed the just compensation for the
"dangling area." NAPOCOR filed a motion for
reconsideration and the trial court denied the motion.
NAPOCOR then filed a notice of appeal. At this stage,
the trial court had no more issues to resolve and there
was no reason why the original records of the case
must remain with the trial court. Therefore, there was
no need for NAPOCOR to file a record on appeal
because the original records could already be sent to
the appellate court.
FOR CASES UNDER SPECIAL PROCEEDINGS: single-
tiered proceedings.
REPUBLIC V. NISHINA (2010): this is a matter of
correction of entry in the records of the Civil Registrar
(petition under Rule 108). Petitioner here is Nisaida
Sumera Nishina. Her mother was a Filipina, but her father,
Koichi Nishina, is a Japanese. She was born in Oct. 31,
1987. Her parents were married. However, her father died,
and her mother remarried to another Japanese, Kenichi
Hakamada. Because they could not find her record of birth
in the Malolos City registry, her mother caused the late
registration of her birth certificate in 1993, under the
surname, not of the first husband, but under the surname
of the second husband: HAKAMADA. Later on, her mother
divorced Hakamada. After her divorce, she married for the
third time (Takayuki Watanabe). The third husband
adopted Nisaida. The decree of adoption was issued by
the Tokyo Family Court. So the adoption decree and filed
and recorded in the Civil Registry of Manila in 2006. Then,
in 2007, it turned out Nisaida’s birth certificate was
originally registered in Malolos Civil Registry under the
name ―Nisaida Sumera Nishina,‖ following the surname of
the first husband they filed now a petition to have her
second birth certificate bearing the surname HAKAMADA
issued in 1993 be cancelled, and in the light of the decree
of adoption, her surname in her original birth certificate be
changed to WATANABE. The RTC granted the petition,
directing the Civil Registry of Malolos to cancel the birth
certificate, and to allow the surname to be changed from
Nishina to Watanabe in her first birth certificate. A copy
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was received by the OSG, then the OSG appealed by
165
notice of appeal.
o When it reached the Court of Appeal, there was a
motion to dismiss appeal on the ground that the
mode of appeal was erroneous.
 NOTE that this petition is a special
proceeding, and it should have been by
record on appeal.
 NOTE also that this is a one-tiered
proceeding.
o ISSUE: Should the letter of the law be strictly
followed here, the proceeding being a special one?
o SC: NO, the rule here is this: an appeal by record
on appeal is only required in special proceedings, if
the special proceedings is multi-tiered.
 RATIO: why are doing a record an appeal?
Because the original records of the case will
remain in the TC as there will be other
matters to be resolved still.
 In other words, if it is single-tiered, why will
you still do a record on appeal.
o Before this decision came out, Prof. was also in a
quandary as what he will do if the special
proceeding is a single-tiered one.
o Looking at the rationale behind the requirement of
the record on appeal → that must be clear.
o How did the Court arrive at this conclusion?
 We are saying that there are three matters
that are subject of an appeal:
(1) A judgment;
(2) A final order which disposes off a
cases; and
(3) Such matters, although it does not
finally dispose of the entire case,
however, by law or by the Rules, it is
considered appealable.
 Miranda v. Court of Appeals,
Binan v. Garcia, RULE 109
(rule on appeals in special
166
proceedings) .
165
NOTE: if it were Prof., this can also be a petition for correction by
cancelling he second, and a petition for change of name from Nishina to
Watanabe (NOT correction of entry), by virtue of adoption.
166
Orders or judgment from which appeals may be taken:
(a) Allows or disallows a will;
(b) Determines who are lawful heirs of a deceased person, of the
distributive share of the estate to which the person is entitled;
(c) Allows or disallows, in whole or in part, any claims against the
estate of a deceased person, or any claim presented on behalf
of the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee, or
guardian;
(e) Constitutes, in the proceedings relating to the settlement pf
the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower court of
the rights of the party appealing, except that no appeal shall be
allowed from the appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects
the substantial rights of the person appealing, unless it be an
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 That is why in SEC. 1, RULE 41, these three
were enumerate.
 Meaning, even if the court does not fully
disclose of the entire case, nonetheless, it is
appealable.
 Such will only result in the appeal of
particular matters, but declared by these
Rules to be appealable.
NOTE: The above-quoted rule contemplates multiple
appeals during the pendency of special proceedings. A
record on appeal – in addition to the notice of appeal – is
thus required to be filed as the original records of the case
should remain with the trial court to enable the rest of the
case to proceed in the event that a separate and distinct
issue is resolved by said court and held to be final.
In the present case, the filing of a record on appeal was
not necessary since no other matter remained to be heard
and determined by the trial court after it issued the
appealed order granting respondent’s petition for
cancellation of birth record and change of surname in the
civil registry.
BRIONES V. HENSON-CRUZ (2008): The rationale
behind allowing more than one appeal in the same case is
to enable the rest of the case to proceed in the event that
a separate and distinct issue is resolved by the court and
held to be final. In this multi-appeal mode, the probate
court loses jurisdiction only over the subject matter of the
appeal but retains jurisdiction over the special proceeding
from which the appeal was taken for purposes of further
remedies the parties may avail of.
Where multi-appeals are allowed, we see no reason why a
separate petition for certiorari cannot be allowed on an
interlocutory aspect of the case that is separate and
distinct as an issue from the aspect of the case that has
been adjudged with finality by the lower court. To reiterate,
the matter appealed matter was the special administrator's
commission, a charge that is effectively a claim against
the estate under administration, while the matter covered
by the petition for certiorari was the appointment of an
auditor who would pass upon the special administrator's
final account. By their respective natures, these matters
can exist independently of one another and can proceed
separately as envisioned by the Rules under Rule 109.
Understand this case:
PNB-REPUBLIC BANK V. SPS. CORDOVA (2008):
DOCTRINE: what is the effect when a party perfects his
appeal?
order granting or denying a motion for a new trial or
reconsideration.
EXAMPLE: fee of the executor or administrator → that is a final order
that affects the substantial rights of the parties in the case.
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o HOW AN APPEAL IS PERFECTED: (SEC. 9,
RULE 41): NOTICE OF APPEAL → as to him when
upon the filing of the notice of appeal in time.
 RECORD ON APPEAL → as to him with
respect to the subject matter thereof upon
approval of the record on appeal filed in due
time.
o This is a case filed by the Bank for rescission of a
contract of lease. However, after hearing, the court
rendered judgment dismissing the complaint for the
rescission of lease, and granted defendants’
counterclaim. The Bank, after receiving a copy of
the decision, timely filed a notice of appeal (FIRST
NOTICE OF APPEAL). Later on, defendants, who
were also not satisfied in the award granted in the
counterclaim, filed an MR.
 NOTE: remember the RULE → the mere fact
that one party has perfected his appeal,
does not necessarily have the effect of the
court’s losing jurisdiction over the case, so
long as that other party files his motion for
reconsideration within the reglementary
period allowed for him (the counting of the
days starts from the time of receipt of notice
of judgment).
o Here, the defendants, not satisfied with the
damages awarded, notwithstanding the perfection
of appeal of the Bank, he filed an MR. The court
now, resolving the MR, GRANTED defendants’
motion, and rendered an amended decision
increasing the damages. The Bank filed an MR to
that decision, and the lower court denied the same.
Upon denial of its MR, it filed a SECOND NOTICE
OF APPEAL to the amended decision increasing
the amount of damages.
 NOTE again that during that time, wala pang
NEYPES ruling.
o The theory here is when it filed a second notice of
appeal, it was late for ONE DAY, because at the
time it filed its MR against the amended decision
increasing the amount of damages, it made it on
the last day.
 Under the old rules, you only have the
remaining balance of the period within which
to perfect the appeal.
o ISSUE: It is now the theory of the Bank that the
appeal was correct, as it already filed a first notice
of appeal.
o SC: The Bank is correct.
o What is the effect of the tardiness of the second
notice of appeal?
o Respondent’s contention: that petitioner had
abandoned its first appeal when it filed an MR to
the amended decision.
 That is now questioning the increase in the
award of damages.
o SC: The Court does not agree → does not amount
to a waiver; no prejudice to the already perfected
appeal.
o EFFECT OF A PERFECTED APPEAL AS FAR AS
THE APPELLANT IS CONCERNED: the court
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loses jurisdiction over the subject matter EXCEPT
(see) residual jurisdiction.
 But not the entire case because the
perfection of an appeal, the appellant has
already shifted his recourse to the appellate
court, and it is that court where he may
secure his remedy.
NOTE: Petitioner’s appeal is deemed perfected "as to [it]"
when it timely filed its first notice of appeal, following
Section 9, Rule 41 of the Rules of Court. Incidentally, this
perfected appeal is not docketed with the CA, because the
trial court, which was still to resolve respondents’ motion
for reconsideration, had not yet transmitted the records of
the case to the appellate court. Incumbent, nonetheless,
on the part of the RTC is the elevation of the records after
a resolution of the merits of respondents’ motion.
Its appeal having been perfected, petitioner did not need
to file a second notice of appeal even if the trial court
granted, as it did, the other party’s motion for
reconsideration and modified the decision to increase the
monetary award. This is in accordance with our ruling in
Pacific Life Assurance Corporation v. Sison, thus:
We hold that petitioner did not have to file
another notice of appeal, having given notice of
its intention to appeal the original decision.
x x x Since the decision, as modified by the order
of March 11, 1993, more than doubled
petitioner’s liability, there is no reason to believe
that petitioner’s failure to appeal therefrom in any
way indicated its acceptance thereof.
xxxx
x x x [S]ince the decision as modified
substantially increased petitioner’s liability, the
logical inference is that petitioner would all the
more want to appeal from the decision as
modified. To deny petitioner’s appeal on the sole
ground that it failed to file another notice of
appeal in order to signify its objection to the
modified decision would be to put a premium on
technicalities at the expense of a just resolution
of the case.
An essential and logical implication of the said rule is that
the filing of a second notice of appeal from the modified
decision is a superfluity, if not a useless ceremony. It,
therefore, matters no longer whether that second notice is
timely filed or not. Hence, in this case, petitioner’s filing of
a belated second notice of appeal does not affect or
foreclose its already perfected appeal.
Respondents want the Court to depart from the aforesaid
rules because, in this case, petitioner, in effect,
abandoned its perfected appeal when it filed a motion for
reconsideration of the order modifying the decision. The
Court does not agree. Petitioner’s filing of the said motion
does not have the effect of a waiver of the appeal, and,
like the second notice, is a pointless formality which does
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not prejudice the already perfected appeal.
When the appeal is perfected as to petitioner‘s filing
of the first notice in due time, the trial court, insofar as
the petitioner is concerned, loses its jurisdiction over
the case except to issue orders for the protection and
preservation of the rights of the parties which do not
involve any matter litigated by the appeal. Obviously,
the issue of the correctness of the decision is the subject
of the perfected appeal. The trial court no longer had
jurisdiction to reverse the February 18, 2002 Decision, as
modified by the July 2, 2002 Order, which would have
meant petitioner’s abandonment of its appeal. In fact, to
paraphrase the words of remedial law expert Justice
Florenz D. Regalado, petitioner, with its appeal already
perfected, cannot withdraw the same for the purpose of
reviving the jurisdiction of the trial court and enabling it to
take another course of action calling for the exercise of
that jurisdiction. This is because by filing the notice of
appeal, petitioner insofar as it is concerned has perfected
its appeal to the CA, and it should be in that court where
he may pursue any further remedy.
LUZON DEVELOPMENT BANK V. ASSOCIATION OF
LUZON DEVELOPMENT BANK EMPLOYEES (1995): a
decision of voluntary arbitrators in labor cases is
appealable via petition for review under Rule 43.
o In this case, the Supreme Court ruled that a
decision of a labor arbiter is not appealable to the
NLRC, but appealable under RULE 43 as if it is a
decision of a quasi-judicial body.
o If you go back to SEC. 9, BP 129, on the appellate
jurisdiction of the CA: ―(3) exclusive appellate
jurisdiction over final judgments, decision,
resolution, or awards of Regional Trial Courts,
quasi-judicial agencies, instrumentalities, boards
and commissions.‖
o In this case: ―INSTRUMENTALITIES‖
o There are two kinds of arbitration in labor cases:
a. VOLUNTARY ARBITRATION: if the parties
agree, or if it is a stipulation in the CBA.
 A decision of a voluntary arbitrator in
a labor case is NOT appealable to the
NLRC, even if it purely involves labor
relations.
 Rather, it is a decision of a QUASI-
JUDICIAL BODY.
b. COMPULSORY ARBITRATION: go to the
NLRC after LA’s decision.
o Since voluntary arbitration is quasi-judicial, then it is
appealable to the CA under RULE 43.
o REMEMBER: EFFECT OF APPEAL IN THIS CASE
→ does NOT stay the execution of the final order,
unless the CA rules otherwise or issues an
injunction.
NOTE: In Volkschel Labor Union, et al. v. NLRC, et al., on
the settled premise that the judgments of courts and
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
awards of quasi-judicial agencies must become final at
some definite time, this Court ruled that the awards of
voluntary arbitrators determine the rights of parties; hence,
their decisions have the same legal effect as judgments of
a court. In Oceanic Bic Division (FFW), et al. v. Romero, et
al., this Court ruled that "a voluntary arbitrator by the
nature of her functions acts in a quasi-judicial capacity."
Under these rulings, it follows that the voluntary
arbitrator, whether acting solely or in a panel, enjoys
in law the status of a quasi-judicial agency but
independent of, and apart from, the NLRC since his
decisions are not appealable to the latter.
Assuming arguendo that the voluntary arbitrator or the
panel of voluntary arbitrators may not strictly be
considered as a quasi-judicial agency, board or
commission, still both he and the panel are
comprehended within the concept of a "quasi-judicial
instrumentality." It may even be stated that it was to
meet the very situation presented by the quasi-judicial
functions of the voluntary arbitrators here, as well as the
subsequent arbitrator/arbitral tribunal operating under the
Construction Industry Arbitration Commission, that the
broader term "instrumentalities" was purposely included in
the above-quoted provision.
An "instrumentality" is anything used as a means or
agency. Thus, the terms governmental "agency" or
"instrumentality" are synonymous in the sense that either
of them is a means by which a government acts, or by
which a certain government act or function is performed.
The word "instrumentality," with respect to a state,
contemplates an authority to which the state delegates
governmental power for the performance of a state
function. An individual person, like an administrator or
executor, is a judicial instrumentality in the settling of an
estate, in the same manner that a sub-agent appointed by
a bankruptcy court is an instrumentality of the court, and a
trustee in bankruptcy of a defunct corporation is an
instrumentality of the state.
The voluntary arbitrator no less performs a state function
pursuant to a governmental power delegated to him under
the provisions therefor in the Labor Code and he falls,
therefore, within the contemplation of the term
"instrumentality" in the aforequoted Sec. 9 of B.P. 129.
The fact that his functions and powers are provided for in
the Labor Code does not place him within the exceptions
to said Sec. 9 since he is a quasi-judicial instrumentality
as contemplated therein. It will be noted that, although the
Employees Compensation Commission is also provided
for in the Labor Code, Circular No. 1-91, which is the
forerunner of the present Revised Administrative Circular
No. 1-95, laid down the procedure for the appealability of
its decisions to the Court of Appeals under the foregoing
rationalization, and this was later adopted by Republic Act
No. 7902 in amending Sec. 9 of B.P. 129.
In an expropriation case, there are two issues.
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 But there are instances where the right of the
plaintiff to expropriate is not anymore necessary.
 As when Congress itself enacts a law
expropriating a property, in which case, the
issue as to whether the plaintiff has the right
to expropriate cannot anymore be the
subject of a judicial determination.
 As it is Congress itself who
expropriates by law.
 An expropriation can only be properly done when
Congress passes a law authorizing a particular
agency or a corporation the authority or right to
expropriate.
 May Congress pass a law authorizing a private
corporation to expropriate? YES.
 EXAMPLE: PLDT → pag-grant ng franchise,
it is there in the law that it can expropriate for
the purpose of putting up the telephone
posts.
 You can also say just like MERALCO, a
provider / distributor of electricity, for its
posts.
 Or for instance, Manila Rail Road Co. (even
though this is created by law and is a
GOCC) → assuming it was sold to a private
individual, can it still expropriate? YES, kasi
paano niya padaanin yung tren kung walang
daanan?
 And when the power of expropriation is granted to
government agencies, like NHA, NIA, NEA, PNPC.
 Although they are corporations granted by
law, nonetheless, in their charter, they are
granted the power to expropriate.
 So if it is the Congress itself who passed a law
expropriating a certain property, is there a need to
go to court to determine that right? NO.
 EXAMPLE: the Comprehensive Agrarian
Reform Law → all agricultural land is not
exproriable.
 It will start in the DARAB.
 Who pays for the just compensation?
Landbank.
 When there is a controversy as to the
amount of the just compensation, then
go to court, in which case the RTC
acts as a special agrarian court.
 The RTC sits as a special
agrarian court under the CAR
Law.
 Any appeal from the RTC sitting as a
special agrarian court is NOT through
RULE 41.
 The SC said it is a petition for review
under RULE 42.
 Why is it not RULE 43?
 Why is it a petition for review? As
under the Law, it states there that it is
for a petition for review.
 But,
SPS. GOCOTANO V. GOCOTANO (2005), LANDBANK
V. DE LEON (2003), LANDBANK V. RODRIGUEZ
(2010), LANDBANK V. CA (2011): appeals from
judgments fixing just compensation, acting as a special
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
agrarian court, is NOT appealable via RULE 41 under
ordinary appeal, but rather under RULE 42, as a petition
for review.
NOTE: Indeed, following Land Bank of the Philippines v.
De Leon, the proper mode of appeal from decisions of
Regional Trial Courts sitting as SACs is by petition for
review under Rule 42 of the Rules of Court and not
through an ordinary appeal under Rule 41. The Court, in
the immediately cited case of Land Bank, observing that
before the instant case reached us, Land Bank of the
Philippines had no authoritative guideline on how to
appeal decisions of SACs considering the seemingly
conflicting provisions of Sections 60 and 61 of RA 6657,
held that Sec. 60 of RA 6657 clearly and categorically
states that the said mode of appeal (petition for review)
should be adopted.
First, there is no conflict between Section[s] 60
and 61 of RA 6657 inasmuch as the Rules of
Court do not at all prescribe the procedure for
ordinary appeals as the proper mode of appeal
for decisions of Special Agrarian Courts. Section
61 in fact makes no more than a general
reference to the Rules of Court and does not
even mention the procedure for ordinary appeals
in Section 2, Rule 41 of the 1997 Revised Rules
of Civil Procedure as the appropriate method of
elevating to the Court of Appeals decisions of
Special method of elevating to the Court of
Appeals decisions of Special Agrarian Courts in
eminent domain cases.
Second, the failure to mention Special Agrarian
Courts in Section 1 of Rule 43 of the Revised
Rules of Civil Procedure cannot be construed to
mean that a petition for review is not permissible
for decisions of the said special courts. In fact,
the said Rule is not relevant to determine
whether a petition for review is the proper mode
of appeal from decisions of Regional Trial Courts
in agrarian cases, that is, why they act as Special
Agrarian Courts. Section 1 of Rule 43 of the 1997
Revised Rules of Civil Procedure merely
mentions the Court of Tax Appeals and the other
different quasi-judicial agencies without
exclusivity in its phraseology. Such omission
cannot be construed to justify the contention that
a petition for review is prohibited for decisions on
special agrarian cases inasmuch as the category
is for quasi-judicial agencies and tax courts to
which the Regional Trial Courts do not properly
belong. Although Supreme Court of Circular No.
1-91 (precursor to Rule 43 of the Revised Rules
of Civil Procedure) included the decisions of
Special Agrarian Courts in the enumeration
requiring petition for review, its non-inclusion later
on in Rule 43 merely signifies that it was
inappropriately classified as a quasi-judicial
agencies.
What is indisputable is that Section 60
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expressly regards a petition for review as the
proper way of appealing decisions of agrarian
courts. So far, there is no rule prescribed by
this Court expressly disallowing the said
procedure.
Third, far from being in conflict, Section 61 of RA
6657 can easily be harmonized with Section 60.
The reference to the Rules of Court means that
the specific rules for petitions for review in the
Rules of Court and other relevant procedures in
appeals filed before the Court of Appeals shall be
followed in appealed decisions of Special
Agrarian Courts. Considering that RA 6657
cannot and does not provide the details on how
the petition for review shall be conducted, a
suppletory application of the pertinent provisions
of the Rules of Court is necessary. In fact,
Section 61 uses the word review to designate the
mode by which the appeal is to be effected. The
reference therefore by Section 61 to the Rules
of Court only means that the procedure under
Rule 42 for petitions for review is to be
followed for appeals in agrarian cases. (italics
in the original; emphasis and underscoring
supplied)
The adoption of a petition for review as the mode of
appeal is justified in order to hasten the resolution of
cases involving issues on just compensation of
expropriated lands under RA 6657. Thus the Court, still in
the immediately cited Land Bank case, pronounced:
The reason why it is permissible to adopt a
petition for review when appealing cases
decided by the Special Agrarian Courts in
eminent domain case is the need for absolute
dispatch in the determination of just
compensation. Just compensation means not
only paying the correct amount but also paying
for the land within a reasonable time from its
acquisition. Without prompt payment,
compensation cannot be considered just for the
property owner is made to suffer the
consequences of being immediately deprived of
his land while being made to wait for a decade or
more before actually receiving the amount
necessary to cope with his loss. Such objective
is more in keeping with the nature of a
petition for review.
Unlike an ordinary appeal, a petition for review
dispenses with the filing of a notice of appeal or
completion of records as requisites before any
pleading is submitted. A petition for review
hastens the award of fair recompense to
deprived landowners for the government-
acquired property, an end not foreseeable in
an ordinary appeal. . . . (Italics in the original;
emphasis and underscoring supplied)
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 However, on the SECOND ISSUE of just
compensation, courts CAN still intervene.
BANAGA V. MAJADUCON (2006): Under par. 1, Sec. 1
of Rule 41, instances where no appeal may be taken are
enumerated. One of those in the enumeration is (e) an
167
ORDER OF EXECUTION. That is not appealable.
o This case enumerates to us the exceptions, but if
you read it, the general rule is that it is appealable.
 All conceivable questions on the issuance of
the writ of execution appears now that the
exceptions are more comprehensive than
the general rule.
o EXCEPTIONS (WHEN THE WRIT OF
EXECUTION MAY BE APPEALED):
(1) The writ of execution varies the judgment;
(2) There has been a change in the situation of
the parties, making execution inequitable or
unjust;
(3) Execution sought to be enforced against
property exempt from execution;
(4) It appears that the controversy has never
been the subject of the judgment of the
court;
(5) The terms of the judgment are not clear
enough and there remains room for
interpretation;
(6) It appears that the writ has been
improvidently issued, and that it is defective
in substance or issued against the wrong
party, or that the judgment debt has been
paid or otherwise satisfied, or
(7) The writ was issued without authority.
NOTE: There may, to be sure, be instances when an error
may be committed in the course of execution proceedings
prejudicial to the rights of a party. These instances, rare
though they may be, do call for correction by a superior
court, as where –
1) the writ of execution varies the judgment;
2) there has been a change in the situation of the
parties making execution inequitable or unjust;
3) execution is sought to be enforced against property
exempt from execution;
4) it appears that the controversy has never been
subject to the judgment of the court;
5) the terms of the judgment are not clear enough and
there remains room for interpretation thereof; or
6) it appears that the writ of execution has
been improvidently issued, or that it is
defective in substance, or is issued
against the wrong party, or that the
judgment debt has been paid or
otherwise satisfied, or the writ was
issued without authority;
167
So after the judgment has become final and executory, then, you file
a motion for execution of judgment.
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KESWANI V. REPUBLIC (2007): what is the mode of
appeal in NATURALIZATION cases? Under CA No. 473,
appeals in naturalization cases is to the SUPREME
COURT. However, because of the rules now in this case,
appeals from judgments of the RTC in naturalization cases
is appealable by ORDINARY APPEAL to the Court of
Appeals under RULE 41.
o Is that a special proceeding? YES, because the
purpose of which is to establish STATUS as a
Filipino.
o APPEAL: by record on appeal or mere notice?
MERE NOTICE OF APPEAL.
NOTE: Indeed, Section 11 of C.A. No. 473 provides that
"[T]he final sentence may, at the instance of either of the
parties, be appealed to the Supreme Court." Note,
however, that said law is of 1939 vintage. As correctly
reasoned out by the OSG, this provision of law has
already been superseded by subsequent procedural laws,
particularly Batas Pambansa Blg. (B.P. Blg.)129 or the
Judiciary Reorganization Act of 1980, which vests in the
Court of Appeals the appellate jurisdiction over all final
judgments, decisions, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions, among others.
This provision of B.P. Blg. 129, of course, has been further
supplemented by the 1997 Rules of Civil Procedure, as
amended, which provides for the remedy of an ordinary
appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original
jurisdiction.10 The CA’s power to review the assailed RTC
Decision finds further reason as it involves factual findings,
and it is beyond dispute that the CA is equipped to resolve
factual issues because, unlike this Court, it is mandated to
rule on questions of fact. The appeal filed by the OSG with
the CA was therefore proper.
SESBRENO V. COURT OF APPEALS: on the matter of
QUESTION OF LAW.
o See Page 61.
BRIONES V. HENSON-CRUZ (2008): on MULTIPLE
APPEALS.
NOTE: The rationale behind allowing more than one
appeal in the same case is to enable the rest of the case
to proceed in the event that a separate and distinct issue
is resolved by the court and held to be final. In this multi-
appeal mode, the probate court loses jurisdiction only over
the subject matter of the appeal but retains jurisdiction
over the special proceeding from which the appeal was
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
taken for purposes of further remedies the parties may
avail of.
Where multi-appeals are allowed, we see no reason why a
separate petition for certiorari cannot be allowed on an
interlocutory aspect of the case that is separate and
distinct as an issue from the aspect of the case that has
been adjudged with finality by the lower court. To reiterate,
the matter appealed matter was the special administrator's
commission, a charge that is effectively a claim against
the estate under administration, while the matter covered
by the petition for certiorari was the appointment of an
auditor who would pass upon the special administrator's
final account. By their respective natures, these matters
can exist independently of one another and can proceed
separately as envisioned by the Rules under Rule 109.
REPUBLIC V. BERMUDEZ-LORINO (2005): There are
summary special proceedings under the Family Code,
which include declaration of absence of a spouse for the
purpose of remarrying, a petition to grant approval to
mortgage or sell community property when the other
spouse refuses to give consent, and to discipline children.
o In this case, the present spouse filed a petition to
declare the husband as an absentee, as the
present spouse wanted to remarry. The TC granted
her petition on August 28, 2000. The Solicitor
General appealed by mere notice of appeal. The
CA dismissed the appeal on the theory that the
appeal is not by record on appeal (This is before
the Nishina case, 2010).
o ISSUE: WON the appeal should be by record on
appeal.
o SC: has become MOOT as appeals or decision of
the RTC in summary proceedings under the Family
Code are final and executory.
 MEANING: no appeal should be allowed.
 The right to appeal has been withdrawn.
o So NO APPEAL.
NOTE: In Summary Judicial Proceedings under the Family
Code, there is no reglementary period within which to
perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family
Code, supra, are "immediately final and executory". It was
erroneous, therefore, on the part of the RTC to give due
course to the Republic’s appeal and order the transmittal
of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a
judgment which, by express provision of law, is
immediately final and executory. As we have said in
Veloria vs. Comelec, "the right to appeal is not a natural
right nor is it a part of due process, for it is merely a
statutory privilege." Since, by express mandate of Article
247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are
"immediately final and executory", the right to appeal was
not granted to any of the parties therein. The Republic of
the Philippines, as oppositor in the petition for declaration
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of presumptive death, should not be treated differently. It
had no right to appeal the RTC decision of November 7,
2001.
It was fortunate, though, that the Court of Appeals, acting
through its Special Fourth Division, with Justice Elvi John
S. Asuncion as Acting Chairman and ponente, denied the
Republic’s appeal and affirmed without modification the
final and executory judgment of the lower court. For, as we
have held in Nacuray vs. NLRC :
Nothing is more settled in law than that when a
judgment becomes final and executory it
becomes immutable and unalterable. The same
may no longer be modified in any respect, even if
the modification is meant to correct what is
perceived to be an erroneous conclusion of fact
or law, and whether made by the highest court of
the land (citing Nunal v. Court of Appeals, G.R.
No. 94005, 6 April 1993, 221 SCRA 26).
What may be resolved in an appeal?
CIVIL CASES CRIMINAL CASES
Strictly, it is an appeal by
writ of error.
 Meaning of ―BY WRIT OF ERROR‖ → you appeal
by assigning an error on the decision of the trial
court.
 Issues not raised by writ of error CANNOT,
GENERALLY, be considered by the
appellate court.
 Issues not presented in the trial court cannot
be raised for the first time on appeal, as
defenses and objections not raised either in
a MTD or your Answer is deemed waived.
 Likewise, that rule applies also to the
plaintiff, that if he is not raising an issue in a
particular case in the trial court, he cannot
raise that new issue on appeal.
 REASON: he deprived the other party
to meet that issue in the trial court.
 That is DUE PROCESS.
 RULE: No questions will be entertained on appeal,
unless it has been raised in the court below.
 Points of law, theories, arguments, not
brought to the attention of the lower court
need not be and ordinarily will not be
considered by a reviewing court, as they
cannot be raised for the first time at that late
stage on appeal.
 Basic considerations of due process impel
this rule.
 EXCEPTIONS: indeed there are exceptions to the
aforesaid rule that no question may be raised for
the first time on appeal, though not raised below:
(1) Issue of lack of jurisdiction over the subject
matter may be considered by the reviewing
court.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 Remember SEC. 1, RULE 9, ―except
when it appears on record or appeals
on the pleadings that the court has no
jurisdiction,‖ among others.
 REASON: jurisdiction may be raised
at any stage of the proceedings, even
for the first time on appeal.
 This is because it goes to the very
authority of the court.
(2) When there is a plain error;
(3) When there are jurisprudential developments
affecting the issues; or
(4) When the issues raised present matters of
public policy.
DEL ROSARIO V. BONGA (2001): Indeed, there are
exceptions to the aforecited rule that no question may be
raised for the first time on appeal. Though not raised
below, the issue of lack of jurisdiction over the subject
matter may be considered by the reviewing court, as it
may be raised at any stage. The said court may also
consider an issue not properly raised during trial when
there is plain error. Likewise, it may entertain such
arguments when there are jurisprudential developments
affecting the issues, or when the issues raised present a
matter of public policy.
Petitioner insists that the present case is an exception
because it involves a matter of public policy – socialized
housing. The NHA had allegedly awarded the subject
property to Rogelio Morales, who in turn conveyed the
same to respondent's husband. Petitioner points out,
however, that the Deed of Sale with Mortgage between
Morales and the NHA expressly prohibited the alienation,
transfer or encumbrance of said lot, within five years from
the grant without the prior written consent and authority of
the NHA. She contends that such prohibition is akin to the
provisions in the Public Land Act nullifying certain
conveyances within five years from the grant. Invoking
public policy, she concludes that the violation of the
aforecited provision in the award made by the NHA should
also nullify the subsequent conveyance to respondent's
husband. Because the claim of respondent was rooted on
a void transaction – the sale of the subject property by
Morales to Bonga within the prohibited. Period – petitioner
posits that the former did not have title to the subject
property at the time of their transaction.
This argument does not persuade. There is a substantial
difference between the terms of the Public Land Act and
the aforementioned Deed. The former expressly provides
that the prohibited transaction was void and thus had the
effect of nullifying the grant or award. The latter, on the
other hand, provided merely for the rescission of the Deed
of Sale with Mortgage at the option of the NHA in case of
an unauthorized alienation, transfer or encumbrance.
There is no showing that the NHA had exercised this
option.
Going back to SEC. 15, RULE 44: ―that has been raised in
the court below.‖
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 If it is not raised, wala.
 For instance, there was failure to comply with the
requirement of Katarungang Pambarangay, and
you did not object on it, that is WAIVED.
 Can you raise that for the first time on
appeal? NO MORE.
 As it is not among the exceptions
enumerated in SEC. 1 of RULE 9.
 Also, in one case, when we were discussing filing
fees → filling fee is, to a certain extent, where it is
not properly paid, the court does not have
jurisdiction over the subject matter, but not
jurisdiction in the real sense (MANCHESTER
DEVELOPMENT V. COURT OF APPEALS).
 Kung hindi nabayaran ng filing fee, it is
merely that the court cannot exercise that
jurisdiction, NOT that it has no jurisdiction.
 Meaning, the aspect of filing fee, for the
Prof., does not go into the very jurisdiction of
the court to hear the case.
 Rather, it is just a condition for the
exercise of that jurisdiction.
 HOWEVER, if the lack of filing fee is not
objected to, may the other party raise lack of
jurisdiction for the first time on appeal?
 That is why Prof. is making a distinction
there as to lack of jurisdiction itself over the
subject matter.
 So if you don’t raise lack of proper payment of filing
fees, the SC held that you cannot anymore attack
the jurisdiction of the trial court because you never
raised it in the court below.
 What would now be the procedure there?
The procedure would now be that the filing
fee would be a lien on the judgment.
SEC. 8, RULE 58: no error which does not affect the
jurisdiction of the court over the subject matter (may
jurisdiction pa din yan), or the validity of the judgment
appealed from, or the proceedings therein will be
considered UNLESS stated in the assignment of errors
OR closely related to or dependent on the assigned errors,
and properly argued in the brief.
 It is an appeal by writ of error.
 ―Dependent on‖ → kamaganak.
VOTING REQUIREMENTS:
A. Court of Appeals:
 Must be THREE (3): unanimous.
 If there is a dissent, then, majority wins.
B. SUPREME COURT: SEC. 7, RULE 56.
 En banc is equally divided in opinion, or the
necessary majority cannot be had, the case
shall again be deliberated on.
 After such re-deliberation, then the original
action commenced in the court shall be
DISMISSED.
 It is NOT an appeal but an original
action.
 In appealed cases, kapag tabla after re-
deliberation, the judgment or order appealed
from shall STAND AFFIRMED.
 Incidental matters: all petitions or motions
shall be DENIED.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 Example: in a preliminary injunction,
and there are 7-7 votes with 1 who
abstained, then it shall be denied.
 When it comes to the CONSTITUTIONALITY OF A
LAW: MAJORITY votes are required.
 Under the old Constitutions, there must be
2/3 votes, then 10 votes (qualified majority),
to declare a law unconstitutional.
 For DEATH PENALTY, under the old law, it needs
at least ten votes to be affirmed.
 Is there a rule of qualified majority now?
SUMMARY PROCEDURES OF 1991:
SEC. 1: in the MTC, in the following cases falling in their
jurisdiction:
 Rules on summary procedure are applicable only in
cases cognizable by the MTC, even though NOT in
all cases.
A. CIVIL CASES:
(1) All cases of forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered;
 Basta ejectment.
 Where attorney’s fees are awarded, the
same shall not exceed P20,000.00.
(2) In all other civil cases EXCEPT probate
proceedings, where the total amount of
plaintiff’s claim does NOT exceed ONE
HUNDRED THOUSAND (P100,000.00) or
TWO HUNDRED THOUSAND (P200,000.00)
in Metro Manila, exclusive of interest and
costs.
 As long as it is probate, it cannot be
subject of summary rules.
 EXCLUSIVE only of interest and costs
→ do NOT include damages, as
damages are included.
 Before, this is just P10,000.00 and by an
Administrative Circular, it was
increased.
B. CRIMINAL CASES:
(1) Violation of traffic rules and regulations;
(2) Violation of rental law: this is already de-
criminalized.
(3) Violation of municipal and city ordinances:
criminal case;
(4) B.P. Blg. 22 cases (Bouncing Check Law); and
(5) All criminal cases where the penalty prescribed
by law for the offense charged is in
imprisonment NOT exceeding SIX (6)
MONTHS, or a fine NOT exceeding ONE
THOUSAND PESOS (P1,000.00), or both,
irrespective of the imposable penalties,
accessory or otherwise, or of civil liabilities
arising therefrom.
 TEST: penalty → consider BOTH of
them.
 CUT-OFF:
a. IMPRISONMENT: not exceeding
SIX (6) MONTHS;
b. FINE: does not exceed ONE
THOUSAND (P1,000.00).
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 Provided, that offenses
involving damage to
property through criminal
negligence, this rule shall
govern, when the
imposable penalty does
not exceed TEN (10)
THOUSAND PESOS
(P10,000.00).
 GENERAL RULE: if NOT reckless
imprudence resulting to damage to
property, the cut-off is P1K for fine.
 EXCEPTION: when reckless
imprudence resulting to damage to
property, cut-off is P10K.
 DAMAGES included.
 But in JURISDICTION, consider
imprisonment only: CUT-OFF → SIX (6)
YEARS in criminal cases.
 But can you also consider fine?
YES, if the only imposable penalty
is a fine → CUT-OFF: FOUR
THOUSAND (P4,000.00).
WHEN THESE RULES ARE NOT APPLICABLE: to a civil
case where plaintiff’s cause of action is pleaded in the
same complaint with another cause of action subject to
ordinary procedure.
 IMPLICATION: re: Rule on Joinder → one of the
limitations on the rule of joinder of actions is that no
cause of action maybe joined if it is subject to
special rules, or if it is a special civil action.
 But apparently, in this special law, it is allowed,
notwithstanding the prohibition of joinder of causes
of action under RULE 3.
 So if a civil case (i.e. money claim for P100K), is
joined with another claim for P1M, is joinder
allowed? YES, in which case, do not apply
summary rules for the P100K.
 Still apply the rule on ordinary procedure
because it is joined by another cause of
action governed by ordinary procedure
 Suppose that the P100K and the P1M does NOT
arise from the same contract, although owing from
the same party, can joinder be allowed? Pagisipan
niyo yan.
SEC. 2: DETERMINATION OF APPLICABILITY: court
shall issue an order WON this case shall be governed by
this rule.
 The court will first determine, and declare that the
case is governed by summary rules.
 Do not immediately issue summons.
 PATENTLY ERRONEOUS DETERMINATION to
avoid application → ground for disciplinary action
for the JUDGE.
CIVIL CASES:
SEC. 3: PLEADINGS ALLOWED: not all pleadings are
allowed under the ROSP.
 PLEADINGS → a pleading that asserts a claim
(COMPLAINT, COUNTERCLAIM [COMPULSORY,
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
PERMISSIVE], CROSS-CLAIM, THIRD PARTY
COMPLAINT, COMPLAINT IN INTERVENTION)
and a pleading that responds against a claim or an
allegation (ANSWER [NEGATIVE, AFFIRMATIVE],
REPLY).
 Those ALLOWED:
(1) Complaints;
(2) Compulsory counterclaims and cross-claims
pleaded in the answer: permissive
counterclaims NOT allowed;
 When is a counterclaim
COMPULSORY?
(3) Answers thereto: only one responsive
pleading is allowed.
 Reply is a prohibited pleading.
 Those disallowed / PROHIBITED PLEADINGS:
when NOT allowed.
 VERIFICATION: a requirement for ALL pleadings.
 As a rule, verifications are not required,
unless otherwise stated.
 This is one of the cases where ALL the
pleadings should be verified.
SEC. 4: DUTY OF COURT: may dismiss the case outright
on any grounds apparent therefrom for the dismissal of a
civil action.
 Here, the court INITIALLY and MOTU PROPRIO
dismiss the case if there are grounds to dismiss the
case under RULE 16.
 GENERAL RULE: Under RULE 16, a court cannot
motu proprio dismiss the case, unless there is a
motion.
 EXCEPTION: when the court has no jurisdiction
OVER THE SUBJECT MATTER.
 So in all cases, a motion is required.
 HOWEVER, in Summary Rules, the court shall
examine the allegations of the complaint and the
evidence attached thereto.
 Can it motu proprio dismiss the case on any
ground? YES.
 NO GROUND FOR DISMISSAL FOUND → issue
summons.
SEC. 5: ANSWER: within TEN (10) DAYS from service of
summons.
 Serve a copy to the plaintiff.
 When NOT pleaded → WAIVED, EXCEPT lack of
jurisdiction over subject matter.
 Compulsory counterclaim or cross-claim not
asserted → barred.
 In ordinary procedure, an Answer must be filed
within FIFTEEN (15) DAYS and compulsory
counterclaim and cross-claims must be filed within
TEN (10) DAYS.
SEC. 6: EFFECT OF FAILURE TO ANSWER the court,
motu proprio, or on motion by the plaintiff, may RENDER
JUDGMENT.
 In ordinary procedure, the process is if the
defendant fails to answer within the reglementary
period provided by law, may the court immediately
declare him in default? NO, there must be a motion.
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 The court cannot motu proprio declare a  The rules of PT in ordinary cases shall be
defendant it default. applicable to PC unless it is inconsistent with the
 But in Summary Rules, may the court motu proprio provisions of this Rule.
declare him in default? NO, as there is no more  FAILURE FOR PLAINTIFF TO APPEAR: in
procedure to declare him in default. ordinary cases, if the plaintiff does not appear, his
 What it can do is the court may motu proprio complaint will be dismissed WITH PREJUDICE
RENDER a judgment as may be warranted by the unless otherwise provided in the order.
fact → DECISION agad.  And if the defendant does not appear, can
 No more presentation of evidence here. the court declare him in default? NO, as he
 In ordinary proceedings, the court may order has an Answer. He just did not appear in the
ex-parte presentation of evidence after PT.
declaration of default.  What will only happen is that the plaintiff will
 REASON WHY JUDGMENT AGAD: the facts be allowed to present evidence ex parte →
alleged are verified already. ―AS IN default.‖
 LIMITED TO WHAT IS PRAYED FOR: what may  Parang na-default as he cannot
be awarded. anymore participate in the
 As in ordinary cases, when a party is declared in presentation of evidence.
default, the court cannot render a judgment more  He also cannot object on the
than the amount prayed for in the complaint, or presentation of evidence of the
different in nature from that prayed for. plaintiff.
 COURT’S DISCRETION: reduce the amount of  The difference between the two are
damages and attorney’s fees. remedies:
 For being excessive or otherwise a. IN DEFAULT:
unconscionable. b. AS IN DEFAULT:
 Without prejudice to applicability of SEC.  In Summary Rules, it is the same for the
168
3(c), RULE 9 (now): two or more PLAINTIFF → it will be a cause for its
defendants. dismissal.
 Can there be immediate judgment? NO, the  If the defendant appears in the
court will proceed as usual in accordance absence of the plaintiff, he shall be
with summary rules. entitled to judgment in his
 The non-answering defendant/s’ case will be counterclaim.
heard on the basis of the answer of the  All cross-claims shall be dismissed.
answering defendant/s.  If plaintiff does not appear, dismiss
 GENERAL RULE: if the defendants did not answer, ang asunto niya.
then there would be immediate judgment.  If the defendant is also not present,
 Wala ng default. his counterclaim will likewise be
 EXCEPTION: if there are two or defendants who dismissed.
are being sued under a common cause of action if
 But if plaintiff did not appear, while
some had answered.
defendant did, then the latter is
 In which case the court will proceed,
entitled to immediate judgment of his
pursuant to the summary rules, on the basis
counterclaim, on the basis of the
of the Answer of the answering defendant/s.
allegations of his counterclaim.
 It cannot render judgment immediately
 If it is the SOLE DEFENDANT fails to
against those who did not answer.
appear, the plaintiff is entitled to judgment in
 They are still in default, but the whole case is
accordance with SEC. 6.
tried and decided on the basis of the
 Immediate judgment → wala ng
Answers thus filed and on the evidence
ebidensiya or presentation of
presented.
evidence ex parte based on the facts
alleged on the complaint.
SEC. 7: PRELIMINARY CONFERENCE: in ordinary
 EXCEPTION: where one or two or more
proceedings, after the answer is filed, the next is the Pre-
defendants sued under a common cause of
Trial.
action who had pleaded a common defense
shall appear at the preliminary conference.
 It is like a Pre-Trial, but it is just called Preliminary
Conference.  So if there are many defendants, and
 Not later than THIRTY (30) DAYS after the last one or some appeared and the other
Answer is filed, a PC shall be held. did not, immediate judgment na? NO.
 Just like for those several defendants
and one or some answered.
168
Refers to a situation where there are two or more defendants and NOVEMBER 7, 2016
that they are being sued under a common cause of action.
RULES ON SUMMARY PROCEDURE:
GENERAL RULE: effect of PARTIAL DEFAULT → some or one of them did
not file an Answer, while some or one of them did, then the court shall a. CIVIL CASES:
try the case against ALL of the defendants. Those who did not answer
are still in default, but he will be tried upon the Answer filed another.
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1. Ejectment cases: forcible entry, unlawful
detainer;
2. Where the amount of the claim does not
exceed P100,000.00, or P200,000.00 in
Metro Manila, exclusive of interests and
costs.
b. CRIMINAL CASES:
1. Violations of traffic laws, rules and
regulations;
2. Rental Law: already been de-criminalized;
3. Violations of municipal or city ordinances;
and
4. Where the penalty for imprisonment does not
exceed SIX MONTHS, or a fine not
exceeding P1,000.00, OR both.
 When it comes to damage to property
through reckless imprudence, where
the fine does not exceed P10,000.00.
Can there be JOINDER? YES.
 There is an exception: you cannot join when one
cause of action is covered by special rule.
 But here, it is there by implication: it may be
joined by other causes of action subject to
ordinary procedure.
Continuing from SEC. 7:
(1) Effect of PLAINTIFF’S failure to appear in the
preliminary conference: a cause for the dismissal of
his case.
(2) Effect of DEFENDANT’S failure to appear in the
preliminary conference: plaintiff shall be entitled to
judgment.
 EXCEPTION: when there are two or more
defendants sued under a common cause of
action who pleaded a common defense, and
one or some appeared.
 No immediate judgment can be rendered
against the non-appearing defendant/s.
 Again, this is provided that they are sued
under a common cause of action and that
they have pleaded a common defense.
SEC. 8: RECORD OF PRELIMINARY CONFERENCE:
PERIOD: FIVE (5) DAYS from termination of the
preliminary conference.
 Like a Pre-Trial Order.
 CONTENTS, among others:
(a) Amicable settlement;
(b) Stipulations and admissions;
(c) Whether judgment may be rendered without
need of further proceedings → judgment
shall be rendered within THIRTY (30) DAYS
from the issuance of the order;
(d) Material facts controverted;
(e) Other matters.
SEC. 9: the PC Order is important, as it ushers this stage.
 SUBMISSION OF AFFIDAVITS AND POSITION
PAPERS: within TEN (10) DAYS from receipt of the
order.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 This is what makes it summary → no actual
presentation of witnesses in court.
 Rather, there is just presentment of the affidavits of
witnesses, if they are testimonial.
 If documentary, just have it authenticated.
 If object evidence, just present it.
 At the same time, the parties already submit their
respective arguments → MEMORANDUM.
SEC. 10: RENDITION OF JUDGMENT: within THIRTY
(30) DAYS after receipt of the last affidavit, or the
expiration for the period of the filing.
 Mabilis ito.
 However, during that period, the court may conduct
a CLARIFICATORY HEARING.
 It may require the parties to submit additional
affidavits and other evidence on the matters
sought to be clarified by the court.
 The parties have to comply with the order to submit
these affidavits from TEN (10) DAYS from receipt of
the order of the court.
 Then, FIFTEEN (15) DAYS from the receipt of the
last affidavits, render judgment.
CRIMINAL CASES:
HOW COMMENCED: TWO WAYS:
(a) If PI is required, where the penalty exceeds 4
years, 2 months: by filing a complaint before the
prosecutor’s office.
(b) If no PI is required, by filing a complaint before the
MTC.
Is direct filing required in MeTCs and MTCCs? NO, you
must pass through the prosecutor’s office first.
SEC. 11: HOW COMMENCED:
(1) By complaint; direct filing.
(2) By information: dumaan sa prosecutor.
Metropolitan Manila and chartered cities → only by
information.
 EXCEPT: when the offense cannot be prosecuted
de officio (private crimes).
 But you still file with the prosecutor and the
court in order to comply with the law.
 Seduction, abduction, acts of lasciviousness,
the same may not be entertained by the
court unless commenced by a complaint by
the offended party.
Shall be accompanied by the affidavits of the witnesses.
 Copies: one per accused, and two copies for the
courts.
 If not complied with within FIVE (5) DAYS from the
date of the filing, the case may be DISMISSED.
 Whether by complaint or information, all the
evidence must be in.
SEC. 12: DUTY OF THE COURT:
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(a) IF COMMENCED BY A COMPLAINT: the court
may dismiss the case outright for being patently
without basis or merit, and order the release of the
accused.
(b) IF COMMENCED BY INFORMATION: or not
dismissed if direct filing → issue an ORDER
requiring the accused to submit his COUNTER-
AFFIDAVIT, affidavits of his witnesses and his
evidence, not later than TEN (10) DAYS from
receipt of said order.
REPLY-AFFIDAVIT: prosecution may file it within TEN
(10) DAYS from receipt of the counter-affidavits.
SEC. 13: ARRAIGNMENT AND TRIAL: after submission
of the Reply-Affidavit, or upon expiration if none.
 Found no cause or ground to hold the accused for
trial → order the dismissal of the case.
 Otherwise, the court shall set the case for
arraignment and trial.
 When there is basis to hold the accused for
trial.
 Now, the determination of probable cause does not
end there.
 But once the counter-affidavits are submitted, the
court may still investigation if there is no basis
therefore.
 If ACCUSED IN CUSTODY: immediately arraigned.
 If he pleads guilty, he shall be sentenced.
 So if he is in custody, meaning he has
already been arrested without a warrant,
arraign kaagad.
SEC. 14: PRELIMINARY CONFERENCE: if there is a Pre-
Trial in civil cases, there is also one in criminal cases.
 In summary rules, it is called a PRELIMINARY
CONFERENCE.
 PURPOSES:
(a) Stipulations of facts may be entered into,
(b) Propriety of entering a plea of guilt to a
lesser offense,
(c) Other matters,
(d) To ensure speedy disposition of the case.
 ADMISSION OF THE ACCUSED DURING PC:
may not be received it evidence unless reduced in
writing and signed by the accused and his counsel.
 Failure/refusal to stipulate: not prejudicial to the
accused.
SEC. 15: PROCEDURE OF TRIAL:
(a) Affidavits of the witnesses (which must comply with
169
the Judicial Affidavit Rule ), shall constitute their
direct testimonies.
 That is in question and answer form.
169
All civil cases are now governed by the Judicial Affidavit Rule.
However, in criminal cases, only where the penalty does not exceed SIX
(6) YEARS where the JAR is followed. Where the penalty exceeds SIX (6)
YEARS, it is optional with the consent of both parties.
So for Summary Rules, since the penalty does not exceed SIX (6) YEARS,
the JAR applies.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 Subject to cross-examination, then re-direct,
then re-cross examination.
(b) If the affiant failed to testify, his affidavit shall not
be considered as competent.
 The adverse party may utilize the same for
any admissible purpose.
 So if the witness who executed the affidavit,
whether prosecution or defense, fails to
appear, baliwala iyan.
(c) Conversely, a person who did not execute an
affidavit or counter-affidavit, CANNOT also testify,
except on rebuttal or sur-rebuttal.
(d) When may additional affidavits be allowed? Must
be manifested during the PC, stating the purpose
thereof.
 The rules allowed that during the PC, a party
may ask the court to submit additional
affidavits and counter-affidavits.
 So it is by leave of court.
 If ALLOWED by court, they must be
submitted within THREE (3) DAYS after the
termination of the Preliminary Conference.
 And if additional evidence/affidavits are
presented by the prosecution, the accused
may file his counter-affidavits within THREE
(3) DAYS from service.
 All of this is in observance with due process.
This is different from a CIVIL CASE, because in a civil
case, there is no actual presentation of witnesses in open
court.
 The testimonial evidence presented are only
through affidavits.
 There is no cross.
 In criminal cases, the cross is obligatory.
 REASON: because of the Constitution, that an
accused has a constitutional to confront his
accusers.
 How do you confront them? By cross-
examining them.
 There is no similar constitutional provision
for civil cases.
 All that is required in a civil case is that you
are given the opportunity to be heard.
SEC. 16: ARREST OF THE ACCUSED: GENERAL
RULE: the court shall NOT order the arrest of the
accused.
 EXCEPTION: for failure to appear whenever
required.
 Because even in cases where no PI is required, the
court has the option also not to issue a warrant.
 Instead, it will just issue summons to order
them to appear.
 As in this case where the accused is not in
preventive custody, the court will just order for his
arraignment and trial.
 How then will the court acquire jurisdiction over the
person of the accused if arrest is not issued?
Assuming that the accused is required to submit a
counter-affidavit. After filing his CA and the
affidavits of his witnesses, the court will now fix the
date for arraignment and trial. However, he failed to
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appear. How will trial continue? The court will now
issue a WARRANT OF ARREST.
SEC. 17: JUDGMENT: not later than TEN (10) DAYS after
termination of the trial.
COMMON PROVISIONS
Applicable to both civil and criminal cases.
SEC. 18: REFERRAL TO LUPON:
SEC. 408, RA 7160: Subject Matter for Amicable
Settlement Exception Thereto. – The lupon of each
barangay shall have authority to bring together the parties
actually residing in the same city or municipality for
amicable settlement of all duties except:
(a) Where one party is the government, or any
subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions;
(c) Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding Five thousand
pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located
in different cities or municipalities, except where
such barangay units adjoin each other and the
parties thereto agree to submit their differences to
amicable settlement by an appropriate lupon;
(f) Such other cases of disputes where the President
may determine in the interest of Justice or upon the
recommendation of the Secretary of Justice.
The court in which non-criminal cases not falling within the
authority of the lupon under this Code are filed may, at any
time before trial motu proprio refer the case to the lupon
concerned for amicable settlement.
Criminal cases required to undergo conciliation → where
the penalty of imprisonment does NOT exceed ONE (1)
YEAR, or a fine not exceeding FIVE THOUSAND PESOS
(P5,000.00).
 Suppose it is reckless imprudence resulting to
damage to property, and the property damage does
not exceed P10,000.00?
 Should the procedure be summary when
filed in courts?
 In other words, there is no need for the referral to
the lupon, where the damage is P10,000.00 on the
property, because the penalty for reckless
imprudence resulting to damage to property is a
MERE FINE, and the maximum fine imposable is
times three (3) of the damage caused to the
property.
 It is not necessary to undergo conciliation
before the lupon as a pre-condition to the
filing of the criminal case.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 It is Prof.’s opinion that the lawmakers
should adjust this.
 Assuming that it is not necessary to undergo to
conciliation because the damage is only P5,000.00,
should it undergo summary procedure? YES.
 Ganyan talaga, hindi tugmatugma minsan;
hindi kailangan ng conciliation pero
summary.
NOTE: this provision shall NOT apply to criminal cases
where the accused was arrested without a warrant.
 Exception to the katarungang pangbaragay law →
no need to undergo lupon conciliation where the
accused is a detention prisoner.
 Kasi hahaba iya; baka mahaba pa yung conciliation
process sa maximum penalty.
SEC. 19: PROHIBITED PLEADINGS AND MOTIONS:
170
(a) MOTION TO DISMISS, EXCEPT only when :
(1) Lack of jurisdiction over the subject matter;
(2) Failure to submit the case for conciliation
before the lupon.
(b) MOTION FOR BILL OF PARTICULARS: if it is not
clear, then that can be included in the matters that
can be discussed during the PC;
(c) MOTION FOR NEW TRIAL OR
171
RECONSIDERATION of a judgment or for the re-
opening of a trial;
172
(d) PETITION FOR RELIEF FROM JUDGMENT ;
(e) MOTION FOR EXTENSION OF TIME to file
pleadings, motions, and other papers ;
173
(f) MEMORANDA: in a CIVIL CASE, there is a position
paper and that is in lieu of a Memorandum;
(g) PETITIONS for CM against any interlocutory
174
order issued by the court;
(h) MOTION TO DECLARE DEFENDANT IN
DEFAULT: there is no need to default as judgment
immediately follows;
(i) DILATORY MOTIONS FOR POSTPONEMENT: but
can you file Motions for Postponement? YES.
 As long as it is NOT dilatory, which will result
to delay in the case.
(j) REPLY: as the pleadings allowed are only the
complaint, compulsory counterclaim, cross-claim,
and answers thereto;
 Third-party complaints are also not allowed.
 Also intervention: kasi hahaba at gugulo ang
asunto.
SEC. 20: AFFIDAVITS: NATURE OF THE AFFIDAVITS:
shall state only facts of direct personal knowledge of the
affiants.
 NOT conclusions.
170
MTD on other grounds: NOT covered. BUT you can raise it as a
defense. If it is a civil case, raise it as an affirmative defense. If it is ia
criminal case, raise it as a defense.
171
Under RULE 37.
172
Under RULE 38.
173
After service of summons, the party only has TEN (10) DAYS within
which to file his Answer/Counter-Affidavit and other affidavits of his
witnesses.
174
NOTE: ONLY interlocutory and not final.
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 ―Direct personal knowledge‖ → it is NOT hearsay,
as when someone else told you about it.
 The knowledge is that of that some other
person.
 UNLESS what you are testifying on is the
fact that someone else told you, and not on
the truth of what he said to you.
SEC. 21: APPEAL: judgment or final order is appealable
to the appropriate RTC.
 The RTC shall decide on it in accordance with SEC.
22 of B.P. BLG. 129.
 From the MTC to the RTC on the basis of
the records or memorandums required by
the RTC.
 EFFECT OF APPEAL: stays the execution of the
judgment or final order.
 Then, from the RTC, you can appeal it further to the
COURT OF APPEALS by way of petition for review
under RULE 42.
 What is the effect of an appeal under RULE 42?
Stays the execution.
 HOWEVER, in summary rules, the decision of the
RTC in civil cases governed by the Rules on
Summary Procedure, including forcible entry and
unlawful detainer shall immediately be
EXECUTORY.
 Without prejudice to further appeal which
may be taken therefrom.
 So decision of the MTC which is appealed to the
RTC, does that stay execution of the judgment or
final order? YES, except in unlawful detainer or
forcible entry (SEC. 10, RULE 70).
 BUT defendant may stay → marami siyang
gagawin.
 So for SUMMARY RULES, when a judgment is
rendered by the RTC acting in its appellate
jurisdiction, that is ALREADY IMMEDIATELY
EXECUTORY.
 The summary rules will govern.
SEC. 22: APPLICABILITY OF THE REGULAR RULES:
ROC applies suppletorily.
 As long as it is not inconsistent.
PROCEDURE: CIVIL CASES:
(1) The complaint will be filed.
(2) Then, the court will examine it WON it is covered by
Summary Rules.
(3) If the court finds a ground for its dismissal, it can
dismiss it outright (motu proprio).
 No longer subject to the ordinary rules under
RULE 16, that no case shall be dismissed by
a court unless there is a motion.
 EXCEPT lack of jurisdiction over the subject
matter.
 Here, if the court sees that there is a ground
for a MTD, it can dismiss it outright even
without a motion.
(4) If it is governed by the summary rules and there are
no grounds for its dismissal, the court will issue
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
summons.
 It should be indicated therein that it is
governed by summary rules.
(5) After receipt of summons and copy of the
complaint, then, Answer for TEN (10) DAYS.
 Can you ask for extension of time? NO.
(6) If no Answer is filed within the period of ten (10)
days, the court may motu proprio or on motion,
consider the case submitted for decision.
 The court can now render judgment on the
basis of the allegations of the complaint.
 Although the court has the power to reduce
damages.
(7) HOWEVER, there can be NO immediate judgment
under SEC. 6 if there are two or defendants, some
answered while some did not.
 In that case, the case shall be tried on the
basis of the answer filed by the answering
defendant/s.
(8) After the answer is filed, there will be a
PRELIMINARY CONFERENCE.
 The court will set PC within THIRTY (30)
DAYS from the submission of the last
answer.
(9) When the parties do not appear at the PC:
(1) PLAINTIFF: and the defendant appears, the
complaint shall be dismissed, and the
defendant shall be entitled to judgment of his
counterclaim.
 This is immediate judgment.
(2) DEFENDANT: immediate judgment.
 This is the new innovation under
these rules.
 If there are again two or more
defendants sued under a common
action and had raised a common
defense, it will continue.
(10) After PC, the court within FIVE (5) DAYS from
termination will issue a PC Order stating what
occurred during the PC.
(11) Then, there will be submission of evidence and
position papers within TEN (10) DAYS from receipt
of the PC Order.
 Affidavits of their witnesses, and position
papers.
(12) From submission of the last position paper/s, the
court is required to render judgment THIRTY (30)
DAYS therefrom.
(13) The court may however conduct a
CLARIFICATORY HEARING, requiring the parties
to submit additional affidavits or to clarify certain
material facts.
 Parties are required to comply with the said
order within TEN (10) DAYS from receipt of
the order.
 Then the court shall render judgment within
FIFTEEN (15) DAYS from the submission of
the last affidavit/s, or the expiration of the
period to file the same.
(14) Then, yun na, decision.
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COMBATE V. SAN JOSE (1985): the accused here was
charged of theft of one rooster worth P200. Following the
procedure laid down here in the Rules of Summary
Procedure, the judge required the accused to file his
counter-affidavit. The accused was later arraigned, but
without assistance of counsel. Then, thereafter, the judge
immediately issued an order submitting the case for
decision. Shortly after, a decision of conviction was
promulgated, sentencing the accused of imprisonment of
six months and to pay the complainant the sum of P200
plus costs.
o SC: decision must be set aside.
o REASON: The rule on summary proceedings does
not apply to this case, as the penalty of theft
charged herein is arresto mayor (two months and 1
day) to prision correccional minimum (two years
and 4 months).
o Since the limit of summary rules is SIX (6)
MONTHS, or a fine of P1,000.00, the rules are not
applicable herein.
o Secondarily, assuming that it is covered by
summary rules, di naman niya sinunod.
 Although there was an arraignment, there
was a violation of the rights of the accused.
 There was no counsel at the arraignment,
and he was not given the opportunity to
confront or cross-examine his accusers.
o So it was not just jurisdictionally defective, but it
was constitutionally flawed.
NOTE: The Rule on Summary Procedure in Special Cases
applies only to criminal cases where the penalty
prescribed by law for the offense charged does not exceed
six (6) months imprisonment or a fine of one thousand
pesos (P1,000.00), or both. The crime of Theft as charged
herein is penalized with arresto mayor in its medium
period to prision correccional in its minimum period, or,
from two (2) months and one (1) day to two (2) years and
four (4) months. Clearly, the Rule on Summary Procedure
is inapplicable.
But even assuming that the case falls under the coverage
of said Rule, the same does not dispense with trial. On the
contrary, it specifically provides: "Section 11. When case
set for arraignment and trial. — Should the court, upon a
consideration of the complaint or information and the
affidavits submitted by both parties, find no cause or
ground to hold the defendant for trial, it shall order the
dismissal of the case; otherwise, the court shall set the
case for arraignment and trial. "Section 14. Procedure of
Trial. — Upon a plea of not guilty being entered, the trial
shall immediately proceed.
RE: HEIRS OF OLIVAS V. FLOR: wala na ito, kasi na-
amend na, so adjust it to the new rules.
HEIRS OF OLIVAS V. FLOR (1988): heirs of Olivas filed
for forcible entry. The summons stated that the rule on
summary procedure shall be applied. Defendant
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
answered, then the court required the filing of position
papers already within ten (10) days. What was skipped?
The preliminary conference. Four months after the filing of
Answer, defendant filed an MTD on the ground of lack of
cause of action. Plaintiff opposed on the ground that a
MTD is a prohibited pleading.
o ISSUE: WON the rules were followed?
o SC: NO, as the case was not set for Preliminary
Conference.
o SECOND ISSUE: Propriety of the MTD → An MTD
is a prohibited pleading under summary procedure,
BUT it should be noted here that the motion was
filed AFTER an answer had already submitted
within the reglementary period.
 In essence, this is not the pleading
prohibited.
 What is that which is prohibited? What the
law proscribes is a MTD which would stop
the running of the period to file an Answer,
and thus cause undue delay.
 Here, the MTD was filed after an Answer has
already been submitted to the court.
o RE: failure to state a cause of action as the
description of the land had been wanting →
nevertheless, the defendants; answer left no room
for doubt that they are acquainted with the identity
thereof.
o But the courth ere omitted to conduct a preliminary
conference.
o Short cut na nga, shinort cut pa.
Be that as it may, dismissal of the case by the MTC, as
affirmed by Respondent RTC, for failure to state a cause
of action, is not in order. The description of the land in the
Complaint, quoted hereunder, may, indeed, have been
wanting. Nonetheless, private respondent's Answer
(paragraph 3, supra) left no room for doubt that the parties
were acquainted with the identity of the disputed property.
It would be sheer technicality, destructive of the ends of
substantial justice, were the case to be dismissed on the
ground of lack of particularity of the disputed property. In
fact, if the Rule on Summary Procedure had been
followed, such additional data as were needed to define
the issues of the case could have been threshed out in the
preliminary conference.
Not applicable anymore; old rules:
LESACA V. COURT OF APPEALS (1992): plaintiff here
filed an action for ejectment to oust defendant from
commercial premises due to (1) expiration of the month to
month lease contract, (2) non-payment of rentals.
Defendant answered. During the PC, both parties and
their lawyers appeared. However, the hearing was reset to
another day upon request of both parties to give them time
to explore an amicable settlement and to submit a
compromise agreement. On the date for resetting, the
defendant and his counsel failed to appear, and the
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defendant was declared in default. Thereafter, the judge
rendered a decision for the plaintiff. On appeal, the RTC
affirmed the judgment whereupon defendants filed a
petition to annul the judgment (but this is moot).
o ISSUE: Were the Rules for Summary Procedure
followed when the defendant and his counsel failed
to appear in the PPC and no compromise
agreement was reached?
o SC: NO.
NOTE: In this case, since Ravelo did file an answer to the
complaint, the trial court may not declare him as in default
(despite his absence and that of his counsel at the pre-trial
conference on May 3, 1990) because a motion to declare
the defendant in default is a prohibited pleading under
Section 15 (h) of the Rule on Summary Procedure. It is the
policy of the law to have every litigated case tried on the
merits. It is for this reason that judgments by defaults are
generally looked upon with disfavor. As this Court
observed in the "case of Coombs vs. Santos, (24 Phil.
446): a default judgment does not pretend to be based
upon the merits of the controversy. Its existence is justified
on the ground that it is the one final expedient to induce
the defendant to join issue upon the allegations tendered
by the plaintiff, and to do so without unnecessary delay. A
judgment by default may amount to a positive and
considerable injustice to the defendant; and the possibility
of such serious consequences necessitates a careful
examination of the grounds upon which the defendant
asks that it be set aside."
BAYUBAY V. COURT OF APPEALS (1993): Bayubay
sued to eject Bic Mak Burger on the ground of expiration
of the lease contract. BMB answered that it has the option
to renew the contract with the defense of estoppel. It also
put up a counterclaim for damages and reimbursement of
expenses incurred in improvements it introduced. After PC
and marking of the exhibit, the judge immediately issued a
judgment declaring the lease contract expired. The
decision was affirmed by the RTC. The CA, however,
reversed the decision on the ground that the defendant
was not given the chance to submit position papers and/or
affidavits. So they ordered the remand of the case and to
order the issuance of PC order.
o SC: the provision requiring that immediately after
the PC, the court shall issue a PC order clearly and
distinctively setting forth the issues of the case and
other matters taken up.
o This was NOT done here.
o This order is an important part of Summary
Procedure, because it is its receipt by the parties
that begins the ten (10) day period to submit
affidavits and other evidence and position papers,
which BM was never given the opportunity.
o The CA is correct.
NOTE: We see nothing wrong with the decision of the
Court of Appeals remanding the case to the Municipal
Trial Court for further proceedings. The respondent court
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
was merely enforcing the mandatory provisions of the
Rule on Summary Procedure. The record shows that the
Municipal Trial Court failed to take into account the
following pertinent provisions of the Rule: Sec. 6.
Preliminary Conference. — Not later than thirty (30) days
after the last answer is filed, the case shall be calendared
for a preliminary conference. Among other matters, should
the parties fail to arrive at an amicable settlement, the
court must clarify and define the issues of the case, which
must be clearly and distinctly set forth in the order to be
issued immediately after such preliminary conference,
together with the other matters taken up during the same.
Sec. 7. Submission of affidavits. — Within ten (10) days
from receipt of the order mentioned in the next preceding
section, the parties shall submit the affidavits of witnesses
and other evidences on the factual issues defined therein,
together with a brief statement of their positions setting
forth the law and the facts relied upon by them. The above
provisions require that immediately after the preliminary
conference, the Municipal Trial Court should issue an
order clearly and distinctly setting forth the issues of the
case and the other matters taken up during the preliminary
conference. The order is an important part of the summary
procedure because it is its receipt by the parties that
begins the ten-day period to submit the affidavits and
other evidence mentioned in Sec. 7. The minutes of the
Municipal Trial Court dated August 22, 1989, contained a
notation that the pre-trial had been "terminated" and that
the parties were to submit position papers. However, there
was no order to this effect nor was there an indication of
when the position papers were to be submitted for the
purpose of discussing the factual questions raised. As
correctly observed by the Court of Appeals — We think
that the failure of the MTC to give the petitioner the
opportunity to submit its position paper and/or affidavit of
witnesses constituted a denial of due process. True,
between August 22, 1989 and December 18, 1989, when
the MTC rendered its decision was a period of more than
three months. But under the Rule on Summary Procedure,
the ten-day period for submitting affidavits and position
papers did not commence to run until receipt by a party of
the order of the court embodying the results of the pre-trial
conference. Here, as already stated, the MTC never
issued such an order and so the ten day period never
started to run. It is not true, as the MTC said, that the only
questions raised were questions of law. The petitioner's
answer contained a counterclaim for reimbursement of
improvements allegedly made by it on the premises, as
well as claim for damages for alleged bad faith of private
respondent in bringing the case — questions which
obviously required at least the affidavits of witnesses. The
Court of Appeals did not err therefore in calling for the
remand of the case to the Municipal Trial Court. While the
municipal judge may be commended for his zeal in
speeding up the resolution of the case, he nevertheless
cannot be sustained for his non-observance of the Rule on
Summary Procedure.
NOTE: the procedure is different for criminal cases.
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PROVISIONAL REMEDIES: (3) GARNISHMENT: it is the levy of the property of the

obligor against his obligor.
PROVISIONAL REMEDIES: those which party litigants  You are going against the property of a
may resort for the preservation or protection of their rights debtor of the obligor.
or interest DURING the pendency of the principal action.  Like a bank: if you are a bank depositor, that
is NOT bailment but a SIMPLE LOAN.
 There are FIVE (5) of them:  If the depositor has a judgment
(1) Preliminary attachment (RULE 57); against him, the judgment-obligee can
(2) Preliminary injunction (RULE 58); garnish the obligation of the debtor of
(3) Receivership (RULE 59); the judgment-obligor.
(4) Replevin (RULE 60); and  It is a specie of attachment or execution for
(5) Support pendente lite (RULE 61). reaching credits belonging to the judgment
obligor and owing to him from a stranger to
the litigation.
RULE 57: PRELIMINARY ATTACHMENT
 The stranger there is a debtor or
obligor of the judgment-obligor.
 Is there a distinction between PRELIMNARY
ATTACHMENT as a provisional remedy: it is that remedy ATTACHMENT from garnishment? YES.
by which the property of the adverse party is taken into the
custody of the law, either at the commencement of the PRELIMINARY
action, or at any time before entry of judgment as a GARNISHMENT ATTACHMENT
security for the satisfaction of any judgment that the
Has three (3) parties: Has only two (2) parties:
plaintiff or any proper party may recover.
(a) Creditor; (a) Creditor;
 You are already levying it even before finality of
(b) Debtor; (b) Debtor.
judgment.
(c) Garnishee (e.g. bank).
 In other words, it is EXECUTION only up to levy,
short of selling it at public auction.
There is NO ACTUAL The property attached is
 It is already actually execution, but only up to 176
levying. seizure/taking of property, ACTUALLY taken into
 The property is only taken in custodia legis. and no specific lien the possession of the
 But it is not yet sold to satisfy the judgment, acquired thereon. officer / sheriff enforcing the
as there is no judgment yet. writ, it is under his custody
 As long as the judgment becomes final. - REASON: the property and control, and a specific
 TWO WHOM AVAILABLE: not available only to the remains with the lien is acquired thereby.
175
plaintiff, but to any proper party. garnishee.
 For instance, a defendant who sets up a
counterclaim. Directed to intangible Directed to tangible
177
 Or a defendant who sets up a cross-claim. properties. properties.

KINDS OF ATTACHMENT:
(1) PRELIMINARY ATTACHMENT (RULE 57): there
is yet a judgment, and it is only until levy.
 The property of the adverse party is taken
into the custody of the law, and creates a
lien as to satisfy any judgment that may be
rendered in the case later on.
 This is DIFFERENT from discretionary
execution of judgment pending appeal.
DISCRETIONARY PRELIMINARY
EXECUTION PENDING ATTACHMENT
APPEAL
This continues until sale, Here, it is only up to levy;
until the judgment is there is no sheriff’s sale.
satisfied.
(2) LEVY ON EXECUTION / FINAL ATTACHMENT
(SEC. 1, RULE 39): this is complete, as when it is
attached, it is by virtue of a final judgment.
 Until sale already.
 It is one to enforce judgment which has
already been final and executory.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
NATURE OF AN ATTACHMENT PROCEEDING: it is
proceeding in rem.
 It is against a PARTICULAR property.
 The attaching creditor acquires a specific lien upon
the attached property which later on ripens into a
judgment against the res / thing when the order of
sale is made.
HOW LONG: the law does not provide the period of time
an attachment shall continue after rendition of judgment.
 But it must only continue until the debt is paid, the
sale is had under execution issued on the
175
For example, you went to the bank and garnished the obligor’s
deposits. The sheriff will not immediately get the money. The money
remains with the garnishee. All that the garnishee will do is to hold the
release of the money to the extent of the judgment until it is ordered to
be released.
176
It is the ACTUAL property which is taken, that is why it creates a lien.
177
That is why you do not create a specific lien. There is NO LIEN
because the property attached is NOT SPECIFIC (e.g. as when money
deposited → the same money with the same serial number will not be
returned).
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judgment, until the judgment is satisfied, when an
attachment is discharged, or vacated in some
manner provided by the law.
SEC. 1: GROUNDS FOR ATTACHMENT:
(a) In an action for the recovery of a specified amount
of money or damages, other than moral and
exemplary, on a cause of action arising from law,
contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the
Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own
use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or
by any other person in a fiduciary capacity, or for
a willful violation of duty;
 It can be a specific and actual property →
example: car, television.
 Embezzle or fraudulently misapply or convert
to one’s own use.
 Held by the defendant is a fiduciary capacity
(there is a relationship of trustor-trustee,
depositor-depositary, bailor-bailee).
 In other words, the grounds for estafa.
 If you are a public officer, the grounds for
malversation (fiduciary).
 Provided that the defendant is not the owner
of the property.
 Under (a), it is just money, but here (b),
MONEY OR PROPERTY.
(c) In an action to recover the possession of property
unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof,
has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or
an authorized person;
 Here, the beholder (defendant) is NOT
holding the property in a fiduciary capacity.
 In other words, the defendant HAS
THE RIGHT also to the possession of
the property, HOWEVER, he has
unjustly or fraudulently taken,
detained or converted it.
 For instance, when a motorcycle is bought
on installment, that under a chattel
mortgage, where an SPA is executed,
authorizing the creditor, if you failed to pay,
to take the property.
 So that he can sell it in a public
auction to satisfy the judgment.
 But of course, the mortgagor has the
right to possess it.
 The mortgagor’s right to possession
terminates when there is a demand
from the mortgagee to surrender the
property for the purpose of precisely
satisfying the obligation.
 In this case, the defendant hid the property,
or brought it somewhere other than where it
was supposed to be.
 That is a criminal act.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
(d) In an action against a party who has been guilty of
a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in
the performance thereof;
 Under the old law, there is no ―or in the
performance thereof‖ → only limited to dolo
causante.
 This is fraud in contracting the
obligation.
 NOW, it also includes dolo incidente
because of that new phrase.
 This is fraud in the performance of the
obligation.
(e) In an action against a party who has removed or
disposed of his property, or is about to do so,
with intent to defraud his creditors; or
 A person has a lot of debts, and what he did
was he disposed of his properties, para hindi
mahabol.
 The intention is to defraud his creditors.
 By the time judgment is rendered, ubos na at
nabenta na.
 The creditors can no longer find properties.
(f) In an action against a party who does not reside
and is not found in the Philippines, or on whom
summons may be served by publication. (1a)
 What are the instances where a party does
not reside, or is not found in the Philippines?
(SEC. 15, RULE 15)
 That is why EXTRA-TERRITORIAL
SERVICE is allowed only in actions in
rem or quasi in rem, meaning, there
are properties in the Philippines
where the court can acquire
178
jurisdiction.
 OR whom summons may be served by
publication.
HOW GROUNDS FOR ATTACHMENT ARE
CONSTRUED: attachment being purely a statutory
remedy, the grounds for the grant must be construed
strictly in favor of the debtor.
178
Section 15. Extraterritorial service. — When the defendant does not
reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding the defendant from any interest
therein (e.g. as a mortgagee), or the property of the defendant has
been attached within the Philippines, service may, by leave of court, be
effected out of the Philippines by personal service as under section 6;
or by publication in a newspaper of general circulation in such places
and for such time as the court may order, in which case a copy of the
summons and order of the court shall be sent by registered mail to the
last known address of the defendant, or in any other manner the court
may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after
notice, within which the defendant must answer.
- The action must be in rem or quasi in rem in order for
extraterritorial service can be had.
- If there is no property, cannot be, because the court, for purely
actions in personam, cannot acquire jurisdiction over the
person of a non-resident not residing or found herein.
- Summons by publication (SEC. 14): See Prof.’s misgivings with
the decision of the SC in SANTOS V. PNOC.
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 Meaning, the enumeration for the grounds of
attachment as provided herein is EXCLUSIVE.
 So that attachments granted which are not within
the grounds provided here will be ILLEGAL.
SEC. 2: ISSUANCE AND CONTENTS OF ORDER: by the
court in which the action is pending, or by the Court of
Appeals or the Supreme Court.
 Either ex parte or upon motion with notice and
hearing.
SEC. 3: AFFIDAVIT AND BOND REQUIRED: WHEN may
the court issue an order of attachment? What are the
requisites that must be complied with before a court can
issue a writ of PA?
(1) AFFIDAVIT: must show that:
(a) A sufficient cause of action exists,
(b) The case is one of those mentioned in
Section 1,
(c) There is no other sufficient security for the
claim sought to be enforced by the action,
and
 But in one case, suppose there is a
security but it is not enough, pwede
din doon sa kulang.
(d) The amount due to the applicant or the value
of the property is as much as the sum for
which the order is granted, above all legal
counterclaims.
(2) ATTACHMENT BOND:
Must be duly filed with the court BEFORE the order
issues.
 No order shall be issued without the concurrence of
the two.
SEC. 4: CONDITION OF APPLICANT’S BOND:
CONDITION → that the later will pay all the costs which
may be adjudged to the adverse party, AND all damages
which he may sustain by reason of the attachment.
 REASON: if the court shall finally adjudge that the
applicant was NOT entitled thereto.
 How do we determine that the applicant is not
entitled thereto? If he reneges to any of his
undertakings in his affidavit.
 See again what those stated in the affidavit.
 When may an applicant for a PA be liable to the
adverse party for the costs and damages sustained
by the adverse party or the party against whom the
attachment was issued? If the court shall finally
adjudge that the applicant was never entitled to it.
 When is the applicant not entitled to it? When he
has no sufficient cause of action, etc.
 Also when he lied in his affidavit.
 REASON: those four requirements in the
affidavit must always concur and that is the
very for the issuance of the attachment,
aside from the bond.
CALDERON V. INTERMEDIATE APPELLATE COURT
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
(1987): While as a general rule, the liability on the
attachment bond is limited to actual damages, moral and
exemplary damages may be recovered where the
attachment was alleged to be maliciously sued out and
established to be so. (Lazatin vs. Twano et al, L-12736,
July 31, 1961). Well settled is the rule that the factual
findings of the trial court are entitled to great weight and
respect on appeal, especially when established by
unrebutted testimonial and documentary evidence, as in
this case.
While Section 12, Rule 57 of the Rules of Court provides
that upon the filing of a counterbond, the attachment is
discharged or dissolved, nowhere is it provided that the
attachment bond is rendered void and ineffective upon the
filing of counterbond. The liability of the attachment bond
is defined in Section 4, Rule 57 of the Rules of Court. It is
clear from the above provision that the responsibility of the
surety arises "if the court shall finally adjudge that the
plaintiff was not entitled thereto." In Rocco vs. Meads, 96
Phil. Reports 884, we held that the liability attaches if the
plaintiff is not entitled to the attachment because the
requirements entitling him to the writ are wanting, or if the
plaintiff has no right to the attachment because the facts
stated in his affidavit, or some of them, are untrue. It is,
therefore, evident that upon the dismissal of an
attachment wrongfully issued, the surety is liable for
damages as a direct result of said attachment.
When may a writ of attachment be issued? (SEC. 1) At the
commencement of the action, OR any time before entry of
judgment.
 A plaintiff, or any party, may have the property of
the adverse party attached as a security for the
judgment.
Is a hearing required for an attachment to issue? May an
attachment be issued ex parte? YES.
 SEC. 2 states an order of attachment may be
issued ex parte, or upon motion with notice of
hearing.
 Clarified in the case of:
DAVAO LIGHT & POWER CO., INC. V. COURT OF
APPEALS (1991): because there was a previous ruling
that the court cannot issue an attachment unless the court
had acquired jurisdiction over the person of the defendant,
NO.
o It may issue ex parte, because of the phrase ―at the
commencement of the action.‖
o According to the court, ―at the commencement of
the action‖ indicates that it is NOT necessary for the
court to have acquired jurisdiction over the person
of the defendant.
o Because in an early, the SC ruled that the critical
time when the court acquires authority under the
law to act coercively against a particular defendant
or his property, it is at the time of the vesting of
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jurisdiction in the main case.
o So avokd any doubt that the ruling in that old case,
as the Court has already corrected itself in this
case.
o ―At the commencement of the action‖ means
ANYTIME before the issuance of summons.
o SUMMARY OF RULES:
(1) A writ of attachment may be issued ex parte.
(2) The writ of attachment may be issued by the
court even when the court has not yet
acquired jurisdiction over the person of the
defendant or the opposing party against
whom the writ is issued.
 REASON: according the Court: Rule
57 speaks of the grant of the remedy
at the commencement of the action,
or at any time thereafter.
 That phrase obviously refers to the
date of the filing of the complaint, and
that is definitely the time before
summons are served. .
 This is ISSUANCE, pero iba ang
usapan sa ENFORCEMENT of the
writ.
(3) For a valid of levy of an attachment, the
court reiterated tand reaffirmed the
proposition that writs of attachment may
properly issue ex parte, provided that the
court is satisfied that the relevant requisites
has been fulfilled by the applicant, although it
may, at its discretion, require prior hearing.
(4) BUT levy on the property pursuant to the writ
thus issued may NOT be validly effected
unless received or contemporaneously
accompanied by service on the defendant of
(see enumeration).
EXCEPTIONS: when:
(1) the defendant cannot be served with summons
personally or through substituted service,
(2) where the defendant is temporarily out of the
Philippines but a resident of the Philippines, or
(3) when the defendant is a NR not found in the
Philippines, or
(4) where summons is served by publication.
NOTE: Rule 57 in fact speaks of the grant of the remedy
"at the commencement of the action or at any time
thereafter." The phrase, "at the commencement of the
action," obviously refers to the date of the filing of the
complaint — which, as above pointed out, is the date that
marks "the commencement of the action;" and the
reference plainly is to a time before summons is served on
the defendant, or even before summons issues.
What the rule is saying quite clearly is that after an action
is properly commenced — by the filing of the complaint
and the payment of all requisite docket and other fees —
the plaintiff may apply for and obtain a writ of preliminary
attachment upon fulfillment of the pertinent requisites laid
down by law, and that he may do so at any time, either
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
before or after service of summons on the defendant. And
this indeed, has been the immemorial practice sanctioned
by the courts: for the plaintiff or other proper party to
incorporate the application for attachment in the complaint
or other appropriate pleading (counterclaim, cross-claim,
third-party claim) and for the Trial Court to issue the writ
ex-parte at the commencement of the action if it finds the
application otherwise sufficient in form and substance.
In Toledo v. Burgos this Court ruled that a hearing on a
motion or application for preliminary attachment is not
generally necessary unless otherwise directed by the Trial
Court in its discretion. And in Filinvest Credit Corporation
v. Relova, the Court declared that "(n)othing in the Rules
of Court makes notice and hearing indispensable and
mandatory requisites for the issuance of a writ of
attachment."
The only pre-requisite is that the Court be satisfied, upon
consideration of "the affidavit of the applicant or of some
other person who personally knows the facts, that a
sufficient cause of action exists, that the case is one of
those mentioned in Section 1 . . . (Rule 57), that there is
no other sufficient security for the claim sought to be
enforced by the action, and that the amount due to the
applicant, or the value of the property the possession of
which he is entitled to recover, is as much as the sum for
which the order (of attachment) is granted above all legal
counterclaims." If the court be so satisfied, the "order of
attachment shall be granted," and the writ shall issue upon
the applicant's posting of a bond executed to the adverse
party in an amount to be fixed by the judge, not exceeding
the plaintiff's claim, conditioned that the latter will pay all
the costs which may be adjudged to the adverse party and
all damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the
applicant was not entitled thereto."
This case was discussed just to show that this is NO
LONGER APPLICABLE:
RAYOS V. COURT OF APPEALS and MIRANDA (2004):
NOT anymore as under the 1997 Code of Civil Procedure,
the ground is NOW dolo incidente.
o In this case, Miranda bought a parcel of land from
the Sps. Rayos. Mr. Rayos was a lawyer and he
prepared the document of sale, with assumption of
mortgage, as may utang sa bangko. Under the
agreement, because the Rayos now assumed the
mortgage, also assumed all payments of the
amortization. What he did was upon execution of
the agreement, a sum of P160,000.00 was paid,
and the first quarterly amortization, for P87,000 to
the Philippine Savings Bank. When Miranda wanted
to pay the last payment, the bank told him, ―wag ka
ng magbayad, kasi binayad na ni Rayos,‖ and since
there was full payment, the CT was delivered to the
spouses. Miranda then filed a complaint against the
Rayos, with a writ of preliminary attachment. The
TC issued the writ. Defendants Rayos then sought
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the discharge thereof, claiming that there was no
proof of fraud in his part in contracting the
obligation (dolo causante). The TC lifted the writ.
o So the claim here of Miranda is that the transaction
was fraudulent, as the Rayos did not tell him that
his assumption of mortgage would have to be
approved by the bank, and such transaction will be
nullified by lack of approval was not proved by
evidence.
 If at all, the Rayos have committed the fraud
after the conclusion of the contract, but such
fraud is not covered by Rule 57.
 Here, the fraud was after the contract.
o What is the fraud in the fulfillment of the obligation?
Dolo incidente 1:06:47
 So definitely, it can be issued ex parte, and on the
mere basis of the affidavit and its sufficiency.
 But there is nothing to prevent a judge from holding
a hearing on the affidavit.
One of the requirements of the affidavit is that, under SEC.
3, there is no other sufficient security for the claim sought
to be enforced by the action.
 There is no other security.
 However, as we are saying, a writ of attachment
may still be issued although plaintiff’s claim is
secured.
 EXAMPLE: when plaintiff abandons his security →
as in a mortgage, then he can bring an ordinary
action for the debt.
 In which case, he may cause the attachment
to be levied upon the very property on which
the attachment existed.
 If there is a previous mortgage, and it was
abandoned, then you sue.
 INDUSTRIAL FINANCE CO. V. APOSTOL:
when in a debt secured by a mortgage, the
creditor, instead of foreclosing the mortgage,
files an ordinary action for collection, the
effect is that he is deemed to have
abandoned the mortgage.
 REASON: otherwise, to allow it to
subsist despite the filing of the
ordinary action, would amount to
allowing SPLITTING of a single cause
of action.
 It may be issued before summons or before the
court has acquired jurisdiction over the defendant.
 And it may be issued ex parte → meaning hearing.
 Usually, attachments are secured at the
commencement, and ex parte.
 Because if you notify the defendant first, he
will be disposing of those properties.
REMEDIES AVAILABLE to the party against whom the
writ of attachment is issued: TWO REMEDIES TO LIFT
THE ATTACHMENT:
(1) File an attachment bond under SEC. 12: the
discharge of the attachment upon giving of cash or
a counter-bond.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 After due notice and hearing, if the movant
files a cash deposit of a counter-bond.
 PURPOSE: It shall secure the payment of
the judgment that the attaching party may
recover.
 This means that the cash bond or the
counter-bond posted the party against whom
was issued is to REPLACE the property
attached with cash or counter-bond.
 In other words, the cash or the counter-bond
will now be used, and will eventually answer
for any judgment against the party.
 But he is able to have the attachment or the
levy on the property lifted, to be replace by
the cash or counter-bond.
 So there is still SECURITY → it is in lieu of.
(2) Move to quash the attachment under SEC. 13:
 Motion to Set Aside / Discharge the
Attachment.
 GROUNDS:
a. That the attachment was improperly
issued;
b. That the attachment was irregularly
enforced;
c. That the bond is insufficient;
d. If the attachment is excessive,
discharge is limited to the excess:
PARTIAL RELEASE.
 First three will totally release the attachment.
 IMPROPER ISSUANCE: when it did not
comply with the twin requirements for the
issuance of an attachment → affidavit/s and
bond.
 IRREGULARLY ENFORCED (SEC. 5):
SEC. 5: MANNER OF ATTACHING PROPERTY: only so
much property → if it is excessive, doon ka sa No. 4.
 Ask for the REDUCTION, which is in excess of the
demand or of the value of the property.
 NO LEVY shall be enforced UNLESS preceded or
contemporaneously accompanied by service of
summons, together with the copy of the complaint,
the application, applicant’s affidavit and bond, and
order and writ of attachment.
 IRREGULARLY ENFORCED:
(1) When the sheriff attaches MORE or in
excess of the demand: in which case, it will
be reduced;
(2) NOT preceded, or contemporaneously
accompanied by service of summons (see
above).
 If they are not complied with, can you ask for a
lifting? YES.
Is there an EXCEPTION of the requirement that the court
may enforce the writ even if NOT preceded or
contemporaneously accompanied by summons, etc.?
YES.
 The requirement of prior or contemporaneous
accompaniment by service does NOT apply when:
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(1) the summons could NOT be served

179
personally, or by substituted service What constitutes a VALID LEVY OF ATTACHMENT?
despite efforts, (SEC. 5)
(2) the defendant is a resident of the Philippines
180
temporarily absent therefrom ,  The sheriff or levying officer must ACTUALLY
(3) the defendant is a non-resident of the TAKE POSSESSION of the property attached.
181
Philippines , or  In other words, he must assert or enforce a
(4) the action is one in rem or quasi in rem: dominion over the property, adverse to, and
catch-all phrase. exclusive of the party against whom it is issued,
 So it is not necessary for the enforcement (levy on and such property must be in his possession.
attachment) that it must be preceded or  In executing the order of attachment, the levying
contemporaneously accompanied by service of officer must observe strictly of the provision of the
summons and the accompanying documents. rules.
 On the other hand, to create valid levy on
Whether you want to have the attachment lifted under attachment (create an attachment lien), the party
SEC. 12 or 13, it must always be with MOTION AND against whom the writ is issued must be preceded
HEARING. or contemporaneously accompanied by service of
summons and the accompanying documents.
 In SEC. 12: ―The court shall, after due notice and  The court must already have jurisdiction over
hearing xxx‖ the person (SEC. 7).
 In SEC. 13: ―After due notice and hearing xxx‖  The manner of attachment in that Section,
just read it.
INSUFFICIENCY OF THE BOND: another ground for the
lifting of the attachment: Real property, or By filing with the registry of deeds a
growing crops copy of the order, together with a
(1) Kulang, thereon, or any description of the property attached,
(2) The bonding company is not ____ (?) interest therein and a notice that it is attached, or
that such real property and any
UNLIKE the application for the issuance of attachment, as
interest therein held by or standing
it can be done WITHOUT HEARING.
in the name of such other person
 Meaning, ex parte. are attached, and by leaving a copy
of such order, description, and
May an attached property discharged on the basis of a notice with the occupant of the
counter-bond, be subsequently attached by the creditor in property, if any, or with such other
the same case? NO. person or his agent if found within
the province. Where the property
 Attached property which has been released by has been brought under the
virtue of the counter-bond may NOT be operation of either the Land
subsequently attached by the same creditor in the Registration Act or the Property
same case, because the second attachment will Registration Decree, the notice shall
have the effect of nullifying the previous order of
contain a reference to the number of
discharge.
the certificate of title, the volume
What are the PROPERTIES EXEMPT FROM and page in the registration book
ATTACHMENT? All properties exempt from execution are where the certificate is registered,
also exempt from attachment (SEC. 5). and the registered owner or owners
thereof.
May property in custodia legis be attached? YES (last
par., Sec. 7). Personal By taking and safely keeping it in his
property capable custody, after issuing the
 A copy of the writ of attachment shall be filed with of manual corresponding receipt therefor.
the proper court or quasi-judicial agency, and notice delivery
of the attachment served upon the custodian of
such property. Stocks or shares, By leaving with the president or
 So you can still attach even if it is in custodia legis. or an interest in managing agent thereof, a copy of
 HOW DONE: writ of attachment is filed to the court stocks or shares, the writ, and a notice stating that the
or quasi-judicial agency who has custody of the of any stock or interest of the party against
property, AND notice of attachment served to the corporation or whom the attachment is issued is
custodian.
company attached in pursuance of such writ.
179
It contemplates SEC. 14, RULE 14: that the defendant’s identity or Debts and By leaving with the person owing
his whereabouts is UNKNOWN, and cannot be ascertained despite credits, including such debts, or having in his
diligent efforts. bank deposits, possession or under his control,
180
SEC. 16, RULE 14.
181 financial interest, such credits or other personal
SEC. 15, RULE 14.
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royalties, property, or with his agent, a copy of  After examination of the debtor of the judgment-
commissions and the writ, and notice that the debts obligor.
other personal owing by him to the party against  Read in relation to SEC. 43, RULE 39: if he denies
property not whom attachment is issued, and the it, or makes a legal or equitable claim, the court
CANNOT order him to deliver.
capable of credits and other personal property
 What may the court do? It can authorize the
manual delivery in his possession, or under his
judgment-obligor to institute a separate
control, belonging to said party, are action to enforce the garnishee’s liability, and
attached in pursuance of such writ forbid transfer in the meantime.
 NOT exceeding ONE HUNDRED TWENTY
Interest of the By serving the executor or (120) DAYS.
party against administrator or other personal
whom attachment representative of the decedent with SEC. 11: WHEN ATTACHED PROPERTY MAY BE SOLD
is issued in a copy of the writ and notice that AFTER LEVY ON ATTACHMENT AND BEFORE ENTRY
property said interest is attached. A copy of OF JUDGMENT: enumeration of cases where the
belonging to the said writ of attachment and of said attached property may be SOLD PENDENTE LITE.
estate of the notice shall also be filed in the office
decedent, of the clerk of the court in which said  A property under attachment may only be sold upon
whether as heir, estate is being settled and served finality of judgment; that is why it is only until levy.
legatee, or upon the heir, legatee or devisee  But this section enumerates to us instances when
there can be sale or disposition of property
devisee concerned.
pendente lite:
(1) The property attached is perishable, or
(2) The interests of all the parties to the action
SEC. 8: EFFECT OF ATTACHMENT OF DEBTS,
will be subserved by the sale thereof.
CREDITS AND ALL OTHER SIMILAR PERSONAL
PROPERTY: All persons having in their possession or
SEC. 14: what is the remedy of a third person who claims
under their control any credits or other similar personal
title to or right of possession over the property under
property belonging to the party against whom attachment
attachment? It is the same as THIRD PARTY CLAIMS
is issued, or owing any debts to him, shall be liable to the
under RULE 39.
applicant for the amount of such credits, debts or other
similar personal property.
 You can go against the bond, or in a separate
action.
 Until the attachment is discharged, or any judgment
 May the court hearing the separate action issue an
recovered by him is satisfied.
injunction? YES.
 EXCEPTIONS: such property is delivered or
 Will that constitute undue interference by
transferred, or such debts are paid.
one court to the processes of a co-equal
 EXAMPLE: if you are the lessee, and the lessor is
court? NO.
the party against whom the attachment was issued,
and you are paying monthly rents.
SEC. 15: enumerates to us how the judgment may be
 When you are served as a lessee, the rents
satisfied out of the attached property.
will no longer be paid to the lessor.
 Parang sina-satisfy mo na.
SEC. 9: EFFECT OF ATTACHMENT OF INTERESTS IN
PROPERTY BELONGING TO THE ESTATE OF A
SEC. 16: if after application of the property attached to the
DECEDENT: can you attach the prospective share of an
payment of the judgment, and there is still a BALANCE,
heir when it is still being settled by the probate court?
how will that be collected? ORDINARY EXECUTION
(RULE 39).
 What is the effect of the interest of an heir in a
property belonging to the estate?
 And if there is excess? Isoli mo yan kay judgment-
(1) Such attachment shall not impair the powers
obligor.
of the executor or administrator over such
 If it is not returned, it will constitute unjust
property for the purpose of administration.
enrichment.
(2) Such attachment shall be reported to the
court when any petition for distribution is
SEC. 17: REMEDY OF THE JUDGMENT OBLIGEE IF
filed.
EXECUTION IS RETURNED UNSATISFIED, where the
 Then, the property attached shall be delivered NOT
judgment-obligor has posted a counter-bond: this section
to the heir.
is the remedy against the counter-bond/cash posted to lift
 To the officer making the levy.
the attachment under SEC. 12.
HOW LIABILITY OF THE GARNISHEE CAN BE
 Surety/eis shall become charged on such counter-
ENFORCED: SEC. 10: The debtor may be required to
bond and bound to pay the judgment obligee upon
attend before the court for examination re: his liability.
demand the amount due under the judgment.
 So there must first be a demand from the surety.
 If he does not deny it, he shall be ordered to pay.

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 The amount may be recovered from such surety or that transpired after the original pleading was
sureties after notice and summary hearing in the filed.
same action. (3) Before appeal was perfected: this is after the
 If is in cash, the court will just order the release of trial and there is a decision, can attachment
the cash to satisfy the judgment. still be issued? YES.
 BUT if it is a counter-bond, here is the process  Because it is for the protection of the
(according to the SC): interest of the parties, not subject of
(1) Execute the judgment; the appealed judgment.
(2) It is necessary that execution is returned  RESIDUAL JURISDICTION.
unsatisfied: meaning, the payment was not  Last, Par. SEC. 9, RULE 41: prior to
enough after the sale of the property the transmittal of the record or record
attached; on appeal, the court may issue orders
(3) Demand from the surety; for the protection and preservation of
(4) If the surety does not pay, file a motion: the rights of the parties that do not
notice and summary hearing. involve the matters litigated in the
 It is summary as the hearing will only appeal.
be about the amount of the balance.  An attachment is not a matter litigated
 Not the whole, as the judgment has in the appeal.
already been partially satisfied.  So if you will file for an application for
 You cannot go to the surety immediately → execute damages, it must be BEFORE the
first. perfection of the appeal.
 The remedy to go against the counter-bond under  If you are the one filing an
SEC. 12 posted to lift the attachment is under SEC. appeal, do not file a notice of
17. appeal / record on appeal first.
 Because if the appeal is
SEC. 18: how money deposited by a party against whom perfected, the court loses
attachment was issued that is discharged be disposed of jurisdiction.
after judgment against him:  In a similar case (PNB V.
COURT OF APPEALS), the
 FAVORABLE TO THE PLAINTIFF: the cash effect of a perfection of appeal
deposit will be applied under the direction of the is that the court loses
court to the satisfaction of any judgment rendered jurisdiction over him.
in favor of the attaching party.  His remedy now is
 BALANCE (sobra): refunded to the depositor before the appellate
or his assignee. court.
 FAVORABLE TO THE DEFENDANT: the whole  Although there is last
sum deposited must be refunded to him or his par., SEC. 9, RULE 41
assignee. asking for the
 Interest? NO, as the same is deposited in the court. preservation / protection
of the rights of the
SEC. 19: how attached property be disposed of where the parties not a matter
judgment is rendered against the defendant: litigated in the appeal,
the only condition is
 It shall be delivered to the party against whom here is that prior to
attachment was issued, and the order of transmittal of record on
attachment discharged. appeal.
 In other words, na-dispose na, so balik.  HOWEVER,
APPLICATION FOR
SEC. 20: PROCEDURE TO GO AGAINST THE DAMAGES must be
ATTACHMENT BOND under SEC. 4: done PRIOR to the
perfection of the appeal,
 We just discussed that SEC. 17 is the remedy to go or
against the counter-bond under SEC. 12. (4) Before judgment becomes executory.
 Now, this Section is the remedy to go against the  Why are there stages? If the application for
attachment bond. attachment has been issued at the commencement
 An APPLICATION FOR DAMAGES on account of and ex parte and you do not raise it, they are
improper or irregular or excessive attachment: DEEMED WAIVED (SEC. 2, RULE 9).
(1) At the commencement of the action: if the  If you are in the appellate court, can you also apply
application for attachment has been applied there, as when the decision is reversed and the
for at the commencement of the action and party against whom the writ was issued won? Is he
issued ex parte, then file the application as a entitled to damages? YES.
COUNTER-CLAIM in the Answer.  REASON: the plaintiff has no sufficient
 The counterclaim is COMPULSORY. cause for the attachment, which is a
(2) Before trial: by SUPPLEMENTAL guarantee in his affidavit.
COUNTER-CLAIM, because it is an event

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 If he wins, apply for damages with the
appellate court BEFORE judgment becomes
final and executory.
 WITH DUE NOTICE: to the attaching party/surety.
 Only then can he be entitled to damages.
 AND included in the judgment.
WHEN APPELLATE COURT REVERSES THE
DECISION: when the party against whom the attachment
was issued won, he must claim for damages.
 By filing an application to the APPELATE COURT
with notice, before the judgment of the appellate
court becomes executory.
Kung kulang „yung bond, can the court require the plaintiff
to pay more? YES.
 Nothing herein contained shall prevent the party
against whom the attachment was issued from
recovering in the same action the damages
awarded to him from any property of the attaching
party not exempt from execution should the bond or
deposit given by the latter be insufficient or fail to
fully satisfy the award.
NOVEMBER 10, 2016
RULE 47:
ANNULMENT OF JUDGMENTS OF FINAL ORDERS
AND RESOLUTIONS
RULE 47: ANNULMENTS OF JUDGMENT OF RTC, in
relation to SEC. 9, BP 129, NO. 2.
 EXCLUSIVE ORIGINAL JURISDICTION OF THE
COURT OF APPEAL: (2) annulment of judgments
of the RTCs.
 RTC only.
 REMEDY TO ANNUL THE JUDGMENT OF THE
CA: NO REMEDY.
GRANDE V. UNIVERSITY OF THE PHILIPPINES (2006):
the remedy of Rule 47 is not available.
o What remedy is available against the judgment of
the Court of Appeals: either Rule 45 or Rule 65.
o Rule 47 is not a remedy to annul the judgment of
the CA.
 You file it also to the CA? NO.
o The remedy, therefore, is petition under Rule 45 or
65.
o Can you go to the SC to annul judgments of the
CA? NO.
o SC: This Court has no authority to take cognizance
of an original action for annulment of judgment of
any lower court.
 Because under the Constitution, the SC only
has original jurisdiction over two things.
 There is no mention of annulment of
judgments of the CA originally
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
cognizable by this court.
 If Congress wanted to add to the jurisdiction
of the SC, it can do so by legislation,
provided that it secures the consent of the
SC (FABIAN V. DESIERTO).
o REMEDY: the only mode of appeal cognizable is
petition for review on certiorari.
o PERIOD: sixty (60) days.
o Also, certiorari does not lie if there is no plain,
speedy and adequate remedy available.
NOTE: The annulment of judgments, as a recourse, is
equitable in character, allowed only in exceptional cases,
as where there is no available or other adequate remedy.
It is generally governed by Rule 47 of the 1997 Rules of
Civil Procedure. Section 1 thereof expressly states that the
Rule "shall govern the annulment by the Court of Appeals
of judgments or final orders and resolutions in civil action
of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the
petitioner." Clearly, Rule 47 applies only to petitions for the
nullification of judgments rendered by regional trial courts
filed with the Court of Appeals. It does not pertain to the
nullification of decisions of the Court of Appeals.
Petitioners argue that although Rule 47 is a newly-
established rule, the procedure of annulment of judgments
has long been recognized in this jurisdiction. That may be
so, but this Court has no authority to take cognizance of
an original action for annulment of judgment of any lower
court. The only original cases cognizable before this Court
are "petitions for certiorari, prohibition, mandamus, quo
warranto, habeas corpus, disciplinary proceedings against
members of the judiciary and attorneys, and cases
affecting ambassadors, other public ministers and
consuls." Petitions for annulment of judgment are not
among the cases originally cognizable by this Court.
Moreover, if what is desired is an appeal from a decision
of the Court of Appeals, which petitioners could have been
entitled to under ordinary circumstances, the only mode of
appeal cognizable by this Court is "a petition for review on
certiorari." That is governed by and disposed of in
accordance with the applicable provisions of the
Constitution, laws, Rules 45; 48; Sections 1, 2, and 5 to 11
of Rules 51; 52; and 56. Notably, Rule 47 on annulment of
judgments has nothing to do with the provisions which
govern petitions for review on certiorari. Thus, it is totally
inappropriate to extend Rule 47 to the review of decisions
of the Court of Appeals. Then too, appeals by certiorari to
this Court must be filed within fifteen (15) days from notice
of the judgment or the final order or resolution appealed
from. Even if we were to treat the petition for annulment of
judgment as an appeal by certiorari, the same could not
be given due course as it had been filed several months
after the Court of Appeals decision had already lapsed to
finality.
Admittedly, this Court has discretionary power to take
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cognizance of a petition over which it ordinarily has no
jurisdiction "if compelling reasons, or the nature and
importance of the issues raised, warrant the immediate
exercise of its jurisdiction." Hence, in Del Mar v. Phil.
Amusement and Gaming Corp., the Court took cognizance
of an original petition for injunction after determining that
the allegations therein revealed that it was actually one for
prohibition. We, however, cannot adopt that tack for
purposes of this case. Ostensibly, even if the averments in
the present petition sufficiently present the existence of
grave abuse of discretion amounting to lack or excess of
jurisdiction and on that basis it could be treated as a
special civil action for certiorari under Rule 65, still it could
not be given due course since it was filed way beyond the
period for filing such special civil action. Moreover,
certiorari can only lie if there is no appeal, nor any plain,
speedy and adequate remedy in the ordinary course of
law.
Does RULE 47 apply also to judgments of QUASI-
JUDICIAL BODIES? NO, only to RTCs.
FRAGINAL V. HEIRS OF PARAÑAL (2007): there was a
decision by the PARAD (Provincial Agrarian Reform
Adjudicator of the Department of Agrarian Reform
182
Adjudication Board [DARAB]) as a quasi-judicial body ,
and Fraginal filed with the Court of Appeals for annulment
of judgment. It was instituted an action for annulment of
judgment with prayer for preliminary injunction or
restraining order. They insisted that the PARAD decision
is void, as it was issued without jurisdiction. The CA
dismissed the petition, ruling that a petition for annulment
of judgment under RULE 47 of the Revised ROC may be
availed of in civil cases of the RTCs. Also, this rule states
that recourse may be only had when the ordinary modes
of appeal, NT, are no longer available through no fault of
the petitioner. On the other hand, the petitioners
ratiocinated this instant recourse for their failure to avail of
the remedy provided for under Rule 65 of the Revised
Rules of Court, without fault.
o CA ruling: the petition fails to offer any explanation
as to how it lost that remedy except for its claim that
they failed to avail of Rule 65 without any fault on
their part. And even if We are to grant it arguendo,
Rule 47 being exclusive to judgments and final
orders and resolution in civil actions of Regional
Trial Courts is not available to the petitioners.
o ISSUE: does the court of appeals have jurisdiction
to annul judgments or decisions of quasi-judicial
bodies? NO.
o BASIS: SEC. 1 and 2 of Rule 47.
o Because the law says annulment of judgments of
RTC, he applied the maxim expressio unius est
exclusio alterius.
 Since there was no mention of quasi-judicial
182
RULE 43, but he did not appeal, so he went for annulment of
judgment.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
agencies, therefore, wala.
 This is akin to the right to appeal, and said
that it is a mere statutory privilege.
o So the law speaks of annulment of judgments of
RTCs, and it does not say annulments of judgment
of quasi-judicial bodies.
o Prof.’s comment: in the Judiciary Act of 1948, there
is also no such thing as annulment of judgment, but
it is a recognized jurisdiction of the CFI, under the
all-catch provision like in SEC. 19, of B.P. Blg 129
→ in all cases not within the exclusive jurisdiction of
a court or tribunal, then, CFI (now RTC).
 And in this case, the CA, and Prof. agrees,
has no jurisdiction over annulments of
judgment of quasi-judicial bodies, as the law
merely speaks of annulments of judgment of
RTCs.
 So for Prof., it should go to the RTC, as if it
was like the old law, because if jurisdiction is
not lodged with any tribunal, then it should
be in the RTC.
 It is not like the right to appeal.
 In fact, an action for annulment of
judgment is a remedy in law,
independent to the case, so it is not
the right to appeal.
NOTE: The Petition for Annulment of Judgment filed by
Fraginal, et al. before the CA failed to meet the foregoing
conditions.
First, it sought the annulment of the PARAD Decision
when Section 1 of Rule 47 clearly limits the subject matter
of petitions for annulment to final judgments and orders
rendered by Regional Trial Courts in civil actions. Final
judgments or orders of quasi-judicial tribunals or
administrative bodies such as the National Labor
Relations Commission, the Ombudsman, the Civil Service
Commission, the Office of the President, and, in this case,
the PARAD, are not susceptible to petitions for annulment
under Rule 47.
Speaking through Justice Jose C. Vitug, the Court, in
Macalalag v. Ombudsman, ratiocinated:
Rule 47, entitled "Annulment of Judgments or
Final Orders and Resolutions," is a new provision
under the 1997 Rules of Civil Procedure albeit
the remedy has long been given imprimatur by
the courts. The rule covers "annulment by the
Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of new
trial, appeal, petition for relief or other appropriate
remedies could no longer be availed of through
no fault of the petitioner." An action for annulment
of judgment is a remedy in law independent of
the case where the judgment sought to be
annulled is rendered. The concern that the
remedy could so easily be resorted to as an
instrument to delay a final and executory
judgment, has prompted safeguards to be put in
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place in order to avoid an abuse of the rule.
Thus, the annulment of judgment may be based
only on the grounds of extrinsic fraud and lack of
jurisdiction, and the remedy may not be invoked
(1) where the party has availed himself of the
remedy of new trial, appeal, petition for relief or
other appropriate remedy and lost therefrom, or
(2) where he has failed to avail himself of those
remedies through his own fault or negligence.
. . . The right to appeal is a mere statutory
privilege and may be exercised only in the
manner prescribed by, and in accordance with,
the provisions of law. There must then be a law
expressly granting such right. This legal
axiom is also applicable and even more true
in actions for annulment of judgments which
is an exception to the rule on finality of
judgments. (Emphasis ours)
Second, Section 1, Rule 47 does not allow a direct
recourse to a petition for annulment of judgment if other
appropriate remedies are available, such as a petition for
new trial, and a petition for relief from judgment or an
appeal.
Is RULE 47 applicable to annulled decisions of the RTC
rendered in CRIMINAL CASES? NO, not applicable.
PEOPLE V. BITANGGA (2007): same ruling in
MACALALAD.
o REMEDY to annul judgments of RTC in criminal
cases: PETITION FOR HABEAS CORPUS.
NOTE: Section 1, Rule 47 of the Rules of Court, limits the
scope of the remedy of annulment of judgment to the
following:
Section 1. Coverage. — This Rule shall govern
the annulment by the Court of Appeals of
judgments or final orders and resolutions in civil
actions of Regional Trial Courts for which the
ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer
available through no fault of the petitioner.
The remedy cannot be resorted to when the RTC
judgment being questioned was rendered in a criminal
case. The 2000 Revised Rules of Criminal Procedure itself
does not permit such recourse, for it excluded Rule 47
from the enumeration of the provisions of the 1997
Revised Rules of Civil Procedure which have suppletory
application to criminal cases. Section 18, Rule 124
thereof, provides:
Sec. 18. Application of certain rules in civil
procedure to criminal cases. — The provisions of
Rules 42, 44 to 46 and 48 to 56 relating to
procedure in the Court of Appeals and in the
Supreme Court in original and appealed civil
cases shall be applied to criminal cases insofar
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
as they are applicable and not inconsistent with
the provisions of this Rule.
There is no basis in law or the rules, therefore, to
extend the scope of Rule 47 to criminal cases. As we
explained in Macalalag v. Ombudsman, when there is no
law or rule providing for this remedy, recourse to it cannot
be allowed, viz.:
Parenthetically, R.A. 6770 is silent on the remedy
of annulment of judgments or final orders and
resolutions of the Ombudsman in administrative
cases. In Tirol, Jr. v. Del Rosario, the Court has
held that since The Ombudsman Act specifically
deals with the remedy of an aggrieved party from
orders, directives and decisions of the
Ombudsman in administrative disciplinary cases
only, the right to appeal is not to be considered
granted to parties aggrieved by orders and
decisions of the Ombudsman in criminal or non-
administrative cases. The right to appeal is a
mere statutory privilege and may be exercised
only in the manner prescribed by, and in
accordance with, the provisions of law. There
must then be a law expressly granting such right.
This legal axiom is also applicable and even
more true in actions for annulment of
judgments which is an exception to the rule
on finality of judgments.
The Petition for Annulment of Judgment of the February
29, 2000 Decision of the RTC in Criminal Case No.
103677 was therefore an erroneous remedy. It should not
have been entertained, much less granted, by the CA.
Failure to comply with the requirements for annulment of
judgment:
 REQUIREMENTS (ALABAN V. COURT OF
183
APPEALS, 2005 ):
ALABAN V. COURT OF APPEALS (2005): petition was
denied for failure to make use of available remedies.
o Here he did not comply with the requirements.
183
According to the Rules, notice is required to be personally given to
known heirs, legatees, and devisees of the testator. A perusal of the will
shows that respondent was instituted as the sole heir of the decedent.
Petitioners, as nephews and nieces of the decedent, are neither
compulsory nor testate heirs who are entitled to be notified of the
probate proceedings under the Rules. Respondent had no legal
obligation to mention petitioners in the petition for probate, or to
personally notify them of the same. Besides, assuming arguendo that
petitioners are entitled to be so notified, the purported infirmity is
cured by the publication of the notice. After all, personal notice upon
the heirs is a matter of procedural convenience and not a jurisdictional
requisite. The non-inclusion of petitioners' names in the petition and
the alleged failure to personally notify them of the proceedings do not
constitute extrinsic fraud. Petitioners were not denied their day in
court, as they were not prevented from participating in the proceedings
and presenting their case before the probate court.
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o There were available remedies.
o The failure to make use of available remedies was
without sufficient justification → it is with the fault of
the petitioner.
o GOOD EXAMPLE: when there is a judgment and
hindi mo talaga alam and it became final for a long
time.
 Then you learned about it, and then you
immediately filed.
 You could not have availed of NT as you
never knew about it.
 You could not have appealed it as you have
not received notice of the judgment.
 In which case, you can file for annulment of
judgment.
NOTE: As parties to the probate proceedings, petitioners
could have validly availed of the remedies of motion for
new trial or reconsideration and petition for relief from
judgment. In fact, petitioners filed a motion to reopen,
which is essentially a motion for new trial, with petitioners
praying for the reopening of the case and the setting of
further proceedings. However, the motion was denied for
having been filed out of time, long after the Decision
became final and executory. Conceding that petitioners
became aware of the Decision after it had become final,
they could have still filed a petition for relief from
judgment after the denial of their motion to reopen.
Petitioners claim that they learned of the Decision only on
4 October 2001, or almost four (4) months from the time
the Decision had attained finality. But they failed to avail of
the remedy. For failure to make use without sufficient
justification of the said remedies available to them,
petitioners could no longer resort to a petition for
annulment of judgment; otherwise, they would benefit
from their own inaction or negligence.
SEC. 1: COVERAGE: RULE 47 applies only to civil
cases/actions of RTC for which the ordinary remedies of
NT (RULE 37), appeal, petition for relief of judgment, or
other appropriate remedies (can be RULE 65), are no
longer available through no fault of the petitioner.
 So they are not available through no fault of the
petitioner.
SEC. 2: GROUNDS FOR ANNULMENT:
 TWO GROUNDS (SEC. 2):
184
(1) Extrinsic fraud ; or
(2) Lack of jurisdiction:
 Again the remedies are:
(a) If you failed to file an Answer, but before
judgment: Motion to Lift Order of Default;
(b) After judgment, but before finality: Motion for
New Trial (RULE 37);
 Grounds: FAME.
(c) Final and executory judgment: Petition for
Relief from judgment (RULE 38):
184
Same meaning as for filing MTLOOD, MNT, PRJ.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 Filed within SIXTY (60) DAYS after
the petitioner learns of the judgment,
final order, or other proceeding to be
set aside, and NOT MORE THAN SIX
(6) MONTHS after such judgment or
final order was entered, or such
proceeding was taken.
 Grounds: FAME.
 Here, it is only lack of jurisdiction AND F (in FAME)
→ EXTRINSIC FRAUD: shall not be a valid ground
if it is availed or could have been availed of, but did
not avail of it, in a MNT or a PRJ.
 What is the nature of a PRJ under RULE
38? It is an EQUITABLE REMEDY.
 The court will not grant it unless there
is really clear showing of FAME.
 If there is none, the relief cannot be
granted.
 Not granted unless there is really showing of
FAME.
 The procedure must be strictly followed here.
 OTHERWISE, you would violate the res
judicata rule, as that is the basis from
granting of relief of judgment as to form (see
contents of affidavit of merits).
 HOWEVER, PRJ, being the last remedy,
may only be availed of if there were available
remedies at law and he failed to comply with
it, or he availed of it and it was denied.
 If the remedies at law were available
BUT you failed to avail of it/failed to
exhaust them, you cannot proceed for
RULE 38, 37.
 Otherwise, the res judiciata rule will
be violated.
SEC. 3: PERIOD FOR FILING ACTION:
 FRAUD: within FOUR (4) YEARS FROM
DISCOVERY.
 Knowledge.
 LACK OF JURISDICITON: BEFORE it is barred by
laches or estoppel.
SEC. 4: FILING AND CONTENTS OF PETITION →
VERIFIED PETITION which must already be supported of
affidavits of witnesses, as in the case of extrinsic fraud.
 Affidavits of witnesses must already be attached to
the petition: testimonies;
 Documents: if documentary evidence.
 Sworn Certification: Certification Against Forum
Shopping (as it is technically an initiatory pleading).
 This is an original action for annulment of
judgment.
SEC. 5: if NO MERIT: dismiss outright with specific
reasons.
DEMETRIOU V. COURT OF APPEALS (1994): on
EXTRINSIC FRAUD.
o Demetriou bought a property, covered by a CT.
However, after the sale, the seller surrendered to
the buyer, Dementriou the owner’s duplicate CT.
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But Demetriou did not register the sale. The seller,
perhaps knowing that Demetriou is no longer
residing in Bicol, he filed a petition for reconstitution
owner’s duplicate certificate of title. There was no
opposition. The basis of reconstitution is the original
found in the Office of the RD, and it still under his
name as the buyer did not register the sale. Later
on, Demetriou discovered the same. The judgment
allowing the reconstitution has been final, so
Dementriou filed a petition for annulment of
judgment on the ground of fraud: that the petitioner
who filed the reconstitution knew very well that
there has already been a sale.
o SC: hindi „yan; that is NOT the kind of fraud.
o What kind of fraud is in this case? INTRINSIC.
o What kind of fraud that may be subject of
annulment / relief from judgment / NT: EXTRINSIC
→ it is the fraud that prevented the party from
presenting his case, and the one who caused the
fraud is the adverse party.
 As when he said, ―huwag ka ng pumunta sa
court.‖
o In this case, Dementriou could have raised it as a
ground to oppose → INTRINSIC.
NOTE: The appellate court is certainly right in holding that
the use of a false affidavit of loss does not constitute
extrinsic fraud to warrant the invalidation of a final
judgment. The use of the alleged false affidavit of loss by
private respondent is similar to the use during trial or
forged instruments or perjured testimony. In the leading
case of Palanca v. Republic, it was held that the use of a
forged instrument constituted only intrinsic fraud for while
perhaps it prevented a fair and just determination of a
case, the use of such instrument or testimony did not
prevent the adverse party from presenting his case fully
and fairly. In the case at bar, petitioners were not really
kept out of the proceedings because of the fraudulent acts
of the private respondent. They could have rebutted or
opposed the use of the affidavit and shown its falsity since
they were theoretically parties in the case to whom notice
had been duly given.
But a judgment otherwise final may be annulled not only
on the ground of extrinsic fraud but also because of lack of
jurisdiction of the court which rendered it. In Serra Sera v.
Court of Appeals, on facts analogous to those involved in
this case, this Court already held that if a certificate of title
has not been lost but is in fact in the possession of
another person, the reconstituted title is void and the court
rendering the decision has not acquired jurisdiction.
Consequently the decision may be attacked any time.
Indeed, Rep. Act No. 26, § 18 provide that " in case a
certificate of title, considered lost or destroyed be found or
recovered, the same shall prevail over the reconstituted
certificate of title." It was, therefore, error for the Court of
Appeals to dismiss the petition for annulment of judgment
of the petitioners.
Nor was the filing of such a petition forum shopping in
violation of Circular No. 28-91. Private respondents allege
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
that in an action for recovery of possession of the lands
which they had brought against the JB Line in the
Regional Trial Court of Albay (Civil Case No. T-1590),
petitioners intervened and alleged substantially the same
facts as those alleged by them in their petition for
annulment of judgment. We have gone over petitioners'
answer in intervention in that case. We find that the
allegation of forum shopping is without basis. While they
indeed alleged that private respondent had obtained a
second owner's duplicate of TCT T-65878 knowing that
2/3 of the land covered by the certificate had been sold to
them and that the "2nd owner's copy should be cancelled
and recalled considering the fact that the original is in fact
still existing and not lost," the allegation was made more
for the purpose of demanding a partition, recognizing that
private respondent is the owner of 1/3 of the land.
Petitioner's intervention is thus different from their action in
the Court of Appeals which is solely for the purpose of
seeking the annulment of the judgment in CAD Case No.
T-1024 granting private respondent's petition for the
issuance of a new owner's duplicate certificate of title.
ASIAN SURETY V. ISLAND STEEL (1982): Appellant
surety company acted as guarantor for Leonor Villanueva
in the contract to sell executed in her favor by appellee
corporation. Upon failure of Villanueva to fulfill her
obligation to pay the amount due, appellee corporation
filed with the Court of First Instance a complaint against
appellant company for recovery of the money obligation
plus interest. At the trial, appellant surety company
attempted to prove its allegations that the contract to sell
entered into by appellee corporation and Villanueva was
fictitious and that no delivery of the goods in question was
in fact made by the former to the latter. The trial court,
however, found that the GI sheets in question had in fact
been delivered by appellee corporation to Villanueva and
adjudged appellant surety company liable to appellee
corporation for the amount involved plus interest. The
lower court's judgment was sustained by the Court of
Appeals whose decision became final and executory. To
annul the said judgment and to enjoin execution thereof,
appellant surety corporation filed a complaint against
appellee corporation and the City Sheriff of Manila, setting
forth the details of the alleged fraud committed by appellee
corporation. The trial court dismissed the complaint.
Hence, this appeal.
o The bonding company filed an action to annul the
judgment on the ground of fraud.
 Nag-moro moro lang kasi sila ng defendant,
when in fact, no galvanized iron was ever
delivered, and the sale was fictitious and
merely intended to defraud the bonding
company.
o ISSUE: Isit proper to annul the judgment on the
ground of extrinsic fraud? NO, that is INTRINSIC
FRAUD.
o That could have been a defense raised in the action
for collection.
o What is again EXTRINSIC FRAUD? It is the fraud
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caused by the adverse party which prevented him
from presenting his case.
 It does not go into the merits of the case.
o REMEMBER, that is the same fraud in FAME when
you file for a PRJ.
 As when you already received the summons
for the complaint, and the plaintiff told you
not to file your Answer as he will be asking
for the dismissal of the case. Yun pala, na-
deafult ka na.
 That is extrinsic because you were
prevented by the other party from filing your
answer/presenting your evidence.
NOTE: It is elementary that an action to annul a final
judgment on ground of fraud will lie only if the fraud be
extrinsic or collateral in character (Almeda vs. Cruz, 84
Phil. 636). Fraud is regarded as extrinsic or collateral
where it has prevented a party from having a trial or from
presenting all of his case to the court. (Anuran vs. Aquino,
38 Phil. 29; see U.S. vs. Throckmorton, 98 U.S. 61, 25 L.
Ed. 93)
The finding of the Court of First Instance in Civil Case No.
51586 that there was indeed delivery of the goods to
Villanueva by the appellee pursuant to a contract to sell
entered into in good faith, as affirmed by the Court of
Appeals sub silentio, laid to rest the issue as to validity of
the said contract to sell as well as the fact of delivery of
the goods in question. To allow Asian Surety to revive the
same question by the instant action to annul the judgment
would not only violate the rule of res judicata, but would
encourage the appellant's contumacios resistance of a just
and valid obligation. Hence, the order of dismissal of the
complaint for annulment of the decision in Civil Case No.
51586 should be affirmed.
 Although it is an original action, it is
nonetheless DISCRETIONARY.
 If PRIMA FACIE MERIT BE FOUND: given due
course and summons shall be served on the
respondent.
 This is the only time where the Court of
Appeals, in the exercise of its original
jurisdiction, that summons are issued and
served.
 Before, it is the CFI (RTC now) that has
jurisdiction to annul judgments, as there was
no law conferring jurisdiction to other courts.
 Doon siya sa catch-all provision of the
CFI, that all actions not lodged with
nay court or tribunal, exclusive
original jurisdiction is vested in the
CFI.
 Kaya lang, the authors of BP Blg. 129
thought that it is not proper for a court
of co-equal jurisdiction to annul the
judgment of another, so they gave it
to the Court of Appeals.
SEC. 6: PROCEDURE: procedure in ordinary civil cases
shall be observed.
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
 If trial necessary: reception of evidence should be
referred to a member of the court / RTC judge.
 There is Pre-Trial, and the procedure in ordinary
civil cases are observed.
SEC. 7: EFFECT OF JUDGMENT: shall SET ASIDE the
questioned judgment or final order and render the same
NULL AND VOID.
 WITHOUT prejudice to the original action: can be
refiled.
 Assuming there is no jurisdiction.
 The effect is not the same as below, kasi
wala ngang jurisdiction.
 HOWEVER, if set aside on the GROUND OF
EXTRINSIC FRAUD, the court, on motion, may
order the RTC to try the case as if a timely motion
MNT is filed.
 Effect is like a relief from judgment.
 If a relief from judgment is granted, then
as if the original judgment is vacated, and
the case shall proceed as if new trial has
been granted.
SEC. 8: SUSPENSION OF PRESCRIPTIVE PERIOD: (for
the refiling of the original action) deemed suspended from
the filing of the original action until the finality of the
judgment of annulment.
 So even if you file a case in a court without
jurisdiction, the period of prescription shall be
suspended from the filing of the original claim.
 Prescription will run again after finality of the
judgment for annulment.
 WHEN NOT SUSPENDED: where the extrinsic
fraud is attributable to the plaintiff in the original
action.
SEC. 9: RELIEF AVAILABLE: may include award of
damages, attorney’s fees and other relief.
 FINAL JUDGMENT: in all probability, executed
already → court may issue ORDERS OF
RESTITUTION, and other just and equitable reliefs.
 Here, there is a final judgment already, and it is the
one being annulled.
 So the court may issue such ORDERS OF
RESTITUTION.
SEC. 10: ANNULMENT OF JUDGMENT OR FINAL
ORDERS OF MTC: to be filed to the RTC.
 Treated as an ordinary civil action, and SECS. 2, 3,
4, 7, 8 and 9 of this Rule shall be applicable.
 NOT for petition for relief.
 Here, NOT discretionary.
MIRANDA V. COURT OF APPEALS (1989): NOT
anymore applicable, as the 1999 Code of Procedure
includes dolo incidente.
FACTS. [Rayos]
ISSUE:
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SC: If at all — and on this we do not rule categorically as
the matter is yet to be litigated in the court a quo — the
fraud might have been committed by Rayos after the
conclusion of the contract. However, such fraud is not
covered by the aforesaid rule, let alone the fact that it has
yet to be established.
The fraud was after the contract.
What is the fraud in the fulfilment of the obligation? Dolo
incidente (ART. 1171).
[…]
CALDERON V. IAC (1987): petitioner Calderon
purchased from the private respondents the following: the
Luzon Brokerage Corporation (LBC, for brevity) and its
five (5) affiliate companies. […]
While as a general rule, the liability on the attachment
bond is limited to actual damages, moral and exemplary
damages may be recovered where the attachment was
alleged to be maliciously sued out and established to be
so. (Lazatin vs. Twano et al, L-12736, July 31, 1961). Well
settled is the rule that the factual findings of the trial court
are entitled to great weight and respect on appeal,
especially when established by unrebutted testimonial and
documentary evidence, as in this case.
While Section 12, Rule 57 of the Rules of Court provides
that upon the filing of a counterbond, the attachment is
discharged or dissolved, nowhere is it provided that the
attachment bond is rendered void and ineffective upon the
filing of counterbond. The liability of the attachment bond
is defined in Section 4, Rule 57 of the Rules of Court. It is
clear from the above provision that the responsibility of the
surety arises "if the court shall finally adjudge that the
plaintiff was not entitled thereto." In Rocco vs. Meads, 96
Phil. Reports 884, we held that the liability attaches if the
plaintiff is not entitled to the attachment because the
requirements entitling him to the writ are wanting, or if the
plaintiff has no right to the attachment because the facts
stated in his affidavit, or some of them, are untrue. It is,
therefore, evident that upon the dismissal of an
attachment wrongfully issued, the surety is liable for
damages as a direct result of said attachment.
[…]
BENITEZ V. IAC (1987): private respondent Casa Filipina
Development Corporation filed a complaint against herein
petitioner Helena T. Benitez for rescission of contract, plus
damages, with a prayer for preliminary attachment. […]
Allegation: she misapplied the money belonging to the
applicant.
ISSUE: Din the TC properly conduct the proceedings?
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
SC: NO.
NOTE: the affidavit supporting the petition for the issuance
of the preliminary attachment may have been sufficient to
justify the issuance of the preliminary writ, but it cannot be
considered as proof of the allegations contained in the
affidavit, which are mere conclusions of law, not statement
of facts. Petitioner in the instant case having squarely
controverted the private respondent's allegation of fraud, it
was incumbent on the latter to prove its allegation. The
burden of proving that there indeed was fraud lies with the
party making such allegation. This finds support in Section
1, Rule 131 of the Rules of Court which provides: "Each
party must prove his own affirmation allegations. . . . The
burden of proof lies on the party who would be defeated if
no evidence were given on either side." In this jurisdiction,
fraud is never presumed.
The petitioner's Urgent Motion to Discharge Writ of
Preliminary Attachment was filed under Section 13, Rule
57. The last sentence of said provision indicates that a
hearing must be conducted by the judge for the purpose of
determining whether or not there really was a defect in the
issuance of the attachment.
It appears from the records that no hearing was conducted
by the lower court. Indeed, when the case was called for
hearing, the plaintiff (private respondent herein), failed to
appear and the petitioner's motion was considered
submitted for resolution.
D.P. LUB OIL MARKETING CENTER, INC. V. NICOLAS
(1990):
NOTE: The petitioner's prayer for a preliminary attachment
hinges' on the allegations in paragraph 16 of the complaint
and paragraph 4 of the affidavit of Daniel Pe which are
couched in general terms devoid of particulars of time,
persons, and places to support such a serious assertion
that "defendants are disposing of their properties in fraud
of the creditors." There is thus the necessity of giving to
the private respondents an opportunity to ventilate their
side in a hearing, in accordance with due process, in order
to determine the truthfulness of the allegations. But no
hearing was afforded to the private respondents the writ
having been issued ex parte. A writ of attachment can only
be granted on concrete and specific grounds and not on
general averments merely quoting the words of the rules.
SANTOS V. AQUINO, JR. (1992): facts.
ISSUE: Was the substitution proper?
SC: there is no rule allowing substitution of attached
properties. The discharge may only be done in two ways:
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SECs. 12 and 13.
NOTE: The rule is that when real property, or an interest
therein, of the judgment debtor is attached, the levy
creates a lien which nothing can subsequently destroy
except by the dissolution of the attachment. Prior
registration of the lien creates a preference, since the act
of registration is the operative act to convey and affect the
land (Lu vs. IAC, et al., 169 SCRA 595; Vda. de Carvajal
vs. Coronado, 18 SCRA 635, 641).
There is no rule allowing substitution of attached property
although an attachment may be discharged wholly or in
part upon the security of a counterbond offered by the
defendant upon application to the court, with notice to, and
after hearing, the attaching creditor (Sec. 12, Rule 57,
Rules of Court), or upon application of the defendant, with
notice to the applicant and after hearing, if it appears that
the attachment was improperly or irregularly issued (Sec.
13, Rule 57, Rules of Court).
If an attachment is excessive, the remedy of the defendant
is to apply to the court for a reduction or partial discharge
of the attachment, not the total discharge and substitution
of the attached properties. The reason for this is that the
lien acquired by the plaintiff-creditor as of the date of the
original levy would be lost. It would in effect constitute a
deprivation without due process of law of the attaching
creditor's interest in the attached property as security for
the satisfaction of the judgment which he may obtain in the
action.
SEC. 17: PROCEDURE:
(1) Execute judgment against the principal debtor;
(2)
LEELIN V. C&S AGRO DEVELOPMENT (1983):
ISSUE:
NATURE OF COUNTERBOND:
NOTE: It is the claim for damages on account of illegal
attachment that may be awarded only after proper hearing
and which shall be included in the final judgment. That
claim must be filed before the trial or before appeal is
perfected or before the judgment becomes executory, with
due notice to the attaching creditor and his surety,
pursuant to Section 20 of Rule 57 of the Rules of Court. It
is thus clear that the cases cited by the Surety requiring
notice of hearing before the finality of the judgment in
regards the claim of damages have no applicability in the
case at bar. The application by the Trial Court of Section
20, Rule 57, is likewise misplaced.
Under Section 17 of Rule 57, in order that the judgment
creditor may recover from the Surety on the counter-bond,
it is necessary:
a. that execution be first issued against the principal
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
debtor and that such execution was returned
unsatisfied in whole or to part;
b. that the creditor made a demand upon the surety for
the satisfaction of the judgment; and
c. the surety he given notice and a summary hearing
in the same action as to his liability for the judgment
under his counter-bond. (Towers Assurance
Corporation vs. Ororama Supermart, 80 SCRA 262
[1977).
In the case at bar, LEELIN had substantially complied with
the foregoing requisites. A writ of execution had been
issued and had been refused unsatisfied. It had filed a
motion to charge the Surety on its counter-bond. A notice
for the hearing of the motion had been served on the
surety and summary hearing was held.
VANGUARD ASSURANCE V. COURT OF APPEALS
(1975):
NOTE: A surety in a counterbond is not to be considered
as a special intervenor in the principal case, joining issue
with the principal defendants; hence, its rights and
liabilities need not be ascertained, fixed or adjudicated at
the same time with those of the principal defendant before
the final judgment, or in a supplemental pleading for that
purpose.
The procedure laid down in Section 20 of Rule 57 need
not be followed in a case where the plaintiff seeks from the
surety in a counterbond filed by the defendant to lift an
order of attachment previously issued. Said section refers
to recovery of damages by a party against whom
attachment was issued and the remedy provided therein is
available only to the defendant, not the plaintiff.
After the judgment for the plaintiff had become executory
and the execution is returned unsatisfied, the liability of the
bond automatically attaches, and if surety fails to satisfy
the judgment against defendant despite therefor, a writ of
execution may issue against the surety to enforce the
obligation of the bond.
TOWERS ASSURANCE V. ORORAMA (1977):
NOTE: Under section 17, in order that the judgment
creditor might recover from the surety on the counterbond,
it is necessary (1) that execution be first issued against the
principal debtor and that such execution was returned
unsatisfied in whole or in part; (2) that the creditor made a
demand upon the surety for the satisfaction of the
judgment, and (3) that the surety be given notice and a
summary hearing in the same action as to his liability for
the judgment under his counterbond.
The first requisite mentioned above is not applicable to
this case because Towers Assurance Corporation
assumed a solidary liability for the satisfaction of the
judgment. A surety is not entitled to the exhaustion of the
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properties of the principal debtor (Art. 2959, Civil Code;
Luzon Steel Corporation vs. Sia, L-26449, May 15, 1969,
28 SCRA 58, 63).
But certainly, the surety is entitled to be, heard before an
execution can be issued against him since he is not a
party in the case involving his principal. Notice and
hearing constitute the essence of procedural due process.
(Martinez vs. Villacete, 116 Phil. 326; Alliance Insurance &
Surety Co., Inc. vs. Hon. Piccio, 105 Phil. 1192, 1200;
Luzon Surety Co., Inc. vs. Beson, L-26865-66, January
30, 1970, 31 SCRA 313)
Claim for damages under attachment bond: SEC. 20.
Claims against counter-bond in Sec. 12: SEC. 17.
[…]
SEC. 3: GROUNDS FOR ISSUANCE OF A nonetheless his order will be implemented in Roxas City,
PRELIMINARY INJUNCTION:
 Applicant is entitled to relief demanded, or
 Commission, continuance or non-performance of
the act complained of would work injustice to the
applicant; or
EXAMPLES:
(1)
(2) Action to cancel contract on the ground of
violations of the terms thereof.
 Party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done some act/s probably in
violation of the rights of the applicant respecting the
subject of the action of proceeding.
(1) EXAMPLE: incompetent evidence → when a
spouse, despite the objection of the other
who is a party to a case, testifies in the case
against the latter.
1. Your action there is to stop the court
from allowing the wife to testify,
otherwise, it will render the judgment
ineffectual.
SEC. 21, BP 129: the RTC shall exercise jurisdiction:
Regional Trial Courts shall exercise original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and
injunction which may be enforced in any part of
their respective regions; and
(2) In actions affecting ambassadors and other public
ministers and consuls.
EXAMPLE: Angeles City: its injunctive orders may only be
enforced within the respective regions ONLY.
RULE: the injunction may be issued by the court of a
region where the order emanated.
Even if the implementation of the order will be
implemented in another region.
Conversely, where the injunction is sought to be
implemented, that court in that region may issue the
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
injunction even if the authority or order sought to be
implemented emanated from another region.
DIRECTOR OF THE BUREAU OF
TELECOMMUNICATIONS V. ALIGAEN (1970): here
there was a local telephone system in Roxas City (Region
VI). However, the Bureau of Telecommunications granted
PLDT also the license in Roxas City, emanating from
Manila, as the Director has offices in Manila. The case for
injunction was filed in the CFI of Roxas. This Director
questioned the jurisdiction of the CFI on the ground that it
has no jurisdiction as the order emanated from Manila.
SC: PWEDE.
The act sought to be enjoined is within the region where
the court sits.
While the order to grant license emanated from Manila,
which is within the jurisdiction of the court.
NOTE: A petition under oath alleging: (1) the legal right of
petitioner Belo (now respondent) to establish and operate
a telephone system in Roxas City as authorized by a
legislative franchise and the certificate of public
convenience issued by the Public Service Commission,
and his having actually established the telephone system
and operating the same; (2) the violation of petitioner
Belo's (now respondent) right by the unauthorized or
illegal acts of the respondents (now petitioners) in taking
steps to install another telephone system in Roxas City
without previously having negotiated or entered into any
arrangement with petitioner as required by law; and (3) the
injury that would be caused to petitioner Belo (now
respondent) by the acts of respondents (now petitioners)
is considered sufficient as basis for the respondent court
in issuing the writ of preliminary injunction prayed for.
In the case of Gonzales v. Secretary of Public Works, et
al., wherein the only question raised was whether the
Court of First Instance of Davao had jurisdiction to
entertain a case the main purpose of which was to prevent
the enforcement of a decision of the Secretary of Public
Works who was in Manila, this Court held that, inasmuch
as the acts sought to be restrained were to be performed
within the territorial boundaries of the province of Davao,
the Court of First Instance of Davao had jurisdiction to
hear and decide the case, and to issue the necessary
injunctive order. This Gonzales case was an action for
certiorari and prohibition with preliminary injunction and/or
preliminary mandatory injunction to prevent the demolition
of Gonzales' dam in Davao in compliance with the order of
the Secretary of Public Works.
It follows, therefore, that since the acts to be restrained
were being done in Roxas City, or within the territorial
jurisdiction of respondent court, the latter had jurisdiction
to restrain said acts even if the office of respondent
Director of the Bureau of Telecommunications is in Manila,
and that of respondent Regional Superintendent of Region
IV is in Iloilo City.
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GONZALES V. SEC. of PUBLIC WORKS (1966): wherein
the only question raised was whether the Court of First
Instance of Davao had jurisdiction to entertain a case the
main purpose of which was to prevent the enforcement of
a decision of the Secretary of Public Works who was in
Manila, this Court held that, inasmuch as the acts sought
to be restrained were to be performed within the territorial
boundaries of the province of Davao, the Court of First
Instance of Davao had jurisdiction to hear and decide the
case, and to issue the necessary injunctive order. This
Gonzales case was an action for certiorari and prohibition
with preliminary injunction and/or preliminary mandatory
injunction to prevent the demolition of Gonzales' dam in
Davao in compliance with the order of the Secretary of
Public Works.
LIMJAP V. ANIMAS (1985):
NOTE: There should be no question either, following
Dagupan Electric Corporation, et al. vs. Hon. Paño, et al.,
95 SCRA 693 (1980), that the Court of First Instance of
Manila (now the Regional Trial Court) has jurisdiction to
issue a Writ of Injunction against PPA or any of its
officials, if need be, since its offices are situated at the
B.F. Homes Condominium, Intramuros, Manila, where its
business is managed by its Board of Directors and
General Manager, and, therefore, within the territorial
jurisdiction of the Court of First Instance of Manila for
purposes of Section 44 of Republic Act No. 296, as
amended.
DAGUPAN ELECTRIC V. PANO (1980):
Does the CFI of QC issue the injunctive order to restore
electric connection in Dagupan? YES, as Dagupan
Electric Company has principal offices in QC.
That is where the bOD sits.
NOTE: The Court of First Instance of Rizal at Quezon City
has jurisdiction over Civil Case No. Q-26502.
The Dagupan Electric Corporation has its principal office
in Quezon City where the business of the corporation is
managed by the Board of Directors. Decisions of the said
corporation are made in Quezon City. The employees of
the Dagupan Electric Corporation in Dagupan City merely
carry out the orders issued by the officials of said
corporation in Quezon City. Hence the acts sought to be
restrained are being committed in Quezon City.
DECANO V. EDU (1980):
PWEDE, as the act sought to be enjoined is in
Pangasinan.
NOTE: As in the above cited case of Aligaen, the national
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016
official stationed at Quezon City, namely, respondent
Commissioner Edu, was impleaded as respondent in the
Pangasinan court for a complete determination of the
issues involved, the legality of Edu's order of dismissal
being the pivotal issue to determine the merits of the
mandamus and injunction aspects of the petition. In other
words Mr. Edu was joined as respondent not for injunction
purposes but mainly for testing the legality of his dismissal
order and his transmittal thereof to his co-respondent
registrar at Dagupan City to implement the same and
terminate the services of the petitioner in Dagupan City.
OLONGAPO V. NPC (1987):
NOTE: We also find no valid reason to disturb the
conclusion of the trial court that it had no jurisdiction to
issue the writ of preliminary injunction sought by the
appellant. It is a well settled rule in this jurisdiction that the
jurisdiction of courts of first instance, now regional trial
courts, to control or restrain acts by means of a writ of
injunction is limited to acts which are being committed or
about to be committed within the territorial limits of their
respective provinces or districts.
The argument of the appellant that the trial court has the
authority to restrain the sale by the NPC of electric power
to the Municipality of Olongapo since the sale is made in
Manila, where the principal offices of the NPC are located,
and that all the managerial acts of the General Manager,
including the authority to order the enforcement of the sale
and delivery of electric power and energy to Olongapo,
Zambales, emanate from Manila, may be correct in so far
as it concerns the sale and delivery of electric power and
energy alone, . . . . It is to be noted, however, that the
herein appellant not only prayed that the NPC be
restrained from selling and delivering electric power and
energy to the Municipality of Olongapo, but that the said
municipality should also be enjoined from harassing
appellant's employees and laborers from constructing,
maintaining and operating its electric light, heat and power
system and from continuing to operate and maintain the
present plant, and from buying and receiving electric
power and energy from the NPC pursuant to the contract
entered into by said municipality and the NPC.
In any event, the writ of preliminary injunction is an
ancillary remedy with the sole object of preserving the
status quo until the merits of the case can be determined,
Since the merits of the case have already been
determined against the appellant, the writ asked for has
lost its purpose and effectivity. What it seeks to restrain no
longer exists or threatens to exist
LIANGA BAY LOGGING V. ENAGE (1987):
NOTE: Clearly, the injunctive writ should not have been
issued. The provisions of law explicitly provide that Courts
of First Instance shall have the power to issue writ of
injunction, mandamus, certiorari, prohibition, quo warranto
and habeas corpus in their respective places, if the
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petition filed relates to the acts or omissions of an inferior the Court may already grant the petition.
court, or of a corporation, board, officer or person, within
their jurisdiction. The jurisdiction or authority of the Court
of First Instance to control or restrain acts by means of the  RA 7227: Bases Conversion prevents the court
writ of injunction is limited only to acts which are being from enjoining the development of the bases.
committed within the territorial boundaries of their
respective provinces or districts except where the sole
issue is the legality of the decision of the administrative ALLIED DOMECQ PHIL. INC. V. VILLON (2004):
officials.
NOTE: There is no question that respondent Clark Liberty
A different rule applies only when the point in controversy
is a registered enterprise of the Clark Special Economic
relates solely to a determination of a question of law
Zone and is primarily regulated by R.A. No. 7227,
whether the decision of the respondent administrative
otherwise known as the Bases Conversion and
officials was legally correct or not. We thus declared in
Development Act of 1992. The establishment, registration,
Director of Forestry v. Ruiz: "In Palanan Lumber &
and operation of respondent Clark Liberty and the other
Plywood Co., Inc., supra, we reaffirmed the rule of non-
enterprises within the Clark Special Economic Zone are
jurisdiction of courts of first instance to issue injunctive
projects (involving the private sector) which convert Clark
writs in order to control acts outside of their premises or
Air Base, a military reservation, "into productive uses." In
districts. We went further and said that when the petition
this connection, Section 21 of R.A. No. 7227 provides:
filed with the courts of first instance not only questions the
"SEC. 21. Injunction and Restraining Order. — The
legal correctness of the decision of administrative officials
implementation of the projects for the conversion into
but also seeks to enjoin the enforcement of the said
alternative productive uses of the military reservations are
decision, the court could not validly issue the writ of
urgent and necessary and shall not be restrained or
injunction when the officials sought to be restrained from
enjoined except by an order issued by the Supreme Court
enforcing the decision are not stationed within its territory.
of the Philippines." Verily, the Court of Appeals did not err
when it dismissed CA-G.R. SP No. 63802 for want of
EXISTING LAWS: jurisdiction.

 PD No. 1818: no PI may be issued by a court in a

case involving infrastructure project of the BASES CONVERSION AND DEVELOPMENT
government. AUTHORITY V. UY (2006):

NOTE: Firmly established is the doctrine that "jurisdiction

GARCIA V. BURGOS (1998):
NOTE: Section 1 of PD 1818 distinctly provides that "[n]o
court in the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction, or preliminary
mandatory injunction in any case, dispute, or controversy
involving an infrastructure project . . . of the government, .
. . to prohibit any person or persons, entity or government
official from proceeding with, or continuing the execution
or implementation of any such project, . . . or pursuing any
lawful activity necessary for such execution,
implementation or operation." At the risk of being
repetitious, we stress that the foregoing statutory provision
expressly deprives courts of jurisdiction to issue injunctive
writs against the implementation or execution of an
infrastructure project. In the case at bar, the assailed
March 18, 1996 Order of respondent judge specifically
enjoined petitioners from implementing their Memorandum
of Agreement dated September 11, 1995 (except as to the
Cebu South Coastal Road), which pertains to the
implementation of the Metro Cebu Development Project,
Phase III, a major component of which is the Cebu South
Reclamation Project. The petitioners were also enjoined
from acting on or implementing all other contracts
involving the said reclamation project. The issuance of
said writ of preliminary injunction evidently constitutes a
blatant violation of PD 1818. The assailed Order is
therefore void for being issued with grave abuse of
discretion and without jurisdiction. On this ground alone,
over the subject matter is conferred by law." Section 19 of
BP 129 shows that a Regional Trial Court has jurisdiction
over all civil cases in which the subject of litigation is
incapable of pecuniary estimation. Jurisprudence has
recognized complaints for injunction with a prayer for
temporary restraining order or writ of preliminary
injunction. We explained at length this specie of cases in
Manila Banking Corporation v. Court of Appeals.
In the factual setting at bar, the Court rules that the
Parañaque RTC has jurisdiction over the complaint of
respondent Uy it being a case in which the subject of
litigation for permanent injunction against the termination
of his contract, is incapable of pecuniary estimation. The
prayer of respondent Uy in Civil Case No. 99-0425 to
permanently enjoin petitioners from rescinding the LCA, is
not forbidden under RA 7227, PD 1818, and RA 8975.
Said prohibitive laws cover only temporary or preliminary
restraining orders or injunctions to prevent unjustified
stoppage of the implementation of government projects;
but not permanent injunctions.
Thus, the Parañaque RTC has jurisdiction to hear
respondent Uy's action and even grant his supplication for
a permanent injunction. While the issuance of the assailed
TRO by Judge Helen Ricafort evidently constitutes a
blatant violation of Section 21 of RA 7227 and hence void,
the same has likewise been rendered moot for being

CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016 Page 269 | Agapito-Bantay-Caligagan-Fogata
 REMEDIAL LAW
CIVIL PROCEDURE
ACADEMIC YEAR 2016 – 2017
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functus officio, the 20-day validity period of the TRO

having lapsed on January 3, 2000.
 RA 8975:
DFA V. FALCON (2010):
NOTE: From the foregoing, it is indubitable that no court,
aside from the Supreme Court, may enjoin a "national
government project" unless the matter is one of extreme
urgency involving a constitutional issue such that unless
the act complained of is enjoined, grave injustice or
irreparable injury would arise.
As petitioners themselves pointed out, there are three
types of national government projects enumerated in
Section 2 (a), to wit:
(a) current and future national government
infrastructure projects, engineering works and service
contracts, including projects undertaken by government-
owned and -controlled corporations;
(b) all projects covered by R.A. No. 6975, as amended
by R.A. No. 7718, or the Build-Operate-and-Transfer
(BOT) Law; and
(c) other related and necessary activities, such as site
acquisition, supply and/or installation of equipment and
materials, implementation, construction, completion,
operation, maintenance, improvement repair and
rehabilitation, regardless of the source of funding.
From the foregoing, it can be gleaned that the trial court
accepted BCA's reasoning that, assuming the e-Passport
Project is a project under the BOT Law, Section 2 of the
BOT Law must be read in conjunction with Section 5 (c) of
Republic Act No. 9184 or the Government Procurement
Reform Act to the effect that only the civil works
component of information technology projects are to be
considered "infrastructure." Thus, only said civil works
component of an information technology project cannot be
the subject of a TRO or writ of injunction issued by a lower
court.
REASON: because the authority of the sheriff is only to
levy property of the judgment obligor.
HOWEVER, where the writ of execution is issued by a
labor court (NLRC), and a third party claim is filed, and the
third party claimant opts to file his third party claim, does
this court have the authority to stop the court of the
NLRC? NO.
May a court issue an injunction against a quasi-judicial
agency? No, as a quasi-judicial body is at the same rank
as an RTC.
 ONLY if it exercises quasi-judicial function.
 Exhaustion of administrative agencies: in the
exercise of quasi-judicial body.
 If purely executive functions: no room for
such.
SEC. 4: FORMAL REQUISITES: may be granted ONLY
when:
 The application in the action or
proceeding is verified; and
 Show facts entitling the applicant to the
relief demanded.
 You must have a right in esse: CLEAR
RIGHT.
 It is not designed to protect future or
contingent right.
 File a bond: can be dispensed with.
o ―Unless exempted by the court.‖
 If included in a complaint / initiatory
pleading: summons to be served.
o If the application is in the complaint itself,
that will be raffled agad, but the other party
should be notified of the raffle and such
notice shall be preceded with summons
and copy of the complaint.


A third party who claims over the owner of the attached /

levied property may file a third party claim.

REMEDY OF THE THIRD PARTY CLAIMANT:

(1) To file an action against the bond within 120 days

from its issuance; or
(2) File a separate action to claim title to or
possession of the property, and to protect his
rights, he can ask for PI.

If a court issues the writ of execution and the sheriff of the

that court levies a property, and there is a third party claim
and he opted to file a third party claim, would that
constitute an undue interference by a court against the
processes of a court with co-equal jurisdiction? NO,
BAER.

CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016 Page 270 | Agapito-Bantay-Caligagan-Fogata