REMEDIAL LAW (CIVIL PROCEDURE)

MEMORY AID
ATENEO CENTRAL BAR OPERATIONS 2002
CIVIL PROCEDURE be allowed in the RTC provided one of the causes of action falls
within the jurisdiction of the RTC and the venue lies therein;
RULE 1 GENERAL PROVISIONS
3. Where the claims in all the causes of action are principally for recovery
1. Civil action – one by which a party sues another for the enforcement or of money, the aggregate amount claimed shall be the test of jurisdiction.
protection of a right, or the prevention or redress of a
wrong; may be ordinary or special 4. Misjoinder of causes of action NOT a ground for dismissal; the action
may, on motion or motu proprio, be severed and proceeded with
Criminal action – one by which the state prosecutes a person for an act separately.
or omission punishable by law

Special proceeding – remedy by which a party seeks to establish a

status, a right, or a particular fact RULE 3 PARTIES TO CIVIL ACTIONS

2. Rules of Court shall NOT be applicable to the following, except by 1. CLAIMS THAT SURVIVE THE DEATH OF A PARTY:
analogy or in a suppletory character, and whenever practicable and
convenient a. Actions to recover real and personal property against the estate;

a. Election cases; b. Actions to enforce liens thereon;

b. Land registration;
c. Cadastral proceedings; c. Actions to recover for injury to persons or property by reason of tort;
d. Naturalization proceedings; and
e. Insolvency proceedings d. Actions to recover money arising from contract, express or implied.
2. Death of defendant in action on contractual money claims before
judgment of RTC NOT ground for dismissal. Action continues until entry
of final judgment. Any judgment against estate of deceased will be
RULE 2 CAUSE OF ACTION enforced as money claim. Writ of preliminary attachment, if any, not
dissolved.
1. Cause of action – an act or omission by which a party violates the right
of another 3. REQUISITES OF PERMISSIVE JOINDER OF PARTIES:

2. REQUISITES OF JOINDER OF CAUSES OF ACTION:
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 action or
actions governed by special rules;
c. Where the causes of action are between the same
parties but pertain to different venues or jurisdiction, the joinder may
a. Right to relief arises out of the same transaction or series of
transactions, whether jointly, severally, or in the alternative
b. There is a question of law or fact common to all the plaintiffs and
defendants;
c. Such joinder is not otherwise proscribed by the provisions of the
Rules on jurisdiction and venue.
4. REQUISITES OF A CLASS SUIT:

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MEMORY AID
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a. Subject matter of the controversy is one of common or general a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the
interest to many persons; place where the plaintiff resides.
b. Parties affected are so numerous that it is impracticable to bring
them all to the court;
c. Parties bringing the class suit are sufficiently numerous or
representative of the class and have the legal capacity to file the
action.
5. TRANSFER OF INTEREST
 Action may be continued by or against the original party, unless the
court, on motion, directs the transferee to be substituted in the action
or joined with the original party; however, if transfer is made before
commencement of the action, the transferee must necessarily be the
party, since only he is the real party in interest.
RULE 4 VENUE OF ACTIONS
* Uniform rule on venue in RTC and MTC
1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the
area wherein real property involved or a portion thereof is situated.
2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the
municipality or city wherein the real property or a portion thereof is
situated.
3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the principal
defendants resides, or in the case of a non-resident defendant where
he may be found, at the election of the plaintiff.
NOTE: “residence” means place where party actually resides at time
of action; does NOT mean permanent home or domicile.
4. Action against non-resident not found in the Philippines
b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where
the property or any portion thereof is situated or found.
5. Rules on Venue shall NOT apply:
a. In those case where a specific rule or law provides otherwise (e.g.,
civil case for damages in cases of libel, where Article 360 of RPC
provides specific rules on venue); OR
b. Where the parties have validly agreed IN WRITING before the filing
of the action on the EXCLUSIVE venue thereof.
 In this instance, the action can only be filed in the place agreed
upon even if the other place is the place of residence of the
parties or the location of the real property involved.
RULE 5 UNIFORM PROCEDURE IN TRIAL COURTS
1. The procedure in the MTCs shall be the same as that in the RTC.
2. Uniform Procedure shall NOT be applicable:
a. Where a particular provision expressly or impliedly applies only to
either of said courts.
b. In civil cases governed by the Rule on Summary Procedure.
RULE 6 KINDS OF PLEADINGS
1. Negative Defense – specific denial of the material fact or facts alleged in
the pleading of the claimant essential to his
cause of action.
2. Affirmative defense – an allegation of a new matter which, while
hypothetically admitting the material
allegations in the pleading of the claimant,
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would nevertheless prevent or bar recovery by permissive. Hence, fact that it is not set-up in the inferior court will
him. Includes: not bar plaintiff from instituting a separate action to prosecute it.
a. Fraud
b. Statute of limitations
c. Release
d. Payment RULE 7 PARTS OF A PLEADING
e. Illegality
f. Statue of frauds 1. FORMAL REQUIREMENTS OF PLEADINGS:
g. Estoppel
h. Former recovery a. Caption
i. Discharge in bankruptcy
j. Any other matter by way of confession or avoidance. b. Title

3. Compulsory counterclaim – REQUISITES: c. Body divided into headings and paragraphs

a. Arises out of or is necessarily connected with the transaction or d. Signature and address
occurrence which is the subject matter of the opposing party’s claim;
e. Verification in some cases
b. Does not require for its adjudication the presence of 3rd
parties of whom the court cannot acquire jurisdiction; and 2. Signature of the lawyer constitutes a certification by him
that:
c. Must be within the jurisdiction of the court both as to
a. He has read pleading
the nature and the amount, except that in an ORIGINAL action in the
RTC, the counterclaim may be considered regardless of the amount.
b. To the best of his knowledge, information, and belief, there is good
ground to support it
 Agustin vs. Bacalang
c. It is not interposed for delay.
A court (if MTC) has no jurisdiction to hear and determine a
set-off or counterclaim in excess of its jurisdiction. A counterclaim
3. HOW A PLEADING IS VERIFIED:
beyond the court’s jurisdiction may only be pleaded by way of
defense, the purpose of which is to defeat or weaken the plaintiff’s
By an affidavit stating that
claim, but NOT to obtain affirmative relief. MOREOVER, the amount
of judgment obtained by the defendant on appeal cannot exceed the
a. Affiant (person verifying) has read the pleading
jurisdiction of the court in which the action began. Since the trial
court did not acquire jurisdiction over the counterclaim in excess of
the jurisdictional amount, the appellate court likewise did not have b. Allegations therein are true and correct as of his personal knowledge
jurisdiction over the same. In such a case, the award in excess of or based on authentic records. (SC Circular 48-2000, effective May
the jurisdiction of the trial court is void. 1, 2000)

 Calo vs. Ajax 4. A pleading required to be verified which:

A counterclaim, even if otherwise compulsory, but amount
exceeds the jurisdiction of the inferior court, will only be considered a. Contains a verification based on “information and belief”, OR
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b. Contains a verification based on “knowledge, information and q. Petition to take deposition in perpetuam rei memoriam (before action
belief,” OR or pending appeal) (24.2)

c. Lacks a proper verification r. Motion to set aside a default order of an inferior court

 Shall be treated as an unsigned pleading. s. Motion for dissolution of preliminary injunction on the ground of
5. What pleadings have to be verified: irreparable damage to the movant while the adverse party can be
fully compensated
a. Petition for relief from judgment (38.3)
t. Petition for appointment of receiver
b. Appeal by certiorari from CA to SC (45.1)
u. Petition for review of the decision of an RTC in cases within the
c. Complaint with prayer for preliminary attachment (57. 3) exclusive original jurisdiction of the inferior court, by and elevated to
the CA.
d. Complaint for injunction (58.4)
v. Pleadings that need not be verified but must be under oath:
e. Complaint for replevin (60.2)
w. Denial of the genuineness and due execution of an actionable
f. Petition for certiorari (65.1) document (8.8)

g. Petition for prohibition (65.2) x. Denial of allegations of usury (8.11)

h. Petition for mandamus (65.3) y. Answer to written interrogatories (25.2)

i. Complaint for forcible entry or unlawful detainer (70.4) z. Answer to request for admission (26.2)

j. Petition for appointment of general guardian (93.2) aa. Notice of appeal from administrative tribunals to the CA

k. Petition for leave to sell or encumber property of estate or guardian

(95.1)
6. Supporting affidavits of merit required:
l. Petition for declaration of competency of the ward (97.1)
a. Motion to postpone for absence of evidence (30.3)
m. Petition for habeas corpus (102.3)
b. Motion to postpone for illness of a party or counsel (30.4)
n. Petition for change of name (103.2)
c. Motion for summary judgment or opposition thereto (35.1,2,3,5)
o. Petition for voluntary dissolution of a corporation (104.1)
d. Motion for new trial on the ground of FAME or opposition thereto
p. Petition for cancellation or correction of entries in the civil registry (37.2)
(108.1)
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e. Petition for relief from judgment (38.3)
f. Third-party claim (39.16)
g. Proof required of a redemptioner (39.30)
h. Motion for preliminary attachment (57.3)
i. Motion for dissolution of preliminary injunction (58.6)
j. Application for writ of replevin (60.2)
k. Claim against the estate of the decedent (86.9)
l. Motion for new trial based on newly discovered evidence in criminal
cases (121.4)
7. CERTIFICATION AGAINST FORUM-SHOPPING:
Plaintiff or principal party shall certify under oath in the complaint or
other initiatory pleading or in a sworn certification annexed and filed
therewith:
a. That he has not commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency; to the
best of his knowledge no such other claim or action pending;
b. If there is such other pending action, a complete statement of the
present status thereof;
c. If he should thereafter learn that same or similar action or claim is
filed or pending, he shall report the same within 5 days therefrom to
the court where he filed his complaint.
NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE
AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL BE
CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF
THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE
WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR
SUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE
DIRECT CONTEMPT.
 For Forum-Shopping to exist, there must be:
i. Same transactions involved;
ii. Same essential facts and circumstances; and
iii. Actions raise identical cause of action, subject matter, and
issues
RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS
1. Allegations of capacity
a. Capacity of party to sue or be sued or the authority of a party to sue
or be sued in a representative capacity or the legal existence of an
organized association that is made a party must be averred;
b. To raise an issue as to the legal existence of a party or the capacity
of a party in a representative capacity, do so by specific denial,
including such supporting particulars as are peculiarly within the
pleader’s knowledge.
2. Action or defense based on document
a. Substance of such document set forth in the pleading;
b. Original or copy attached to the pleading as exhibit and deemed to
be part of the pleading; OR
c. Copy may be set forth in the pleading with like effect.
3. How to contest actionable document: Genuineness and due
execution of instrument deemed admitted unless adverse party:
a. Specifically denies them under oath;
b. Sets forth what he claims to be the facts.
 Requirement of an oath does NOT apply:
i. When diverse party does not appear to be a party to the
instrument; or
ii. When compliance with an order for an inspection of the
original instrument is refused.
 Admission of genuineness and due execution:
i. Party whose signature appears admits that he
signed it, or that it was signed by another with his authority
ii. Was in words and figures as set out at the
time it was signed
iii. Document was delivered
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iv. Any formal requisites required by law which it
lacks are waived by him
 The following defenses are cut-off by admission of genuineness and
due execution of the document:
i. Signature is a forgery
ii. Signature is unauthorized
iii. Corporation is not authorized under its charter
to sign the instrument
iv. Party charged signed the instrument in some
other capacity than that alleged in the pleading setting it out
v. Document was never delivered.
4. SPECIFIC DENIAL
a. Defendant must specify each material allegation of fact the truth of
which he does not admit;
b. Defendant must set forth the substance of the matters upon which he
relies to support his denial, whenever practicable;
c. If denying only part of an averment, he shall specify so much of it as
is true and material and shall deny the remainder;
d. If defendant does not have knowledge or information sufficient to
form a belief as to the truth of a material averment, he shall so state
and this has effect of denial.
 Negative pregnant – a denial which at the same time involves an
admission of the substantial facts in the
pleading responded to.
5. Allegations not specifically denied, other than those as to amount of
unliquidated damages deemed admitted.
RULE 9 EFFECT OF FAILURE TO PLEAD
1. General Rule: Defenses and objections not pleaded in answer or
motion to dismiss are deemed waived (Omnibus Motion
Rule).
Exception: Court shall dismiss the claim, even without allegation in
answer or motion to dismiss, if any of the following appear
from the pleadings or the evidence on record:
a. Lack of jurisdiction over the subject matter;
b. Litis pendentia between same parties for the same cause;
c. Res judicata
d. Action barred by statute of limitations.
2. DECLARATION OF DEFAULT
a. Defendant entitled to notice of motion to declare him in default and of
order of default;
b. Motion to set aside order of default may be filed after notice and
before judgment;
c. Party may make motion, under oath, to set aside order of default
upon proper showing that failure to answer was due to FAME;
d. Effect of order of default – party in default entitled to notice of
subsequent proceedings but not to take part in trial;
e. Partial default – if several defending parties and not all in default, the
court shall try the case against all upon the answers thus filed and
evidence presented;
f. After declaration of default, court may render judgment on the basis
of the complaint or require claimant to submit evidence;
g. Judgment against party in default shall not exceed the amount or
differ in kind from that prayed for nor award unliquidated damages;
h. No defaults in action for annulment or declaration of nullity of
marriage or for legal separation.
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS
1. Amendments of pleadings may be made once as a matter of right:
a. At any time before responsive pleading is served
b. In the case of a reply, anytime within 10 days after service.
 Plaintiff may amend complaint as a matter of right even after
defendant files a Motion to Dismiss, since the same is not a
“responsive pleading.”
2. Substantial amendments may be made only with leave of court,
except as provided above.
3. An amended pleading supersedes the pleading that it amends but
admissions in superseded pleadings may be received in evidence
against the pleader. (NOT judicial admissions anymore; thus, must be
AMENDED SUPPLEMENTAL
Refers to facts existing at the time Refers to facts arising after the
of the commencement of the filing of the original pleading
action
Results in the withdrawal of the Merely an addition, and does NOT
original pleading result in the withdrawal of, the
original pleading
Can sometimes be made as a Always filed with leave of court
matter of right
formally offered)
4. Claims and defenses alleged in original but not incorporated in the
amended pleading shall be deemed waived.
5. Amended and Supplemental pleadings distinguished:
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RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS
1. Answer to complaint – 15 days from service, unless different period
fixed by the courts;
2. Answer of defendant foreign private juridical entity – when service of
summons is made on the government official designated by law, answer
to be filed within 30 days from receipt of summons by such entity.
3. Answer to amended complaint – if amended as a matter of right, 15
days from being served with copy thereof
 If amended not as a matter of right, 10 days from notice of order
admitting the same
 Answer earlier filed may be answer to amended complaint, if no new
answer is filed
 Applicable to amended counterclaim, cross, third, etc,
4. Answer to counterclaim or cross-claim – within 10 days from
service.
5. Answer to 3rd party complaint – 15 days from service
6. Reply – may be filed within 10 days from service of the
pleading responded to
RULE 12 BILL OF PARTICULARS
1. Bill of particulars
a. Period of filing motion – before responding to a pleading; if pleading
is a reply, within 10 days from service thereof;
b. Order for bill must be complied with in 10 days from notice OR period
fixed by court
c. After service of bill or denial of motion – party has balance of time he
was entitled to file responsive pleading, but not less than 5 days
 Motion for Bill of Particulars may NOT call for matters which form
part of the proof of the complaint. Thus, motion should not be
granted if the complaint, while not very definite, nonetheless already
states a sufficient cause of action.
RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS
1. Kinds of service of pleadings:
a. Personal service – to be done whenever practicable (Most preferred
mode)
b. Service by mail (ordinary if no registered mail)
c. Substituted service (delivering copy to clerk of court with proof of
failure of 1st 2 modes)
 Except with respect to papers emanating from the court, a resort to
other modes must be accompanied by a written explanation why the
service or filing was not done personally.
 Violation of rule may be cause to consider the paper as not filed.
2. Kinds of service of final orders:
a. Personal
b. Registered mail
c. Publication (if summons by publication)
3. Proof of personal service
a. Written admission of party served;
b. Official return of the server; or
c. Affidavit of party serving, containing a full statement of the date,
place and manner of service.
RULE 14 SUMMONS
1. Contents of summons
a. Signed by the clerk under the seal of the court
b. Name of the court and the parties to the action
c. Direction that the defendant answer within the time fixed by these
rules
d. Notice that unless defendant so answers, plaintiff will take judgment
by default
2. Kinds of service of summons:
a. PERSONAL:
i. Handing a copy to the defendant in person; OR
ii. If he refuses to receive and sign for it, by tendering it to him
B. SUBSTITUTED:
i. Leave copies at his residence, with person of suitable age
and discretion residing therein; OR
ii. Leave copies at defendant’s office/regular place of business,
with competent person in charge thereof.
c. By publication
3. By whom served:
a. Sheriff
b. Other proper court officer
c. Any suitable person specially authorized by the judge
4. When extraterritorial service allowed:
a. Defendant is a non-resident and is not found in the Philippines and
action affects plaintiff’s personal status
b. Subject of action is property within the Philippines in which the
defendant has or claims a lien or interest
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c. Where relief demanded consists in whole or in part in excluding the
defendant from any interest in such property
d. When property of defendant has been attached within the Philippines
5. Kinds of extra territorial service
a. Personal service
b. Publication and summons sent by registered mail to last known
address
c. Any other matter the court may deem sufficient
6. When service by publication in a newspaper of general
publication allowed:
a. Identity of defendant unknown
b. Whereabouts of defendant unknown and cannot be ascertained by
diligent inquiry
 (a) and (b), applies to ANY action, even actions in
personam
c. Defendant is non-resident and the suit is quasi in rem
d. Defendant is temporarily out of the country and the suit is quasi in
rem
7. Service upon private domestic juridical entity – refers to corporation,
partnership, or association organized under Phil. Laws with a juridical
personality:
a. President
b. Managing partner
c. General manager
d. Corporate secretary
e. Treasurer
f. In-house counsel
8. Service upon private foreign juridical entity transacting
business in the Phils:
a. Resident agent designated in accord with Law
b. If no such agent, on government official designated by law OR
c. On any of its officers or agents within the Phils
NOTE: IF NO RESIDENT AGENT, SERVICE OF SUMMONSES AND
PROCESSES ON THE SEC.
9. Newspaper of general circulation (RA 4883, PD 1079)
a. Published for the dissemination of local news and general
information
b. Has a bona fide subscription list of subscribers
c. Published at regular intervals
d. Not published for nor devoted to the interest of a particular group of
persons
e. Must have been regularly published for at least 2 years before the
date of the publication in question.
 Mere filing of an answer per se should not be automatically treated
as a voluntary appearance by the defendant for the purpose of
sumons. It should be noted that when the appearance of the
defendant is precisely to object to the jurisdiction of the court over his
person, it cannot be considered as an appearance in court.
RULE 15 MOTIONS
1. All motions must be in writing except:
a. Those made in open court; OR
b. Those made in the course of a hearing or trial.
2. Exceptions to the three-day notice rule:
a. Ex parte motion
b. Urgent motion
c. When court sets hearing on shorter notice for good cause
d. Motion for summary judgment (must be served at least 10 days
before the hearing)
 A prudent judge would, in the absence of the opposing party in the
hearing of a motion, inquire from the other party or inquire from the
records the proof of the service of notice rather than proceed with the
hearing. He should not rely on a party’s undertaking to notify the
adverse party of a scheduled hearing. The judge must demand what
the rule requires, i.e., proof of such notice on the adverse party.
Otherwise, a contentious motion should be considered a mere scrap
of paper which should not have even been received for filing.
 Subsequent service of the motion on the adverse party may be
considered substantial compliance with the Rule 15, § 6. Failure to
attach to the motion proof of service thereof to the adverse party is
not fatal when the adverse party had actually received a copy of the
motion and was in fact present in court when the motion was heard.
RULE 16 MOTION TO DISMISS
1. Motion to Dismiss must be filed within the time for and before the
filing of an answer to complaint.
2. Grounds for motion to dismiss:
a. Court has no jurisdiction over the person of the defendant- unlike old
rule, inclusion in motion to dismiss of other grounds aside from lack
of jurisdiction over the person does NOT constitute a waiver of the
said ground or voluntary appearance;
b. Court has no jurisdiction over the subject matter of the claim;
c. Venue is improperly laid;
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d. Plaintiff has no legal capacity to sue; c. Prescription
e. There is another action pending between the same parties for the d. Unenforceability under the Statute of Frauds
same cause; 6. The dismissal of the complaint shall be without prejudice to the
 Requisites of litis pendentia: prosecution in the same or separate action of a counterclaim pleaded in
i. Identity of parties/interest the answer.
ii. Identity of rights asserted and prayed for/relief founded on  A motion to dismiss on the ground of failure to state a cause of
the same facts; action in the complaint must hypothetically admit the truth of the facts
iii. Identity of the 2 cases (such that judgment in one would alleged in the complaint. The admission, however, is limited only to all
amount to res judicata in the other) material and relevant facts which are well pleaded in the complaint. The
f. Cause of action is barred by a prior judgment or by statute of demurrer does not admit the truth of mere epithets charging fraud; nor
limitations; allegations of legal conclusions; nor an erroneous statement of law; nor
 Requisites of res judicata: matters of evidence; nor to legally impossible facts.
i. Final judgment or order
ii. Rendered by court of competent jurisdiction RULE 17 DISMISSAL OF ACTIONS
iii. On the merits (even without trial, such as cases decided by 1. Dismissal by the plaintiff
Judgment on the Pleadings, Summary Judgment, or a. Notice of dismissal any time before service of the answer or a motion
dismissed for failure to prosecute or for refusal to obey an for summary judgment;
order of the court)  Dismissal is without prejudice EXCEPT on 2nd notice of
iv. Identity of the parties dismissal, which operates as adjudication on the merits when
g. Pleading asserting claim states no cause of action; filed by same plaintiff who has once dismissed an action based
h. Claim or demand in the plaintiff’s pleading has been paid, waived, on or including said claim.
abandoned, extinguished; b. If answer or motion for summary judgment already served, dismissal
i. Claim on which action is founded is unenforceable under the statute by a Motion for Dismissal, which shall require approval of the court;
of frauds; shall be without prejudice unless otherwise specified by the court
j. Condition precedent for filing has not been complied with (this  If counterclaim has been pleaded by a defendant prior to the
includes prior recourse to barangay conciliation, or failure to make service upon him of plaintiff’s motion to dismiss, dismissal is
attempts to reach a compromise in cases between members of the limited to the complaint; dismissal is without prejudice to
same family) defendant’s right to prosecute counterclaim in a separate action
 The court shall not defer the resolution of the motion for the reason or, if he makes a manifestation within 15 days from notice of the
that the ground relied upon is not indubitable. motion, to prosecute CC in same action.
3. Actions that court may take on a Motion to Dismiss: 2. Dismissal due to plaintiff’s fault - the following must be
a. Grant it – remedy: appeal without justifiable cause
b. Deny – NOT appealable; but may avail of certiorari, a. If plaintiff fails to appear on the date of presentation of his evidence
prohibition and mandamus in chief;
c. Order amendment of the pleading b. Plaintiff fails to prosecute claim for an unreasonable length of time
4. If denied, defendant must file answer within the balance of the 15-day c. Plaintiff fails to comply with the Rules of Court or any order of the
period, but not less than 5 days from the time he received notice of the court
denial;  Complaint may be dismissed upon defendant’s motion or motu
5. Subject to the right to appeal, dismissal based on the following grounds proprio.
will be bar to refiling:  Unless otherwise declared by the court, dismissal has effect of
a. Res judicata adjudication upon the merits.
b. Extinguishment of claim or demand
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ATENEO CENTRAL BAR OPERATIONS 2002
RULE ON SEVERANCE OF COMPULSORY CC: Dismissal of principal
action upon plaintiff’s motion or due to plaintiff’s fault does not
necessarily carry with it the dismissal of the compulsory CC; defendant is
also given option to prosecute the same in same or separate action.
3. Dismissal of counterclaim, cross-claim, or 3rd-party complaint – must
be made by claimant before a responsive pleading or a motion for
summary judgment is served, or if there is none, before the introduction
of evidence.
RULE 18 PRE-TRIAL
1. What to consider in pre-trial (with notice to counsel or party without
counsel)
a. Possibility of amicable settlement or arbitration
b. Simplification of the issues
c. Amendments to the pleadings
d. Stipulations or admissions of facts and documents
e. Limitation of number of witnesses
f. Preliminary reference of issues to a commissioner
g. Propriety of judgment on the pleadings, summary judgments, or
dismissal of action
h. Other matters for the prompt disposition of the action
2. It is the duty of the plaintiff to move ex parte for the setting of the
case for pre-trial. However, if plaintiff answers the defendant’s
counterclaim, it will be the latter’s duty to set the pre-trial.
3. Failure of plaintiff to appear shall be cause for dismissal of the
action. Non-appearance of defendant is cause to allow plaintiff to
present evidence ex parte and the court to render judgment on basis
thereof.
4. Non-appearance of party excused only if:
a. A valid cause is shown therefor OR
b. If representative shall appear in his behalf fully authorized in writing
to enter into an amicable settlement, to submit to alternative modes
of dispute resolution, and to enter into stipulations or admissions of
facts and of documents,
5. Must file pre-trial brief so as to ensure that other party receives it at
least 3 days before pre-trial. Failure to file brief has same effects as
failure to appear at pre-trial.
6. Proceedings recorded, and court shall issue an order reciting in
detail matters taken up.
RULE 19 INTERVENTION
1. Grounds for intervention
a. Legal interest in the matter in litigation
b. Interest in the success of either or both parties or interest against
both
c. Party is so situated as to be adversely affected by the distribution of
the court
d. Disposition of property in the custody of the court or of an officer
thereof.
2. Motion may be filed at any time before rendition of judgment.
3. Answer to complaint-in-intervention must be filed within 15 days from
notice of court admitting the complaint.
4. Motion for intervention will be granted if it will not unduly delay or
prejudice adjudication of rights of original parties and if the intervenor’s
rights may be fully protected in separate proceedings.
5. Complaint in intervention is merely collateral to the principal action.
Hence, it will be dismissed if main action is dismissed.
6. A complaint in intervention that seeks affirmative relief prevents a
plaintiff from taking a voluntary dismissal of the main action. Such a
case is not subject to dismissal upon intervenor’s petition showing him to
be entitled to affirmative relief. The petition will be preserved and heard
regardless of the disposition of the main action.
RULE 20 CALENDAR OF CASES
1. Calendar of cases to be kept by clerk of court for cases set for pre-trial,
trial, those whose trials adjourned or postponed and those with motions
set for hearings.
2. Preference given to habeas corpus, election cases, special civil
actions and those so required by law.
RULE 21 SUBPOENA
1. Subpoena issued by:
a. The court before whom witness is required to attend;
b. The court of the place where the deposition is to be taken;
c. The officer or body authorized by law to do so in connection with its
investigations;
d. Any Justice of the SC or CA in any case or investigation pending
within the Phils
2. No prisoner sentenced to death, reclusion perpetua, or life imprisonment
and who is confined in any penal institution shall be brought outside said
institution for appearance or attendance in any court unless authorized
by the SC.
3. Grounds for quashing subpoena duces tecum
a. It is unreasonable or oppressive
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b. The articles sought to be produced do not appear to be relevant 2. Scope of examination – deponent may be examined regarding any
c. Person asking for subpoena does not advance cost of production matter not privileged relevant to the subject of the action
4. Ground for quashing subpoena ad testificandum 3. Examination and cross-examination proceeds as in trials
a. The witness is not bound thereby – if witness resides more than 100 4. Depositions and Affidavits distinguished
km from the place where he is to travel by the ordinary course of 5. Use of depositions
travel, or if he is a detention prisoner and no permission is obtained  Any part or all of a deposition which is admissible in evidence may
from the court in which his case is pending be used against any party who was present or represented during
 This is known as the “viatory right” of the witness; NOTE, the taking of the deposition or who had notice thereof as follows:
however, that the right is available only in CIVIL cases  Deponent is made the witness of the party offering the deposition.
b. Witness fees and kilometrage allowed by rules not tendered when
subpoena served. DEPOSITION OF MAY BE USED BY PURPOSE
5. Service of subpoena made in the same manner as personal or A witness Any party To contradict or impeach the
substituted service of summons. deponent’s testimony as a
6. Person present in court before a judicial officer may be required to witness
testify as if he were in attendance upon a subpoena. Any party, or anyone An adverse party For any purpose
7. Failure by any person without adequate cause to obey a subpoena who at the time of
served upon him shall be deemed a contempt of the court from which taking the deposition
subpoena issued. was an officer,
director, or
RULE 22 COMPUTATION OF TIME managing agent of a
1. Computing for any period of time: day of the act or event from which public or private
designated period of time begins to run is to be excluded and the date of corporation
performance included. Of any witness, Any party For any purpose, IF court finds
2. If last day of period falls on Saturday, Sunday or legal holiday in whether a party or that:
place where court sits, the time shall not run until the next working day. not a. Witness is
3. If there is effective interruption of period, it shall start to run on the dead;
day after notice of the cessation of the cause of the interruption. The day b. Witness resides
of the act that caused the interruption is excluded in the computation of at a distance more than
the period. 100 km from place of trial,
UNLESS absence
RULE 23 DEPOSITIONS PENDING ACTION procured by party offering
DEPOSITIONS DE BENE ESSE – taken for purposes of pending action the deposition
1. Depositions pending action c. Witness is
a. Taken by leave of court after court obtains jurisdiction over any unable to testify because
defendant or property subject of the action of age, sickness, infirmity,
b. Taken without leave after an answer has been served or imprisonment;
c. Upon the instance of any party d. Party offering
d. May be deposition upon oral examination or written interrogatories the deposition has been
unable to procure the
DEPOSITIONS AFFIDAVITS attendance of the witness
Written testimony of witness in course of Mere sworn written statements by subpoena; OR
judicial proceedings, in advance of trial e. Other
and hearing exceptional
Opportunity for cross-examination No cross-examination circumstances make it 11
Can be competent testimonial evidence Little probative value (hearsay) desirable to allow
deposition to be used.
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 If only part of the deposition is introduced, adverse party may require
that all of it which is relevant to the part introduced be introduced.
6. Persons before whom depositions may be taken
a. Within the Philippines
i. Judge
ii. Notary public
iii. Any person authorized to administer oaths if the parties so
stipulate in writing
b. In foreign countries
i. On notice, before a secretary of any embassy or legation,
consul-general, consul, vice-consul, consular agent of the
Phils
ii. Before such person or officer as may be appointed by
commission or under letters-rogatories
iii. Any person authorized to administer oaths if the parties so
stipulate.
Commission – addressed to any authority in a foreign country authorized
therein to take down depositions; the taking of such depositions is
subject to the rules laid down by the court issuing the commission
Letters Rogatory – addressed to judicial authority in the foreign country;
the taking of the depositions is subject to the rules laid down by such
foreign judicial authority.
7. Persons disqualified to take depositions
a. Relative within 6 degree of consanguinity or affinity of any party
th
b. Employee of any party
c. Counsel of any party
d. Relative within the same degree of party’s counsel
e. Employee of party’s counsel
f. Anyone financially interested in the action
8. Depositions upon written interrogatories
 Party desiring to take such deposition 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 and descriptive title of the
officer before whom the deposition is to be taken;
 Party so served may serve cross-interrogatories upon the proponent
within 10 days thereafter
 Re-direct interrogatories served within 5 days
 Re-cross interrogatories served within 3 days
9. Effects of errors and irregularities in the depositions
a. As to notice – waived unless written objection is promptly served
upon the party giving the notice
b. As to disqualification of officer – 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 - NOT waived by failure
to make them before or during the taking of the deposition, unless
ground is one which might have been obviated or removed if
presented at that time
d. As to oral exam and other particulars - Errors occurring at the oral
exam in the manner of taking the deposition, in the form of questions
and answers, in oath or affirmation, or in conduct of parties, and
errors of any kind which might be obviated, removed, cured if
promptly prosecuted are waived unless reasonable objection is
made at the taking of the deposition.
e. As to form of written interrogatories - waived unless served in writing
upon party propounding them within the time allowed for serving
succeeding cross or other interrogatories and within 3 days after the
service of the last interrogatories authorized.
f. As to manner of preparation - errors as to 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 are waived unless a motion to suppress the deposition
or some part of it is made with reasonable promptness after such
defect is, or with due diligence might have been, ascertained.
 A deposition, in keeping with its nature as a mode of discovery,
should be taken before and not during trial. IN fact, the rules on
criminal practice – particularly on the defense of alibi – states that
when a person intends to rely on such a defense, that person must
move for the taking of the deposition of his witness within the time
provided for filing a pre-trial motion.
RULE 24 DEPOSITIONS PENDING ACTION
DEPOSITIONS IN PERPETUAM REI MEMORIAM – taken to perpetuate
evidence for purposes of an anticipated action or further proceedings in a
case or appeal.
1. Depositions before action
A person desiring to perpetuate his own testimony or that of
another person regarding any matter that may be cognizable in any court
of the Phils may file a verified petition in the court of the place of the
residence of any expected adverse party, which petition shall be entitled
in the name of the petitioner and shall show:
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a. That petitioner expects to be a party to an action in a court of the
Phils but is presently unable to bring it or cause it to be brought;
b. The subject matter of the expected action and his interest therein;
c. The facts which he desires to establish by the proposed testimony
and his reasons for desiring to perpetuate it;
d. The names or description of the persons he expects will be the
adverse parties and their addresses so far as known;
e. The name and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each.
2. Use of deposition
If deposition to perpetuate testimony is taken under this rule or if
not so taken is still admissible in evidence may be used in any action
involving the same subject matter subsequent brought in accordance
with the provisions of Rule 23.
RULE 25 INTERROGATORIES TO PARTIES
1. Interrogatories and the answers thereto should be filed
in court and served on adverse parties, so that the answers may
constitute judicial admissions.
2. Effect of failure to serve written interrogatories – a party
not served with such may NOT be compelled by the adverse party to
give testimony in open court or deposition pending appeal.
RULE 26 ADMISSION BY ADVERSE PARTY
1. Request for admission
A written request for the admission of the other party of the
genuineness of any material or document or request for the truth of any
material and relevant matter of fact set forth in the request may be filed
and served upon the other party at any time after issues have been
joined.
2. Implied admission
Each of the matter requested to be admitted shall be deemed
admitted within a period designated in the request, which shall not be
less than 15 days after service thereof or within such further time as the
court may allow on motion, UNLESS, party requested serves upon the
party requesting a sworn statement either specifically denying or setting
forth in detail the reasons why he cannot truthfully either admit or deny
those matters.
3. Effect of admission
Admission is only for the purpose of the pending action and shall
NOT constitute an admission for any other person nor may it be used
against him in any other proceeding.
4. A party who fails to file and serve a request for admission on the
adverse party of material facts within the personal knowledge of the latter
shall not be permitted to present evidence thereon,
RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS
1. Any party may move for the court in which the action is
pending to order any party to:
a. Produce and permit the inspection and copying or photographing of
any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which:
i. Constitute or contain evidence material to any matter involved in
the action AND
ii. Are in his possession, custody or control.
b. Permit entry upon designated land or other property in his
possession or control for the purpose of inspecting, measuring,
surveying, or photographing the property or any designated relevant
object or operation thereon.
2. The order:
a. Shall specify the time, place and manner of making the inspection
and taking copies AND
b. May prescribe such terms and conditions which are just.
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS
1. If the mental or physical condition of a party is
in controversy, the court may order him to submit to a physical or mental
examination by a physician.
2. The party examined waives any privilege he
may have in that action regarding the testimony of the person who has
examined or may examine him with respect to that same mental or
physical examination by:
a. Requesting and obtaining a report of the examination so
ordered OR
b. Taking the deposition of the examiner.
RULE 29 REFUSAL TO COMPLY WITH THE MODES OF DISCOVERY
1. If a party/deponent refused to answer:
a. The examination may be completed on other matters
b. The examination may be adjourned
c. The proponent may apply to the court for order to compel
answer
 The court may then order:
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i. The refusing party or his counsel to pay the expenses RULE 30 TRIAL
incurred in obtaining the order, including the attorney’s fees 1. Order of trial
(if it finds the refusal to answer without substantial Trial shall be limited to the issues stated in the pre-trial order and
justification) shall proceed as follows:
ii. The proponent or his counsel to pay the expenses incurred a. The plaintiff shall adduce evidence in support of his complaint;
in opposing the application, including attorney’s fees (if it b. The defendant shall adduce evidence in support of his defense,
finds the application to be without substantial justification) counterclaim, cross-claim, and third-party complaint;
2. If a party/witness refuses to be sworn or to answer after being directed to c. The 3rd-party defendant, if any, shall adduce evidence of his defense,
do so by the court, the refusal may be considered a contempt of that counterclaim, cross-claim, and 4th party complaint;
court. d. The 4th party and so forth, if any, shall adduce evidence of the
3. If a party/officer or managing agent of a party material facts pleaded by them;
refuses to obey an order requiring him: e. The parties against whom any counterclaim or cross-claim has been
a. To answer designated questions pleaded, shall adduce evidence in support of their defense, in the
b. To produce a thing for inspection or to permit entry upon property order to be prescribed by the court;
c. To submit to a physical or mental examination f. The parties may then respectively adduce rebutting evidence only,
 the court may order: unless the court, for good reasons and in the furtherance of justice,
i. That the matters regarding which the permits them to adduce evidence upon their original case; and
questions were asked, or the character of the land or the thing, g. Upon admission of the evidence, the case shall be deemed
or the physical and mental condition of the party be taken to be submitted for decision, unless the court directs the parties to argue
established. or to submit their respective memoranda or any further pleadings.
ii. The disallowance of the disobedient 2. Judge should personally receive evidence EXCEPT that in default or
party’s claims ex parte hearings and in any case where the parties so agree in writing,
iii. The prohibition of the disobedient the court may delegate the reception of evidence to its clerk of court who
party to present evidence is a member of the bar. The clerk shall have no power to rule on
iv. The striking out of the pleadings or objections to any question or to the admission of exhibits, which
parts thereof objections shall be resolved by the court upon submission of his report
v. The dismissal of the action or parts and the transcripts within 10 days from the termination of the hearing.
thereof
vi. Rendering judgment by default RULE 31 CONSOLIDATION OR SEVERANCE
against the disobedient party OR 1. CONSOLIDATION – the court may order a joint hearing or trial of
vii. The arrest of any party or agent any or all matters in issue when actions involving a common question of
EXCEPT in disobeying an order to submit to a physical or mental law or fact are pending before the court.
examination. 2. BUT the court may order a separate trial of any claim, cross-claim,
4. If a party refuses to attend or serve answers, the court may: counterclaim, or third-party complaint, in furtherance of convenience or in
a. Strike out all or any part of any pleading of that party. the interest of justice.
b. Dismiss the action or any part thereof.
c. Enter a judgment by default against that party, OR/AND RULE 32 TRIAL BY COMMISSIONER
d. Order that party to pay reasonable expenses incurred, Trial by commissioner:
including attorney’s fees. 1. Reference by consent of both parties
5. The Republic of the Philippines cannot be required to pay expenses and 2. Reference by motion of one of the parties or motu proprio:
attorney’s fees under this Rule. a. Trial requires examination of a long account of either side

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b. Taking of an account is necessary for the information of the court 1. Proper if no genuine issue as to any material fact (except as to
before judgment or for carrying a judgment order into effect damages recoverable) and if moving party is entitled to a judgment as a
c. Question of fact, other than upon the pleadings, arises upon motion matter of law
or otherwise, in any stage of the case. 2. Based not only on pleadings but also on affidavits, deposition, and
admissions of the parties showing that, except as to the amount of
damages, there is no genuine issue.
Judgment on the pleadings Summary judgment 3. Motion shall be served at least 10 days before the time
Proper when there is no genuine Proper even if there is an issue as to specified for the hearing.
issue between the parties the damages recoverable 4. May be asked for by a party seeking to recover upon a claim,
Based exclusively on the Based not only on pleadings but also counterclaim, cross-claim or to obtain a declaratory relief.
pleadings without introduction of on affidavits, depositions and 5. Although Rule does not specifically provide, also unavailable in actions
evidence admissions of the parties for annulment of and declaration of nullity of marriage, and for legal
Available in any action, except the Proper only in actions to recover a separation since Sec. 1 refers to actions “to recover upon a claim”, or to
3 exceptions debt, or for a liquidated sum of recover a debt or a liquidated demand for money, or “to obtain
money, or for declaratory relief declaratory relief.”
RULE 33 DEMURRER TO EVIDENCE 6. Judgment on the pleadings and summary judgment distinguished:
Demurrer to evidence is made by the defendant after the plaintiff has  Motions for summary judgment may be filed by the claimant or by the
completed the presentation of his evidence where the defendant moves for defending party. The defending party may file such motion, pursuant to Rule
dismissal on the ground that upon the facts and the law the plaintiff has 35, §2“at any time”, as distinguished from §1 where the claimant may file the
shown no right to relief. motion at any time after the answer is filed.
1. If motion denied – defendant has the right to present
evidence RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
2. If motion granted, but reversed on appeal – defendant deemed to 1. The date of the finality of the judgment or final order shall be deemed
have waived the right to to be the date of its entry. The judgment or final order shall be entered
present evidence. by the clerk in the book of entries of judgments if no appeal or motion for
new trial or consideration is filed within 15 days
RULE 34 JUDGMENT ON THE PLEADINGS 2. Several Judgments
1. Judgment on the Pleadings is proper: In action against several defendants, the court may render
a. If answer fails to tender an issue; or judgment against one or more of them, leaving the action to proceed
b. If answer otherwise admits the material allegations of the adverse against the others.
party’s pleading 3. Separate judgments
 Then court may, on motion of that party, direct judgment on the Judgment rendered to dispose of one of the several claims for
pleadings relief presented in an action, made at any stage, upon a determination of
2. However, the material facts alleged in the complaint shall always be the issues material to a particular claim and all counterclaims arising out
proved in actions for: of the transaction or occurrence which is the subject matter of the claim,
a. Declaration of nullity of marriage which terminates such claim. Action shall proceed as to other claims
b. Annulment of marriage
c. Legal separation RULE 37 NEW TRIAL OR RECONSIDERATION
1. Motion for new trial or reconsideration filed within 15 days from
RULE 35 SUMMARY JUDGMENTS notice of judgment and resolved by the court within 30 days from
Summary judgment: submission for resolution.
2. Grounds: Motion for New Trial
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a. Fraud, accident, mistake, or excusable negligence;
b. Newly discovered evidence
 Requisites:
i. Discovered after trial
ii. Could not have been discovered and produced at trial
despite the exercise of reasonable diligence
iii. If presented, could probably alter the result of the action
3. Grounds: Motion for Reconsideration
a. Damages awarded are excessive
b. Evidence is insufficient to justify the decision or final order
c. Decision is contrary to law
4. Motion for new trial shall be in writing, and supported by affidavits of
merit if the ground is FAME; for newly-discovered evidence, it must be
supported by affidavits of witnesses by whom such evidence is expected
to be given, or by duly authenticated documents to be introduced.
Motion for reconsideration shall specifically point out the findings
or conclusions of the judgment which are unsupported by evidence or
contrary to law, with express reference to the testimonial or documentary
evidence or the provisions of law alleged to be contrary to such findings.
5. Pro forma motion for new trial or reconsideration shall not toll the period
for appeal.
6. No second motion for reconsideration allowed. Second motion for new
trial must be based on a ground not existing or available when the first
motion was made, which may be filed during the remainder of the 15-day
period.
RULE 38 RELIEF FROM JUDGMENTS, ORDERS, OR OTHER PROCEEDINGS
1. Petition for relief from judgment filed within 60 days after learning of
judgment and not more than 6 months after such judgment
 Must be supported by affidavit showing the FAME and the facts
constituting the petitioner’s good or substantial cause of action or
defense
2. Party who has filed a timely motion for new trial cannot file a petition
for relief after the former is denied. The two remedies are exclusive of
one another.
3. Grounds:
a. Judgment or final order entered against a party by FAME; or
b. Judgment or final order is rendered and party has been prevented by
FAME from taking an appeal
 For fraud to be extrinsic, the losing party must never have had a
chance to controvert the adverse party’s evidence.
 Uniform procedure for relief from judgments of MTC and RTC
4. After petition is filed, court shall order adverse parties to answer
within 15 days from receipt. After answer is filed or expiration of period
therefor, court shall hear the petition.
5. If granted, judgment set aside and court shall proceed as if timely
motion for new trial has been granted; if granted against denial of appeal,
court shall give due course to appeal.
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
1. Execution as a matter of right
On motion with notice, 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.
 For so long as there is a certificate of entry of judgment, execution
may already be issued by the court of origin or directed to do so by
the CA.
2. Discretionary execution – pending period to appeal or during appeal;
may issue only upon good reasons to be stated in a special order after
hearing.
a. By trial court – even after the perfection of the appeal for so long as
the motion for execution was filed while the TC has jurisdiction over
the case and is in possession of the records, upon motion of the
prevailing party with notice to the adverse party
b. Appellate court – after the TC has lost jurisdiction
 Example:
P receives judgment: June 3
D receives judgment: June 1
D files notice of appeal: June 5
When does trial court lose jurisdiction? June 18
BUT, if P also files a notice of appeal on June 10, trial court loses
jurisdiction on that date.
 Execution with respect to appealed cases- there is no need to await
remand of the records.
 Execution with respect to consequential and exemplary damages
should be postponed until such time as the merits of the case have
been finally determined in the regular appeal, as the amounts remain
uncertain and indefinite pending resolution.
3. a. Motion for execution of final and executory judgment should be
served on adverse party and set for hearing;
b. In case of appeal, motion is filed with court of origin supported by
certified true copies of final judgment of appellate court.
c. Appellate court may on motion order court of origin to issue writ of
execution (SC Circular No. 24-94, 4/18/94)
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4. Judgments NOT stayed by appeal (immediately executory, unless court
provides otherwise)
a. Actions for injunction
b. Receivership
c. Accounting
d. Support
e. Judgments declared immediately executory
5. A final and executory judgment may be executed on motion within 5
years from entry. May be revived and enforced by action after lapse of 5
years but before 10 years from entry. Revived judgment may be
enforced by motion within 5 years from entry and thereafter by action
before barred by statute of limitations – file motion within 10 years from
the finality of the revived judgment.
6. Execution in case of party’s death:
a. Death of judgment obligee - application of his executor or
administrator or successor-in-interest
b. Death of judgment obligor -
i. Against his executor, etc. if the judgment be for recovery
of real or personal property or the enforcement of a lien thereon.
ii. If death after execution is actually levied upon his
property, it may be sold for satisfaction of the obligation.
 If the judgment obligor dies after the entry but before levy, execution
will issue if it be for the recovery of real or personal property.
However, if judgment is for a sum of money, and the judgment
obligor dies before levy, such judgment cannot be enforced by writ of
execution but must be filed as a claim against his estate.
7. Writ of execution:
a. Shall issue in the name of the Republic of the Phils from court which
granted the motion
b. State the name of the court, case number and title, dispositive
portion of the judgment order
c. Require the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms
8. Manner of executing writ:
a. If judgment against property of the judgment obligor – out of real or
personal property with interest
b. If against his real or personal property in the hands of the personal
representatives, heirs, devisees, legatees, tenants, or trustees of the
judgment obligor – out of that property, with interest
c. If for sale of real or personal property – to sell property, describing it
and apply the proceeds in conformity with judgment.
d. If for delivery of possession of property – deliver possession of the
same to the party entitled to it, describing it, and to satisfy any costs,
damages, rents, or profits covered by the judgment out of the
personal property of the person against whom it was rendered, and
out of real property if sufficient personal property cannot be found.
e. In all cases, writ of execution shall specifically state the amount of
the interest, costs, damages, rents, or profits due as of date of
issuance of writ, aside from principal obligation.
 Judgment obligor is given option to choose which property may be
levied on sufficient to satisfy the judgment.
9. Property exempt from execution
a. Family home as provided by law, homestead in which he resides,
and land necessarily used in connection therewith;
b. Tools and implements used in trade, employment, or livelihood;
c. 3 horses, cows, or carabaos or other beasts of burden used in his
ordinary occupation;
d. Necessary clothing and articles for ordinary personal use, excluding
jewelry;
e. Household furniture and utensils necessary for housekeeping not
exceeding P3,000;
f. Professional libraries and equipment of judges, lawyers, physicians,
etc. not exceeding P300,000;
g. One fishing boat and accessories not more than P100,000 owned by
a fisherman and by which he earns his living;
h. Salaries, wages, or earnings for personal services within the 4
months preceding the levy which are necessary for the support of the
family;
i. Lettered gravestones;
j. Money, benefits, annuities accruing or in any manner growing out of
any life insurance;
k. Right to receive legal support or any pension or gratuity from the
government;
l. Properties especially exempted by law.
 Exemption does not apply if execution is upon a judgment for its
purchase price or for foreclosure of mortgage.
 Right of Exemption is a personal right granted to the judgment
creditor. The sheriff may thus not claim it.
10. Third party claims:
a. Purpose of bond filed by judgment obligee or plaintiff is to indemnify
third-party claimant, not the sheriff or officer;
b. Amount of bond not less than value of property levied on;
c. Sheriff not liable for damages if bond is filed;
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d. Judgment obligee or plaintiff may claim damages against third-party b. If against a person, judgment is presumptive evidence of a right as
claimant in the same or a separate action. between the parties and their successors in interest;
e. 3rd Party claimant may vindicate his claim to property levied in a 15. When foreign judgment may be repelled
separate action because intervention is no longer allowed since a. Evidence of want of jurisdiction
judgment already executory; in preliminary attachment and replevin, b. Want of notice to party
3rd party claimant may vindicate his claim to the property by c. Collusion
intervention since the action is still pending. d. Fraud
11. Who may redeem real property sold: e. Clear mistake of law.
a. Judgment obligor or his successor in interest in the whole or any part 16. Requisites for res judicata
of the property; a. Final former judgment
b. Creditor having lien by virtue of an attachment, judgment, or b. Judgment is on the merits
mortgage on the property sold subsequent to the lien under which c. Rendered by a court of competent jurisdiction
the property was sold. (Redeeming creditor is termed a d. Between first and second actions, identity of subject matter, parties
redemptioner). and cause of action.
12. Judgment obligor has one year from the date of the registration of the 17. When quashal of writ of execution proper
certificate of sale to redeem property sold by paying the purchaser the a. Improperly issued
amount of his purchase, with 1% per month interest plus any b. Defective in substance
assessments or taxes which he may have paid thereon after purchase c. Issued against the wrong party
with interest on said amount at 1% per month. d. Judgment was already satisfied
Redemptioners have one year to redeem from the date of e. Issued without authority
registration of the certificate of sale. They may also redeem beyond one- f. Change of the situation of the parties renders execution inequitable
year period within 60 days after the last redemption, with 2 % interest on g. Controversy was never validly submitted to the court
the sum to be paid on the last redemption. The judgment obligor’s right h. Writ varies the terms of the judgment
to redeem within 60 days from last redemption is limited to the one-year i. Writ sought to be enforced against property exempt from execution
period, beyond which he can no longer redeem. j. Ambiguity in the terms of the judgment
 Purchaser or redemptioner not entitled to receive rents and income 18. SPECIAL JUDGMENT - requires the performance of any other act than
of property sold inasmuch as these belong to the judgment obligor the payment of money or the sale or delivery of real or personal property.
until the expiration of the period of redemption. 19. Remedies against executory judgments or orders:
13. Effect of judgment or final orders a. Petition for relief
a. In case of judgment against a specified thing, probate of will, or b. Direct attack
administration of estate or legal condition or status, it is conclusive c. Collateral attack - judgment is null on its face or court had no
on the title or condition, status, relationship, will or administration. jurisdiction
b. In other cases/matters directly adjudged, or matters relating thereto 20. When court may order execution even before an executory judgment and
that could have been raised subsequent to commencement of action, pending an appeal
judgment is conclusive between parties and their successors in a. Lapse of time would make the ultimate judgment
interest. ineffective;
c. In any other litigation, that only is deemed to have been adjudged in b. Appeal is clearly dilatory;
a former judgment or which was actually and necessarily included c. Judgment is for support and the beneficiary is in
therein. need thereof;
14. Effect of foreign judgment d. Articles subject of the case are perishable;
a. Judgment upon a specific thing, conclusive upon title to the thing;

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e. Defendants are exhausting their income and have
no other property aside from the proceeds from the subdivision of RULE 40 APPEAL FROM MTC TO RTC
lots subject of the action; 1. Appeal from judgment or final order of MTC taken to RTC
f. Movants were in extreme need of the premises exercising jurisdiction over the area to which MTC pertains. File notice of
subject of the suit and the bond to answer for damages in case of appeal with the MTC which rendered decision appealed from within 15
reversal on appeal (supersedeas bond) was posted by them; days after notice of such judgment.
g. Judgment debtor is in imminent danger of 2. Record on appeal is filed within 30 days and required only for
insolvency; special proceedings
h. Prevailing party is of advanced age and in a 3. Appellate docket fees paid to clerk of court of MTC - payment
precarious state of health and the right in the judgment is non- not a condition precedent for perfection of appeal but must nonetheless
transmissible being for support; be paid within the period for taking appeal;
i. Prevailing party posts sufficient bond to answer for 4. Procedure for appeal from cases dismissed without trial for
damages in case of reversal of judgment lack of jurisdiction:
 But in most cases, the mere filing of a bond is not sufficient a. If affirmed because the MTC has no jurisdiction, RTC will try case on
justification for discretionary execution. the merits as if it has original jurisdiction;
21. Order granting writ of execution ONLY appealable when: b. If reversed, the case shall be remanded to the MTC;
a. Order varies the terms of the judgment c. If the first level court tried the case on the merits without jurisdiction,
b. When vague and court renders what is believed to be wrong the RTC should not dismiss the case but shall decide it in the
interpretation. exercise of original jurisdiction.
22. Garnishment – act of appropriation by the sheriff if the property involved
is money, stocks, or other incorporeal property in the hands of third RULE 41 APPEAL FROM THE RTC
persons; merely sets apart such funds but does not constitute the 1. Appeal may be taken from a judgment or final order that
creditor the owner of the garnished property. completely disposes of the case or of a particular matter therein.
23. Persons disqualified from participating in the execution sale: 2. No appeal may be taken from:
a. Officer conducting the execution sale or his deputy; a. Order denying a motion for new trial or recon;
b. Guardian with respect to the property under his guardianship; b. Order denying a petition for relief or any similar motion seeking relief
c. Agents, the property entrusted to them, unless with principal’s from judgment;
consent; c. Interlocutory order;
d. Executors and administrators, the property of the estate under d. Order disallowing or dismissing an appeal;
administration; e. Order denying a motion to set aside a judgment by consent,
e. Public officers and employees, the property of the State or any confession, compromise on the ground of fraud, mistake, or duress,
subdivision thereof, or any GOCC, the administration of which has or any other ground vitiating consent;
been entrusted to them; f. Order of execution;
f. Justices, judges, prosecuting attorneys, clerks of courts, and other  Not appealable because execution is only the result of the
officers and employees connected with the administration of justice, judgment. If order of execution is not in accord with the
the property and rights in litigation or levied upon an execution dispositive portion, remedy is certiorari under Rule 65.
before the court within whose jurisdiction or territory they exercise g. Judgment or final order for or against one or more of several parties
their respective functions; or in separate claims, while the main case is pending, unless the
g. Lawyers, the property and rights which may be the subject of court allows an appeal therefrom;
litigation in which they take part by virtue of their profession; h. Order dismissing an action without prejudice;
h. Others specifically disqualified by law. (e.g. seller of goods who  In all these cases, aggrieved party may file an appropriate civil action
exercise right of resale of goods). under Rule 65.
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3. Ordinary appeal from RTC (in the exercise of original
jurisdiction) to CA is by filing notice of appeal with the RTC within 15
days from notice of its judgment. Record on appeal required only for
special proceedings and where multiple appeals allowed filed within 30
days.
4. Motion for extension of time to file a motion for new trial or
reconsideration is prohibited.
5. Contents of Notice on appeal:
a. Names of the parties to the appeal;
b. Specify judgment or final order or part thereof appealed from;
c. Court to which the appeal is being taken;
d. Material dates showing timeliness of appeal;
6. Contents of Record on appeal:
a. Full names of all parties to the proceedings shall be stated in the
caption;
b. Include judgment or final order from which appeal is taken;
c. In chronological order, copies of only such pleadings, petitions, etc.
and all interlocutory orders as are related to the appealed judgment;
d. Data showing that appeal perfected in time - material data rule;
e. If an issue of fact is to be raised, include by reference all the
evidence, oral or documentary, taken upon the issues involved.
7. Appeal from decision of RTC in appellate jurisdiction is by petition for
review filed with CA.
8. Where only questions of law are raised, by petition for review on
certiorari with SC.
9. Notice of Appeal and Record of Appeal distinguished:
Notice of Appeal Record of Appeal
Party’s appeal by notice of appeal Deemed perfected as to appellant
deemed perfected as to him upon the with respect to the subject matter
filing of the notice of appeal in due upon the approval of the record on
time appeal filed in due time
Court loses jurisdiction over case Court loses jurisdiction only over
upon perfection of the appeals filed in subject matter upon approval of
due time and expiration of time to records on appeal filed in due time
appeal of other parties and expiration of the time to appeal of
other parties.
10. Failure to pay appellate docket fees within the reglementary period is
ground for dismissal of appeal.
11. General Rule: An ordinary appeal stays the execution of a judgment
Exceptions: a. Decisions of quasi-judicial body appealed to the CA
b. Executions pending appeal
c. Cases covered by Summary Procedure
RULE 42 PETITION FOR REVIEW FROM THE RTC TO THE CA
1. Form and contents of petition for review (from RTC to CA)
In 7 legible copies:
a. Full names of parties to case, without impleading the lower courts or
judges thereof;
b. Indicate specific material dates showing it was filed on time;
c. Concise statement of matters involved, issues raised, specification of
errors of fact or law, or both allegedly committed by the RTC, and the
reasons or arguments relied upon for the allowance of the appeal;
d. Accompanied by clearly legible duplicate originals or true copies of
the judgments or final order of both MTC and RTC;
e. Certification under oath of non-forum shopping.
2. Contents of comment
In 7 legible copies, accompanied by certified true copies of material
portions of record and other supporting papers:
a. State whether or not appellee accepts the statement of matters
involved in the petition;
b. Point out such insufficiencies or inaccuracies as he believes exists in
petitioner’s statement of matters;
c. State reasons why petition should not be given due course.
3. CA may:
a. Require respondent to file a comment; or
b. Dismiss the petition if it finds:
i. Patently without merit
ii. Prosecuted manifestly for delay
iii. Questions raised are to insubstantial to require
consideration
RULE 43 APPEALS FROM THE CTA AND QUASI-JUDICIAL AGENCIES TO THE CA
1. Appeals from judgments and final orders of the Court of Tax Appeals
and quasi-judicial agencies in exercise of quasi-judicial functions (unless
otherwise provided by law and the Labor Code [NLRC decisions]) shall
be by petition for review to the CA, to be taken within 15 days from notice
of award or judgment or from notice of the denial of the motion for
reconsideration. Only 1 Motion for reconsideration allowed
2. Quasi-judicial agencies covered:
a. Civil Service Commission;
b. Central Board of Assessment Appeals;
c. Securities and Exchange Commission;
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d. Office of the President; a. Period for filing: within 45 days from receipt of the notice of the clerk
e. Land Registration Authority; that all the evidence are attached to the record.
f. Social Security Commission;  Tan v. CA – The filing of motion for new trial does not suspend the
g. Civil Aeronautics Board; period for filing appellant’s brief.
h. Bureau of Patents, Trademarks and Technology Transfer; b. 7 copies
i. National Electrification Administration; c. With proof of service thereof to appellee
j. Energy Regulatory Board; d. Contents: (MUST BE IN THE FOLLOWING ORDER)
k. National Telecommunications Commission; i. A subject index
l. Department of Agrarian Reform under RA No. 6657; ii. Assignment of Errors
m. GSIS; iii. Statement of the Case
n. Employees Compensation Commission; iv. Statement ofr Facts
o. Agricultural Inventions Board; v. Statement of the Issues of Fact or Law
p. Insurance Commission; vi. Argument
q. Construction Industry Arbitration Commission; vii. Relief/Prayer
r. Voluntary arbitrators viii. If the case is not brought up by record on appeal, a copy of the
 St. Martin’s Funeral Home vs. NLRC - DECISIONS OF THE NLRC – judgment or final order appealed from should be attached as an
ORIGINAL ACTION FOR CERTIORARI UNDER RULE 65 FILED appendix.
WITH THE CA, NOT SC 4. Appellee’s Brief
 Fabian vs. Desierto – Appeals from decisions of the Office of the a. Period for filing: within 45 days from receipt of the apellant’s brief
Ombudsman in administrative disciplinary cases should be taken to b. 7 copies
the CA under Rule 43. c. With proof of service upon the appellant
∅ According to A.M. no. 99-2-02-SC (promulgated February 9, d. Contents: (MUST BE IN THE FOLLOWING ORDER)
1999), any appeal by way of petition for review from a decision, i. A subject index
final resolution or order of the Ombudsman, or special civil action ii. Statement of Facts – if appellee accepts the statement of facts in
relative to such decision, filed with the SC after March 15, 1999 the appellant’s brief
shall no longer be referred to the CA, but shall be dismissed. Counter-Statement of Facts – if appellee wants to point out such
inefficiences or inaccuracies as he believes exist in the
RULE 44 PROCEDURE IN THE COURT OF APPEALS IN ORDINARY APPEALED CASES appelant’s statement of facts
1. Any question of law or fact that (a) has been raised in the lower court and iii. Argument
(b) is within the issues framed by the parties may be raised on appeal. 5. Appellant’s Reply Brief
 General Rule: Issues not raised/ventilated in the lower court cannot be  optional, in order for appellant to answer points in the appellee’s brief not
raised for the first time on appeal. covered in his main brief
 Exceptions: a. the issue is closely related to or intimately interwoven  Period for filing: within 20 days from receipt of the appellee’s brief
with the error properly assigned 6. Memoranda
b. questions on jurisdiction a. Memoranda are filed, in lieu of briefs, in cases of:
c. questions concerning mere incidents of the action, i. certiorari
e.g., cancellation of notices of lis pendens or the grant ii. prohibition
of dissolution of provisional remedies. iii. mandamus
2. Ground for dismissal of the appeal: unauthorized alteration, omission, or iv. quo warranto and
addition in the approved record on appeal. v. habeas corpus
3. Appellant’s Brief b. Period for Filing: within 30 days from receipt of the notice issued by
the clerk that all the evidence is already attached to the record.
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c. Failure of appellant to file his memorandum within the period may be
a ground for dismissal of the appeal.
RULE 45 APPEAL BY CERTIORARI TO THE SUPREME COURT
1. Question of Law – exists when doubt or difference arises as to what
the law is, based on a certain state of facts
Question of Fact – exists when doubt or difference arises as to the
truth or the falsehood of alleged facts
2. Findings of fact of the CA may be reviewed by the SC on appeal by
Rule 45 Rule 65
No need for Motion for Recon Motion for Recon generally required
Relates to final judgments Applies to interlocutory orders rendered
in excess/lack of jurisdiction
An appeal Not an appeal in the strict sense
15 days from notice of judgment 60 days from notice of judgment
certiorari when:
a. The conclusion is a finding grounded entirely on speculations,
surmises, or conjectures;
b. The inference made is manifestly mistaken, absurd, or impossible;
c. There is grave abuse of discretion;
d. The judgment is based on misapprehension of facts;
e. Findings of fact of trial court and CA are conflicting;
f. The CA, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions made;
g. CA manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different
conclusion.
3. Certiorari as mode of appeal:
From judgment or final order of the CA, Sandiganbayan, RTC on
pure questions of law, or other courts whenever authorized by law, by
filing a petition for review on certiorari with the SC within 15 days from
notice of judgment.
4. Rule 45 and Rule 65 distinguished:
 Kho vs. Camacho: An RTC judge has no right to disapprove a notice
of appeal on the ground that the issues raised involve a pure
question of law, and that the mode of appeal is erroneous. That is
the prerogative of the CA, not the RTC judge. A notice of appeal
need not be approved by the judge, unlike a record on appeal.
RULE 46 ORIGINAL CASES IN THE COURT OF APPEALS
1. Applies to original actions for certiorari, prohibition, mandamus, and quo
warranto. (Except as otherwise provided, actions for annulment of
judgment shall be governed by Rule 47, for certiorari, prohibition and
mandamus by Rule 65, and for quo warranto by Rule 66)
2. Requirements:
a. Contents:
i. full names and actual addresses of all petitioners and
respondents
ii. concise statement of the matters involved
iii. factual background of the case
iv. grounds relied upon
v. relief prayed for
 In actions filed under Rule 65, the material dates must be
indicated showing when the final order was received, etc.
b. Filed in 7 copies
c. Accompanied by a clearly legible duplicate original or certified true
copy of the judgment, order, resolution or ruling, and other
documents relevant thereto.
d. Certification of Non-forum shopping
e. Payment of docket and other lawful fees and deposit P500 for costs
3. Failure to comply with requirements shall be sufficient ground for
dismissal of the petition.
4. Procedural Outline in Original Cases in the CA
a. Filing of Petition;
b. Outright Dismissal;
c. Order to acquire jurisdiction over the respondent (by service on
him of the order or resolution indicating its initial action on the
petition. Jurisdiction is also acquired by voluntary submission
thereto.);
d. Comment;
e. The court may require the filing of a reply and such other
responsive or other pleadings as it may deem necessary and proper;
f. Determination of Due Course;
g. Determination of factual issues – The court may conduct
hearings thereon or delegate the reception of evidence to any of its
members or to an appropriate court, agency or office;
h. Submission of memoranda.
RULE 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS
1. Grounds for annulment of judgment of RTC in civil cases:
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a. Extrinsic fraud – not available as a ground if availed of earlier in a
motion for new trial or petition for relief
b. Lack of jurisdiction.
2. Petition for annulment available only if ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies no
longer available through no fault of the Petitioner.
3. Periods:
a. For extrinsic fraud – four years from discovery;
b. Lack of jurisdiction – must be filed before action barred by laches.
4. Effects of judgment of annulment – gives the CA authority to order the
trial court on motion to try the case if the ground for annulment is
extrinsic fraud, but not if it is lack of jurisdiction.
 Prescriptive period for refiling the original action is suspended unless
the extrinsic fraud is attributable to the plaintiff in the original action.
RULE 48 PRELIMINARY CONFERENCE
1. Failure of the appellant to appear at the preliminary conference is a
ground to dismis the appeal. (See §1[h], Rule 50 and § 5[e], Rule 56)
2. Rule 48 is applicable to the SC in original and appealed cases. (See §§ 2
and 4, Rule 56)
RULE 49 ORAL ARGUMENT
 MOTIONS SHALL NOT BE SET FOR HEARING; unless the court
otherwise directs, no hearing or oral argument shall be alowed in support
thereof. (Thus, motions filed in the CA need not contain a notice of hearing
anymore)
RULE 50 DISMISSAL OF APPEAL
1. Grounds for dismissal of appeal by the CA:
a. Failure of the record on appeal to show on its face that the appeal
was taken within the reglementary period;
b. Failure to file the notice of appeal or record on appeal within the
period;
c. Failure of the appellant to pay the docket and other lawful fees;
d. Unauthorized alterations, omissions, or additions in the approved
record on appeal;
e. Failure of the appellant to serve and file the required number of
copies of his brief or memorandum within the time provided;
f. Absence of specific assignment of errors in appellant’s brief or page
references to the record;
g. Failure of the appellant to take necessary steps for the completion or
correction of the record within the time limited by the order;
h. Failure of appellant to appear at the preliminary conference or to
comply with orders, circulars, or directives of the court without
justifiable cause
i. Judgment or order appealed from is not appealable.
RULE 51 JUDGMENT
1. Memorandum decisions are permitted in the CA.
2. After judgment or final resolution of the CA and dissenting or
separate opinions if any, are signed by the Justices taking part, they shall
be delivered for filing to the clerk who shall indicate thereon the date of
promulgation and cause true copies to be served upon parties or
counsel.
3. Date when judgment or final resolution becomes executory
shall be deemed as date of entry.
RULE 52 MOTION FOR RECONSIDERATION
1. Period for filing: Within 15 days from notice of judgment or final resolution
2. There must be proof of service on the adverse party.
3. PENDENCY OF A MOTION FOR RECONSIDERATION STAYS THE
EXECUTION OF JUDGMENT unless the court, for good reasons, directs
otherwise.
RULE 53 NEW TRIAL
1. When to file: Any time after the appeal from the lower court has been
perfected AND before the CA loses jurisdiction over the case
2. Ground: newly discovered evidence ONLY
3. Must be accompanied by affidavits of merit
4. Same procedure followed as in new trials before the RTC
RULE 54 INTERNAL BUSINESS
1. Cases of the CA are allotted among different divisions.
2. When CA should sit en banc:
a. to make proper orders or rules to govern the allotment of cases
among divisions;
b. to make rules on the constitution of divisions;
c. to make rules on the regular rotation of Justices;
d. to make rules on the filling of vacancies; and
e. to make rules on other matters relating to the business of the
court.
3. What constitutes quorum:
a. en banc – majority of actual members of the court shall constitute a
quorum
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b. division – 3 members shall constitute a quorum.
4. Number of affirmative votes necessary to pass a resolution/pronounce
judgment:
a. en banc – affirmative votes of the majority of the members of those
present
b. division – affirmative votes of 3 members.
RULE 55 PUBLICATION OF JUDGMENTS AND FINAL RESOLUTIONS
 Judgments and final resolutions of the court shall be published in the
Official Gazette and in the Reports officially authorized by the court
(Philippine Reports/SCRA).
RULE 56 PROCEDURE IN THE SUPREME COURT
1. Original cases cognizable – exclusive list:
a. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas
corpus;
b. Disciplinary proceedings against judges and attorneys;
c. Cases affecting ambassadors, other public ministers, and consuls.
2. An appeal to SC can only be taken by petition for review on certiorari,
except in criminal cases where the penalty imposed is death, reclusion
perpetua, or life imprisonment.
3. Grounds for dismissal of appeal by SC
a. Failure to take appeal within the reglementary period;
b. Lack of merit in the petition;
c. Failure to pay the requisite docket fee and other lawful fees or to
make deposit for costs;
d. Failure to comply with the requirements regarding proof of service
and contents of and the documents which should accompany the
petition;
e. Failure to comply with any circular, directive or order of the SC
without justifiable cause;
f. Error in choice or mode of appeal
g. Case is not appealable to the SC.
4. Discretionary upon SC (and CA) to call for preliminary
conference similar to pre-trial.
5. General Rule: Appeal to SC by notice of appeal shall be
dismissed.
Exception: In criminal cases where the penalty imposed is life
imprisonment, or when a lesser penalty is imposed but
involving offenses committed on the same occasion or
arising out of the same occurrence which gave rise to the
more serious offense for which the penalty of death or life
imprisonment is imposed (Section 3, Rule 122)
6. Appeal by certiorari from RTC to SC submitting issues of fact
may be referred to the CA for decision or appropriate action, without
prejudice to considerations on whether or not to give due course to the
appeal as provided in Rule 45.
PROVISIONAL REMEDIES
Provisional remedies (ancillary/auxiliary)
 Writs and processes available during the pendency of the action which
may be resorted to by a litigant to preserve and protect rights and
interests therein pending rendition, and for the purpose of ultimately
affecting a final judgment in the case.
 PROVISIONAL - constituting temporary measures availed of during the
pendency of the action.
 ANCILLIARY - incidents in and dependent on the result of the main
action.
RULE 57 PRELIMINARY ATTACHMENT
1. Preliminary Attachment
a. Available even if the recovery of personal property is only an
incidental relief sought in the action;
b. May be resorted to even if the personal property is in the custody of
a third person;
c. Extends to all kinds of property, real or personal or incorporeal;
d. To recover possession of personal property unjustly detained,
presupposes that the same is being concealed, removed, or
disposed of to prevent its being found or taken by the applicant;
e. Can still be resorted to even if the property is in custodia legis, as
long as the property belongs to the defendant, or is one in which he
has proprietary interests, AND with permission of the court
2. Grounds
a. Recovery of specified amount of money and damages, except moral
or exemplary, where party is about to depart from the Phils with
intent to defraud creditors;
b. Action for money or property embezzled or for willful violation of duty
by public officers, officers of corporation, agent, or fiduciary;
c. Recovery of possession of property (both real and personal) unjustly
detained, when the property is concealed or disposed of to prevent
its being found or taken;
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d. Action against party guilty of fraud in contracting the debt or incurring 5. Application for discharge may only be filed with the court where the
the obligation or in the performance thereof;
e. Action against party who is concealing or disposing of property, or is
about to do so, with intent to defraud creditors;
f. Action against party who is not a resident of the Phils and cannot be
found therein or upon whom service by publication can be made.
3. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
Enforcement of writ of preliminary attachment must be preceded
by or simultaneously accompanied by service of summons, copy of
complaint, application and affidavits for the attachment and the bond
upon the adverse party; BUT the requirement of prior or
contemporaneous service of summons shall not apply where the
summons could not be served despite diligent efforts, or the defendant is
a resident of the Phils temporarily absent therefrom, or the defendant is a
non-resident of the Phils or the action is in rem or quasi in rem.
Preliminary Injunction Prohibition
Generally directed against party to Directed against a court, tribunal, or
the action but may be against any person exercising judicial powers
person
Does NOT involve the jurisdiction of May be on the ground that the court
the court against whom the writ is sought acted
without or in excess of jurisdiction;
May be main action itself or just a Always a main action
provisional remedy in the main
action
4. When preliminary attachment is discharged
a. Debtor posts a counterbond or makes requisite cash
deposit- if attachment to be discharged is with respect to particular
property, counterbond or deposit shall be equal to the value of the
property as determined by the court; in all other cases, amount of
counterbond should be equal to the amount fixed in the order of
attachment.
 CASH DEPOSIT OR COUNTERBOND SHALL SECURE THE
PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY
MAY RECOVER
b. Applicant’s bond is insufficient or sureties fail to
justify;
c. Attachment was improperly or irregularly issued;
d. Property attached is exempt from execution;
e. Judgment is rendered against attaching party;
f. Attachment is excessive – discharge is with respect
to the excess
action is pending and may be filed even before enforcement of the writ
so long as there has been an order of attachment.
6. When to apply for damages against the attachment bond
a. Before trial;
b. Before appeal is perfected;
c. Before judgment becomes executory;
d. In the appellate court for damages pending appeal, before judgment
becomes executory.
7. When judgment becomes executory, sureties on counterbond to lift
attachment are charged and can be held liable for the amount of
judgment and costs upon notice and summary hearing. There is no need
to first execute judgment against the judgment obligor before proceeding
against sureties.
8. Claims for damages cannot be subject of independent action
except:
a. When principal case is dismissed by the trial court
for lack of jurisdiction without giving the claiming party opportunity to
prove claim for damages;
b. When damages sustained by a third person not a
party to the action.
RULE 58 PRELIMINARY INJUNCTION
1. Preliminary injunction distinguished from Prohibition
2. Grounds for Preliminary Injunction
a. Plaintiff is entitled to relief sought which consists in restraining or
requiring the performance of acts (latter is preliminary mandatory
injunction);
b. The commission of acts or non-performance during pendency of
litigation would probably work injustice to the plaintiff;
c. Defendant is doing or about to do an act violating plaintiff’s rights
respecting the subject of the action and tending to render judgment
ineffectual.
3. Injunction may be refused or dissolved when:
a. Complaint is insufficient;
b. Defendant is permitted to post a counterbond it appearing that he
would sustain great and irreparable injury if injunction granted or
continued while plaintiff can be fully compensated;
c. Plaintiff’s bond is insufficient or defective
4. No Preliminary Injunction or TRO may be issued without posting of bond
and notice to adverse party and hearing.
5. PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION:
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 When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala court, shall be raffled
only after NOTICE to and IN THE PRESENCE of the adverse party
or the person to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied by service of
summons, together with a copy of the complaint and the applicant’s
affidavit and bond, upon the adverse party in the Phils; BUT the
requirement of prior or contemporaneous service of summons shall
NOT apply where the summons could not be served despite diligent
efforts, or the defendant is a resident of the Phils temporarily absent
therefrom, or the defendant is a non-resident of the Phils
 Difference with principle in preliminary attachment – In attachment,
the principle applies only in the implementation of the writ, while in
applications for injunction or TRO, this principle applies before the
raffle and issuance of the writs or TRO.
6. TRO good for only 20 days from service; 60 days for CA; until further
orders from SC.
7. TRO can be issued ex parte only if matter of grave urgency and plaintiff
will suffer grave injustice and irreparable injury. Good for 72 hours from
issuance, within which judge must comply with service of summons,
complaint, affidavit and bond, and hold summary hearing to determine
whether TRO should be extended for 20 days. In no case can TRO be
longer than 20 days including 72 hours.
8. No TRO, preliminary injunction or preliminary mandatory injunction may
issue against the government in cases involving implementation of
government infrastructure projects. (Garcia vs. Burgos, reiterated in
Administrative Circular no. 7-99, promulgated June 25,1999)
RULE 59 RECEIVERSHIP
1. When receiver may be appointed:
a. Party has an interest in the property or fund subject of the action and
such is in danger of being lost, removed, or materially injured;
b. Action by mortgagee for foreclosure of mortgage when the property
is in danger of being wasted or materially injured and that its value is
probably insufficient to discharge the mortgage debt, OR that the
parties have stipulated in the contract of mortgage;
c. After judgment, to preserve the property during the pendency of the
appeal, or to dispose of it, or to aid in execution when execution has
been returned unsatisfied or the judgment debtor refuses to apply his
property to satisfy judgment, or to carry out the judgment.
d. When appointing one is the most convenient and feasible means to
preserve, administer, or dispose of the property in litigation.
2. When receivership may be denied/lifted
a. Appointment sought is without sufficient cause;
b. Adverse party files sufficient bond for damages;
c. Applicant or receiver’s bond is insufficient.
3. Both the applicant for the receivership and the receiver appointed must
file separate bonds.
4. In claims against the bond, it shall be filed, ascertained and granted
under the same procedure as Section 20, Rule 57, whether it be
damages against the applicant’s bond for the unlawful appointment of the
receiver or for enforcing the liability of the sureties of the receiver’s bond
by reason of the receiver’s management (in the latter case, no longer
need to file a separate action).
RULE 60 REPLEVIN
1. Replevin
a. Available only where the principal relief sought in the action is the
recovery of possession of personal property;
b. Can be sought only where the defendant is in the actual or
constructive possession of the personal property involved.
c. Extends only to personal property capable of manual delivery;
d. Available to recover personal property even if the same is NOT being
concealed, removed, or disposed of;
e. Cannot be availed of if property is in custodia legis, as where is it
under attachment, or was seized under a search warrant or
distrained for tax assessment.
2. Defendant entitled to return of property taken under writ if:
a. He seasonably posts redelivery bond
b. Plaintiff’s bond is insufficient or defective
c. Property is not delivered to plaintiff for any reason.
 Replevin bond is only intended to indemnify defendant against any
loss that he may suffer by being compelled to surrender the
possession of the disputed property pending trial of the action. Thus,
surety is not liable for payment of judgment for damages rendered
against plaintiff on a counterclaim for punitive damages for fraudulent
or wrongful acts committed by the plaintiffs which are unconnected
with the defendant’s deprivation of possession by the plaintiff.
RULE 61 SUPPORT ‘PENDENTE LITE’
1. When filed:
a. At the commencement of the proper action or proceeding OR
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b. At any time prior to the judgment or final order b. who may file: (in successive order)
2. Application: i. offended party
a. Verified ii. her parents
b. Filed by any party iii. grandparents or guardian
c. State the grounds for the claim and financial conditions of both iv. State
parties 9. Restitution
d. Accompanied by affidavits, depositions or other authentic documents a. When applicable: when the judgment or final order of the court finds
in support thereof. that the person who has been providing support pendent elite is not
3. Process: liable therefore
a. Application filed in court and served with adverse party b. What court may order recipient: return the amounts already paid
b. Adverse party files comment within 5 days (unless different period is  with legal interest from the dates of actual payment
fixed) from service of application.  without prejudice to the right of the recipient to obtain reimbursement
c. Application is set for hearing not more than 3 days after comment is in a separate action from the person legally obliged to give support.
filed, or after the expiration of the period for its filing. c. If recipient fail to reimburse: person who provided the same may
4. What court shall do: likewise seek reimbursement thereof in a separate action from the
a. Determine provisionally the pertinent facts, AND person legally obliged to give support.
b. Render such orders as justice and equity may require, having due
regard to the probable outcome of the case and such other SPECIAL CIVIL ACTIONS
circumstances as may aid in the proper resolution of the question 1. Types of Special Civil Actions
involved. a. Mandamus
5. If application is granted: court shall fix the amount of money to be b. Interpleader
provisionally paid or such other forms of support as should be provided. c. Certiorari
 what court shall take into account: d. Contempt
a. necessities of the applicant e. Prohibition
b. resources or means of the adverse party f. Eminent Domain
c. terms of payment or mode for providing support. g. Declaratory Relief
6. If application is denied: principal case shall be tried and decided as early h. Quo warranto
as possible. i. Partition of real estate
7. Enforcement of order: j. Foreclosure of mortgage
a. If the adverse party fails to comply with an order granting support k. Unlawful detainer
pendent elite: order of execution, without prejudice to liability for l. Forcible Entry
contempt
b. If the person ordered to give support pendent elite refuses or fails to RULE 62 INTERPLEADER
do so and a 3rd party furnished that support to the applicant: 3rd party 1. Interpleader
may, after due notice and hearing in the same case, obtain a writ of a. Original action
execution to enforce his right of reimbursement. b. Presupposes that the plaintiff has no interest in the subject matter of
8. Support in criminal cases the action or has an interest therein which, in whole or part, is not
a. when applicable: disputed by the other parties to the action;
i. in criminal actions where the civil liability includes support for c. Complaint in interpleader must be answered 15 days from service of
the offspring as a consequence of the crime AND summons
ii. the civil aspect thereof has not been waived, reserved or
instituted prior to its filing RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES
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1. Requisites for action for declaratory relief:
a. Subject matter of controversy is a deed, will, contract, or other
written instrument, statute, executive order, or regulation, or
ordinance;
 Court may refuse to adjudicate where decision would not
terminate the uncertainty or controversy which gave rise to the
action OR where the declaration is not necessary and proper at
the time;
b. Terms and validity thereof are doubtful and require judicial
construction;
c. No breach of the document, otherwise ordinary civil action is the
remedy;
 Must be before breach is committed, as in the case where the
petitioner paid under protest the fees imposed by an ordinance.
Declaratory relief still proper because the applicability of the
ordinance to future transactions still remains to be resolved,
although the matter could be threshed out in an ordinary suit for
the recovery of the fees paid.
d. There is an actual justiciable controversy between persons whose
interests are adverse;
e. The same is ripe for adjudication;
f. Adequate relief is not available through other means or other forms
of action or proceeding.
RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION
ON ELECTIONS AND THE COMMISSION ON AUDIT
 For petition for review of judgments and final orders of the COMELEC
and COA – period to file is 30 days to be counted from notice of the
judgment or final order or resolution sought to be reviewed and not from
the receipt of the denial of the Motion for Reconsideration; the period to
file petition is merely interrupted by the filing of the Motion for
Reconsideration and continues to run again for the remaining period
which shall not be less than 5 days from notice of denial.
RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS
1. Certiorari
a. Purpose – to correct an act performed by respondent;
b. Act sought to be controlled – discretionary acts;
c. Respondent – one who exercises judicial functions and acted with
grave abuse of discretion or in lack or excess of jurisdiction.
d. Generally directed against an interlocutory order of the court prior to
appeal from the judgment in the main case;
e. Need merely be filed seasonably (within 60 days), without undue
delay and before the act, order, or proceedings, sought to be
reviewed or set aside has become fait accompli such that any
reversal thereof shall have become academic;
f. Unless a writ of preliminary injunction shall have issued, does NOT
stay the challenged order;
g. Parties are the aggrieved parties against the lower court or quasi-
judicial agency and the prevailing parties;
h. Motion for reconsideration is a condition precedent, subject to certain
exceptions;
i. Higher court exercises original jurisdiction under its power of control
and supervision over the orders of lower courts.
 If CA reverses the judge, the latter may not go the SC via a
petition for certiorari. He is merely a nominal party, and he
should not seek the reversal of a decision that is unfavorable to
the action taken by him.
 Professional Regulation Commission vs. CA – It is well settled
that the remedies of ordinary appeal and certiorari are mutually
exclusive, not alternative or successive. However, it has also
been held that after a judgment has been rendered and an
appeal therefrom had been perfected, a petition for certiorari
relating to certain incidents therein may prosper where the
appeal does not appear to be a plain, speedy and adequate
remedy. In this case, the SC noted that, while petitioners tried to
justify their recourse to both an appeal and to a petition for
certiorari by claiming that their appeal would not constitute a
plain, speedy and adequate remedy, they did not see fit to
withdraw or abandon said appeal after filing the petition. Thus,
both the CA and SC are reviewing the same decision of the RTC
at the same time. Such a situation would lead to absurdity and
confusion in the ultimate disposition of the case.
2. Prohibition
a. Purpose – to prevent the commission or carrying out of an act;
b. Act sought to be controlled – discretionary and ministerial acts;
c. Respondent – one who exercises judicial or non-judicial functions.
3. Mandamus
a. Purpose – to compel the performance of the act desired;
b. Act sought to be controlled – ministerial act;
c. Respondent – one who performs judicial or non-judicial functions.
4. When SC allows the writ of certiorari even when appeal is
available and proper:
a. Appeal does not constitute a speedy and adequate remedy;
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b. Orders were issued either in excess of or without jurisdiction;
c. For certain special considerations, such as public welfare or policy;
d. Where in criminal actions, the court rejects rebuttal evidence for the
prosecution, as in acquittal;
e. Where the order is a patent nullity;
f. Where the decision in the certiorari case will avoid future litigation.
5. Cases where Motion for Reconsideration is NOT condition
precedent for certiorari:
a. Order is a patent nullity;
b. Questions raised in the certiorari proceeding were duly raised and
passed upon by the lower court, or are the same as those raised and
passed upon in the lower court;
c. Urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the government;
d. Under the circumstances, a motion for recon would be useless;
e. Petitioner was deprived of due process and there is extreme urgency
for relief;
f. Where in a criminal case, relief from order or arrest is urgent and the
granting of such relief by the trial court is improbable;
g. Proceedings in the lower court are null for lack of due process;
h. Proceeding was ex parte or in which petitioner had no opportunity to
object;
i. Issue raised is one purely of law or where public interest is involved.
6. The period for filing any of the 3 actions is not later than 60 days
from notice of judgment, order, or resolution sought to be reviewed.
 In case a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the 60-day period shall be
counted from notice of the denial of said motion. (SC Circular 56-
2000, effective September 1, 2000)
 No extension of time to file the petition shall be granted except for
compelling reason and in no case exceeding 15 days. (SC Circular
56-2000)
RULE 66 QUO WARRANTO
1. Quo Warranto distinguished from Election Contest:
Quo Warranto Election Contest
Basis is that occupant is disqualified Challenge rights of a person to hold
from holding office by reason of office on the ground of irregularities in
ineligibility or disloyalty the conduct of the election
If successful, respondent is ousted Successful protestant will assume office
but petitioner shall not automatically if he had obtained plurality of valid votes
assume the office vacated
RULE 67 EXPROPRIATION
1. In expropriation, the complaint must be verified.
2. The defendant can only file an answer instead of a motion
to dismiss
3. The final order of expropriation is appealable, but the lower
court may determine the just compensation to be paid.
 The power of eminent domain is exercised by the filing of a complaint
which shall join as defendants all persons owning or claiming to own,
or occupying, any part of the expropriated land or interest therein. If
a known owner is not joined as defendant, he is entitled to intervene
in the proceedings; or if he is joined but not served with process and
the proceeding is already closed before he came to know of the
condemnation, he may maintain an independent suit for damages.
RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE
1. What complaint shall set forth:
a. date and due execution of the mortgage
b. its assignments, if any
c. the names and residences of the mortgagor and the mortgagee
d. a description of the mortgaged property
e. a statement of the date of the note or other documentary evidence of
the obligation secured by the mortgage
f. the amount claimed to be unpaid thereon
g. the names and residences of all persons having or claiming an
interest in the property subordinate in right to that of the holder of the
mortgage, all of whom shall be made defendants in the action.
2. What the court shall do, if upon trial, it find the facts set forth in the
complaint to be true:
d. Ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and other charges as
approved by the court, and costs AND
e. Render judgment for the sum so found due and
order that the same be paid to the court or to judgment obligee
i. within what period: within a period of not less than 90 days nor
more than 120 days from entry of judgment
ii. in default of such payment: such property shall be sold at
public auction to satisfy the judgment.
3. Effect when defendant fails to pay the amount of the judgment within the
period specified
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a. Court, upon motion, shall order the property to be sold in the manner ii. The entire debt and costs shall be paid, if the proceeds of the
and under the provisions of Rule 39 and other regulations governing sale be sufficient therefore, there being a rebate of interest
sales of real estate under execution. where such rebate is proper.
b. Sale shall not affect the rights of persons holding prior 6. Deficiency judgment
encumbrances upon the property or a part thereof Court, upon motion, shall render judgment against the defendant for any
c. When confirmed by an order of the court, upon motion, sale shall balance for which, by the record of the case, he may be personally liable
operate to: to the plaintiff
i. divest the rights in the property of all the parties to the action  if balance is all due at the time of the rendition of the judgment:
and to execution may issue immediately
ii. vest their rights in the purchaser, subject to such rights of  otherwise: plaintiff shall be entitled to execution at such time as
redemption as may be allowed by law. the balance remaining becomes due under the terms of the
4. Possession original contract, which time shall be stated in the judgment
a. General Rule: When purchaser at the auction sale or last 7. If no right of redemption exists: the certificate of title in the name of the
redemptioner entitled to possession: mortgagor shall be cancelled and a new one issued in the name of the
i. upon finality of the order of confirmation OR purchaser.
ii. upon expiration of the period of redemption when allowed by 8. If right of redemption exists:
law a. Certificate of title in the name of the mortgagor shall not be cancelled
b. Unless: a 3rd party is actually holding the same adversely to the b. Certificate of sale and the order confirming the sale shall be
judgment obligor registered
c. Said purchaser or last redemptioner may secure a writ of c. A brief memorandum thereof shall be made by the registrar of deeds
possession, upon motion, from the court which ordered the upon the certificate of title.
foreclosure. 9. If property is redeemed:
4. How proceeds of sale to be disposed: a. Deed of redemption shall be registered with the registry of deeds
a. Costs of sale b. A brief memorandum thereof shall be made by the registrar of deeds
b. Mortgaged debt due 10. If property is not redeemed:
c. Junior encumbrances in the order of their priority to be ascertained a. The final deed of sale shall be registered with the registry of deeds
by the court b. The certificate of title in the name of the mortgagor shall be cancelled
d. To the mortgagor or his duly authorized agent or to the person and a new one issued in the name of the purchaser
entitled to it.
5. How sale to proceed in case the debt is not all due RULE 69 PARTITION
a. General Rule: 1. Complaint
i. A sufficient portion of the property is sold to pay the total a. Shall set forth nature and extent of title and an adequate description
amount and the costs due of the real estate of which partition is demanded
ii. Thereafter sale shall terminate b. Shall join as defendants all persons interested in the property
iii. Afterwards, court may, on motion, order more to be sold as 2. Order of partition
often as more becomes due for the principal or interest and a. Issued if after trial the court finds that the plaintiff has the right
other valid charges thereto
b. Except: if property cannot be sold in portions without prejudice to the b. Thereupon the parties may, if they are able to agree, make the
parties: partition among themselves by proper instruments of conveyance
i. Whole shall be ordered to be sold in the first instance  The court shall confirm the partition so agreed upon by all the
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 Such partition, and the order of the court confirming the same, a. When purpose of action is to terminate lease because of expiry of
shall be recorded in the registry of deeds of the place in which term and not because of failure to pay rental or to comply with terms
the property is situated. of lease contract;
c. May be appealed by any aggrieved party b. Purpose of suit is not for ejectment but for enforcement of terms of
d. If parties unable to agree upon partition: court shall appoint not more contract;
than 3 commissioners to make the partition c. When defendant is not a tenant but a pure intruder
3. Duties of commissioners  In all other cases, there must be a demand:
a. View and examine the real estate, after due notice to the parties to i. To pay or to comply with the conditions of the lease; AND
attend at such view and examination ii. To vacate by written notice on the person in the premises or
b. Hear the parties as to their preference in the portion of the property by posting such notice on the premises if no person is found
to be set apart to them and the comparative value thereof thereon and this is a condition precedent to the filing of the
c. Set apart the same to the parties in lots or parcels as will be most case; ORAL demand is not permitted.
advantageous and equitable, having due regard to the iii. If demand is in the alternative (pay OR vacate), this is NOT the
improvements, situation and quality of the different parts thereof. demand contemplated by the Rules.
3. When the defendant raises the issue of ownership in his pleadings and
the question of possession cannot be resolved without deciding the issue
of ownership, the latter issue shall be resolved only to determine the
issue of possession.
 A forcible entry/unlawful detainer action has an entirely different
subject matter from that of an action for reconveyance. The former
involves material possession, and the latter, ownership. Thus, the
pendency of an action for reconveyance does not divest the MTC of
its jurisdiction over an action for FE/UD, nor will it preclude execution
of judgment in the ejectment case where the only issue involved is
material possession.

RULE 71 CONTEMPT
1. Criminal contempt
RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER a. Purpose is to vindicate public authority;
1. Forcible entry distinguished from Unlawful detainer b. Conduct directed against the dignity or authority of the court.
2. When prior demand in unlawful detainer actions not required; 2. Civil Contempt
Forcible entry Unlawful detainer
a. Purpose is to protect and enforce civil rights and remedies for the
Possession of land is unlawful from Possession of defendant is
litigants;
the beginning due to force, inceptively lawful but becomes illegal
b. Failure to do something ordered by the court for the benefit of a
intimidation, threat, strategy or by reason of termination of right of
party.
stealth possession
3. Direct Contempt (contempt in facie curiae)
No requirement of previous Demand is jurisdictional
a. Committed in the presence of or so near a court or judge;
demand for defendant to vacate
b. Punished summarily without hearing;
premises
c. No appeal may be taken but the party adjudged in contempt may
Plaintiff must prove that he was in Plaintiff need not have been in prior avail himself of actions of certiorari or prohibition which shall stay the
prior physical possession until he physical possession execution of the judgment, provided a bond fixed by the court is filed.
was deprived thereof by defendant
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a. Not committed in the presence of the court;
b. Punished only after hearing – complaint in writing or motion or party
or order of court requiring person to appear and explain, opportunity
to appear and show cause.

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